clr/1989/1989_3A_147.pdf

(1989)Coun Thepromotion of thepresent appellant uas annulled because the Commission had obtained information from the Secret Services related to present interested party s loyalt\ (/acow'des >. The Republic (I9S1) 3 C L.R 305) The Commission re-examined the matter and promoted retrospectively as from 15/6/7S thepresent interested part\.disregarding the recommendation of the Head of theDepartment 5 Thesaid promotion « as annulled TheCourt found, interalia,thatthe interested party was not superior in ment The confidential reports for the applicant (present appellant)for 1974 and 1975 were invalid, asbeing 10 the product of bias (see Haris \. TheRepublic (I9S3) 3 CLR 995 and the decision on appeal Republic ι. Haris(19S5) 3 C L R 106) In the latter case the Pull Bench adopted the finding of a trial Judge that the recent confidential reports

(1977)are almost similar The ]5 Commission could not disregard recommendation of the Head of Department on theground of superiority of ment.as emerging from the recent confidential reports The Commission reconsidered the matter It once again disregarded the recommendations of the Head of Department,because 20 (

1. a)Hehad onl\ tuο years in the job pnor to the crucial date. (
2. b)The interested pany was manifestly superior in ment. on the 25 following grounds, namely (
3. aa)They disregarded applicant's confidential reports for 1974. 1975 and 1976. as they were duty bound to do 30 (
4. bb)They took intoconsideration thereports for 1977.which rated the two candidates as almost equal and mdicatively the report for 197S in which appellant was slightly supenor (7-3-0 as compared to6-4-0) 35 (
5. cc)They travelled into the distant past and took into consideration thereports for the years 1971, 1972 and 1973 (
6. dd)They also took into consideration the confidential repons for the interested pany for the years 1974, 1975 and 1976 40 Hans filed a recourse impugning once again the validity of the 148 3 C.L.R. Haris v. Republic promotion of theinterested party lacovides. Therecourse wasdismissed. Hence the present appeal. 5 The principles applied by the Full Bench of the Supreme Court in allowing the appeal, rejecting the reasoning and approach of the respondent Commission and annulling the sub judice decision appears sufficiently from the hereinabove Headnotes. Appeal allowed. Sub judice decision annulled. No orderastocosts. 10 Cases referredto: lacovides v.Republic(I9SI) 3 C.L.R. 305. 15 Chai-is v.Republic(I9S3.I 3C.L.R. 995. Republic(Council of Ministers) v. VMsiliades

(1967)3C.L.R. S2. 20 President of theRepublicv.LoucaandAnother (19S4) 3 C.L.R. 241, Republicv.Hans (19S5) 3CLR. 106: 25 Constantinou v.Republic(Chairman of the Council for thereinstatement of Dismissed Civil Servants)

(1972)3C.L.R.

1. StylianouandOthersv.Republic(19S4) 3 C.L.R.
2. Gavav.Republic(19S4) 3 C.L.R.
3. . 30 lacovides v. Republicof Cyprusthrough ThePublic Service Commission

(1966)3 C.L.R. 212. Appeal. 35 Appealagainstthejudgment ofaJudgeoftheSupreme Court of Cypais (A. Loizou; J.) given on the 19th December 1986, (Revisional Jurisdiction case No. 554/S5 reported in (19S6) 3 C.L.R. 2493: whereby appellants recourse against the 40 promotion of the interested party to the post of Agricultural Officer 2ndGrade andhissecondment tothetemporary postof Agricultural Officer 1stGrade,was dismissed. 149 H a n s Λ. Republic

(1989)Λ Havianu. for the Appellant. R Ga\nelides. Senior Counsel of the Republic, for the Respondents 5 Cur. ad\ vulr MALACHTOS. J The Judgment of the Court will be delivered b\ Mr Justice Stvhanides 10 STYLLANTDES. J Tins appeal is directed against the first instance Judgment. \\hereb\ the promotion/secondment of the interested party .Andreas lacovides. to the post of Agricultural Officer. 2nd Grade, with retrospectse effect as from 15thJune.

1. his secondment to the temporan post of Agricultural 15 Olhcer. 1st Grade,as from 15thMarch. 19S2.andhispromotion to the permanent post of Agricultural Otbcer. ht Grade, as from 15th November. 19S
2. decided on the same date wai dismissed 20 Thehiston of theproceedings of thiscase goesback to 197S Theappellant andotherofficers were promoted/secondedtothe post of Agricultural Officer. 2nd Grade,in 197S and their such promotion/secondment was published in the Official Gazetteof the Republic on 14th Juh.
3. under Notification No. 1377 25 and I37S The promotion and the secondment aforesaid were declared null and \oid b\ a Judge of this Court, on the sole ground that Iaco\ides and another were not promoted oi seconded because the\ were ieported upon to the Commission b\ theCentral Iniormation Service thatthe> were not !o\al and 30 the\ were not respecting the Law - (Iaco\ides t. Republic (19S1) 3 CL.R. 305) The Court m that recourse did not deal withthequalifications and/orcomparison between theappellant and the interested part) After the said annulling Decision,the Commission at two meetings, on 21st October. 1981 and on 35 23rd November. 19S
4. reconsidered the matter and decided to promote interested part\ lacovides with retrospective effect as from 15th June. 197S. disregarding the recommendations of the Head of the Departmentthat Hans was the best suitable for the post The appellant challenged the \ahditv of that decision b\ 40 Recourse No 74/82 A Judge of this Courtdeclaied null and void and oi no eiiect whatsoever the challenged administrative act 150 3 C.L.R. Haris v. Republic Stylianides, J. (Charts v. Republic (19S3) 3 C.L.R. 995). The Respondents appealed against the first instance Judgment and the Full Bench dismissed such appeal having been seized with thecaseab initio according to the jurisprudence of this Court on the nature of 5 revisional appeals (Republic (Council of Ministers) v. Cbristakis Vassiliades

(1967)3 C.L.R. 82: President of the Republic r. Yiannakis Louca and Another (19S4) 3 C.L.R. 241). The judgment of the Full Bench is reported sub nominee Republic v.Haris (19S5) 3C.LR.

1. In the judgment of the 10 Full Bench at p. 115weread:- 15 *'Inthiscase,however, having regard to the qualifications oftherespondent andtheinterested party,weareoftheview thattheir qualifications areequal andtheinterestedpartywas not superior." With regard to the confidential reports, it was found that the confidential reports on Haris.the appellant, for the years
4. prepared by reporting officer G. Agrotis. were 20 nullified, due to lack of impartiality, as they were being the product ofbias. At p. 1 ISit isclearly said:- 25 "...Thereports for theyearstowhichwehavereferred are nullified for thereasons wehaveendeavoured to explain and which emerge clearlyform the file." With regardto the merit ofthe candidates,asemerging from the valid confidential reports, after reference to the principle that in deciding on the merit of the candidates it isnecessary to 30 look at past confidential reports and especially at the most recent ones, in order to evaluate the performance of the candidates during their career asa whole,it said at p. 116: 35 40 "Themost recent confidential reports atthematerial time were those for the year
5. They were made by two different reporting officers. Therespondent wasrated with 3 'Excellent' and 7 "Very Good' and the interested party with 4 'Excellent' and6'VeryGood'. Different reporting officers. however, inevitably use different standards in their evaluation of the performance of the various officers servicing under them Furthermore, one mark higher or one mark lower does not count and it is not indicative that 151 Stylianides, J. Haris v. Republic one candidate is superior to another

(1989)" The Headof the Departmentwho attendedthemeeting of the Commission for thefilling of four posts held on 21st November. 1981. after making a comparison between Haris and lacovides 5 concluded: "Εντωσυνόλω τωνκριτηρίων είναικαλύτεροςοκ. Χάρης". ("On the totality of the criteria Mr. Harris is better"). The Commission disregarded the recommendations of the Head of the Departmentontwogrounds,asfollows,asset outin Haris (19S3) (supra) at pp. 1007-1θ08:10 "Η Επιτροπήεν προκείμενο)εζ,ήτασεμε ιδιαιτέρανπροσοχήν την περίπτιοσιντου κ. Γεωργίου Χαρή (applicant) ο οποίος έχει ουστηθήυπότουΔιευθυλτούτουΤμήματος διά ποοανωγήν και παρετήρηαεν ότι αι εν γένει περί αυτού 15 Εμπιστευτικοί Εκθέσεις (κατάτονουσιώδηχρόνον)παρου­ σιάζουν αυτόν καταπεροντουκ. Ιακωβίδη(interested partyδ). Η Επιτροπήπαρετήρησε ωσαύτως ότι αμ(ρότεροιεχαρακτηρίσθησαν υπότουΔιευθυντούτουΤμήματοςω ;πολύ καλοί,παρ' όλον ότιούτοςσυνέστησε τονκ.Χαρήν..καιότι 20 ο κ.Ιακωβίδης υπερτερεί ειςπροσόντα τουκ.Χαρή...." (The Commission in this respect examined with special attention the case of Mr. Georghios Haris (applicant) who has been recommended by the Head of the Department for 25 promotion and observed that in general the confidential reports about him (at the material time) present him inferior to Mr.lacovides (interestedparty (d)). TheCommission also observed that both have been described by the Head of the Department as verygood, even though herecommendedMr. 30 Charis. and that Mr. lacovides is superior as regards qualifications to Mr.Charis). The above reasoning of the P.S.C. for disregarding the recommendations of the Head of Department, as I 35 understand it. is based on two observations made by the Commission which touch merit and qualifications. Thus the Commission savs that: 40 (a) Generally the confidential reports at the material time 'present the applicant inferior to the interested 3 CL.R. Hans \. Republic St>hanides. J. party lacovides' (b)The inteiested partv Iacovides 'surpasses in qualifications theapplicant" 5 The tnal Judge having gone verv meticulously into the matter of the qualifications and the valid confidential reports said at ρ 101310 15 20 25 30 35 Ί have had the opportunity of examining the factual substiatum onthismatterearlier on in thepresent judgment Imay as well repeat here (a)the latest confidential reports (for 1977) of the applicant and the mteiested partv lacovides are almost similar taking intoconsiderationthefact thatthevwere submitted bv different reporting officers and as stated in Aristocleous case (supra) 'Different leporting officers inevitablv use different standards in then evaluation of the performance of the \anous officers serving under them (In the confidential report foi 1977 the applicant was rated with 3 excellent' and 7 'very good' whilst interested partv lacovides was rated with 4 excellent' and 6 'ver\ good ) (b)As legards theconfidential ieports of theapplicant for the \ears 1975 and 1976 Ishall confine myself in saying this much they have created an unsatisfactory state of affairs iendenng then value next to nil.no administrative organ can depict therefrom with the required certaintv the leal picture of the merit of thecandidateconcerned As against this confused and unsatisfactory material presented by theaforesaid confidential reports theΡS C had before it the clear recommendations of the Director, in the circumstances it was notopen to it to disregard themasthev had no othei solid soil to step on in view of the above I cannot subscribe, with respect, to their reasoning " 40 The full Bench in 1985 cited the above passage and said- 153 Stylianides. J. Haris v, Republic

(1989)"We share the view of thetrial Judge. ... The recommendations of a departmental head carry considerable weight because he is in a unique position to evaluate in the correct perspective the competing merits of 5 the candidates, on the one hand,and appreciate the needs of the post to be filled, in terms of ability, knowledge and experience of the beholder, on theother. In the present case the Commission had the opportunity 10 of hearing thereasoned recommendations of the Headof the Department. They disregarded them without due reasoning and the trial Judge rightly annulled the decision for the promotion/secondment in respect of interested party lacovides." 15 Following the Judgment of the Full Bench the Respondents re-examined the matter on I2th March. 19S

1. by reference to the factual and legal situation existing at the time the annulled decision was taken, inthelight, however,of theJudgment of the 20 Court. They. also, sought legal advice from the AttorneyGeneral which was given to them on 20th February. 19S5 (see Appendix 2). At the same meeting the filling of a permanent post of 25 Agricultural Officer, 1st Grade, was re-examined which became vacant, consequentially to the annulling Judgment. At the request of the Respondents the Head of the Department attended their meeting and his recommendations as recordedin the minutes of the Commission are:30 "...συστήνει καιπάλιτο ΓεώργιοΧαρή.τουοποίουοι υπη­ ρεσίες υπήρξαν πάρα πολύ ικανοποιητικές και υπερείχε κατά τον ουσιώδηχρόνοόλων τωνάλλων υποψηφίων στο σύνολο των κριτηρίων. 35 Ο ίδιος (ο κ. Αούκα) διευκρίνισε ότι για πρώτη φορά ανέλαβε καθήκοντα στο Τμήμα Γεωργίας την 1.S.
2. όταν διορίστηκεΔιευθυντήςτουΤμήματος.Προηγουμένως υπη­ ρετούσε στο Ινστιτούτο Γεωργικών Ερευνών. Κατά συνέ- 40 πεια οι απόψεις τις οποίες εξέφρασε τότε και επαναλαμ­ βάνει καιτώρα αφορούσαν τηνπερίοδο υπηρεσίας τουστο 154 3 C.L.R. Haris Λ.Republic Stjhanidcs, J. Τμηιια. δηλαδήαπο 1 S 76 και \;στερα Αυτά τα δυοχρο­ νιά πουπαρακολουθούσε την εργασίατους πιστεύει οτι ο Γεώργιος Χάρη; ήταν καλύτερος υπάλληλος αποτον Αν­ δρέα Ιακιοβιδη " 5 (" he recommends again Georghios Hans, whose services were very satisfactory and who at the matenal time was supenor toall others candidates onthetotality of thecntena. 10 15 20 Heclanfied thatheresumed duties for thefirst time inthe Department of Agriculture on 1876.v\henhewas appointed Director of the Department . Therefore the opinions he expresseo then and which he repeats now referred to the penod of his service in the Department, i.e from 1 S76 onwards During those two νears when he followed their work he believes that Georghios Hans was better public officer than Andreas lacovides ") TheCommission disregarded again theclearrecommendations of the Headof theDepartment. Thev gave two reasons for such departure*- 25 (a)That the Head of the Department assumed duties a* Director of Agriculture on 1st August.
3. i.e. onlv two νears before the material date and. as the candidates worked directly underhim only for two years, that penod was not sufficient for proper and due evaluation by the Head of the Department, and 30 (b)That theinterested party was manifestly supenor inment Thev based this on thefollowing35 40 (ι) Thev disregarded the confidential reports for years
6. as they were dut\ boundto do after the Judgment of the Supreme Court (n) They took into consideration the confidential reports for Ϊ977.which ratedthetwοcandidates almost equal. and they took. also, indicatively into consideration theconfidential reports for 1978,having regard tothe 155 St>lianides, J Hans \. Republic

(1989)fact that the material time was Mav. 197S. in which the appellant was slishtlv supenor to interested partv (7-3-

1. 6-4-0) (in)Thev tiavelled. however into the distant past, in the 5 years
3. and
4. in which the interested party was rated mtheconfidential reports supenor to the appellant (iv) Thev. also, took into consideration in the evaluation 10 of the interested party the confidential reports for
6. 1976 for which there were no valid confidential reports for the appellant The first ground u> totallv impermissible andwas not open to 15 the Commission A Headof the Department,who has underhis supervision for two consecutive νears two public officers. cannot in any wa\ be considered that he is not in a position to make an evaluation and speak clearlv and definitely about such public officers Had it been otherwise, we wonder how manv 20 Heads of departments would have been disqualified by such reasoning from making recommendations for their subordinates This ground is also, contrarv to section 44

(3)of Law 33/67. which does not impose am condition for the penod of sen ice of the Head of the Department 25 With regaid to the second ground, the Respondents erred In the decision of the Respondents annulled by the two previous cases Charis i. Republic and the Full Bench 30 Republic \. Haris (supra) the recommendations of the Head or the Department weie disregarded for. inter alia, the reason that in genera] the confidential reports presented the present appellant infenor to Iacovides TheCourthadbefore it thefiles of the confidential reports of both On the totahtv of the 35 material before it the Court of first instance and the Full Bench held clearlv and unequivocallv that it was not open to the Commission to disregard the clear recommendations of the Head of theDepartment 40 It was not open to theRespondents inthepresent case toput forward this reasoning. 156 3 C.L.R. Haris v. Republic Stylianides, J. The Judgments of the Court of Revisional Jurisdiction are binding upon all organs and authorities of the Republic (see Article 146.5oftheConstitution) andeven'operativefindingof theCourt isbindingupon theAdministration whichisnolonger 5 at liberty to take acontrary view of agiven set of facts. In Ioannis Constantinou v.Republic (Chairman of the Council for the reinstatement of Dismissed Civil Servants)

(1972)3C.L.R. 116,A. Loizou,J., ashethen was,adopted the 10 following passage from Vegleri "The Compliance of the Administration to the Decisions of the Council of State", 1934 edition, p.38:15 20 "If, finally, all the factual and legal grounds which were capable of affording the reasoning for the action of the administration came under consideration by the Council of Stateandtheywereconsidered illegal,and.inthiswayallthe possible prerequisites of the administrative act were exhausted,theresult oftheannulment must beconsideredas absolute, preventing the administration to proceed to a similar action or compelling it to perform an act which it unjustifiably refuses to carry out." He concludedthat,even ifallthecomponent elements ofres 25 judicata did not exist, again the sub judice decision would be annulled, because a Judgment of the Court, though not amounting to res judicata, nevertheless it should exercise decisive influence on the decision of the administrative organ charged with re-examination of acase. 30 In Stylianou and Others v.Republic

(1984)3 C.L.R. 776, it wassaid at pp.784-785:35 40 "As it has been repeatedly said, Article 146 of the Constitution introduced the Administrative Law and Jurisdiction inthis country. Paragraph 5reads:'Any decision given under paragraph 4 ofthis articleshall bebindingonallCourtsandallorgansorauthoritiesinthe Republicandshallbegiveneffect toandacteduponbythe organ or authority or person concerned'. 157 Stylianides, J. Haris v. Republic

(1989)A decision annulling an administrative act extinguishes such act. and the legal results purported to have been produced by such act are in general obliterated. This is the one aspect of res judicata which is embodied in paragraph 5 of Article 146of the Constitution. 5 The annulling decision of the Court binds both the applicant and the Administration. The Administration has a duty,however, thereafter to examinethematter afresh under the factual andlegal regime obtaining at thetimethefirstact 10 was issued. The administration is estopped from issuing an identical act on the same grounds and the same reasoning which were declared invalid by the administrative Court. If the act was annulled asbeing contrary to law.it cannot rely on the same law and issue an identical act. If the first 15 administrative act was annulled for lack of reasoning or for deficient reasoning, the erroneous reasoning cannot be used for theissueof anew act. Theadministration cannot rely on the grounds which causedtheannulment of thefirst act. Itis not. however, contrary to the doctrine of res judicata the 20 issue of a new administrative act on the same subject and with the same content as the annulled one pro\ided that the new act is not based on the grounds that caused the annulment of the first act bythe Court. (See Greek Council of State,Case No. 307/40:see.also.Dentia -Administrative 25 Justice,

(1965)Volume ' C \ pp. 364-367; Vegleri Compliance of the Administration to the Decisions of the Greek Council of State

(1934)pp.29-4S;Conclusions of the Greek Council of State. 1929-59.p.281.)" 30 In Gava v.Republic

(1984)3C.L.R. 1391.1394,it wassaid that an operative finding of aCourt ofRevisional Jurisdiction is the finding upon which a judgment is founded. This is binding upon the Administration, whichnolonger isat liberty to take a contrary view ofagiven setoffacts. Upon re-examination ofa 35 case, the Administration is precluded from making a different assessment of the facts covered by an operative finding unless they conduct afresh inquiry andnewfacts emergeinthe context thereof justifying such re-assessment. 40 In the decision annulled by the Court (first instance and appellate), of 23rd November, 1981.the recommendations of 158 3 C.L.R. 5 Haris v. Republic Stylianides, J. the Head of the Department were disregarded on the grounds. inter alia,thatlacovides was superior to theappellant. (Η Επι­ τροπή ....παρετήρησενότι αι εν γένει περί αυτού (κ. Γεωργί­ ου Χαρή) Εμπιστευτικοί Εκθέσεις (κατά τον ουσιώδη χρόνον) παρουσιάζουν αυτόν κατώτεροντουκ. Ιακωβίδη.). The same files of the confidential reports were before the Respondents at all times andthey were before theCourts,ofthe first instance andthe FullBench. 10 The Judgment of the Full Bench precludes the Respondents from resorting to thesame reasoning. 15 Even if they were at liberty to make a new assessment uninfluenced by theJudgments of the Court,again their decision would be faulty. They had to make comparison between candidates. Comparison means to compare two things at the same time. 20 The appellant had no valid confidential reports for the years 1974. 1975. 1976. as those prepared for him were declared invalid for lack of impartiality. 25 It is not an act of proper administration, or proper comparison, or proper evaluation to take intoconsideration in assessing candidates the confidential reports of theoneandthus tip the scales in his favour for a period that the other, due to fault of others,hadnoconfidential reports for comparison.This is defective exciseof discretionary power. 30 35 40 The last act was the journey into the distant past. They had before them the more recent confidential reports, which depictedthe picture of thecandidates.In lacovos L. lacovides and The Republic of Cyprus through The Public Service Commission

(1966)3C.L.R.

1. Triantafyllides. J.,as hethen was. said that the Commission did not exercise its discretion in a valid manner and had consequentially acted in abuse and excess of powers because they took into consideration the confidential reports for 1955.1956.1957.
2. which were such as would not entitle applicant to promotion, whereas the confidential reports from 1959-1962 showed a marked change. 159 Stylianides,J. Haris v.Republic

(1989)In thecircumstances of this particular case,itwasnotopen to the respondents to make such a long jump backwards and disregard the more recent reports. They acted in abuse and excess of powers, because they took into consideration the confidential reports for 1970-1973, whereas the valid reports 5 1977,andindicatively 1978,showedamarkedchange. In conclusion we say that the appellant and the interested party were more or less equal and none was superior to the other. Torecapitulate,thepromotion of theapplicant in 1978 was annulled on the sole ground that the position of the present interested party wasprobably influenced by information given totheCommissionbytheCentralInformation Serviceabouthis 15 loyalty. ThedecisionoftheRespondents,of23rdNovember.1981.to promotetheinterested partyinpreference totheappellant,by disregarding the recommendations of the Head of the 20 Department,wasannulledbytheSupremeCourt. TheSupreme Court initsJudgmentstatedthatthetwocandidateswereequal in qualifications; the appellant had a slight seniority; the reasoning of the commission, on the basis of merit, was unwarranted;thereportsfortheappellantfor 1974, 1975,1976 25 werenullified, duetolack ofimpartiality anditconcluded:"InthepresentcasetheCommissionhadtheopportunity ofhearingthereasonedrecommendationsoftheHeadofthe Department. They disregarded them without duereasoning 30 and the trial Judge rightly annulled the decision for the promotion/secondment in respect of interested party lacovides." The Respondents were estopped from departing from the 35 recommendations ofthe Headofthe Department onthesame groundsandthesamereasoningwhichweredeclaredinvalidby theCourt. Inviewofalltheforegoing,thediscretionoftheCommission 40 wasnot unfettered. Thereasonstheygavefor disregardingthe recommendation oftheHeadoftheDepartmentinreachingthe 160 10 3C.L.R. Harisv.Republic Stylianides,J. sub judice decision were faulty, contrary to the judicial pronouncements, contrary to the principles of Administrative Law and in breach of the provisions of article 146.5 of the Constitution. 5 The appeal succeeds. The sub judice decisions are declared null andvoid and of no effect whatsoever. The Commission has now to re-examine the matter in the 10 light ofthis Judgment. Regardingcosts,not withouthesitation,wemakenoorderas tocosts. 15 Subjudice decisions annulled. No orderasto COSTS. 161