IOANNIDES & ANOTHER ν. GRAIN COMMISSION (1988) 3 CLR 1250

Public Corporations-Promotions-The Grain Commission-A decision toselect a candidate should be duly reasoned-ln this case it is not-Neitherthe decision itself nor the files before the respondents conveyed the reason why the interested party was preferred to the applicants.

Public Corporations-Promotions-The Grain Commission-Head of Department-Recommendations-Significance-lf inconsistent with overall picture, they should be disregarded or given limited weight-Failure to record them-Sufficient to lead to annulment-in this case if they were in favor of applicants; no special reasons were given for disregarding them-lf in favor of the interested party, they were inconsistent with the overall picture.

Public Corporations-Promotions-Grain Commission-Confidential reports-Constitute part of the overall picture of the merits of each candidate which the Commission has to weigh as a whole.

In this case the sub judice promotion for the interested party was annulled. The principles expounded by the Court in annulling the promotionsufficiently appear in the hereinabove headnotes.

Sub judice decision annulled.

No order as to costs.

Cases referred to:

Theodossiou v. The Republic, 2 R.S.C.C. 44;

Panayis v. The Ports Authority of Cyprus (1988) 3 C.L.R. 1095;

Georghiades and Others v. The Republic (1967) 3 C.L.R. 666;

HadjiSavva v. Republic (1972) 3 C.L.R. 174;

Republic v. LefcosGeorghiades (1972) 3 C.L.R. 594;

Tsouloftas and Others v. The Republic (1983) 3 C.L.R. 426;

Marangos v. The Republic (1983) 3 C.L.R. 682;

Co-operate Society of Alona v. The Republic (1986) 3 C.L.R. 222;

Republic v. Haris (1985) 3 C.L.R. 106;

Republic v. Koufettas(1985) 3 C.L.R. 1950;

Evangelou v.The Republic (1965) 3 C.L.R. 292.

Recourses.

Recourses against the decision of the respondent to promote the interested party to the post of Senior Store-Keeper in preference and instead of the applicants.

E. Efstathiou, for applicants.

C. Velaris, for respondents.

G. Charalambides, for interested party.

Cur.adv. vult

STYLIANIDES J. read the following judgment. The applicants by means of these recourses seek the annulment of the promotion of KyprosKyprianou (the interested party) to the post of Senior Store-keeper.

The Respondents are a Corporation of Public Law established by the Grain Control Law, Cap. 68 as amended by Laws 18/60, 54/62, 30/64 and 83/66.

The Respondents on 20th September, 1984, advertised two posts of Senior Store keeper amongst their employees. There were 14 candidates. The applications were dispatched through their District Managers; each one of them made his observations and recommendations thereon.

On 6th November, 1984, the Commission met and issued the sub judice decision, which is quoted verbatim: -

"H Επιτροπή αφού έλαβε γνώση των εμπιστευτικών εκθέσεων και εμελέτησε τους προσωπικούς και εμπιστευτικούς φακέλους των υποψηφίων και αφού άκουσε τις απόψεις του Διευθυντού, αποφάσισε όπως, προσφερθεί διορισμός στις δύο θέσεις Ανώτερου Αποθηκαρίου στους Φρίξο Κογκορόζη, Λογιστικό Λειτουργό II και στον Κύπρο Κυπριανού, Λογιστικό Λειτουργό II."

No Rules or Regulations were governing the promotions of the employees of the Respondent Commission. Regulations were made in 1986, published in the Official Gazette on 7th November, 1986, Supplement No. Ill, (I) under KΔII 259.

As it emerges from the wording of the sub judice decision and the written address of counsel for the Respondents the claim of officers to promotion was considered on the basis of merit, qualifications, seniority and the general principles of Administrative Law. Furthermore, the recommendations of the General Manager were taken into consideration.

The paramount duty of a promoting body, such as the Respondent Commission, is to select the most suitable candidate on thebasis of the aforesaid criteria having taken all of them into consideration.In doing so the Commission should decide who is themost suitable among the qualified candidates on the totality of thecircumstances pertaining to each one of them - (Michael Theodossiou and The Republic (Public Service Commission), 2 R.S.C.C., 44 at p. 47).

The Commission has to make an evaluation of the candidates, to make a comparison between them and reach a decision after such evaluation and comparison.

The Respondent Commission, being a Public Collective. Organ has to keep written records of their proceedings and give reasons for their decisions.

The duty of this Court in reviewing promotions is to see whether the Commission exercises its discretionary power in conformity with the statutory provisions and requirements of Administrative Law generally, including good faith.

Reasoning:

The requirement of due reasoning in administrative decisions has been stressed repeatedly by this Court. The requirement of reasoning is that its presence excludes arbitrariness on the part of the administrative organ and protects the administration against itself by preventing it from taking a hasty decision. At the same time it protects the persons affected by such decision. The reasoning must be clear, that is to say, the concrete factors on which the administration based its decision for the case under consideration must be specifically mentioned in such a manner as to render possible its judicial control. It must contain the way of thinking of the administrative organ on the relevant fact which constitutes the foundation for the decision. A reasoning which does not satisfy these conditions cannot be considered as due reasoning. The reasoning may be ascertained and supplemented from the material in the file of the administration Soteris L. Panayis v. The Ports Authority of Cyprus (1988) 3 C.L.R. 1095; Athos G.Georghiades and Others v. Republic (Public Service Commission) (1967) 3 C.L.R., 653, 666; GeorghiosHjiSavva v. Republic (Council of Ministers) (1972) 3 C.L.R., 174; Republic (Public ServiceCommission) v.LefkosGeorghiades (1972) 3 C.L.R.,594; AndreasTsouloftasand Others v.The Republic of Cyprus (1983) 3 C.L.R., 426; Marangosv. The Republic (1983) 3 C.L.R., 682and Co-Operative Society of Alona v. The Republic of Cyprus(1986) 3 C.L.R., 222).

The sub judice decision is not reasoned. It does not convey the reasons why the Respondents preferred the interested party. The files to which they referred are before this Court. I went meticulously through them. The reasoning for the sub judice- decision can neither be ascertained, nor supplemented from the material in the files of the applicants and the interested party.

Recommendations of the Head of a Department:

The recommendations of the Head of a Department were always considered a most vital consideration, which should weigh with the promoting body in coming to a decision in a particular case - (Michael Theodossiou and the Republic (Public Service Commission) (supra); Republic v. GeorghiosHaris (1985) 3C.L.R., 106).

It is well established, however, that when the recommendations of the Head of the Department are inconsistent with the overall picture presented by the confidential reports, they should be disregarded or be given limited weight, depending on the extent of the inconsistency - (The Republic of Cyprus v. AntoniosKoufettas (1985) 3 C.L.R., 1950).

This Court in the exercise of its judicial control and in considering the validity of a promotion scrutinizes the reasons given forthe recommendation of the Head of the Department in order to ascertainwhether they are consistent with the overall picture presentedby the confidential reports of the applicant and the interestedparties.

The recommendations were not recorded. It was the duty of the Commission to put on record the recommendations of their Manager, which influenced them in reaching the challenged decision. This is sufficient fault for the sub judice decision to be annulled.

Assuming that the recommendations of the Head of the Department were unfavorable to the interested party, who was selected for promotion, the Commission did not follow them without giving cogent reasons.

If the recommendations were favorable to the interested party and the Commission followed them, these recommendations are totally inconsistent with the confidential reports.

The last report for each one of the applicants and the interested party was made a few months prior to the sub judice decision. The interested party was graded simply "good", whereas the two applicants were "very good", nearing "excellent".

A perusal of the confidential reports for past years depicts the same picture very vividly. I need not go into the details. Suffices to quote some of the remarks in the confidential reports of the interested party: -

"Αν και του αφηρέθηκαν αρκετά από τα καθήκοντα του, εντούτοις η αποδοτικότης του παραμένει η ίδια"

In another year:-

"Είναι πολύ αργός εις την εκτέλεσιν των καθηκόντων του και αρέσκεται να διατάζει τους υφισταμένους του"

The confidential reports on the candidates for promotion must be regarded as constituting part of the overall picture of the merits of each candidate which the Commission has to weigh as a whole - (Evangelou v. The Republic (1965) 3 C.L.R., 292, at p.297;

One of the applicants is senior to the interested party and the, other applicant is equal to the interested party.

For the aforesaid the sub judice decision cannot survive thescrutiny of judicial control.

There are other grounds on which it may be annulled, but I need not embark on them.

In view of the above the sub judice decision is declared null and void and of no effect, but in all the circumstances I make no order as to costs.

Sub judice decision annulled.

No order as to costs.

cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο

	CyLaw \| Αναφορικά μ'εμάς \| Επικοινωνία