(1988)1988 January21 [LORIS,J.] INTHEMATTER OFARTICLE146OFTHE CONSTITUTION MICHALAKISDEMETRIOUANDOTHERS, Applicants, v. THEREPUBLICOFCYRPUS,THROUGH THEPUBLICSERVICECOMMISSION, Respondent..(CasesNos. 572185,573185 and612/85). Executoryact—Intermediateacts—A confidentialreportfor apublicofficeris anintermediateact—Consequencesofinvalidityofsuchanact. PublicOfficer—Promotions—Confidentialreports—Circular491/79concern ing theirpreparation,para. 4—ReportsconcerningPublicOfficers made andcountersignedbyEducationalOfficers—Suchofficerswerenotentitled 5 toactastheyout—Moreover,therehasbeenaviolationofpara4 (a)ofthe Circular—Republicv.Argyrides
(1987)3CLJi. 1092followed. Theapplicantschallengethepromotionofthetwointerestedparties tothepermanentpostofSchoolClerk 1stgrade. Though theapplicantsand theinterestedpartieswerepublicofficers, 10 theirconfidential reportswerenotpreparedbytheirsuperiorsinthepublic service,butby the Headmasters of theSecondary Education Schools at which they wereservingatthetimeand theywerecountersignedbythe HeadofSecondaryEducation. Held,annullingthesubjudicedecision:
(1)Thosewhoactedasreport- 15 ingofficers andtheofficer, whoactedascountersigningofficer, wereη ; entitled toact,astheydid,becausetheyarenot"public",but"educational officers" inthesenseofsection2ofLaw10/69. 54 3 C.L.R. Demetriou and Others v. Republic
(2)Moreover,inthiscasetheconfidential reportswerepreparedcontrarytotheprovisionsofpara4(a)*ofCircular491/79. 5 10
(3)Following theapproach of thedecision inRepublic v. Argyrides
(1987)3C.L.R. 1092theconclusion isthat thesigning of theconfidentialreportsinquestionbyincompetentreportingandcountersigning officerscontrarytotheprovisionsofRegulation4affected thegeneralpicture ofthecandidates(wedonotknowwhattheirgradingwouldhavebeenhad they been marked by thecompetent underthe Lawand theRegulations PublicOfficer) andresultedtoanillegalityandviolationoftheprovisions ofArticle28oftheConstitution, Subjudicedecisionannulled. Noorderasto costs. Casesreferredto: Georghiadesv. Republic
(1982)3C.L.R.16; 15 Agrotis v.EA.C.
(1981)3C.L.R. 503; Karpasitis v.Republic
(1986)3C.L.R.1617; Republic v. Argyrides
(1987)3C.L.R.1092. Recourses. Recourses against the decision of the respondent to promote 20 the interested parties to the post or School Clerk 1st Grade in preference and instead of the applicants. A. S. Angelides, for applicants. A. Papasavvas, Senior Counsel of the Republic, for the respondent. 25 N. Andreou, for interested party D. Karayianni Cur. adv. vult. *Quotedatp58post. 55 Demetriou andOthers v. Republic
(1988)LORISJ.read thefollowingjudgment. Theapplicants inthe above three intituled recourses, which were heard together as presenting commonquestions of law andfact, challenge the pro motion of the two interested parties to the permanentpost of School Clerk 1st Gradeinperference toandinstead of theappli- 5 cants. Theimplications of noncompliancewithrule4of theRegula tionsgoverning thepreparationandsubmission of confidential re ports,(CircularNo.491 issueon26.3.79- supplemented byCir cular letterdated 11.11.83) is theforemost issuewhich falls for ίο determinationinthepresentproceedings. "Inmattersof promotionandinparticularthosemade under theproviso to section 44
(1)(a)of theLaw, confidential re portsareintermediateactsandtheascertainmentof theirinva. Hditybrings theinvalidity or all subsequent actsfor theissue 15 of which theactfound tobeillegal,constitutes alegalprere quisite". {Georghiades v. TheRepublic
(1982)2 C.L.R. 16 at p.28vide also Agrotis v. EA.C.
(1981)3 C.L.R. 503 at p. 513 and theauthoritiesreferred totherein). Thereason is obvious: "Confidential reportsaimtoprovidean accountof anofficer's abilities, senseof responsibility anddevo tiontoduty - most materialfactors reflecting onhissuitability for promotion" (Karpasitisv.Republic
(1986)3 C.L.R. 1617 atp. 1623). Inthecases underconsideration,itis common ground thatall applicants aswellastheinterestedpartiesarepublicofficers with in themeaning of the Public Service Law, 1967 (Law No.33/ 67). Itisalsocommongroundandmoreover itis apparentfromthe 30 confidential reports which arebefore me- andthey were before therespondentP.S.C.as well- thattheconfidential reportsof all 56 20 25 3 C.L.R. Demetriou and Others v.Republic Loris J. applicants and those of the interested parties, were prepared by the Headmasters of the Secondary Education Schools at which they were serving atthe time (whothus acted asReporting Officers)and they werecountersigned bytheHead of Secondary Ed5 ucation. Learned counsel for applicants submitted that byvirtue of the provisionsof para4of theRegulations governing the preparation and submission on Confidential Reports,theSenior School Clerk and the Chief School Clerk (who are public officers) ought to 10 havebeen instead thereporting andthecountersigning officers respectively. Learned counsel submitted further that the Headmasters of Secondary Education whoacted asreporting officers come under the Educational Service as envisaged by s. 2 of Law 10/69 as 15 amended (they do not hold apost in thePublic Service and they are not appointed or promoted by the Public Service Commission), whilst duties of supervision - and reporting - of School Clerksarenotenvisaged bythe Schemeof Serviceof theHeadof Secondary Education who acted as countersigning officer in the 20 instantcases. Counsel for applicantsconcluded that astheapplicants aswell as the interested parties were school clerks 2nd grade, i.e. holding a post in the Public Service at the materialtime, and as their confidential reports were signed and countersigned respectively 25 byofficers intheEducational Serviceandofficers outsidetheambitof theirduty (asenvisaged bytherelevant confidential reports which were mainly relied) their decisions, were invalid and thus thefinaldecision of therespondent -thesubiudicedecision -was vitiated. 30 Learned counsel for the respondent Commission submitted that theconfidentaial reportsof theinterested parties are sopositivethat applicants aredeprived ofany legitimatecomplaint inthe matter. Inthealternative hesubmitted thatany irregularity regarding thisissue is not of amaterial nature and cannot influence the 57 Loris J. Demetriou and Others v. Republic
(1988)legality orthesub-judice decision. Havingcarefully considered thematerial before meinthelight of arguments advanced byboth sidesandbearinginmind thenotionsof "Educational Officer" asdefined by s. 2 of Law 10/69, and "Public Officer" and "Public Service"asdefined inLaw 33/ 5 67, the provisions of circular 491/79 as well as the Scheme of Serviceof thereporting officer andCountersigning officer in the instantcases and furthermore the SchemeofServiceof the Chief School Clerk and Senior School Clerk, Ihold the view that neither aHeadmaster of Secondary Education nor theHead of Sec- 10 ondary Education could act asreporting and countersigning officersinthecaseof School Clerks,whichisthepresent case. In thecases underconsideration the confidential reports were notonly signed byareportingofficer whoisnotinthepublic service but they were prepared contrary to theprovisions of para 4 15 (a)ofCircular491/79 whichprovides thatthe "Reporting Officer should indispensably beanofficer whobyvirtueofhisdutieshas direct knowledgeof theworkof theofficer reported upon andcan thusexpress areliable andvalid opinion onhis work and capabilities and normally thereportingofficer shouldbetheofficer su- 20 pervising theofficer reported upon". Under therelevant schemeof service theofficer "responsible for the organisation, co-ordination, management, supervision, and control and effective function of the Secretariat of big Schools" istheSenior SchoolClerk andabovehimtheofficer re- 25 sponsible for the "organization, co-ordination and supervision of School Clerks"istheChief School Clerk. Theimplications ofnon compliance with theRegulations governing the preparation and submission of confidential reports have been recently dealt with by theFull Bench of this Court in 30 thecase of Republic v.Arghyrides
(1987)3C.L.R. 1092 where thefollowing were stated interalia atpp. 1098-
- "Asalready explained earlier in thisjudgment, the regula58 3C.L.R. 5 10 15 20 Demetriou and Others v.Republic LorisJ. donsconcerningthepreparationofconfidential reportswhich havebeenembodiedinCircular491/79andwhichreplacedthe General Orders which were in force priorto 1979inthisrespect,weremadebytheCouncilofMinistersintheexerciseof thepowersvestedinitundertheConstitution andLaw33/
- Such regulations are not subsidiary legislation in the strict sensebuthavetobestrictlycompliedwith.Thedeviationby thecountersigningofficerfromtheexpressprovisionsofsuch regulationsistantamounttoanillegality.Moreover,thesubjudicedecisionshouldbeannulledasviolatingArticle28ofthe Constitution.Everypublicofficer isentitledtoexpectthatthe procedureinthepreparationofconfidential reportscontemplatedbythe Regulations approved bytheCouncil of Ministers shouldbestrictlyadheredtoinallcaseswithoutany differentiation.AnyapplicationoftheRegulationsinadifferent manner ineachparticularcaseviolatestheprinciplethatapersonisentitled toequaltreatmentwhichissafeguarded underArticle28 of theConstitution. Wehave,therefore,reached theconclusion that the sub-judice decision should beannulled on this ground aswell". Following the approach adopted bytheFull Bench inArgyrides case (supra), I have reached the conclusion that in the presentcasetoo,thesigningof theconfidential reportsinquestion byincompetent reporting and countersigning officers con25 trarytotheprovisionsofRegulation4affected thegeneralpicture ofthecandidates (andwedonotknowwhattheirgradingwould havebeenhadtheybeenmarkedbythecompetentundertheLaw andtheRegulationsPublicOfficer) andresulted toanillegality andviolationof theprovisionsofArticle28oftheConstitution; 30 as therespondent commission hasobviously relied on suchreportsinselectingthemostsuitablecandidatesforpromotion,the sub-judicedecisionhastobeannulled. Inthe circumstances Iconsider it unnecessary toembarkon anyothergroundraisedinthepresentproceedings. 59 Loris J. Demetriou and Others v. Republic
(1988)Intheresultall aboveintituled recoursessucceedandthesub judicedecisionisherebyannulled. Lettherebenoorderastocosts Subjudicedecisionannulled. Noorderastocosts. 60