clr/1989/1989_3A_841.pdf

(1989)explanation or recommendation about either of the two candidates. In the light of theestablished principles that thereasons of adecision shouldbesufficiently stated,theCourt reached theconclusion that in ihc present case,the failure to record in the minutes the matters which were 5 taken into consideration in reaching the decision in question, renders such decision a nullity as the exercise of judicial control over such decision is impossible. Sub judice decision annulled. Costs in \Q favour ofapplicant. Recourse. Recourse against the decision oftherespondents topromote 15 the interested party to the post of Tug Master, 1st Grade, in preference and instead of the applicant. I. Papaphilippou,for the Applicant. 20 N.Papaefstathiou,for the Respondent. Cur. adv. vult. SAVVIDES, J. read the following judgment. Applicant by 25 this recourse challenges the decision of the respondent Authority to promote to thepostofTug Master, 1stGrade,the interested party, Nazaret Mofozian (hereinafter tobe described as "the interested party") instead of the applicant. 30 It is the contention of the applicant that the sub judice decision isnull and void andof no legal effect for the following reasons: (l)The respondent acted under a misconception of fact 35 and/or in excess of power in that: It failed to take into consideration themerit,seniority, experience andability of the applicant which are superior to that of the interested party; it ignored the fact that the interested party lacks experience at sea; that the knowledge and 40 abilities of the interested party have no relation with navigation;-that the interested party did not satisfy the 842 3 C.L.R. Kyriacou v.The Ports Auth. of Cyprus Savvides, J. scheme ofservice.

(2)The respondent was insinuated by extraneous motives. 5 10

(3)The subjudice decision lacks due reasoning.

(4)The respondent acted illegally and/orin excessof power and/or in exercise of powers which were not vested in it under sections 19and 35 of Law 38/73 and which were vested in the Public Service Commission under Article 125of the Constitution. The facts of the case arebriefly as follows: 15 20 25 30 35 As it appears from a report by the General Manager of the respondent Authority dated 24th July, 1985, it had been decided, upon a decision of the Medical Board that Mr. Evagoras Georghiou. whowasholdingthe post ofTug Master, 1stGrade,was about to retire for medical grounds andhispost wasgoing to become vacant as from 1st September, 1985. In the saidreport itwasmentioned that one of thecandidates,the interested party inthisrecourse,hadfailed inthe examinations previously held by the respondent Authority, which are a prerequisite for promotion and suggested that "in view of the fact that in the relevant scheme of service no time limits are fixed forthesuccessinanyexamination whichwouldbecarried out by the Authority it is suggested that Mr. N. Molozian be submitted to written examination, once again, on the basis of the topics which he was taught in the course approved by the Board according to its decision 5/84 and ifhesucceedsthen to be considered (together with Mr. K. Kyriacou whohasalready passedtherelevant examinations) asacandidatefor promotion to the post of Tug Master, 1st Grade, which will be vacant as from the 1st September, 1985, due to the retirement of its holder. The Board of the Authority is invited to approve the submission made in the previous paragraph." 40 As a result the respondent by its decision dated 7th August, 1985, approved the above suggestion and decided that the interested party be submitted to written examinations in 843 Savvidcs,J. Kyriacou v.The Ports Auth.of Cyprus

(1989)connection with the requirement of thescheme of service for promotion Such examination was carried out on the 20th September, 1985,andthe performance of theinterested party was considered satisfactory. In the relevant report of the Director-General of the respondent No.134/85 dated 6th 5 October, 1985totheAuthonty thefollowing arementioned: "Fillingof thevacant post ofTugMaster. 1stGrade On 7.8.1985, the Board decided (decision 187/85) that Mr 10 Nazaret Molozian, Tug Master. 2nd Grade, be submitted again to written examinations in connection with the requirements oftheschemesofservicefor promotion. 2 1 The relevant examinations took place on 20.985 and 15 the performance of Mr. N. Molozian is considered satisfactory It should be noted once again that these examinationshavealreadybeenpassedbyMr C Kynacou, TugMaster,2ndGrade. 20 2.2 According to theschemeofservicefor thepost ofTug Master, 1st Grade (copy of which is attached for easy reference) Mr. C. Kynacou and Mr. N. Molozian are the onlycandidates for promotion to the post in question.The merit ofboththesetwocandidatesfor promotion reflects in 25 their annual confidential reports Further explanationswill begiven inthecourseofthediscussion ofthismatterbythe Board. 30 4. TheBoardisinvitedtotakeupthismatteranddecideas tothepersontowhompromotion willbeoffered tothepost ofTugMaster, 1stGrade." The Board of the Authonty met on the 20th December, 35 1985,toconsider thequestion ofthefilling ofthevacancyand decidedto promote theinterested partytothesaidpost. TheminutesofthemeetingoftheAuthontyatwhichthesub judicedecisionwastakenareverybnefandIshallrefertothem 40 verbatim. Theyreadasfollows: "Filling of the vacant post of Tug Master, 1stGrade (Note 844 3 C.L.R. 5 Kjriacou Λ. The Ports Auth. of Cjprus Savvides. J. 143/85). 13.1 Alter examination of all material which was available to it, the Board decided that the Authority should offer promotion to the post of Tug Master, 1st Grade, to MrΝ Molozian. Tug Master,2nd Grade." As a result ot the above decision the applicant filed the present recourse challenging same 10 Learned counsel for applicant in his written address expoundedon thelegal grounds advanced by himin support of the recourse and laid stress to the sinking supenonty of the applicant which was apparent from a comparison ot their confidential reports both in respect of ment, qualifications and 15 seniority He also laid stress to the fact that there were alterations in the confidential reports ol the applicant by the countersigning officer lor the years 1980, 1981, 1983 and 1984 which were made in violation ol circular No.491 in that no mention is made in the said reports that the countersigning 20 officer consulted the reporting otticer before making the alterations, which is amatenal illegality rendering any decision based on same as a nullity in the light ot the decision ot this Court in the case ot The Republic v. Argyhdes and finally that thesub judice decision lacks duereasoning asit isapparent 25 from the minutes ot the relevant meeting at which the sub judice decision was taken Affidavit evidence was tiled, with theleave of the Court, on behalf ot the respondent Authority Subsequently, theattiant, 30 at the request ot counsel for the applicant,gave oral evidence and was cross-examined The evidence adduced by the respondent Authority was that ot the reporting and countersigning officers according to which the countersigning officer before making his own evaluation and effecting the 35 alterations on the relevant reports had discussed the matter with the reporting officer and expressed his disagreement concerningcertaintopics Itwas after thereporting officer was persuaded as to the correctness of the observations of the countersigning officer that the alterations were made and 40 initialled by the countersigning officer Inview of the fact that the reporting officer agreed in this respect the countersigning officer didnotconsider itnecessary tomake any special entries 845 Savvides, J. Kyriacou v.The Ports Auth. of Cyprus

(1989)on the reports giving any reasons for hisdisagreement with the reporting officer. The remaining evidence comes from Michalis Vassiliades, Director of Personnel and Administration of the respondent 5 Authority, who was also performing the duties of Secretary of the Board of the respondent Authority andin such capacity he was attending the meetings of the Board. Iconsider it relevant to refer to the evidence of this witness as appearing in his affidavit and oral evidence before me and in particular to the 10 following extracts, which I consider material to the present case. • "

(2)The Board of the Port Authority in the course of examination of the matter of promotion to the post of Tug 15 Master, 1st Grade, had before it and considered the reports of the General Manager under Nos. 109/85 and 134/85.the attached list and the personal and confidential files of the applicant and the interested partv. 20

(3)The personal andconfidential files ofthecandidates were deposited with the Secretariat, of the Board before the meeting ofthe Boarddated20.12.85andwereatthedisposal of the members of theBoard for examination before aswell asafter the meeting of20.12.85 when thesubjudicedecision 25 was taken." The following is an extract from the oral evidence of this witness: 30 "At the date of the meetings I take all the files in the conference room tobeavailableto anymemberwhowishes to examine their contents and they are before the Board at the meeting. I have them locked in my office and when a member comes to Nicosiaandringsme upand wantsto see 35 something I offer him the opportunity to see whatever he wishes." On being asked whyhedidnot record in detail what matters were taken intoconsideration bytheBoardhisanswerwasthat 40 "it was not considered necessary by the Board, this.-is the practice followed because it wasan act which was not disputed 846 3 C.L.R. Kyriacou v.The Ports Auth. of Cyprus Savvides, J. in my opinion asthe Board knew what it was doing." Having briefly dealt with the evidence before me and • bearing in mind the arguments' advanced by counsel -for the5 applicant Ishall deal first with theground asto whether the sub judice decision isduly reasoned. Nothing is mentioned in the said decision as to the comparison between the two candidates an whether on the 10 basis of such comparison the interested party was the best candidatefor promotion. Furthermore nothing ismentionedas to what was the material which the Board had before it and which_jt_ had taken into consideration for offering the promotion to the interested party. According to the evidence 15 of the Secretary of the respondent part of the material which wasbefore the Board when it took the subjudice decision was the note of the General Manager No.134/S5.Reference tosuch note isin fact made ontheheadnote of the minutes. In thesaid report, reference to which has already been made in this 20 judgment, the Director-General mentions the following: "The merit ofthesaidtwocandidates reflects intheir annual confidential reports. Further explanations will be given in the course of the discussion ofthematter before the Board." 25 Nothing ismentioned intherelevant minute ofthe Boardas to whether the General Manager was present and gave any further explanations or recommendations about either of the candidates. What is only mentioned in the decision isthat the 30 Board decided to promote the interested party without any explanation whatsoever asto howsuch decision was reached. It is a well established principle of administrative law that the reasonsastohowanAuthorityreachesadecision shouldbe 35 sufficiently stated intheminutes sothat judicial control ismade possible. In thecircumstances ofthe present caseno reasoning at all is given as to how the respondent Authority reached its decision and whether on a proper evaluation of the merit, qualifications and seniority of the candidates the proper 40 decision was reached. Furthermore it is mentioned that the respondent reached its decision on the basis of all material before it without mentioning what was the material which it 847 Savvides, J. Kyriacou v.The Ports Auth. of Cyprus

(1989)actually took into consideration. In the light of the established principle that the reasons of a decision should be sufficiently stated. I have come to the conclusion that in the circumstances of the present case the 5 failure of the respondent Authority to recordin its minutes the matters which it took into consideration in reaching the sub judice decision renders suchdecision anullity astheexerciseof judicial control over such decision is impossible. Having reached such conclusion I find it unnecessary to deal with the 10 other grounds raised and arguedby counsel for applicant. In the result the sub judice decision is hereby annulled and the promotion of the interested party is set aside. Costs in favour of the applicant. Subjudice decision annulled with costsinfavour ofapplicant. 848 15