clr/1988/1988_3_737.pdf

(1988)When all relevant material as regards such qualification werecollected Lhe Commission met to consider the matter. All its five members were present. They unanimously decided thatthe interested party possessed the said qualification. Whereupon the two new members of the Commission withdrew from themeeting;theremaining threere-affirmed allother aspects 5 of theannulled decision and,asa result, theinterested party wasonceagain promoted to thesaid post. The preseit appeal is directed against the first instance judgment, whereby the recourse, which had been filed against thesaid new decision, wasannulled. 10 Held,allowingtheappeal:

(1)Theannulmentofanadministrativeactby this Court sweeps aside notonly theact itself, but,also,thereasons foundingit.Thereupon theadministration comes underaduty torestorethestatus quoanteand examine thematterafresh by reference tothefactual and legal background prevailing prior tothedecision. 15 The violationof theaforesaid principle inthiscasesuffices tolead tothe annulment of thesubjudice decision.

(2)In this case the final deliberations began in the presence of all the members of the Commission. Atsome stage two of them left the meeting on theerroneous view that theywere notentitled toparticipate in the final 20 decision. Such a withdrawal rendered thecomposition of the Commission defective. Thisisanother ground of annulment. Appeal allowed. Sub judice decision annulled.No ordersastocosts. _<- Casesreferredto: Mytides and Another v.TheRepublic

(1983)3C.L.R. 1096; The Republic v.Safirides

(1985)3C.L.R. 163; Kyprianides v.The Republic

(1968)3C.L.R.653; loannides v. TheRepublic

(1979)3C.L.R. 628; 738 30 3 C.L.R. Mytides v.Republic Panayiotouv. TheRepublic

(1972)3C.L.R. 337; Kyprianouv. TheRepublic

(1976)3C.L.R.210; Pissasv. TheRepublic

(1976)3C.L.R.30; Vivardiv. TheVinesProductsCouncil

(1969)3C.L.R.486; Decisions343/1939. 175311956, 10311957and 112811958 oftheGreek CouncilofState. Appeal. 10 Appealagainst thejudgment ofaJudgeof the Supreme Court of Cyprus (Demetriades, J.) given on the 24th January, 1987 (Revisional Jurisdiction Case No. 47/84)* whereby appellant's recourse against thepromotion of theinterested party tothe post of Head, Prices Control and Consumers' Protection Service in theMinistry of Commerce and Industry was dismissed. A. S. Angelides, for the appellant. 15 A. Vladimerou, for the respondents. G.Triantajyllides, for theinterested party. Cur. adv. vult. MALACHTOS J.:Thejudgment of theCourt will bedelivered byMr.Justice Savvides. 20 25 SAVVIDES J.: This is an appeal against the first instance judgment of aJudgeof thisCourt whereby therecourse of theappellant directed against thedecision of therespondentsdated 11th January, 1984, to appoint and/or promote Mr. Costas G. Paschalis, theinterested party, tothe post of Head, Prices Control and Consumers'Protection Service,in theMinistry of Commerce andIndustry instead of and inpreference totheappellant wasdismissed. *(Reportedin

(1987)3CLJt. 31). 739 Savvides J. Mytides v. Republic

(1988)The facts of thecase areas follows: On the 1st April, 1982, the interested party was promotedto thepost of Head, Prices Controland Consumers'ProtectionSer­ vice, in theMinistry of Commerceand Industry,by arelevantde­ cision of the respondents and as a result the applicant, together 5 with another candidate, challenged the above decision by Re­ courses Nos.226/82 and 290/82. By thejudgment in the above recourses, which was delivered on the 19th October, 1983, (see Mytides and Another v. The Republic

(1983)3 C.L.R. 1096), the promotionof the interested party was annulled.Duetothefact IQ that the grounds of annulment are material in thepresent case we find it necessary todeal at some length with thereasons given by the learned trial Judge in theabove case for annulling the promo­ tion. The learned trial Judge proceeded first toconsider thefirst of 15 the numerous grounds raised, that is that the Commission failed to givereasons for disregarding therecommendations of the Head of theDepartment for promotionand reached theconclusionthat there was no merit in respect thereof. Hethen proceeded todeal with two othergrounds thatis whether theinterested party lacked ~o thequalifications prescribed by theschemeof service and thatthe decision was faulty because it was taken underadefective inquiry as to the facts of the case and theconstruction of the scheme of service andconcluded as follows: (atpp. 1111 and 1112). "I find, therefore, that the Commission has not conducted ^ς the sufficiently necessary inquiry intoamost material aspect of the matterand that,therefore,itexercised itsdiscretion in ade­ fective manner,leading toitsdecision regarding the promotion of this interested party being wrong in law and in excess and abuse of powers; and,thusithas tobe annulled. It is outside the limits of thejurisdiction of this Court to construe thescheme of service and tostate whetherthe qualifi­ cation held by the interested party sufficed. The Court should not substitute its own decision for thedecision of theCommis- 740 J 3 C.L.R. Mytides v. Republic Savvides J. sion.Itwas upon the Commission totakesuch adecision. 5 10 15 2fl -^ 35 , The applicants complaint that the interested party does not possess qualifications No. 2, 3 and 6. I may say from now • that Ifind no merit in theallegation that it wasnot open tothe Commission toconclude, asitdid,on theadditional qualification - post-graduate diploma. I need not, however, express any opinion on qualifications No. 2 and 3 so as not to prejudicetherespondent Commission in its new inquiry, neither do I consider pertinent to deal with other grounds on which the validity of thesubjudicedecision ischallenged." After theannulment ofthepromotion of theinterested partythe respondent meton the 16th November, 1983,toconsider theposition in the light of thejudgment of the Court. In the meantime during the period that elapsed between 1stApril, 1982,when the promotion of the interested party was decided and the 16th November, 1983,when the respondent met, the composition of the , respondent hadchanged bythe substitution"of twoof its previous members with two new members namely Mr. Papaxenophontos and Mr. Christodoulides. At the meeting of the 16th November, 1983,atwhich allfivemembersof theCommission were present therespondent according totheminutesof themeeting "noted that the Supreme Court annulled its decision, on the ground that the Commission failed tocarryout adueinquiry toascertain whether candidate Costas Paschali who was then chosen, satisfied the schemeof"service. Therefore, the matter which the Commission has tore-examine at this stage is whether Paschalis satisfied the schemeof service;"and decided toconduct further inquiries into thenatureof theacademic degree held by the interested party.In this respect, the respondents addressed a letter to the American University of Beirut (which awarded thedegree of the interested party), requesting advice as to whether the degree of business Administration awarded by,it is considered as adegree in Commerce. Italsoaddressed asecond letter tothe Fulbright Commission, inquiring whether the degree of Bachelor of Business Administration, awarded by Universities in the United States, is treated in theU.S.A. as adegree in Commerce. Athird letter was 741 Savvides J. Mytides v.Republic

(1988)sent totheBritish Council inquiring whether the samedegree is regarded in theUnited Kingdom asadegreein Commerce. By letterdated the 23rdNovember, 1983,theBritish Council informed therespondents that althoughdifferent Universitiesmay offer similar courses underdifferent titlesand givedifferent titles 5 totheir degrees, the twodegrees aresimilar inthesense that they have thesameaims. The Fulbright Commission, by its letters dated the 30th November, 1983,informed therespondents that thedegree of Bachelor of Business Administration is, in the U.S.A., used interchageably as a degree in Commerce and that the courses in Business Administration arerelated tocommercial subjects. 10 The American University ofBeirutdid notreply totheletterof the respondents. Parallel to the inquiry carried out by the respondents on this 15 matter, the Director -General of the Ministry of Commerce and Industry, conducted his own inquiries and forwarded to the respondents atelex which hereceived from theAmerican Universityof Beirut totheeffect that thesubjects covered bythedegreein Business Administration deal with Commerce and thedegree is, 20 therefore, considered tobeadegreeinCommerce.The same official, also forwarded to the respondents material from the Greek Embassy in Cyprus, showing that the School of Economic and Commercial Sciences inGreeceprovidescoursesin(a) Economics and (b)Business Administration and awardsdegrees in Com- 25 merce toits graduates. He, also,forwarded totherespondentsan analysis of the subjects followed by the interested party for the purpose of obtaining his degree, pointing out that the Ministry, after careful studyof thesubjects taught,arrived attheconclusion that the degree in question is directly related to the commercial ™ subjects and that the degree can beconsidered as an equivalent degree in Commerce (see letter dated the22nd November, 1983, appendix 9tothe Opposition). 742 3 C.L.R. Mytides v.Republic Savvides J. On the26th November, 1983,counsel for theapplicant wrote tothe respondents on this matter and forwarded to them a letter dated the22nd November, 1983,from the University of Oxford, thematerialpartof whichreads: 5 10 "ThisUniversity does award degrees in Economics but not inCommerceorBusiness Administration; and would consider thethree subjects to beentirely separate, although interrelated." Attheir meetingof the 10th December, 1983,the respondents decided toseek theadviceof theOffice of the Attorney-General on certain matters. On the 7th January, 1984, the respondents wrotetotheAttorney-General's Office and asked for advice,inter alia, as towhether thedegree of the interested party can be considered asatitlein Commerce. 15 On the 22nd December, 1983, the Director-Genera! of the Ministry forwarded totherespondents another letter which hereceived from the American University of Beirut, confirming that thedegree awarded totheinterested party could beconsidered as adegreein Commerce. 20 The Office of the Attorney-General, by its letters dated the 10th January, 1984 and 11th January, 1984,advised the respondents thatfrom thematerial before it,itisdeduced that thedegree on the interested party could be legally considered as a title in Commerce (Appendices 19and20). 25 Inthelightof theabove material respondent meton 11thJanuary, 1984,totakeafinal decision. Atsuch meeting all five membersof therespondent Commission werepresent. After examination of the new material before them they concluded that the degree held by theinterested party could beconsidered asonein Commerce and thus satisfying the relevant provision of the schemeof serviceThen theproceedings, asrecorded in theminutes,wenton as follows: 30 743 Savvides J. Mytides v. Republic

(1988)"At this point Messrs. Papaxenophontos and Christodoulides who were not members of the Commission which held the interviews and made the general evaluation of thecandi­ dates, stated that they were not going to participate in the ex­ amination of thequestion of theselection of the best candidates 5 for thefillingof thepost and with theunanimousagreement of the Commission they left the meeting. The Commission (the Chairman and the two other members) after re-examining all the material before them were satisfied that Paschalis pos­ sessed at thematerial time theotherqualifications also which ,« were required by the scheme of service including experience and good knowledge of theeconomy of theisland (paragraphs

(2)and

(3)of the required qualifications under the scheme of service). The Commission having taken intoconsideration: ,, (a) That the previous decision by which Costas Paschalis was promoted as from 1st April, 1982 tothepost of theHead, Prices Control and Consumer's ProtectionService, in theMin­ istry of Commerce and Industry had been annulled by the Su­ preme Courtfor the sole reason that nodue inquiry had been ~o carried out then,as towhether thedegree of Bachelor in Busi­ ness Administration held by thecandidate satisfied paragraph

(1)of the Schemeof Service; (b)after a mediculous inquiry and study of thematerial col­ lected by the Commission it was found that Paschalis possessed atthematerial timethequalifications referred toinpara­ graph

(1)of the Schemeof Service; -ς (

1. c)thatat thematerial time Paschalis held theother qualifi­ cations;and (
2. d)thatat themeeting of theCommission dated 22.3.82 af- 30 ter examination of all-material facts from thepersonalfiles and confidential reports of the candidates and having taken into consideration thereports of thedepartmentalcommitteeandthe 744 3 C.L.R. 5 10 Mytides v. Republic Savvides J. performance of the candidates at the interviews before the Commission aswellasthefact that theadditional qualification provided bytheSchemeof Service waspossessed byPaschalis, Charalambides and Hadjiconstantinou, Paschalis had been found, on thebasis of the established criteria on their totality (merit,qualifications, seniority) assuitableand that hewassuperior to theother candidates.decided today, that in the light ofthelegaladviceof theAttorney-General of theRepublicunder No.226/82 and 290/82 dated 24.10.83 topromote Costas Paschali to the permanent post of Head, Prices Control and Consumer's Protection Service, retrospectively as from 1st April, 1982 i.e. as from thedateof his previous promotion to the post in accordance with the decision of the Commission dated 22nd March, 1982." ,c Aperusalof theminutesof themeetingsoftherespondent and all other material which was taken into consideration by.therespondent in accordance with its inquiry two questions pose for consideration in the present appeal which had to be determined first before we proceed to deal with all other grounds of law 20 raiS6d - (
3. a)Whether the proceedings of the respondent Commission which ledtothesubjudicedecision wereproperly conducted and de (
4. b)Whether the change in thecomposition of the respondent after thedeliberations had commenced and before thefinal decision wastaken issuch astonullify theirdecision. We shallproceed toexaminethefirstquestion. 30 Itisclearfrom thematerial before usthat therespondentcommission misinterpreted completely thedecision of theCourt inrecourse No.226/82 by which their previous decision for thepromotion of the interested party was annulled by the Court. It is apparent from the minutes of the meetings of the respondents when re-examining the case that they were operating under the misconception that their previous decision was annulled "on the 745 SavvidesJ. Mytides v.Republic

(1988)soleground thatnodue inquirywascarriedoutastowhetherthe degree of Bachelor in Business Administration possessed bythe interested party satisfied thescheme of service." This is clearly stated in the minutes of both the meeting of 16th November, 1983, when they started their deliberations and the meeting of 5 11thJanuary, 1984, when thesubjudice decision wastaken.The respondents instead of proceeding toexamine thepromotion with reference tothefactual and legal background prevailingatthetime when theirpreviousdecision wastaken,examined anddecided in full quorum the question as to whether the interested party pos- . sessed the necessary qualifications underthescheme and then,in a composition of three members only, they simply re-affirmed their decision without going afresh intothemerits, qualifications and seniority of thecandidates inorder toreach their decision after a new inquiry. It is well settled that with the annulment of the first decision not only thedecision itself but thereasonsfounding it wereswept aside: "Where adecision isdeclared wholly invalid under Article 146.4(b) the decision as well as the premises upon which it is based disappear. Thereupon the administration comes under a duty torestore the statusquo anteand examine the matter afresh by reference tothe factual and legal background prevailing prior tothedecision." (Per Pikis,J. in thedecision of theFull Bench in The Republic v.Safirides

(1985)3C.L.R. 163,at p. 170, adopting in thisrespectPantelakis Kyprianidesv.TheRepublic

(1968)3 C.L.R. 653;loannides and Another v. The Republic

(1979)3 2 C.L.R. 628). This defect in the proceedings byitself is sufficient to nullify the subjudice decision. We come next toconsider whether a collective organ such as the respondent could validly take thesubjudice decision though its composition had changed after the deliberations had started and part of the decision had been taken by all five members and the final decision byonly threeof themembers. 746 3 C.L.R. 5 0 e 5 Mytides v.Republic Savvides J. Therelevant principlesof administrative lawarewellsettledby a series of cases of this Coun (Panayiotou v. The Republic

(1972)3 C.L.R. 337, at pp. 339 - 340; Vivardi v. The Vines Products Council

(1969)3C.L.R., 486, atpp.489-491; Kyprianou v.The Republic

(1976)3 C.L.R., 210, at pp. 212-213; Pissas v. The Republic

(1976)3 C.L.R., 30, at pp. 34-35). In all thesaidcasestherelevant principles as stated in the Conclusions from theJurisprudence of theGreek Council of State 1929-1959 atp. 112areadopted. They aretothefollowing effect: "The process before any collective organ, regarding discussing about, and deciding on, any matter, has to take place frombeginning toend while there are present the samemembers of such an organ as toensure the knowledge and evaluation byeach memberof all factors which come tolight during such process.If thisprocess extends tomore than one meeting then thecomposition of thecollective organ must remain unchanged in all itsrelevant meetings. If there is any change in the composition of the collective organ, at any meeting, through the presence of amember who did not take part at a past meetingon the matter, theorgan cannot takeavalid decision at its lastrelevant meeting,except if at such meeting the wholeprocessisrepeated fully abinitio,sothat theconsideration of the matter can beregarded as having commenced and beenconcluded at such lastmeeting." Relevant in the matter are thedecisions of theGreek Council of State 343/1939, 1753/1956, 103/1957, 1128/1958. In Kyprianou v.The Republic (supra) A. Loizou, J. after expounding on theaboveprinciplesconcluded asfollows atp.213: « "On theother hand, ifa member or members are excluded on anerroneousview that they could notparticipate at sucha meeting, thecollective organ inquestion cannot beconsidered asproperly composed when anadministrative decision istaken even ifthereisquorum and,therefore, such decision should be annulledon thegroundofwrongcomposition of theorgan." 747 SavvidesJ. Mytidesv.Republic

(1988)InVivardiv.TheVineProducts Council(supra) Triantafyllides,J. (ashethen was)indrawing thedistinction between the case where amember whowaspresent atthefirst meetingwas absentatthesecondmeetingandthecaseofthepresenceatalater stageofapreviously absentmember,wherethedeliberationshad 5 commencedandcontinuedinseveralmeetings,concludedasfollowsatp.490: "Ican quitewell seewhyinacasewheretherehassupervened a change in the composition of a collective organ, through thepresence,at alater stage,of apreviously absent IQ member, itisnecessary for thewholeprocesstoberepeated all over again so that all members, in reaching a decision, shouldbecognizant ofallrelevantfactors; and,also,wherea memberofacollectiveorganhasnotbeenabletotakepartin alltherelevant toamattermeetingsheshouldnotbeallowed ,* toparticipatewhenthedecisionisbeingreachedonsuchmatter. Butinacase,suchasthepresentone,inwhich amember dropsout after thefirstmeeting,Ican seenouseful purpose being served by expecting the remaining members, before ~o reachingadecision,tostartabinitio,attheirsecondmeeting, thewholeprocesswhichhadcommencedatthefirst meeting, atwhichallofthemwereallalongpresent." ThepresentcasehoweverisdistinguishablefromVivardicase (supra)asinthepresentcasethefinaldeliberationscommencedin y* thepresenceofallfive membersoftheCommissionwhoparticipated in thetaking of aunanimousdecision astothe qualificationsof theinterested party and whoin thecourseof thesamemeeting acting on an erroneous view that they could not participate in thefinaldeliberations excluded themselves from participatinginthefinaldecisiontakeninthecourseofsuchmeetingandleft themeeting.Weagreewiththeopinionexpressedby A.Loizou,J.inKyprianoucasethatasaresultof theerroneous view whichled thetwomemberstoexcludethemselvesandnot participateinthefinaldecision,therespondent Commission,act- 35 748 3 C.L.R. Mytides v. Republic Savvides J . ingasacollectiveorgancould not beconsidered asproperly composed when thesubjudicedecision wastaken; 5 For the above reasons the appeal succeeds and the subjudice decision of the respondents has to be and is hereby annulled. In view of our above conclusion we do not consider it pertinent to deal with theothergroundsraised in thisappeal. In theresult theappeal isallowed with noorder forcosts. Appealallowed. Noorderastocosts. 749