(1988)1988February23 [SAVVIDES,J.] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION ANDREASIOANNOU, Applicant, v. THEREPUBLICOFCYPRUS, THROUGH THEPUBLICSERVICECOMMISSION, Respondent. (CaseNo. 691/86). PublicOfficers—Promotions—Confidentialreports—Wholecareerofofficers shouldbetakenintoconsideration, butmoreweightshouldbeattachedto themorerecentconfidentialreports. PublicOfficers—Promotions—HeadofDepartment—Recommendations of— Significance. c Theapplicantchallengesthedecision topromotetheinterestedparty, to thepostofSeniorAuditorintheAudit Office. Thedecision was taken by majority. Therespondent madeanalytical reference tothereportsof thecandidatessince1979 andfound thatthein terested party was superior totheapplicantexceptinthelasttwo reports, ιΛ wheretheapplicant was slightly better. Both parties wererated as "very good" intheirlasttworeports.Theslightsuperiorityof theapplicantisin theratingonthespecific items. Theapplicant,who was senior totheinterested party by oneyearand had,also, longer service, had been recommended for promotionby the Headof theDepartment Held,annulling thesubjudicedecision:
(1)Thewholecareerofcandi dates for promotion should be taken intoconsideration but moreweight 304 jc 3 C.L.R. Ioannou v.Republic shouldbeattachedtothelastreports.TherecommendationsoftheHeadof theDepartmentcountinfavourofthecandidatesorecommended,goingto hismerit 5
(2)Inthiscasemoreweightwasplacedbytherespondentsonthepast reportsofthecandidatesthanonthemostrecentones.Italsoseemsthatthe recommendationsoftheHeadoftheDepartmentwerenotdulyweighed. Subjudicedecisionannulled. Noorderastocosts. Casesreferredto: 10 PhilotheouandOthersv.Republic
(1985)3C.L.R.662; Soteriadouv.Republic
(1985)3C.L.R. 300; Gava v. TheRepublic
(1985)3C.L.R.1390; Makrisv.TheRepublic
(1985)3C.L.R. 1103; Republicv.Hans
(1985)3CLJt. 106. .. Recourse. Recourse against thedecisionoftherespondent topromotethe interested party to the post of Senior Auditor in the Audit Department inpreference andinsteadofthe applicant A. 5.Angelides, for the applicant. 20 A. Papasavvas, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAWIDES J. read the following judgment. The applicant 25 hereby challenges the decision of the respondent topromote N. Argatides, the interested party, to the post of Senior Auditor in 305 SavvidesJ. Ioannou v.Republic
(1988)theAuditOffice, which waspublished in theofficial Gazetteof theRepublicdated26thSeptember,1986. Theapplicantandtheinterestedpartywereholdingthepostof Auditoratthematerial time.Asaresultofarequestmadetothe respondentforthefilling ofavacancyinthepostofSeniorAudi- 5 tor a Departmental Committee was set up,which by its report submitted totherespondent byletterdatedthe2ndJune,1986, recommended four candidates for the post, amongst whom the applicantandtheinterestedparty. Therespondentmetonthe3rdJuly, 1986andheardtheviews 10 oftheAuditor-General (theHeadoftheDepartment)whorecommendedtheapplicantforpromotiontothevacantpost. Therespondentthen,after makinganalytical reference tothe confidential reportsofthecandidatessince 1979,andtakingalso intoaccountthefactor ofseniority,proceededtofillthevacancy. 15 Twoof thefour memberspresent,including theChairman,preferred theapplicant, whiletheothertwopreferred theinterested party. Inview of the fact that nodecision wasreached, therespondent decided to reconsider the matter at another meeting, with the participation of its absent member so that a decision 20 couldbereached. The respondent met again on the 14th July, 1986, with the participation of all its five members and heard once again the viewsoftheHeadoftheDepartmentwhichwereasfollows: "Theperformance ofthecandidatesduringthecurrentyear 25 isapproximatelyonthesamelevelasinthelastyear. Takingintoconsideration themerit,qualifications andseniority,herecommendedAndreasIoannouforpromotion". Therespondent then went again analytically through thereportsof thecandidatesfortheyears 1979- 1985andhavingalso 30 notedtheorderofseniorityofthecandidatesproceededtothese306 3 C.L.R. Ioannou v. Republic Savvides J. lection, by majority of three to two,of the interested party. The two dissenting members found that the applicant should have been preferred. 5 10 The subjudice decision waspublished in theofficial Gazette of the Republic dated the 26th September, 1986 as a result of whichtheapplicantfiled thepresentrecourse. Counselfor theapplicantarguedthattheapplicantshouldhave been preferred for promotion in view of his seniority, his superiority over theinterested party inthelasttworeports which have more bearing than the previous ones and the recommendation of theHeadof theDepartment which goestothe meritoftheapplicant. 15 Counsel for the respondent maintained that the respondent acted within thelimitsof itsdiscretionary power andthat the sub judicedecision wasreasonably opentoit. 20 Before dealing with theissuesraised Iconsideritnecessary to makeabriefreference tothecontentsof the subjudice decision, as set out in the minutes of the respondent dated the 14th July, 1986,andmore specifically tothereasonsgiven bythemembers of therespondent for makingtheirrespectiveselections. 25 30 Mr. Hadjiprodromou, whovoted in favour of the applicant, stated that he did not find Argatides (the interested party) to be superior to the applicant, whose performance was better in the last two years and also during the current year. As a result he found that there was no reason to disregard the applicant's seniority and the recommendations of the Head of the Department. TheChairman oftherespondent took thesameview and added that inaccordance withourcase law theconfidential reports asa whole should be taken into consideration but special emphasis should beplacedon thelasttwo.Heconcluded by stating thatthe interested party was superior in theprevious reports, but taking 307 Savvides J. Ioannou v. Republic
(1988)intoconsideration thesuperiority oftheapplicant inthelasttwo reports,hisseniority andthefact thathehaslongerservicethan the interested party there was no reason to disregard the recommendationsoftheHeadoftheDepartment. The other three members stated that the superiority of the 5 applicantinthelasttworeportswassmallincomparison withthat of theinterested partyinthepreviousreportsandfound thatthe small seniority of the applicant (being only one year) wasnot such as topersuade them tofollow therecommendationof the HeadofDepartment. 10 Theparamount duty of therespondent organ is toselect the bestcandidateforpromotionandthisCourtwillnotinterferewith its discretion provided such discretion was exercised properly after the respondent has duly taken into consideration and weighed properly allrelevant factors. Therespondent mustalso 15 givespecialreasonsfordisregardingtherecommendationsofthe HeadoftheDepartment. Itisevidentfromthecontentsofthesubjudicedecisionthatall material factors pertaining to the candidates were taken into consideration by the respondent. The fact that the subjudice 20 decision wastaken by amajority isimmaterial. What hastobe considered iswhether suchdecisionwasreasonablyopen tothe respondent,after allmaterial factors wereproperlyweighedbyit. Therespondentmadeanalyticalreference tothereportsofthe candidates since 1979 and found that theinterested party was 25 superiortotheapplicantexceptinthelasttworeports,wherethe applicant was slightly better. Both parties were rated as "very good" in their last two reports. The slight superiority of the applicant is in the rating on the specific items. That is the applicant was rated as "excellent" in four-items and as "very -,Q good" in eight in 1984 whilst theinterested party wasrated as "excellent " in three items and as "very good" in nine, for the sameyear. In 1985theapplicant wasratedas "excellent" insix itemsandas"verygood"inanothersixwhilsttheinterestedparty 308 3 C.L.R. Ioannou v.Republic Savvides J. wasrated as "excellent"infive andas "very good" in seven. It has been stated in a number of cases by this Court that although thewholecareerofcandidates for promotion should be taken intoconsideration, more weight should beattacted totheir last reports. (See Philotheou & others v.The Republic
(1985)3 C.L.R. 662; Soteriadou v. The Republic
(1985)3 C.L.R. 300). It hasalso been stressed thattherecommendations of theHeadof theDepartment count infavour ofthecandidatesorecommended, going to his merit. (See Cava v. The Republic
(1985)3 C.L.R. 1390; Makris v. The Republic
(1985)3 C.L.R. 1103; Republic v.Haris
(1985)3 C.L.R. 106). Theapplicant wasslightlybetterthan theinterested partyinhis last two confidential reports, he has been recommended by the Head of the Department, was senior by one year and had also longerservice than theinterested party. With theabovein mind Ifind that more weight wasplaced by therespondents on thepast reports of the candidates in reaching the subjudice decision instead of the most recent ones. It also seems that therecommendations of the Head of the Department were not duly weighed. If themembers of the Commission were in any doubt as to these recommendations, they could have invited the Head of the Department to give more explanations before proceeding toreach theirdecision. Itherefore find thatthe subjudicedecision hastobeannulled. In theresult thisrecourse succeeds andthe subjudice decision ishereby annulled with noorderforcosts. Subjudice decisionannulled. No orderasto costs. 309