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(1989)19S9Junc 16 [A LOIZOU. P., MALACHTOS. STYLIANJDES. HADJITSANGARlS, CHRYSOSTOMIS, NIK1TAS.ARTEMIDES,JJ] YIANNOULLA LOUCA, Appcikini-lntcresiedPany, MICHALAKI SAWA AND OTHERS. Rcspondents-Apphcants AND THE PUBLIC SERVICE COMMISSION AND OTHERS. Respondent. (Re\inonal Jurisdiction AppealsΛο> 777. ISO) Public olliccrs — Promotions — Confidentialreports — Circular 491 — Contravention ol — Rendersreport irregulai— Irregularis docs not leadto annulment,unlessu isol amaterialnature— The c\tcnt ol the irregularityandthecllect ol theconfidential report on thetmul decision dependsalwayson thecircumstances andlactsol thecase 5 Public otlicers — Promotions — Confidential reports — Head of Department holdingpost in anacting capacity— Λor precluded from signingsuchreports ιelatingto atime duringwhich hedidnot huidsuch post,provided it waspractically impossible lor his predecessor to doso 10 — Length ol time during whichone is Headol Department has no bearingonacquiringsullicicntknowledgeconcerningtheofficersserving underhim— Noi imperatne lor hisknowledge to be acquired through direct contacts withsuchofficers— Entitledto obtaininformation from any otherproper source \5 PublicOlliccrs— Promotions — Confidentialreports — Disregardof views ol newly appointed actingHeadot Department,whohadsignedthemas 672 3 C.L.R. Louca v. Savva and The Publ. Serv. Comm. &Others countersigningofficer — Disregard due to cautiousattitude—Though the Headof the Department entitled to countersign the report,in the circumstances of the case thesubjudicc decisionshouldnot havebeen annulled. 5 10 15 20 25 Bins — Objective bias arising from the relationship between reporting officerandtheofficerreported upon— Issue shouldbeexaminedinthe context of social realitiesin Cyprus — Luck of impartiality must be establishedwithsufficient certainty from facts emanating from official records or by safe inferencesdrawnfrom suchfacts— Thefact that α person may make α report in respect of α close relation or even his brother, docs not per sc invalidatethe process, though it should be avoided— Inacountry of thesize of Cyprus thatmay not alwaysbe possible — As inthisCILSC theassessmentmadefor theyaws inquestion by thecloserelativeoftheappellant wasmore orlesssimilarto thatmade by otherreporting officers, it cannotbesaid thatthereports inquestion wereinanywaybiased. Publicofficers— Promotions— HeadofDepartment—Recommendations ol — 5° long asthey tallywiththematerialin thepersonal filesof the candidates, hehasno obligation to give aseparate recommendationin respect of everysingle candidate. Theissuesraised intheseappeals andcross-appeals and theprinciples applied by the Court, in allowing theappealsanddismissingthe crossappeals.appear sufficiently inthehereinabove Headnotcs. Appeals allowed. Cross-appeitis dismissed. Subjudicedecision affirmed. .\o orderas to costs. 30 Casesreferredto: Sckkides v. Republic
(1988)3C.L.R. 2136. 35 Payiatsosv.Republic (I9S7) 3C.L.R. 321, Chrysohos v.Republic (19S5) 3C.L.R. 7S. 40 Marisv.Republic (I9S9) 3 C.L.R.147, Argyridcs v. Republic(19S9) 3C.L.R. 380, 673 Loucav.SavvaandThePubl.Serv.Comm.&Others
(1989)TheokiitouandAnotherv. Republic(I9SS)3C.L.R. 1271, Christou v. Republic(I9S0)3C.L.R.
  1. Othonos v. Republic(I9S9)3C.L.R.
  2. 5 Petsas v. Republic
  3. R.S.C.C.
  4. Appeals. 10 Appeals against the judgment of a Judge of the Supreme Court of Cyprus (Pikis. J.) given on the 30th January, 1988 (Revisional Jurisdiction CasesNos.SS/86, 160/
  5. 174/S6 184/86 and230/86) (19SS) 3C.L.R.
  6. whereby the promotion of the interested parties to the post of Nurse,Psychiatric Services was 15 annulled. Chr.Triantafyllides. for Appellants inR.A.
  7. A. Vassiliades, Counsel of the Republic B.for Appellants in ?o R.A.7S
  8. A. S. Anzdides. lor Respondent - applicant in Case No. 160/
  9. 25 /. Typographos, tor Respondent-applicant in Case No. 174/
  10. A. Markides.tor Respondent-applicant in Case No.230/
  11. 30 A. Erorokritou, for Respondent -applicant in Case No.
  12. Respondent-applicant in Case No. SS/S6 absent. No appearance. 35 Cur. adv.vult. A. LOIZOU. P. read the following judgment. These appeals are directed against thejudgment of ajudge of this Court in the exercise of the original jurisdiction of the Court annulling the 40 decision of the respondent Public Service Commission. appellant in present appeal R.A.7S0.to promote to thepostof 674 3 C.L.R. Louca v.Savva and The Publ. Serv. Comm. &Others A. Loizou. P. Nurse, Psychiatric Services the appellant in R.A. 777 and ten otherpersons. The grounds upon which these appeals are filed may be 5 summed up asfollows: 10 15
(1)The trial Court wrongly annulled the decision of the respondent Commission on theground that the respondent Commission erred in taking into consideration, during the process of promotions,theconfidential reports for the year 1982 since these had been signed only by the reporting officer but not bythecountersigning officer.
(2)The trial Coun wrongly annulled the decision of the respondent Commission for the reason that during the relevant process it took into consideration only the evaluation of the reporting officer for the confidential reponsot 1982. 20
(3)The trial Coun wrongly annulled the decision of the ... respondent Commission concerning appellant inR.A.777interested party Yiannoulla Louca for the reason that the confidential reports for this interested party for the years 1983to 1984,had to be ignored because they were tainted 25 with bias arising from the relationship between her and the reponing officer and which wasby itself sufficient to create objective bias. Cross-appeals were filed by applicants in cases Nos. 160/86 30 and 174/86totheeffect that:
  1. The trial Court wrongly dismissedtheremaininggroundsof the recourses. .35..
  2. The trial Courovrongly.accepted:. . . (a) As regards the recommendations of the Head of Depanment that they were objective and in accordance with the Law.that ismerit, qualifications, seniority. 40 (b) That the confidential repons were impartially compiled. 675 A.Loizou.P. Louca v.Savva andThePubl.Serv.Comm.& Others
(1989)(
  1. c)That the respondent Commission conducted a due inquiry. (
  2. d)That the qualifications of theapplicants were duly taken into consideration. 5 It was submitted on behalf of the appellants, as regards grounds of appeal
(1)and
(2)that the conclusions of the trial Court to the effect that the respondent Commission wrongly took into consideration the confidential reports for the year 10 1982,were wrong. It isstated by the trial Court in respect ofthis: "...The respondents were right to treat the confidential 15 reports for the year 19S2asirregular. What isat issue isthe validity of their decision to accept them as proper material for the evaluation of the candidates albeit stripped of the views of the countersigning officer." 20 And concluded that: "The unavoidable conclusion is that the reports on the candidates for theyear 1982wereincomplete and assuchdid not qualify asconfidential reports within the meaning of the 25 Circular. It was in the power of the Public Service Commission to take steps for their completion by referring the reports back to the administration with the request that they be countersigned by the officer who was exercising supervision at the time over the candidates. In the absence 30 of this complement the respondents were duty-bound to disregardthereports.Bytakingthem intoconsideration they allowed extraneous material to influence their decision and on that account their decision isliable to be set aside." 35 It was submitted by the appellant that to the contrary the respondent Commission was legally correct, when considering the confidential reports for the year 1982,to consider only the views of the reporting officer and to disregard those of the countersigning officer, since the countersigning officer, Dr. 40 Neophytou hadwrongly acted assuch,asat therelevant timehe did not have thesupervision ofsuch officers. 676 3C.L.R. Louca v.SavvaandThePubl.Serv.Comm.& Others A.Loizou,P. •It was further submitted that such irregularity as explained above didnot render such reports wholly irregularto the extent that they had to be entirely disregarded, as decided by the trial Court, but that such part which was not tainted with any 5 irregularity could still betaken into consideration. It isto be noted at this stage that the until then responsible countersigning officer hadbeen interdicted and wasthus unable to countersign the reports at the time these were being 10 compiled, that is the beginning of 1983. Hence they were countersigned by his replacement, who though had taken over his duties as acting Director of Psychiatric Services he had no knowledge of their performance, et cetera. 15 Thematter oftheregularitiesinconfidential reports hadbeen considered by the Full Bench of this Court inthe recent caseof Sekkides v. The Republic (19S8) 3 C.L.R. 2136, were it was heldthat failure to observe the provisions ofcircularNo.491of the 26th March. 1979 which regulates their preparation, 20 inevitably renders such report irregular. Such irregularity, however, must be of a material kind in order to lead to the annulment of the decision taken. The extent of the irregularity and the effect such confidential report had on the decision always depends on thecircumstances and facts of thecase. 25 In the present case Dr. Neophytou as acting Head of Department countersigned the confidential reports in question inviewofthefact thatitwasnot possiblefortheofficer whowas Head of Department atthe time to whichthe reports related to 30 countersign such reports, as stated above, since he had been interdicted. We do not consider that this amounted to an irregularity because the Head of Department irrespective of whether oneisholdingasubstantive post orismerely servingin an acting capacity, is not precluded from signing confidential 35 reportsrelatingtoatime duringwhichhedidnotholdsuch post, if it ispractically impossible for hispredecessorto doso,aswas the case here. Moreover we consider that the length of time during which one is Head of Department, is not related to his acquiring sufficient knowledge concerning the officers serving 40 underhim.It isnot imperative for suchknowledgetohavebeen acquired through direct contact with such officers nor is it alwayspossible,butsuchinformation maybeobtainedfrom any 677 A.Loizou,P. Louca v.Savvaand ThePubl.Serv.Comm.& Others
(1989)other proper source asisalsothecasewheresuchsubordinate officers donot work within the same premises but are spread out in different areas due to the nature of their work. (See Payiatsos v. The Republic
(1987)3 C.L.R. 321 at 328, Chrysohos v.TheRepublic(19S5)3 C.L.R.78at87.) 5 Thecircularof 1979doesnot makeanyprovisionsastothe timeaHeadofDepartment mustholdhispostbeforehemaybe ableto carryout hisdutiessuchaspreparingor countersigning confidential reports. It may also be worth noting here that section 44
(3)of the Public Service Law, 1967 (Law No. 33 of 1967), does not imposeanycondition astotimebefore aHeadof Department maygivehisrecommendationsinrespectofanypromotion of 15 any of hissubordinates. (Seethejudgment of the FullBench in Haris v.The Republic
(1989)3C.L.R.147. Irrespective of the above the respondent Commission obviously out of caution decidedto disregard such part of the 20 reports which related to the countersigning by the newly appointed acting Head of Department, though in our view it couldhaveconsidered themasawhole. Thisitmay,incertain circumstances be able to do whenever it considers that any confidential report before it suffers from any irregularity of a 25 non material kind,that istoexcludesuchpart of the report it considers irregular. SeeArgyrides v.The Republic
(1989)3 C.L.R. 380.AlsointhecaseofTheoklitouandAnotherv. The Republic
(1988)3 C.L.R. 1271,it was stated by the Court referring tothepresentjudgmentunderappeal asfollows: 30 "In Michalakis Savva we did observe that when confidential reports are excluded, it is in the power of the PublicServiceCommissiontorequesttheAdministration to fill the gap.This is not amandatory course andevery case 35 must depend on its own facts. Development in the psychiatricdepartmentmadeitdifficult, ifnotimpossible,to fill the gap by referring the matter back to the Administration. It was open to the Public Service Commission to adoptthecoursetheyfollowed andevaluate 40 the merits of the candidates by reference to admissible confidential reports, after exclusion of those considered 678 10 3 C.L.R. Louca v.Savva and The Publ. Serv. Comm. &Others A. Loizou, P. inadmissible." Though without doubt we feel that Dr. Neophytou was - • competent and able to-have countersigned the confidential 5 reports in question, nevertheless we consider, in the circumstances,thatthetrialCourtwronglyannulledthedecision of the respondent Commission for having taken into consideration the aforesaid confidential reports, as it did, and theseground of appeal therefore succeed. 10 As regards the third ground of appeal it was submitted that the findings of the trial Court to the effect that the confidential reports for theyears 1983-1984,of interested party Yiannoulla Louca were tainted with bias due to the fact that the reporting 15 officer who had compiled such reports was a close relation of hers,were wrong. In this respect thetrial Court stated that: 20 25 30 " the suggestion that the confidential report on interested party Yiannouila Louca for the year 1983-84 oughtto havebeen disregarded for reasons ofbias. Herethe complaint is not one of subjective bias on the part of the reporting officer but one of objective bias arising from the relationship between the reporting officer and Yiannoulla Louca. It would be difficult to discern any disposition of personal favour on the part of Mrs. V. Christou towards Yiannoulla Louca considering that her assessment of the worth of her services wason the wholesimilar to that made by other reporting officers. However, bias may be inferred from theexistence ofsucha relationshipbetween the parties as would normally preclude an administrative organ from exercising powers assignedto itby law." 35 Andfurther down concluded that: 40 "....given Cyprus social realities, particularly the close bond that unites families, the class should also include relations of thefirst degreebyconsanguinity, that is,brother andsistersin-law. That being my decision, the confidential reports on Yiannoulla Louca for the years 1983-84 were tainted with biasandoughtto have been disregarded." 679 A. Loizou, P. Louca v. Savva and The Publ. Serv. Comm. &Others
(1989)The general principle is that the organs participating in any particular administrative process must appear toact impartially whichcannot besaidtobethecasewhenthereexistsanyspecial tie or relationship which relates to the persons involved in the process or to its outcome. (See Christou v. The Republic 5
(1980)3 C.L.R. 437 at 449). But any lack of impartiality must be established with sufficient certainty from facts emanating from official records or by safe inferences drawn from such facts. (See Othonos v.The Republic
(1989)3C.L.R. 475) and invariably biasalways dependson thefacts ofthecase. Thefact 10 that a person may make a report in respect of a close relation oreven hisbrother,doesnot perseinvalidatethe administrative processandeven thoughitshouldbeavoided,inacountryofthe size of Cyprus it may not always be possible to avoid the possibility of a person serving under a close relative,though in 15 such a case it would be expected that the relationship will be disclosed. (SeePetsas v.TheRepublic 3.R.S.C.C.60at p. 63). In any event it is clear from the facts that the assessment made for the years in question byher closerelative is,asisalso 20 stated by the trial Court "on the whole similar to that made by other reporting officers" therefore it cannot be said that such reports were in any way biasedsince the assessment contained therein doesnot differ from thegeneral picturepresentedbythis interested party throughout her career and in any case as also 25 found by the trial Court, "it would be difficult to discern any disposition of favour on the part" of the reporting officer towards this interested party. As we have found therefore no evidence of bias,thisground of appeal succeeds. 30 Coming now to the cross-appeals, it was argued that the recommendations of the Head of Department, were wrongly considered by thetrial Judge to be objective and in accordance with the Law; inthis wefind nomerit.Thefunction anddutyof the Head of Department when appearing before therespondent 35 Commission is to give his recommendations as regards the candidates which he considers to be the most suitable for the post. And so long as his recommendations tally with the material in the personal files of the candidates and their confidential reports, he has no obligation to give a separate 40 recommendation inrespect ofeverysinglecandidate. Thisdoes not in any way amount to preferential treatment, it is not ' r 680 3 C.L.R. Louca v.Savva andThePubl.Serv. Comm.& Others A. Loizou. Ρ contrary to Law and does not render his recommendations without reasoning. One must not also lose sight of the fact that the personal files and confidential reports of the candidates which contain all therelevant material concerningthemwere at 5 alltimes before therespondent Commission. Itwould therefore not have been possible for the Head of Department to either mislead the respondent Commission or to present a different picture as regards any particular candidate without putting the respondent Commission into inquiry, since the merit. 10 qualifications andseniority of thecandidates were before it,and on the basis of which the respondent Commission selected the most suitable candidates for the post. Finally,asregards theallegations ofbias against certain ofthe 15 candidates on the part of the then Head of Department when countersigning their reports before 1983, from the material before the trial Court we consider that it was reasonably open for it to decide thatthe evidence before it was not sufficient to establish such allegation which was therefore correctly 20 dismissed. For the above reasons the cross-appeals fail and are hereby dismissed. 25 30 Inthe result the appeals succeed andthe sub judice decision is affirmed under Article 146
(4)(a) of the Constitution. In the circumstances,however, therewill be noorder as tocosts inthe appeals or the cross-appeals. Appeals allowed. Cross-appeals dismissed. Sub judice decision affirmed. No orderas to costs. 681

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