(1988) 3 CLR 2519
[*2519] 1988 December 20
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTOS ERODOTOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS. THROUGH
1. THE MINISTER OF AGRICULTURE AND NATURAL
RESOURCES,
2. THE PUBLIC SERVICE COMMISSION,
Respondents.
(Cases Nos. 586/85, 587/85).
Public Officers—Promotions—Qualifications—Due inquiry—As all the qualifications of the candidates were in the files which had been placed before the Commission, it cannot be said that the Commission failed to conduct a proper inquiry.
Public Officers—Promotions—Quaslifications—-More or higher qualifications that those required—Do not work to a candidate's advantage—No special reasoning required for prefering the candidate with the lower qalifications.
Public Officers—Promotions—Confidential reports—Circular 490/79 concerning their preparation—Alterations effected by countersigning officer—No reasons given —Since there was no evidence that there had been a disagreement between such officer and the reporting officer, there was no need to give reasons—Zyngas v. The Republic (1988) 3 C.L.R. 838 followed.
Public Officers—Promotions—Confidential reports—Circular 490/79 concerning their preparation—Alterations by Countersigning officer in a manner contravening the rules in the circular—An irregularity, which leads to annulment only if it is considered as material—Sekkides v. The The Republic (1988) 3 C.L.R. 2136 followed. [*2520]
In dismissing these recourses the Court expounded the legal principles, which sufficiently appear in the hereinabove headnote.
Recourses dismissed.
No order as to costs.
Cases referred to:
The Republic v. Argyrides (1987) 3 C.L.R 1092;
Zyngas v. The Republic (1988) 3 C.L.R. 838;
Sekkides v. The Republic (1988) 3 C.L.R. 2136.
Recourses.
Recourses against the decision of the respondent to promote the interested parties to the post of Agricultural Officer and Agricultural Officer A in preference and instead of the applicant.
A. Scordis, for the applicant.
A. Papasavvas, Senior Counsel of the Republic, for the respondents.
G. Triantafyllides, for interested party No. 4 in Case No. 587/ 85.
Cur. adv. vult.
A. LOIZOU P. read the following judgment. By the present recourses which were tried together as they present common issues of law and fact, the applicant seeks a declaration of the Court as follows:
By recourse No. 586/85 that:
"The decision of the respondent Commission published in the official Gazette of the Republic to promote the interested [*2521] party, I Mytilineos to the permanent post of Agricultural Officer in the Department of Agriculture is null and void and of no legal effect whatsoever, and that
By recourse No. 587/85 that:
"The decision of the respondent Commission published in the official Gazette of the Republic to promote the interested parties, 1. N. Papageorghiou, 2. M. Christoforides, 3. M. Ioannides - Archimandritou, 4. A. Aristidou and 5. P. Kampanellas, to the permanent post of Agriculture Officer A, Department of Agriculture in the Ministry of Agriculture and Natural Resources is null and void and of no legal effect whatsoever."
The background to these recourses, so far as relevant to the present proceedings is as follows:
The respondent Commission on the 8th February 1985, decided to revoke its decision dated 6th December 1983 for the promotion to the post of Agricultural Officer A, as from the 15th December 1983 of A. Aristides, A. Iacovides, P. Kampanellas, N. Papageorghiou and M. Christoforides and its decision dated the 24th March, 1984, for the promotion to the post of Agricultural Officer A, as from the 1st April 1984, of M. Ioannidou-Archimadritou, in view of the fact that when considering the candidates for the aforesaid posts, it was labouring under a misconception as to the actual qualifications of one of the candidates.
The respondent Commission reconsidered the matter of the filling of the post at its meeting, of the 12th March, 1985, which was also attended by Mr. Louca, Director of the Department of Agriculture as from the 1st August 1976, and Acting Director-General of the Ministry of Agriculture as from the 1st February 1985, who recommended candidates Papageorghiou, Christoforides and Kampanellas for three of the posts and for the remaining two posts recommended that the selection be made between Aristides, Archimadritou and Mytilineos. [*2522]
The respondent Commission examined the material factors from the file of the filling of the post, the personal files and confidential reports of the candidates as well as the conclusions of the Departmental Board, and the recommendations of Mr. Louca and concluded that on the basis of the above and the candidates' merit, qualifications and seniority, that the interested parties were superior to the others and the most suitable for promotion to the post in question. It therefore promoted the interested parties retrospectively as from the dates of the original promotions, that is, interested parties Aristidou, Ioannidou - Archimadritou, Kampanellas, Papageorghiou and Christoforides as from the 6th December 1983 and Mytilineos as from the 1st April 1984. As a result the applicant filed the present recourse.
It was contended on behalf of the applicant that the respondent Commission failed to inquire into the qualifications of each candidate and especially into the qualifications of the applicant, which were superior to those of the interested parties, it was acting thus under a misconception of fact. Furthermore it wrongly considered that certain interested parties possessed the postgraduate qualifications required by the Scheme of Service.
As it is stated in relevant minutes, the file of the filling of the post was at all relevant times before the respondent Commission, as well as the personal files of all candidates, including those of the applicant and the interested parties, which contained, inter alia, the qualifications of the parties and all the background to the present sub judice decision, therefore it cannot be said that the respondent Commission failed to conduct any inquiry into their qualifications since everything was before them. Moreover, I find that it was reasonably open to the respondent Commission, on the material before it to consider that all the interested parties possessed the required qualifications and satisfied the requirement of the Scheme of Service as to postgraduate studies abroad. It is not disputed that the applicant indeed possessed a degree of Master of Science in Agricultural Economics of the University of London, whereas some of the interested parties possessed only a Diploma but the word "studies" in the Scheme of Service does not [*2523] impose a requirement of a degree of any kind, nor does it place those candidates possessing higher postgraduate qualifications in a more advantageous position than others, as the possession of more or higher qualifications than those required by the Scheme of Service does not work to a candidate's advantage. This ground therefore fails.
It must also be mentioned at this stage that all interested parties were recommended for promotion whereas the applicant was not.
Secondly it was contended on behalf of the applicant that the sub judice decision lacks special reasoning for disregarding the applicant's higher qualifications. As already stated above, since all candidates possessed the required qualifications, no special reasoning was required to be given as it is not a case of preferring a candidate not possessing such qualifications to one possessing same.
It was argued that the Departmental Board was wrongly set up by the Minister himself, or his Director-General, contrary to the provisions of section 36 of the Public Service Law, 1967, (Law No. 33 of 1967), which confers such power upon the Council of Ministers.
In accordance with Circular No. 490 dated the 20th March, 1979, applicable as from the 1st June 1979 and approved by the Council of Ministers and in particular paragraph 1 thereof, a Departmental Board may be set up consisting of the Director-General of the Ministry concerned or the Director of an Independent Office or Service, who acts as chairman and who selects four other officers to act as members. Therefore there was nothing irregular or contrary to law in this instance.
The final ground put forward on behalf of the applicant and contained in the reply, is that the confidential reports of all parties contained alterations by the Head of Department, Mr. Louca, as countersigning officer, which were effected without giving reasons in the appropriate column in the report, and as argued, on [*2524] the authority of The Republic v. Argyrides, (1987) 3 C.L.R. 1092 such lack of reasoning must render the reports so altered irregular.
From a perusal of the confidential reports in question, which are before me, the following picture appears:
In respect of the applicant, for the year 1982, items "output", "ability of oral expression", "leadership" were reduced from "Excellent" to "Very Good", the overall rating of his report becoming "Very Good" from "Excellent". No alterations appear in respect of the years 1981 and 1980 in which he is rated as "Excellent".
As regards interested party Papageorghiou he was rated as "Excellent" for 1982 in which year no alterations appear. For the year 1981 items "output", "ability of verbal expression" were reduced from "Excellent" to "Very Good" and item "character" increased from "Very Good" to "Excellent"; and for the year 1980 items "output", "dedication to duty", "reliability" , and "character" were increased to "Excellent" from "Very Good" and items "ability of oral expression" was increased from "Good" to "Very Good" The overall rating, however, for both years remained as "Very Good".
Interested party Kampanellas for all the years 1982,1981 and 1980 was rated as "Excellent", however, item "intelligence" was increased from "Very Good" to "excellent" for the year 1982.
Interested party Christoforides was rated as "Excellent" for the year 1982, in the report for which item "written expression" was reduced from "Excellent" to "Very Good". No alterations appear in the years 1981 and 1980 in which he was rated as "Excellent" and "Very Good" respectively.
Interested party Archimandritou was rated as "Excellent" in all her reports in which there are no alterations.
Interested party Aristidou was rated as "Excellent" for all three [*2525] years, 1982, 1981, 1980. In his report for the year 1982 the rating for item "cooperation" was reduced from "Excellent" to "Very Good".
Interested party Mytilineos was rated as "Excellent" for the year 1981 in which report items "ability of written expression" and "ability of oral expression" were reduced from "Excellent" to Very good". No alterations appear for the years 1981 and 1980 in which he is rated as "Excellent" and "Very Good" respectively.
From what is before me, there is no indication that the countersigning officer did not discuss the matter prior to such alterations with the reporting officer, though indeed no comments appear in respect of such alterations in the appropriate column. There is also no evidence for any disagreement between the countersigning and reporting officers which would render it necessary and for the countersigning officer to give his reasons for his own separate assessment. Authority on this is to be found in the case of Zyngas v. The Republic (1988) 3 C.L.R. 838 where I had this to say at p. 843:-
"There is no requirement for such reasons to be given except only in the event of there being a disagreement to that effect between the countersigning and the reporting officers..."
Even if such failure by the countersigning officer to fill in such column may be considered as an irregualarity, nonetheless it must first be considered of a material kind in order to lead to the annulment of the sub judice decision. This matter was recently considered in extenso by the Full Bench in the case of Sekkides v. The Republic (1988) 3 C.L.R. 2136 where the following was stated at pp. 2151-2152:
"Reference must also be made to the case of Charalambos Ierides v. The Republic (1976) 3 C.L.R. 9, affirmed,on appeal by the Full Bench, the judgment reported under the same title in (1980) 3 C.L.R. 165, where the question of irregularities of form and their effect was considered and held that only a material [*2526] irregularity can lead to the annulment of the relevant administrative process. (See also Stassinopoulos, on the Law of Administrative Acts -1951 pp. 229-230).
In the light of the above authorities it must be concluded that the 1979 Circular lays down rules of procedure which must generally be followed when preparing confidential reports. Failure to observe such rules inevitably renders any report thus compiled irregular, but at the same time we feel that to hold that such irregularity should at all times be considered as leading to the annulment of any decision taken, irrespective of whether it did materially affect such decision, would be going too far. No doubt such irregularity amounts to an illegality in the broad sense of the term, that is of being a violation of a procedural legal provision and this is how we understand Argyrides case (supra). But being a violation of procedure it has to be shown that it materially affected the decision reached. As regards the conclusion reached in Argyrides case (supra) respecting Article 28(1) we are of the view that it cannot be extricated from the facts of the case.
Without doubt one must treat very cautiously when considering such reports in order to avoid even the slightest possibility of abuse by those entrusted with the duty of compiling confidential reports. We believe that one must always look first at the circumstances of the case in hand in order to ascertain the extent of the irregularity and the effect such report had on the sub judice decision."
In the present cases and in the circumstances I consider that the noncompletion by the coutersigning officer of the appropriate column of observations in no way affects the outcome of the sub judice decision.
In the result and for reasons stated above these recourses fail and are hereby dismissed with no order as to costs.
Recourses dismissed.
No order as to costs.
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