PANAYIOTIS IOANNOU MYRTIOTIS ν. REPUBLIC (EDUCATIONAL SERVICE COMMISSION) (1975) 3 CLR 58

Administrative Law-Administrative decisions-Need for due reasoning of-Decision promoting the two interested parties to post of Assistant Headmaster Elementary Education-Not duly reasoned-Annulled.

Candidates-For promotion to public offices-Interview of-Impression created by such interview-Weight to be attached thereto.

The applicant complains against the decision of the respondent Educational Service Commission to promote the interested parties to the post of Assistant Headmaster Elementary Education.

Before taking the sub judice decision the Committee met and laid certain criteria with regard to the persons to be selected and to be called for an interview. The minutes of this meeting of the Commission read as follows:

"The Committee having considered the personal and confidential files of all teachers 'A' who, in accordance with the schemes of service are entitled to such a promotion, and after taking into consideration the merit of the candidates as reflected from all the material before it, including their qualifications and seniority, decided to select and call for a personal interview.

(a) those who have completed at least 22 years of total service and have an average mark of at least 19 in their last two confidential reports;

(b) those who have completed a total service of at least 18 years and who have an average mark of 20 in their last two confidential reports;

(c) those who have completed a total service of at least 14 years and who have an average mark of 21 in their last two confidential reports; and

(d) those who have completed a total service of at least 10 years and who have an average mark of 21.50 in their last two confidential reports".

Subsequently, on the 10th May, 1972, the Commission met again to decide on the persons to be promoted and its relevant minute reads:

"The Commission having examined the personal and confidential files of all teachers 'A' who, in accordance with the schemes of service, are entitled to promotion to the post of Assistant Headmaster (see minutes dated 10.1.72 and 5.2.72) and after taking into consideration

(a)The merit of the candidates as it appears from the confidential reports of the respective Inspectors, the opinion which the Committee formed from the personal interviews it had with them and generally from all the material and documents before it;

(b) the qualifications of the candidates;

(d) the views of the General Inspector, and of the Inspectors who were present at the interviews, as well as the views of the General Inspector of Elementary Education who was present; considers the following teachers... as the most suitable for promotion to the post of Assistant Headmaster, Elementary Education as corresponding more fully to the criteria laid down by the scheme of service and the law".

In the light of the above minutes, the committee decided to promote certain persons with effect from the 1st July, 1972. The Commission further decided, in accordance with the above-mentioned criteria to place on a waiting list, among others, the names of the two interested parties and also that of the applicant.

There followed another meeting of the Commission on the 4th July, 1972 in which after referring to its above decision of the 10th May, 1972 and "on the basis of the criteria laid down in such decision the Committee decided that promotion to the post of Assistant Headmaster Elementary Education, with effect from the 1st September, 1972, be offered" to the interested parties who, as already stated, have been included in the waiting list prepared on the 10th May, 1972.

The main complaint of counsel for the applicant was that the sub judice decision was not duly reasoned, particularly in view of the better confidential reports and marks of his client; and because the views of the Head of the Elementary Educatior were not recorded at all.

Held, (1) The minutes of the Commission should state clearly and lucidly what were the views of both the Inspector-General and of the rest of the Inspectors who attended the interviews and the meeting of the Committee on May 10, when it was decided to place on the waiting list the interested parties and the applicant; also nothing appears in the last decision of the respondent of the 4th July, 1972, as to what were these views. And the Court until this time is left in the dark, and no doubt it is hampered in carrying out effectively its judicial control to know why the sub judice decision was taken.

Per curiam:

Once the Commission, as stated in its minutes, in taking the sub judice decision took also into account the impression they formed of the candidates during the interview one would have expected a note to have been made of their impressions regarding the three candidates. Such interview should be held only as a way of forming an opinion about the possession by the candidates of the required qualifications, and undue weight should not be placed on the impression creased by such interview (see Triantafyllides and Others v. The Republic (1970) 3 C.L.R. 235 at pp. 245-246).

(2) The need of due reasoning is necessitated by the principle of legality of Administrative acts (see Stassinopoullos on the Law of Administrative Acts, 1951, p. 337); and due reasoning is required in order to make possible the ascertainment of the proper application of the law and to enable the carrying out of judicial control (see Kyriakopoullos on Greek Administrative Law, 4th ed. vol. 2, p. 386); absence of due reasoning, has become by itself a ground for invalidating a particular decision (see, inter alia, Jacovides v. Republic (1966) 3 C.L.R. 212 at p. 221).

I find myself in agreement with counsel for the applicant, that the decision of the Commission is not duly reasoned to enable the applicant to know why he was not promoted. It is therefore declared null and void and of no effect whatsoever (see, also, Article 29 of the Constitution; Rallis and The Greek Communal Chamber, 5 R.S.C.C. 11 at p. 18; Hadjisavva v. The Republic. (1972) 3 C.L.R. 174, at p. 205, and Papazachariou v. The Republic (1972) 3 C.L.R. 486, at p. 504-505).

Sub judice decision annulled.

Cases referred to:

Papapetrou and The Republic, 2 R.S.C.C. 61;

Georghiades v. The Republic (1967) 3 C.L.R. 653;

Partellides v. The Republic (1969) 3 C.L.R. 480, at pp. 483-484;

Papazachariou v. The Republic (1972) 3 C.L.R. 486, at pp. 492, at pp. 504-505;

Triantafyllides and Others v. The Republic (1970) 3 C.L.R. 235, at pp. 245-246;

Rallis and The Greek Communal Chamber, 5 R.S.C.C. 11 at p. 18;

Cyprus Palestine Plantations Co. Ltd. v. The Republic (1965) 3 C.L.R. 271 at p. 282;

Jacovides v. The Republic (1966) 3 C.L.R. 212 at p. 221;

Kasapis v. The Council for Registration of Architects and Civil Engineers (1967) 3 C.L.R. 270 at p. 278;

Metaloc (Near East) Ltd. v. The Republic (1969) 3 C.L.R. 351, at pp. 356-357;

Hadjisavva v. The Republic (1972) 3 C.L.R. 174, at p. 205; Re Poyser and Mills' Arbitration [1963] 1 All E.R 612;

Bagdades v. The Central Bank of Cyprus (1973) 3 C.L.R. 417, at pp. 428-429;

Korai v. C.B.C. (1973) 3 C.L.R. 546, at p. 556.

Recourse.

Recourse against the decision of the respondent Educational Service Commission to promote the interested parties to the post of Assistant Headmaster of Elementary Education in preference and instead of the applicant.

K. Talarides, for the applicant.

A. Angelides, for the respondent.

Cur. adv. vult.

The following judgment was delivered by:-

HADJIANASTASSIOU, J.: In these proceedings, under Article 146 of the Constitution, the applicant seeks to challenge the decision of the Educational Service Committee, as being null and void and of no effect whatsoever in promoting the two interested parties Messrs. Stylianos Nicolaides and Petros Sozou to the post of Assistant Headmaster of Elementary Education.

The facts, so far as relevant to this case are as follows:-The applicant has been called by the Committee for an interview on January 28, 1972, for the filling of certain posts of Assistant Headmaster of Elementary Education. On September 25, 1972, the applicant, apparently because he was informed that he was not selected for promotion, addressed a letter to the Chairman of the Committee complaining that although some of his colleagues with fewer qualifications and marks had been promoted, in his case the Committee did not approve a promotion and he was expecting a reply from the Chairman in writing putting forward his views on that matter. (Blue 140 in the personal file of the applicant).

On September 26, 1972, the Chairman of the Committee in reply, informed the applicant that in the opinion of the Educational Service Committee those who were promoted fulfilled more the qualifications required under the law and the schemes of service. Furthermore, the applicant was informed that he was included on a waiting list for promotion (blue 141).

The scheme of service of Assistant Headmaster of Elementary Education is a promotion post, and the duties and responsibilities are these:-

"1. Instructive duties in accordance with the time table and the analytical programme.

2. Aiding duties next to the Headmaster of a large school for the smooth and productive administration and function of the school.

3. Active participation in all the works, manifestations and activities of the school.

4. Any other duties which may be assigned to him for the benefit of the students, the school and the education generally".

The qualifications required are:-

"1. To be a teacher 'A' and to have at least two years service at schools of 'B' or 'C' class or at rural schools in preference of 'B' or 'C' class.

2. Successful service according to the last two confidential reports.

3. Post graduate course abroad or additional diploma in educational subjects or certificates of successful attendance of special series of educational lessons organised by the Ministry, are regarded as additional qualification".

On January 10, 1972, the Committee met for the purpose of filling the vacant posts of Assistant Headmaster, and having "considered the personal and confidential files of all teachers 'A' who, in accordance with the schemes of service are entitled to such a promotion, and after taking into consideration the merit of the candidates as reflected from all the material before it, including their qualifications and seniority, decided to select and call for a personal interview

(a) those who have completed at least 22 years of total service and have an average mark of at least 19 in their last two confidential reports;

(b) those who have completed a total service of at least 18 years and who have an average mark of 20 in their last two confidential reports;

(c) those who have completed a total service of at least 14 years and who have an average mark of 21 in their last two confidential reports; and (d) those who have completed a total service of at least 10 years and who have an average, mark of 21.50 in their last two confidential reports".

In the light of the above, the Committee called for a personal interview a number of teachers on the 20th, 21st, 22nd, 24th, 25th, 27th, 28th, 29th and 31st January, 1972. (See an extract of the minutes).

There is no doubt that the criteria which have been laid down on this occasion have nothing to do with the scheme of service and apparently have caused to the professional body of teachers a lot of concern (as it appears from the correspondence) and were also the subject of a lot of criticism by counsel on behalf of the applicant in the present case. Be that as it may, there was a further meeting of the Committee for the purpose of filling the post in question on February 5, 1972, and from an extract of the minutes, it appears that the Committee, after referring to the minutes of January 10, 1972, and after reiterating that it had selected and called for a personal interview the most predominant candidates in accordance with their merit, qualifications and seniority, and having also referred to the minutes dated January 20, and February 1, 1972, decided to inform a number of candidates, whose names appeared in the minutes, that they are no longer regarded as candidates for promotion because they do not fulfil the requirement of the scheme of service relating to "at least two years service at schools of 'B' or 'C' class or at rural schools in preference of 'B' or 'C' class".

The Committee further decided to postpone the interview of those who were absent abroad to a more convenient time and called the rest of the applicants on the dates appearing in the minutes.

There was a further meeting of the Committee on May 10, 1972, in the presence of Mr. A. Christodoulides, Head of the Department of Elementary Education. According to an extract of the minutes, it appears that the Committee, "having examined the personal and confidential files of all teachers 'A' who, in accordance with the schemes of service, are entitled to promotion to the post of Assistant Headmaster (see minutes dated 10.1.72 and 5.2.72) and after taking into consideration

(a) The merit, of the candidates as it appears from the confidential reports of the respective, Inspectors, the opinion which the Committee formed from the personal interviews it had with them (see minutes) and generally from all the material and documents before it;

(b) the qualifications of the candidates;

(d) the views of the General Inspector, and of the Inspectors who were present at the interviews, as well as the views of the General Inspector of Elementary Education who was present; considers the following teachers. as the most suitable for promotion to the post of Assistant Headmaster, Elementary Education as corresponding more fully to the criteria laid down by the scheme of service and the law".

In the light of that, the Committee decided to promote those persons (whose names do not appear on this extract) with effect from the 1st July, 1972. The Committee further decided, in accordance with the criteria which had already been laid down, to place on a waiting list, among others, the names of the two interested parties and also that of the applicant, in order to fill any vacancies which may be created in the next school year 1972-73.

There followed another meeting of the respondent Committee on the 4th July, 1972 (vide its minutes exhibit 20) in which after referring to its decision of the 10th May, 1972, and "on the basis of the criteria laid down in such decision the Committee decided that promotion to the post of Assistant Headmaster Elementary Education, with effect from the 1st September, 1972, be offered to the following teachers who have been included in the waiting list prepared on that date (see minutes) and that they be posted as follows:

1. Nicolaides Stelios Avgorou

8. Sozou Petros Larnaca".

The above appointment of the interested parties was published in the Official Gazette on the 1st September, 1972.

The applicant, feeling aggrieved because of the decision of the Committee, filed the present recourse on October 4, 1972, and it is based on the following legal points:-

(1) That the Educational Service Committee failed to exercise its competence because it failed to make a proper inquiry with a view to finding out the qualifications of both the applicant and the interested party and has failed to weigh correctly those qualifications;

(2) the said decision is not duly reasoned to enable the Committee to carry out its judicial control;

(3) the said decision was taken in violation of the rule of selecting the best candidate; and

(4) that the Committee has failed to take into consideration that the applicant, because of his merit, qualifications and seniority was distinctly superior to both parties.

On October 31, 1972, counsel on behalf of the respondent alleged that the said decision or act of the respondent Committee was taken after a proper study of the case and in accordance with the law.

Now, according to a comparative table (blue 146) the applicant joined the Educational Service on September 1, 1959 and on August 31, 1970, he was promoted to the post of Teacher 'A'. He has 13 years of service and his marks during the years 1969-70 and 1970-71 were 20.97 and 23 respectively.

Regarding the two interested parties, both were appointed as teachers on the same date as the applicant, but they were promoted to the post of Teacher 'A' on August 31, 1969. Both the interested parties are one year more senior than the applicant, but their marks during the last two confidential reports are for 1970-71 and 1971-72, for the first interested party 21 for both years, and for the second interested party 21.75 for both years.

Regarding the qualifications of the applicant, it appears that he is a graduate of the Pedagogical Academy and has obtained an additional qualification, that is to say, a Certificate in teaching slow learning children of the institute of Education of the University of London for the year 1964-65.

Both interested parties are also graduates of the Pedagogical Academy with no additional qualifications, and Stylianos Nicolaides is recorded as having more years of service in the schools apparently because he has served abroad. There is no doubt, however, that for the purposes of this recourse, as I said earlier, both interested parties were one year more senior to the applicant when they were promoted to the post of Teacher 'A'

It has been said in a number of cases that the paramount duty of the Commission in effecting appointments and promotions is to select the most suitable candidate for the particular post, having regard to the totality of the circumstances pertaining to each one of the candidates, including length of service, which though always a factor to be considered, is not always the exclusive vital criterion for such appointment or promotion. Whether a candidate is qualified for appointment or promotion is to be determined having regard to the scheme of service in question, and no doubt the Commission has to consider also the additional qualification of a candidate. (Papapetrou and The Republic 2 R.S.C.C. 61; and Georghiades v. The Republic (1967) 3 C.L.R. 653).

There is no doubt that the Commission in their search to select the best candidate for a post should carefully consider the merits and qualifications of each candidate, and although, as I said earlier, length of service is one of the factors to be taken into account, I think I ought to point out that it is not always the exclusive vital criterion, although cogent reasons for disregarding specifically greater seniority of an applicant should be given by the Commission. (Partellides v. The Republic (1969) 3 C.L.R. 480 at pp. 483-484).

It is further said that the recommendations of the Head of a Department or other responsible officer is a most vital criterion to be considered by the Commission, which should not be lightly disregarded. But as I have indicated during the hearing of this case, the minutes of the Commission should state clearly and lucidly what were the views of both the Inspector-General and of the rest of the Inspectors who attended the interviews and the meeting of the Committee on May 10, when it was decided to place on the waiting list the interested parties and the applicant.

Unfortunately, again nothing appears in the last decision of the Committee, and although counsel very fairly has under taken to inquire from the members of the Committee and to put before this Court their views, (Papazachariou v. The Republic, (1972) 3 C.L.R. 486 at p. 492), nothing has materialized until now for reasons not appearing on record; and the Court until this time is left in the dark, and no doubt it is hampered in carrying out effectively its judicial control to know why the decision was taken. However, there is a further point which is worrying me in this case, because in one of the minutes of the Committee, during the interview of the many candidates who appeared before them, they stated that they have also taken into account the impression created by such candidates. Regretfully, no specific reference was made with regard to the interested parties and the applicant, and although I do not underestimate their difficulties, nevertheless, once the Committee in promoting the two interested parties in preference and instead of the applicant, took that also into consideration, one would have expected a note to have been made of their impressions regarding the three candidates. Of course, I do not want to be taken that I do not approve of such a practice, because certainly the Committee, in considering the merits, qualifications and experience of a candidate may also take into account the impression created by such candidate at the relevant interview. However, I would like to point out that such interview should be held only as a way of forming an opinion about the possession by the candidates of the required qualifications, and undue weight should not, therefore, be placed on the impression created by such interview. If authority is needed, the case of Triantafyllides and Others v. The Republic (1970) 3 C.L.R. 235, at pp. 245-246 answers the point in lucid and unambiguous language.

With this in mind, and in view of the background of whether or not the promotions of the two interested parties were made by the Committee on the strength of those criteria laid down in the minute of January 10, 1972, counsel on behalf of the applicant contended that the decision of the Committee in effecting the promotions is not duly reasoned, particularly in view of the better confidential reports and marks of his client; and because the views of the Head of the Elementary Education Department are not recorded at all. I think with regard to due reasoning I find myself in agreement with counsel for the applicant, that the decision of the Committee is not duly reasoned to enable the applicant to know why he was not promoted; and particularly so because of the reasons given by the Chairman on September 26, 1972.

In Greece, from where we draw valuable guidance, the need for due reasoning is necessitated by the principle of legality of administrative acts. (Stassinopoullos on the Law of Administrative Acts, 1951, p. 337). Due reasoning is, therefore, required in order to make possible the ascertainment of the proper application of the law and to enable the carrying out of judicial control. (See also Kyriakopoullos on the Greek Administrative Law, 4th ed. Vol. 2 p. 386). In Cyprus, of course, the question of reasoning required remains regulated by Article 29 of our Constitution, which provides inter alia, that a decision of any public authority after a request or complaint addressed to it must be duly reasoned. This Article no doubt safeguards the right of a citizen to petition the authorities. I think, quite rightly in my view, the Chairman of the Committee has given a reply to the inquiry of the applicant, and the reason put forward, as I said earlier, was that the interested parties were found to fulfil more the qualifications required under the law and the scheme of service. But with respect, this reasoning is again not sufficient.

Apart from this constitutional provision, it is an established principle of our own administrative law that administrative decisions must be duly reasoned. As I said earlier, this requirement of due reasoning which affects the validity of an administrative decision is adopted from the Greek Administrative Law.

In Cyprus, the first case that laid down the requirement of due reasoning is Rallis and The Greek Communal Chamber, 5 R.S.C.C. 11 at p. 18. The Supreme Constitutional Court expressed the requirement of due reasoning in the following terms:-"The existence of a jurisdiction such, as the one under Article 146 contains an implied directive to the authorities which are subject to such jurisdiction, to endeavour to reason duly their relevant decisions. The absence of such reasoning, though not always necessarily in itself a ground for invalidating the particular decision, may prove to be a grave handicap towards effectively and convincingly supporting its validity in proceedings before this Court".

I think, with due respect to the decision of the Court, it appears that it was exercising a very cautious stand apparently because the principles of administrative law were appearing for the first time in Cyprus and were anxious not to lay down a rigid rule, i.e. that absence of due reasoning is in itself a ground of invalidity. The later decisions, however, show that absence of due reasoning, has become by itself aground for invalidating the particular decision. See The Cyprus Palestine Plantations Co. Ltd. v. The Republic (1965) 3 C.L.R. 271 at p. 282; Jacovides v. The Republic (1966) 3 C.L.R. 212 at p. 221; A. Kasapis v. The Council for the Registration of Architects and Civil Engineers (1967) 3 C.L.R. 270 at p. 278; Metaloc (Near East) Ltd. v. The Republic (1969) 3 C.L.R. 351, at pp. 356-357.

In Partellides v. The Republic (1969) 3 C.L.R. 480 at p. 484, the Court, dealing with oral recommendations made by the Head of the Department before the Commission-not being recorded in the minutes-had this to say:-

".we have indeed, noted a general statement, in the relevant minutes of the respondent, that the decisions as to the promotions concerned-including the sub judice one-were reached bearing in mind inter alia, the 'recommendations' of Mr. Hadjioannou (which were made orally at the particular meeting of the respondent on the 3^rd July, 1968); but, in the opinion of the Court, without these recommendations being adequately recorded in the said minutes, so as to enable this Court to examine how and why it was reasonably open to the respondent to act upon them, notwithstanding the greater seniority of the appellant and the equally good confidential reports, such a general statement in the minutes of the respondent, as aforesaid, cannot have the effect of rendering the promotion of interested party Gregoriades one which can be treated as having been properly decided upon in the exercise of the particular powers of the respondent".

Although in effect this case is not strictly based on lack of due reasoning as a separate ground, but on a defective exercise of discretionary power, nevertheless, it has been followed in a number of cases, and shows that the reasons of the recommending responsible officer should be given in writing in the decision itself.

In Hadjisavva v. The Republic (1972) 3 C.L.R. 174, the Court, after quoting Re Poyser and Mills' Arbitration [1963] 1 All E.R. 612, on the question of giving adequate reasons had this to say at p. 205:-

"What amounts to due reasoning is a question of degree depending upon the nature of the decision concerned, but reasoning behind an administrative decision may be found either in the decision itself or in the official records related thereto.

Having heard both counsel, to whom I am indeed indebted for their assistance, and after directing myself to those authoritative pronouncements, I am of the opinion that the decision of the Council of Ministers is not duly reasoned, was made on the strength of non-existing facts and, is, therefore, contrary to the Constitution and the law and it was made in excess or abuse of powers vested in such organ".

In Papazachariou v. The Republic (1972) 3 C.L.R. 486, at pp. 504-505, the Court, dealing once again with the question of due reasoning, said:-

"Having considered carefully the arguments of counsel, and after perusing all relevant documents before me including the conflicting belated statements made on behalf of the respondent, I am of the view that this is one of the few classic cases in which no reasons at all are contained in the decision of the Commission, which was made under a misconception of the real facts and contrary to the provisions of the law.

Since one of the concepts of administrative law is that administrative decisions must be duly reasoned, in my view, that must be clearly read as meaning that proper adequate reasons must be given. The reasons that are set out, whether they are right or wrong, must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantive points raised, viz., whether the applicant could qualify under the scheme of service, in view of his marks regarding his ability as a teacher, and because it appeared from his personal file that he had the required years of service. I would, therefore, find myself in agreement with counsel for the applicant that the decision of the Commission was not reasoned at all. Exercising my powers under Article 146, I would declare that such decision or act is null and void and of no effect whatsoever".

In Bagdades v. The Central Bank of Cyprus, (1973) 3 C.L.R. 417, the Court in allowing the application of the applicant had this to say at pp. 428-429:-

"Having considered the arguments of both counsel and in view of the fact that one of the concepts of administrative law is that administrative decisions must be duly reasoned, that must be clearly read as meaning that proper adequate reasons must be given. The reasons that are set out in the decision of the Committee whether they are right or wrong, ought to have been reasons which not only would be intelligible, but also can reasonably be said to deal with the substantive points raised, i.e. why the interested party was preferred and what were the other relevant factors which weighed so much in the mind of the Committee in preferring the interested party instead of the applicant who, as I said earlier, had a longer service with the bank, in the absence of those reasons, in reviewing the said decision, I am unable to ascertain whether the decision is well-founded in fact and in accordance with the law.".

See also Korai and Another v. C.B.C. (1973) 3 C.L.R. 546, at p. 556.

Having perused the confidential reports of the parties and of their activities within and outside the school as well as their marks, I am left wondering why the applicant was not given a better chance regarding his promotion; but because I do not know what was the most decisive factor which weighed so much in the mind of the Committee in effecting the promotions complained of, and directing myself with the judicial authorities I have quoted earlier, I have come to the conclusion that the said decision is not duly reasoned, that is to say, no proper and adequate reasons were given. Exercising, therefore, my powers, I would declare that the said decision of the Committee is null and void and of no effect whatsoever.

In these circumstances, and as the case has to be re-examined by the Committee in the light of this judgment, I think it is no disrespect to counsel if I. will not proceed to deal with the rest of the points raised and argued before me. The Order of the Court is, therefore, that the Decision of the Commission is null and void, but regarding the costs, I am of the view that an amount of £15 towards the costs of the applicant is called for.

Sub judice decision annulled.

Order for costs as above.

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