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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 308
1989 February 28
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANTONIS IAKOVOU,
Applicant,
v.
THE AGRICULTURAL INSURANCE ORGANISATION,
Respondent.
(Case No. 862/87)
Public corporations - Promotions - Interview performance at - Failure to record - Effecting the promotions on grounds, inter alia, of the performance of the candidates at the interviews - Sub judice decision annulled.
In this case the Board of the respondent organisation held interviews, but failed to record anything concerning the performance of the candidates the interviews. One of the factors, which had been taken into consideration in arriving at the sub judice promotions was the performance of the candidates at the interviews.
Held, annulling the sub juclice decision, that in the absence of any record regarding the performance of the candidates at the interview, the impressions which the Board had on the day of the evaluation of the candidates, cannot be treated as safely and accurately reliable.
Sub judice decision annulled. No order
as to costs.
Cases referred to:
Bagdades v. Central Bank (1973) 3 C.L.R. 417,
Karageorghis v. Republic (1983) 3 C.L.R. 435,
Demeiriades and Others v. Republic (1983) 3 C.L.R. 842,
Vourkos and Another v. Republic (1983) 3 C.L.R. 1442,
Republic v. Maratheftis and Another (1986) 3 C.L.R. 1407,
Kinanis and Others v. Educational Service Commission (1986) 3 C.L.R. 1705,
Ektorides v. Republic (19S6) 3 C.L.R. 2198,
Pourgourides Republic No. 1) (1988) 3 C.L.R. 1434.
Makrides v. Republic (1983) 3 C.L.R. 750,
Angelides v. Republic (1982) 3 C.L.R. 520,
Hadjiantoni and Others v. Republic (1983) 3 C.L.R. 1145,
Andronikou v. Republic (1987) 3 CL.R. 1237,
Public Service Commission v. Poroudes (1987) 3 C.L.R. 1591.
Recourse.
Recourse against the decision of the respondent to appoint the interested parts to the post of Agricultural Insurance Officer in preference and instead of the applicant.
E. Efsrathiou, for the Applicant.
S. Matsas. Counsel of the Republic B, for the Respondent.
cur. adv vult.
A. LOIZOU, P. read the following judgment. By the present recourse the applicant challenges the validity of the decision of the respondent Organisation hereinafter to be referred to as the Organization to appoint the two interested parties to the post of Agricultural Insurance Officer.
The Board of the Organisation by its, decision of the 14th May, 1987, decided to invite application for the filling of the two afore said vacant posts. As a result of the relevant advertisement fifty-six candidates possessing the relevant qualifications applied for appointment to these posts. The Board interviewed the candidates on the 7th and 8th July and the 26th August 1987. The minutes for the said meeting so far as relevant read:
"In the course of the interviews questions were put both in the Greek and English languages, which aimed at assisting the Board to evaluate the qualifications and experiences which are relevant to the duties of the post as well as the evaluation of the personality, judgment, ability in: formulating opinions, as well as the general and special knowledge of the candidates on matters related to the duties of the post. Generally the object of the interviews was to enable the members of the Board to have a complete picture which would help in the evaluation of each candidate and the selection of the best out of them.
Following a careful evaluation of the candidates the Board:
proceeded with the preparation of a short list of the prevailing candidates by inviting each member of the Board as well as the Director to indicate two names of candidates which in their opinion were the best."
The procedure for the preparation of the short list was not completed on the 26th August' 1987 and it continued at the meeting of the 9th September 1987.
At the latter meeting "following a careful evaluation of all the fiftyone candidates who appeared at the interviews, each one of the members and the Director, after taking into consideration the qualifications, the performance, the experience of the candidates as well as the whole impression they have made in the course of the interviews indicated two persons for the preparation of the short-list out of which the best two candidates would be selected. The names indicated are the following in alphabetical order.
Artemis Marios
Vakana Charalambos
Iacovou Antonios
Constantinides Michael
Hadjiharos Vasilios
In the course of the same meeting and after the preparation of the above short-list the "Board following a careful evaluation of the candidates which referred to the qualifications, the performance, the experience as well as the whole impression that has been created by them during the interviews, unanimously selected as the best candidates for appointment to the post of Agricultural Insurance Officer, Mr. Artemi Marios of Paphos and Hadjiharos Vasilios. of Nicosia."
The main questions on which the sub judice decision was challenged were the following:
1) One of the criteria that affected the selection were the performance of the candidates and the whole impression created by them during the personal interviews. In the minutes of the Board, however, there is no reference as to what were the results of the performance and of the impression at the interviews and which were the final assessments of the Board which has emanated from the interviews. All the above constitute defects which render the sub judice decision void.
2) The sub judice decision was not duly reasoned.
In the case of Bagdades v. Central Bank (1973) 3 C.L.R. 417 and Karageorghis v. The Republic (1983) 3 C.L.R. 435, Hadjianastassiou J., held that the absence of any record in the relevant minutes as to the result of the interview and the absence of any indication as to whether a system of marking was adopted, constituted a ground of annulment.
Both the above cases were followed by Savvides J., in the case of Demetriades and Others v. The Republic (1983) 3 C.L.R. 842 at p. 853 where he is reported to have said:
"I fully agree with the contention of counsel for applicants, that in the absence of any record in the relevant minutes of the meetings of the respondent Committee as to the performance and the special view formed about each candidate, it could not be possible for its members to have clearly in mind when taking the sub judice decision on 2.11.1981. the views formed about candidates interviewed 18 months earlier as compared with the views formed from the interviews of candidates whom they saw only a few days before taking their final decision. It has been held by this Court time and again that the absence of any indication in the records of the Educational Service Committee as to the performance of the candidates at the interviews and their marking (if such system was adopted) touches the validity of a decision."
Further Savvides J., in Vourkos and Another v. The Republic (1983) 3 C.L.R. 1442 said the following at p. 1459:
"The Departmental Committee was not bound to record the questions and answers given by the candidates but their duty was to record their findings as to the performance of each candidate at the interview and make their comments on the basis of such findings as they did in the present case."
In the case of The Republic v. Maratheftis and Another (1986) 3 C.L.R. 1407 (F.B.) no contemporaneous official record was made by the Commission as regards its own evaluation of the performance of the candidates at the interviews, but the Commission recorded in its minutes. on the 16th July 1983, the views of the Director General of the Ministry of Education about the performance of the candidates when interviewed. The Commission reverted on the 2nd August 1983 to the matter of filling the post in question, but it did not record its own evaluation of the performance of the candidates at the interviews, till its meeting on the 21st December 1983, that is after more than five months, had elapsed since the interviews, Triantafyllides P., delivering the judgment of the Full Bench of the Court said the following at pp. 14 13-1414:
"We have reached the conclusion that in view of the absence of any official contemporaneous record of the Commission regarding the performance of the candidates when interviewed, and, also. in view of the period of more than five months which intervened between the interviews in July 1983 and the recording, on the 21st December 1983, of the evaluation by the Commission of the performance of the candidates at such interviews, there exists a quite strong probability that the Commission, notwithstanding its undoubted good faith, was labouring under material misconceptions due to inaccuracies, which, because of the passage of time, may have crept in and distorted the evaluation of the performance of the candidates at the interviews; and the said probability is enhanced when in such evaluation there have been used only marginally different ratings such as 'very good' and 'very very good' in assessing the leading candidates.
We likewise, have to treat as tainted with probable misconception the view of the appellant Commission, which must have been based on impressions formed at the interviews of the candidates, that the interested party was superior to all the others as regards 'personality'."
A similar situation arose in the case of Kinanis and Others v. Educational Service Commission (1986) 3 C.L.R. 1705 (F.B.) in which it was held that "where the recorded impressions of the interviews of 1980 appear to have been treated as material considerations tilting the scales in favour of any interested party, the sub judice promotion of such party has to be annulled as in the absence of a contemporaneous record, such impressions cannot be treated as safely and accurately reliable."
In the case of Ektorides v. The Republic (1986) 3 C.L.R. 2198 Pikis. J. refers to the desirability of keeping proper records of the interviews in order to safeguard effective judicial control.
Also in Pourgourides and Others v. The Republic (1988) 3 C.L.R. 1434 - I held that inadequate recording of the recommendations of the Head of the Department does not enable the Court to examine how and why it was reasonably open to the respondent Commission to act upon them.
In Makrides v. The Republic (1983) 3 C.L.R. 750 I held, distinguishing Angelides v. The Republic (1982) 3 C.L. R. 520, that "the respondent Commission were not required to record in detail what their impressions were as a result of the interviews." I adopted the same course, also, in Hadjiantoni and Others v. The Republic (1983)3 C.L.R.1145; and also in Andronikos .Andronikou v. The Republic (1987) 3 C.L.R. 1237 at p. 1244, I held that the lack of contemporaneous record of the interviews, in view of the time that lapsed and the circumstances of the case, did not invalidate the decision.
Also the Full Bench of this Court allowing the appeal in the case of The Public Service Commission v. Marina Potoudes (1987) 3 C.L.R. 1591 the following was held:
"As against this judgment the respondent Commission filed the present appeal and I do not think that it is essential in this case to pronounce on the correctness of the principles enunciated in Maratheftis case, as the following facts of the present case differentiate this one from the case of Maratheftis.
(a) Unlike what happened in the Maratheftis case where the time that elapsed between the interviews and the evaluation of the performance of the candidates at such interviews was more than five months, in this case such time was ranging from seventynine to thirtynine days.
(b) In the evaluation in the Maratheftis case there have been used only marginally different ratings such as 'very good' and 'very very good' in assessing the leading candidates, whereas in this case the ratings used were substantially different because the interested parties were in general assessed as 'very good' (with the exception of three who were assessed as 'very very good'), and three of the applicants were assessed as 'nearly very good' and the remaining four as 'good'.
Therefore only on their facts the present case is distinguishable from Maratheftis. I have come to the conclusion that the sub judice promotions should not have been annulled as the respondent Commission exercised its discretion in a proper manner."
In this case the following facts emanate from the minutes of the Board of the Organisation:
(a) That the interviews of the candidates took place in the course of four meetings of the Board of the Organisation which took place from the 7th July 1987 to 26th August 1987.
(b) That no record was made as it ought normally to have been done of the performance of the candidates at the time of the interviews or at any reasonable time there after or at all.
(c) That the evaluation of the candidates took. place on the 26th August 1987.
(d) That the performance of the candidates at the interviews was one of the factors which the respondent Board took into consideration in effecting the sub judice appointments.
Having considered the material before me in the light of the matters referred to under (a) to (d) above, I hold that in the absence of any record regarding the performance of the candidates at the interview, the impressions which the Board had on the day of the evaluation of the candidates, cannot be treated as safely and accurately reliable and for this reason the sub judice decision must and is hereby annulled. In the circumstances, however, there will be no order as to costs.
Sub judicce decision annulled No
order as to costs.