This is therefore the purpose underlying the general obligation of a broad tender. Even when the tender obligation does not apply, stateliness remains the soul of the civil service. In striving for statehood, the appointment mechanism plays a decisive role. The more personal the choice, one based on previous acquaintance and without competition, the greater the danger that the appointment will be based on personal or political loyalty, one that undermines the values of public service.
- I am of the opinion that the invalidation of the government's decision before us is what follows the path of the ruling. It has long been clarified that even an appointment to a position exempt from the tender obligation remains subject to the principles of administrative law as a whole. Thus, in the case of the High Court of Justice 6163/92 Eisenberg v. Minister of Construction and Housing, IsrSC 47(2) 229 (1993) disqualifies the appointment of a candidate for the position of Director General of a government ministry, on the grounds of his involvement in the commission of criminal offenses (for which he received a pardon). Similar to our case, this is an appointment for which a statutory exemption from the tender obligation is granted according to Article 19 to the Appointments Law, and no other express restriction applies to it under the law. In the same matter, it was held that the Appointments Law should be interpreted in light of the principle that "a public authority is the trustee of the public, and every action and decision it makes must be made with this trust in mind... The duty of loyalty derives from the duty to exercise governmental discretion fairly, honestly, reasonably and without discrimination."Name, at p. 258). Thus, even appointments with an exemption from a tender can - and must - be examined in accordance with the general principles of administrative law.
- At this stage, I would like to clarify two points that were particularly emphasized in my original opinion - and were not at the center of my colleague the President's reasoning. Now that I have realized that my fellow judge Willner I disagree with them, I would like to clarify the matter in this aspect as well.
- In the judgment that is the subject of further discussion, I have designated an important and central place in my opinion for the application of the principle of equality, as it has developed in case law over the years. In my opinion, this is a central reason for recognizing the obligation to conduct a competitive process here. As I explained (in paragraphs 3 and 27-30 of my opinion), since the 1990s, this Court has begun to recognize in its case law the obligation to conduct competitive proceedings even in circumstances where there is no tender obligation, taking into account the known importance of the principles of equality and fairness in the operation of public authorities (see, for example: High Court of Justice 5023/91 Poraz v. Minister of Construction and HousingIsrSC 46(2) 793, 801-803 (1992); High Court of Justice 5871/92 Mitral BTax Appeal v. Minister of Trade and Industry, IsrSC 47(1) 521, 528 (1993) (hereinafter: the Mitral); High Court of Justice 6176/93 Elyakim 1986 - Agricultural Cooperative Society for Settlement on Appeal Taxes v. Israel Lands Administration, IsrSC 48(2) 158, 163-165 (1994). See also a later ruling: AAA 6145/12 Municipality of Nazareth Illit v. Hartman, paragraph 40 of the judge's judgment A. Rubinstein [Nevo] (13.1.2013); AAA 5525/13 Tourism Services Woman on Appeal Taxes v. Ministry of Defense, paragraph 32 [Nevo] (19.5.2014); AAA 701/22 Ofer Shafir & Co. Law Offices v. Advocates for the Promotion of Good Governance, paragraph 6 [Nevo] (June 22, 2022)). This gives expression to the view that the realization of the principle of equality, which is a basic principle in our system, requires the opening of opportunities even in circumstances in which the legislation does not require it. As explained in the matter Mitral:
"Where a public authority is faced with the need to elect one, or several, from a larger number of candidates, it must base its selection on competition between candidates; and that the competition must uphold the conditions of equality and fairness, as required by the rules of proper administration... By way of generalization, it seems possible to say that the selection of the candidate (or candidates) is important only in those cases in which the authority, as the trustee of the public, is likely to benefit or be harmed as a result of the election of a particular candidate. Thus, for example, when the purpose of the plan is to obtain adequate consideration for the public coffers, on the occasion of the sale of a public property; or to preserve public financial resources, on the occasion of the purchase of a property or service; or to choose the one who has the best qualifications for the performance of the work" (ibid., at p. 528 (emphasis added)).