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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 147
1989 January 27
[MALACHTOS, DEMETRIADES, STYLIANIDES. PAPADOPOULOS. HADJITSANGARIS, CHRYSOSTOMIS, NIKITAS, JJ.]
GEORGHIOS HARIS,
Appellant - Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC
SERVICE COMMISSION,
Respondents.
(Revisional Jurisdiction Appeal No. 699)
Public officers - Promotions - Head of Department - Recommendations of- Disregarded on ground that he had assumed duties as Head only two years prior to the material date - Defective reasoning.
Annulling decision - Effect - Operative finding of Court binding on administration - In reconsidering matter, the administration cannot depart from them - What is an operative finding - A finding upon which a Judge founded his judgment.
Public officers-Promotions - Confidential reports - invalid as to one of the candidates by reason of bias - commission taking into account confidential reports for the same period for another candidate - Defective exercise of discretion.
Public officers - Promotions - Confidential reports - Journey to the distant past - Whereas picture in recent reports markedly changed - Not permissible.
Public officers - Promotions - Confidential reports - Different reporting officers - It should be borne in mind that they apply different standards - One mark higher or one mark lower does not count.
The filling of the post in question was repeatedly brought before thisCourt. The promotion of the present appellant was annulled because the Commission had obtained information from the Secret Services related to present interested party's loyalty (lacovides v. The Republic (1981) 3 C.L.R. 305). The Commission re-examined the matter and promoted retrospectively as from 15/6/78 the present interested party, disregarding the recommendation of the Head of the Department.
The said promotion was annulled. The Court found, inter alia, that the interested party was not superior in merit. The confidential reports for the applicant (present appellant) for 1974 and 1975 were invalid, as being the product of bias (see Haris v. The Republic (1983) 3 C.L.R. 995 and the decision on appeal Republic v. Haris (1985) 3 C.L.R. 106).
In the latter case the Full Bench adopted the finding of a trial Judge that the recent confidential reports (1977) are almost similar. The Commission could not disregard recommendation of the Head of Department on the ground of superiority of merit, as emerging from the recent confidential reports.
The Commission reconsidered the matter. It once again disregarded the recommendations of the Head of Department, because:
(a) He had only two years in the job prior to the crucial date,
(b) The interested party was manifestly superior in merit, on the following grounds, namely:
(aa) They disregarded applicant's confidential reports for 1974, 1975 and 1976, as they were duty bound to do.
(bb) They took into consideration the reports for 1977, which rated the two candidates as almost equal and indicatively the report for 1978 in which appellant was slightly superior (7-3-0 as compared to 6-4-0).
(cc) They travelled into the distant past and took into consideration the reports for the years 1971, 1972 and 1973.
(dd) They also took into consideration the confidential reports for the interested party for the years 1974, 1975 and 1976.
Haris filed a recourse impugning once again the validity of thepromotion of the interested party lacovides. The recourse was dismissed. Hence the present appeal.
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 order as to costs.
cases referred to:
Iacovides v Republic (1981) 3 C.L.R. 305,
Charis v. Republic (1983) .3 C.L.R. 995.
Republic (Council of Ministers) v. Vassiliades (1967) 3 CL.R. 82,
President of the Republic v. Louca and Another (1984) 3 C.L.R. 241,
Republic v. Haris (1985) 3 C.L.R. 106,
Constantinou v. Republic (Chairman of the council for the reinstatement of Dismissed civil Servants) (1972) 3 C.L.R. 116,
Stylianou and Others v. Republic (1984) 3 C.L.R. 776,
Gava v. Republic (1984) 3 C.L.R. 1391,
Iacovidesv. Republic of Cyprus through The Public Service Commission (1966) 3 CL.R. 212.
Appeal.
Appeal against the judgment of a Judge of the Supreme Court of Cyprus (A. Loizou. J.) given on the 19th December, 1986, (Revisional Jurisdiction case No. 554/85 reported in (1986) 3 C.L.R. 2493, whereby appellants recourse against the promotion of the interested party to the post of Agricultural Officer 2nd Grade and his secondment to the temporary post of Agricultural Officer 1st Grade, was dismissed.
A. Haviaras, for the Appellant.
R. Gavrielides, Senior Counsel of the Republic, for the Respondents.
Cur. advvult.
MALACHTOS, J.: The Judgment of the Court will be delivered by Mr. Justice Stylianides.
STYLLANIDES, J.: This appeal is directed against the first instance Judgment, whereby the promotion/secondment of the interested party, Andreas lacovides, to the post of Agricultural Officer, 2nd Grade, with retrospective effect as from 15th June, 1978, his secondment to the temporary post of Agricultural Officer. 1st Grade, as from 15th March, 1982, and his promotion to the permanent post of Agricultural Officer, 1st Grade, as from 15th November, 1982, decided on the same date, was dismissed.
The history of the proceedings of this case goes back to 1978. The appellant and other officers were promoted/seconded to the post of Agricultural Officer, 2nd Grade, in 1978 and their such promotion/secondment was published in the Official Gazette of the Republic on 14th July, 1978, under Notification No. 1377 and 1378. The promotion and the secondment aforesaid were declared null and void by a Judge of this Court, on the sole ground that lacovides and another were not promoted or seconded because they were reported upon to the Commission by the Central Information Service that they were not loyal and they were not respecting the Law - (lacovides v. Republic (1981) 3 C.L.R. 305). The Court in that recourse did not deal with the qualifications and/or comparison between the appellant and the interested party. After the said annulling Decision, the Commission at two meetings, on 21st October, 1981 and on 23rd November, 1981, reconsidered the matter and decided to promote interested party lacovides with retrospective effect as from 15th June, 1978, disregarding the recommendations of the Head of the Department that Haris was the best suitable for the post. The appellant challenged the validity of that decision by Recourse No. 74/82. A Judge of this Court declared null and void and of no effect whatsoever the challenged administrative act(Charis v. Republic (1983) 3 C.L.R. 995). The Respondents appealed against the first instance Judgment and the Full Bench dismissed such appeal having been seized with the case ab initio according to the jurisprudence of this Court on the nature of revisional appeals (Republic (Council of Ministers) v. Christakis Vassiliades (1967) 3 C.L.R. 82; President of the Republic v. YiannakisLouca and Another (1984) 3 C.L.R. 241). The judgment of the Full Bench is reported sub nominee Republic v. Haris (1985) 3 C.LR. 106. In the judgment of the Full Bench at p. 115 we read:-
"In this case, however, having regard to the qualifications of the respondent and the interested party, we are of the view that their qualifications are equal and the interested party was not superior."
With regard to the confidential reports, it was found that the confidential reports on Haris, the appellant, for the years 1974, 1975, 1976, prepared by reporting officer G. Agrotis,were nullified, due to lack of impartiality, as they were being the product of bias. At p. 118 it is clearly said:-
"...The reports for the years to which we have referred are nullified for the reasons we have endeavoured to explain and which emerge clearly form the file."
With regard to the merit of the candidates, as emerging from the valid confidential reports, after reference to the principle that in deciding on the merit of the candidates it is necessary to look at past confidential reports and especially at the most recent ones, in order to evaluate the performance of the candidates during their career as a whole, it said at p. 116:-
"The most recent confidential reports at the material time were those for the year 1977. They were made by two different reporting officers. The respondent was rated with 3 'Excellent' and 7 'Very Good' and the interested party with 4 'Excellent' and 6 'Very Good'. 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[152]one candidate is superior to another.."
The Head of the Department who attended the meeting of the Commission for the filling of four posts held on 21st November, 1981, after making a comparison between Haris and lacovides concluded:"Εν τω συνόλω των κριτηρίων είναι καλύτερος ο κ.Χάρης"("On the totality of the criteria Mr. Harris is better"). The Commission disregarded the recommendations of the Head of the Department on two grounds, as follows, as set out in Haris (1983) (supra) at pp. 1007-1008:-
'Ή Επιτροπή εν προκειμένω εξήτασε με ιδιαιτέραν προσοχήν' την περίπτωσιν του κ. Γεωργίου Χαρή (applicant) ο οποίος έχει συστηθή υπό του Διευθυντού του Τμήματος διά προαγωγήν και παρετήρησεν ότι αι εν γένει περί αυτού Εμπιστευτικαί Εκθέσεις (κατά τον ουσιώδη χρόνον) παρουσιάζουν αυτόν κατώτερον του κ. Ιακωβίδη (interested party-δ). Η Επιτροπή παρετήρησε ωσαύτως ότι αμφότεροι εχαρακτηρίσθησαν υπό του Διευθυντού του Τμήματος ως πολύ καλοί. παρ' όλον ότι ούτος συνέστησε τον κ. Χαρήν.. και ότι ο κ. Ιακωβίδης υπερτερεί εις προσόντα του κ. Χαρή...."
(The Commission in this respect examined with special attention the case of Mr. GeorghiosHaris (applicant) who has been recommended by the Head of the Department for promotion and observed that in general the confidential reports about him (at the material time) present him inferior to Mr. Iacovides (interested party (d)). The Commission also observed that both have been described by the Head of the Department as very good, even though he recommended Mr. 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 understand it, is based on two observations made by the Commission which touch merit and qualifications.
Thus tile Commission says that:
(a) Generally the confidential reports at the material time 'present tile applicant inferior to the interestedparty Iacovides'.
(b) The interested party lacovides 'surpasses in qualifications' the applicant."
The trial Judge having gone very meticulously into the matter of the qualifications and the valid confidential reports said at p. 1013:-
"I have had the opportunity of examining the factual substratum on this matter earlier on in the present judgment. I may as well repeat here:
(a)the latest confidential reports (for 1977) of the applicant and the interested party lacovides are almost similar taking into consideration the fact that they were submitted by different reporting officers and as stated in Aristocleous case (supra).
'Different reporting officers inevitably use different standards in their evaluation of the performance of the various officers serving under them' (In the confidential report for 1977 the applicant was rated with 3 'excellent' and 7 'very good' whilst interested party lacovides was rated with 4 'excellent' and 6 'very good').
(b)As regards the confidential reports of the applicant for the years 1975 and 1976, I shall confine myself in saying this much: they have created an unsatisfactory state of affairs rendering their value next to nil; no administrative organ can depict therefrom with the required certainty the real picture of the merit of the candidate concerned."
As against this confused and unsatisfactory material presented by the aforesaid confidential reports the P.S.C. had before it the clear recommendations of the Director; in the circumstances it was not open to it to disregard them as they had no other solid soil to step on: in view of the above I cannot subscribe, with respect, to their reasoning."
The Full Bench in 1985 cited the above passage and said:-
"We share the view of the trial 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 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 the other.
In the present case the Commission had the opportunity of hearing the reasoned recommendations of the Head of the Department. They disregarded them without due reasoning and the trial Judge rightly annulled the decision for the promotion/secondmentin respect of interested party Iacovides."
Following the Judgment of the Full Bench the Respondents re-examined the matter on 12th March, 1985, by reference to the factual and legal situation existing at the time the annulled decision was taken, in the light, however, of the Judgment of the Court. The, also. sought legal advice from the Attorney-General which was given to them on 20th February, 1985 (see Appendix 2).
At the same meeting the filling of a permanent post of 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 recorded in the minutes of the Commission are:-
''.. συστήνει και πάλι το Γεώργιο Χαρή του οποίου οι υπηρεσίες υπήρξαν πάρα πολύ ικανοποιητικές και υπερείχε κατά τον ουσιώδη χρόνο όλων των άλλων υποψηφίων στο σύνολο των κριτηρίων.
Ο ίδιος (ο κ. Λούκα) διευκρίνισε ότι για πρώτη φορά ανέλαβε καθήκοντα στο Τμήμα Γεωργίας την 1.8.76, όταν διορίστηκε Διευθυντής του Τμήματος. Προηγουμένως υπηρετούσε στο Ινστιτούτο Γεωργικών Ερευνών. Κατά συνέπεια οι απόψεις τις οποίες εξέφρασε τότε και επαναλαμβάνει και τώρα αφορούσαν την περίοδο υπηρεσίας του στο Τμήμα, δηλαδή από 1.8.76 και ύστερα. Αυτά τα δύο χρόνια που παρακολουθούσε την εργασία τους πιστεύει ότι ο Γεώργιος Χαρής ήταν καλύτερος υπάλληλος από τον Ανδρέα Ιακωβίδη."
(".. he recommends again GeorghiosHaris, whose services were very satisfactory and who at the material time was superior to all others candidates on the totality of the criteria.
He clarified that he resumed duties for the first time in the Department of Agriculture on 1.8.76. when he was appointed Director of the Department ...Therefore the opinions he expressed then and which he repeats now referred to the period of his service in the Department, i.e. from 1.8.76 onwards. During those two years when he followed their work he believes that GeorghiosHaris was better public officer than Andreas lacovides.").
The Commission disregarded again the clear recommendations of the Head of the Department.
They gave two reasons for such departure:-
(a) That the Head of the Department assumed duties as Director of Agriculture on 1st August. 1976. i.e. only two years before the material date and, as the candidates worked directly under him only for two years, that period was not sufficient for proper and due evaluation by the Head of the Department; and
(b)That the interested party was manifestly superior in merit.
They based this on the following:-
(i) They disregarded the confidential reports for years 1974, 1975, 1976, as they were duty bound to do after the Judgment of the Supreme Court.
(ii) They took into consideration the confidential reports for 1977, which rated the two candidates almost equal, and they took, also, indicatively into consideration the confidential reports for 1978, having regard to thefact that the material time was May, 1978, in which the appellant was slightly superior to interested party (7-3-0, 6-4-0).
(iii) They travelled, however into the distant past, in the years 1971, 1972, and 1973, in which the interested party was rated in the confidential reports superior to the appellant.
(iv) They, also, took into consideration in the evaluation of the interested party the confidential reports for 1974, 1975, 1976, for which there were no valid confidential reports for the appellant.
The first ground is totally impermissible and was not open to the Commission. A Head of the Department, who has under his supervision for two consecutive years two public officers, cannot in any way be considered that he is not in a position to make an evaluation and speak clearly and definitely about such public officers. Had it been otherwise, we wonder how many Heads of departments would have been disqualified by such reasoning from making recommendations for their subordinates. This ground is, also, contrary to section 44(3) of Law 33/67, which does not impose any condition for the period of service of the Head of the Department.
With regard to the second ground, the Respondents erred.
In the decision of the Respondents annulled by the two previous cases Charis v. Republic and the Full Bench Republic v. Haris (supra), the recommendations of the Head of the Department were disregarded for, inter alia, the reason that in general the confidential reports presented the present appellant inferior to lacovides. The Court had before it the files of the confidential reports of both. On the totality of the material before it the Court of first instance and the Full Bench held clearly and unequivocally that it was not open to the Commission to disregard the clear recommendations of the Head of the Department.
It was not open to the Respondents in the present case to put forward this reasoning.
The Judgments of the Court of Revisional Jurisdiction are binding upon all organs and authorities of the Republic (see Article 146.5 of the Constitution) and every operative finding of the Court is binding upon the Administration which is no longer at liberty to take a contrary view of a given set of facts.
In loannisConstantinou v. Republic (Chairman of the Council for the reinstatement of Dismissed Civil Servants) (1972) 3 C.L.R. 116, A. Loizou, J., as he then was, adopted the following passage from Vegleri "The Compliance of the Administration to the Decisions of the Council of State", 1934 edition, p. 38:-
"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 State and they were considered illegal, and, in this way all the possible prerequisites of the administrative act were exhausted, the result of the annulment must be considered as 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 concluded that, even if all the component elements of res 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 a case.
In Stylianou and Others v. Republic (1984) 3 C.L.R. 776, it was said at pp. 784-785:-
"As it has been repeatedly said, Article 146 of the Constitution introduced the Administrative Law and Jurisdiction in this country. Paragraph 5 reads:-
'Any decision given under paragraph 4 of this article shall be binding on all Courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned'.
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 146 of the Constitution.
The annulling decision of the Court binds both the applicant and the Administration The Administration has a duty, however, thereafter to examine the matter afresh under the factual and legal regime obtaining at the time the first act 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 as being contrary to law, it cannot rely on the same law and issue an identical act. If the first administrative act was annulled for lack of reasoning or for deficient reasoning, the erroneous reasoning cannot be used for the issue of a new act. The administration cannot rely on the grounds which caused the annulment of the first act. It is not,however, contrary to the doctrine of res judicata the issue of a new administrative act on the same subject and with the same content as the annulled one provided that the new act is not based on the grounds that caused the annulment of the first act by the Court. (See. Greek Council of State, Case No. 307/40; see, also. Dentia- Administrative Justice, (1965) Volume 'C'. pp. 364-367; Vegleri. - Compliance of the Administration to the Decisions of the Greek Council of State (1934) PP. 29-48.; Conclusions of the Greek Council of State. 1929-59. p. 281.)"
In Gava v. Republic (1984) 3 C.L.R. 1391, 1394, it was said that an operative finding of a Court of Revisional Jurisdiction is the finding upon which a judgment is founded. This is binding upon the Administration, which no longer is at liberty to take a contrary view of a given set of facts. Upon re-examination of a case, the Administration is precluded from making a different assessment of the facts covered by an operative finding unless they conduct a fresh inquiry and new facts emerge in the context thereof justifying such re-assessment.
In the decision annulled by the Court (first instance and appellate), of 23rd November, 1981, the recommendations ofthe Head of the Department were disregarded on the grounds, inter alia, that Iacovides was superior to the appellant. (Η Επιτροπή............ παρετήρησεν ότι αι εν γένει περί αυτού (κ. Γεωργίου Χαρή) Εμπιστευτικαί Εκθέσεις (κατά τον ουσιώδη χρόνον) παρουσιάζουν αυτόν .κατωτέραν του κ. Ιακωβίδη.).
The same files .filesof the confidential reports were before the Respondents at all times and they were before the Courts, of the first instance and the Full Bench.
The Judgment of the Full Bench precludes the Respondents from resorting to the same reasoning.
Even if they were at liberty to make a new assessment uninfluenced by the Judgments 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. 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.
It is not an act of proper administration, or proper comparison, or proper evaluation to take into consideration in assessing candidates the confidential reports of the one and thus tip the scales in his favour for a period that the other, due to fault of others, had no confidential reports for comparison. This is defective excise of discretionary power.
The last act was the journey into the distant past. They had before them the more recent confidential reports,which depicted the picture of the candidates. In lacovos L. Iacovides and The Republic of Cyprus through The Public Service Commission (1966) 3 C.L.R. 212. Triantafyllides, J., as he then 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, 1958, which were such as would not entitle applicant to promotion, whereas the confidential reports from 1959-1962 showed a marked change.
In the circumstances of this particular case, it was not open 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 1977, and indicatively 1978, showed a marked change.
In conclusion we say that the appellant and the interested party were more or less equal and none was superior to the other.
To recapitulate, the promotion of the applicant in 1978 was annulled on the sole ground that the position of the present interested party was probably influenced by information given to the Commission by the Central Information Service about his loyalty.
The decision of the Respondents, of 23rd November, 1981, to promote the interested party in preference to the appellant, by disregarding the recommendations of the Head of the Department, was annulled by the Supreme Court. The Supreme Court in its Judgment stated that the two candidates were equal in qualifications; the appellant had a slight seniority; the reasoning of the commission, on the basis of merit, was unwarranted; the reports for the appellant for 1974, 1975, 1976 were nullified, due to lack of impartiality and it concluded:-
"In the present case the Commission had the opportunity of hearing the reasoned recommendations of the Head of the Department. They disregarded them without due reasoning and the trial Judge rightly annulled the decision for the promotion/secondmentin respect of interested party Iacovides."
The Respondents were estopped from departing from the recommendations of the Head of the Department on the same grounds and the same reasoning which were declared invalid by the Court.
In view of all the foregoing, the discretion of the Commission was not unfettered. The reasons they gave for disregarding the recommendation of the Head of the Department in reaching thesub 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.
The appeal succeeds. The sub judice decisions are declared null and void and of no effect whatsoever.
The Commission has now to re-examine the matter in the light of this Judgment.
Regarding costs, not without hesitation, we make no order as to costs.
Sub judice decisions annulled. No
order as to costs.