VASSOS TSERIOTIS ν. THE MUNICIPALITY OF NICOSIA (1968) 3 CLR 215

Municipalities—Municipal Officers—Appointments—Creation and filling, uno actu, of the post of General Inspector of Municipal Markets, Municipality of Nicosia—Reasons for creating such post—Not a matter for the Court—But in any event, these were good reasons therefor—Selection for the post of the Interested Party does not amount to a demotion of the Applicant—Because the post thus created was a new post and not the one held previously by the Applicant—Validity of the selection of the Interested Patty for the post—Vitiated by lack of reasoning—Duty of a collective organ to give reasons for which a given decision is taken—Principles regarding due reasoning of administrative decisions restated— Exceptionally the reasoning may be disclosed belatedly— But this is only allowed when there exist relevant records from which such reasoning can be clearly derived—Decision—Relevant factors—Erroneous approach and evaluation thereof—Resulting in a defective exercise of the relevant discretionary powers vitiating the decision—See, also, below.

Administrative and Constitutional Law—Recourse under Article 146 of the Constitution—Legitimate interest required under paragraph 2 thereof—Creation by the Municipality of Nicosia of a new post—This is an organic act relating to the structure of the Municipal Services — Not affecting directly any legitimate interest of the Applicant — Who is, therefore, not entitled to attack such decision by this recourse—See, also, above.

Legitimate interest—Article 146.2 of the Constitution—See above.

Discretionary powers—Exercise—Defective exercise resulting in abuse and excess of powers—See above under Municipalities.

Municipal Officers—See above.

Decisions—Administrative decisions—Due reasoning needed—See above under Municipalities.

Collective Organ—Decision—Need of due reasoning—See above under Municipalities.

Reasoning—Reasoning of administrative decisions—See above under Municipalities.

Administrative decisions—Due reasoning—See above under Municipalities.

By this recourse the Applicant complains, in effect, against the decision of the Respondent Municipal Commission of Nicosia to appoint the Interested Party Mr. G. Ch. to the post of General Inspector of Municipal Markets. This post is a newly created post. In fact it appears from the circumstances of this case that on the 23rd December 1965 the Respondent took the decision for both the creation and the filling of the post of General Inspector of Municipal Markets.

The contentions of the Applicant may be summarized under two general headings, as follows:-

First, that the post of General Inspector of Municipal Markets was, in substance and in fact, the post which the Applicant did possess until then, and which was given instead to the Interested Party; thus, in effect, the Applicant was demoted.

Secondly, that, in any case, in creating and filling the said post the Respondent acted in abuse and excess of powers.

It was further contended that the decision to appoint the Interested Party is not duly reasoned and, therefore, has to be annulled.

In annulling the decision of the Respondent as to its part regarding the appointment of the Interested Party the Court:

Held, (1). On the material before me I am satisfied that the post of General Inspector of Municipal Markets is a new post, and not the one that was, previously held by the Applicant. Thus, no demotion of the Applicant can possibly be said to be involved in the appointment of the Interested Party; an officer is not demoted if a post is created which is higher than his own and to which he, too, has a chance of being appointed.

(2) Regarding the decision creating the post in question, I am of the opinion that it is an organic act, relating to the structure of the Municipal Services, which did not affect directly any legitimate interest of the Applicant in the sense of Article 146.2 of the Constitution; thus he is not entitled to attack such decision by means of this recourse.

(3)(a) It is complained by the Applicant that the decision to appoint the Interested Party to the said post is not duly reasoned. I do find this complaint most justified. In fact the sub-judice decision is completely devoid of any reasoning whatsoever.

(b) Nor is any reasoning in relation to such decision (i.e. to appoint the Interested Party to the said post) to be derived, at all, from any record related thereto; none has been produced before the Court (See Papaleontiou and The Republic (1967) 3 C.L.R. 624).

(c) The need for due reasoning of decisions of collective organs has been more than once stressed by this Court (See Peo and the Board of Cinematograph Films Censors, (1965) 3 C.L.R. 27; Constantinides and The Republic, (1967) 3 C.L.R. 7; Kasapis and The Council for Registration of Architects, (1967) 3 C.L.R. 270). Such need was even greaer in the present case in view of the special circumstances in which the Interested Party, a newcomer to the Markets' service, was appointed over the head of the Applicant.

(d) Actually an attempt has been made to disclose the reasoning for the decision complained of by means of the evidence given by the chairman of the Respondent Municipal Commission at the hearing of the case. It is correct that, exceptionally, the reasoning for an administrative decision may be disclosed belatedly, but this can only be accepted when there exist relevant records from which such reasoning may be derived (see Stasinopoulos on the Law of Administrative Disputes (1964) p. 228); and this is not so in the present case.

(4) Even if, however, I would be prepared to treat the evidence of the chairman as disclosing the reasoning for the sub judice decision, again I would have to annul it because the length of service of the Interested Party was erroneously approached and evaluated thus leading to a defective exercise of the relevant discretion. It is clear from the Chairman's evidence that the Interested Party's longer service, in all capacities in the employment of the Respondent, was one of the factors which were taken decisively into account in his favour. In my opinion, the factor to be taken into account—along, of course, with all other relevant factors—was not the overall length of service of each candidate in the employment of the Respondent, but their respective service in the particular branch of the Municipal Services namely, the Markets' Service.

Sub judice decision appointing

the Interested Party to the

aforesaid post annulled. No

order as to costs.

Cases referred to:

Papaleontiou and The Republic, (1967) 3 C.L.R. 624;

Constantinides and The Republic, (1967) 3 C.L.R. 7;

Kasapis and The Council for Registration of Architects, (1967) 3 C.L.R. 270;

PEO and The Board of Cinematograph Films Censors, (1965) 3 C.L.R. 27.

Recourse.

Recourse against the decision of the Municipal Commission of Nicosia to appoint the Interested Party, Georghios Christodoulides, to the post of General Inspector of Municipal Markets, as from the 1st January, 1966.

L. Papaphilippou, for the Applicant.

K. Michaelides, for the Respondent.

Cur. adv. vult.

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J.: By this recourse the Applicant complains, in effect, against the decision of the Municipal Commission of Nicosia to appoint the Interested Party, Mr. Georghios Christodoulides, to the post of General Inspector of Municipal Markets, as from the 1st January, 1966.

This appointment was decided upon at a meeting of the Municipal Commission on the 23rd December, 1965 (see its minutes exhibit 23).

As it appears from the evidence of the Chairman of the Municipal Commission, Dr. O. Ioannides, there had been neither a prior decision of the Commission to create the post in question, nor any decision adopting a scheme of service for such post; the vacancy was not advertised, either generally or among the staff of the Municipal Services. The decision of the 23rd December, 1965, — which simply records that, among other promotions, it was decided to promote the Interested Party to the post concerned, with a salary of £692X30—992X15—1007 — must be taken to amount, in the circumstances, to a decision for both the creation and the filling of the post of General Inspector of Municipal Markets.

The contentions of the Applicant can be summarized under two general headings, as follows:-

Secondly, that, in any case, in creating and filling the said post the Municipal Commission acted in excess and abuse of powers.

The Applicant entered the service of the Respondent in 1954, as a temporary Sanitary Inspector, and he became permanent in that post as from the 1st January, 1955. On the 4th October, 1955, it was decided to appoint him as "Inspector Municipal Market" (see exhibit 19). Since then the Applicant has been described, in various official communications and records, either as «Αγορανόμος» or «Επιθεωρητής Δημοτικών Αγορών». As at present advised, I find no difference whatsoever between these descriptions, in so far as their natural meaning is concerned. They both mean "somebody who inspects Markets", in other words, an "Inspector of Municipal Markets". I cannot agree that the former means a "General Inspector of Municipal Markets", whereas the latter means only an "Inspector of Municipal Markets".

On the other hand, I am satisfied, on the evidence before me (including the testimony of Dr. Ioannides and that of Mr. S. Kakopieros — the Treasurer of Respondent — as well as exhibits 25, 26, 27) that the post of General Ispector of Municipal Markets is a new post, and not the one that was, previously, held by the Applicant.

Thus, no demotion of the Applicant can possibly be said to be involved in the appointment of the Interested Party to the said post. The creation of a new higher post in the Markets' Service of the Respondent cannot be reasonably treated as involving the demotion of the Applicant, even though at the time he was holding the higher, till then, post in such Service; an officer is not demoted if a post is created which is higher than his own and to which he, too, has a chance of being appointed.

In considering whether the Applicant has been demoted,

I have examined, next, what were his actual duties and responsibilities, on the 23rd December, 1965, when the sub judice appointment of the Interested Party was made:-

Though for quite a period of time in the past the Applicant had been in charge of the Main Municipal Market — known as Ayios Antonios Market — and he may have been, too, overseeing the Markets' Service of the Respondent, having certain duties in relation to all Municipal Markets, nevertheless, on the 23rd December, 1965, — and since the 15th April, 1965 (see exhibit 21) — he was in charge only of four subsidiary Municipal Markets; since the 15th April, 1965, the person in charge of the Main Municipal Market, in the place of the Applicant, became the Interested Party; and the Applicant, himself, has conceded, in evidence, that since such date he was deprived of all other general responsibilities regarding Municipal Markets.

Thus, if there has been any demotion of the Applicant, from his previous more exalted status (in so far as his duties and responsibilities were concerned, his salary having remained all along the same) this took place in April, 1965; therefore, this recourse, which was filed only on the 13th August, 1966, is out of time, under Article 146.2, with regard to what took place more than a year earlier, and it has, in any case, to fail in so far as it relates thereto.

Regarding the decision, itself, creating the post of General Inspector of Municipal Markets, I am of the opinion that it is an organic act, relating to the structure of the Municipal Services, which did not affect directly any legitimate interest of the Applicant, in the sense of Article 146.2 of the Constitution; thus, he is not entitled to attack such decision by means of this recourse.

Assuming, however, that I were to take the contrary view, and hold that the Applicant is entitled to make this recourse against the said decision, I cannot find anything which could lead me to the conclusion that I should interfere with it and annul it; it was up to the Municipal Commission to decide on how best to run the Municipal Markets of Nicosia; and from the material before me it appears that there were sufficient reasons (especially the extensiveness of the Markets' Service) properly entitling the Commission to decide on the creation of the post of General Inspector of Municipal Markets.

It is correct that such post appears to have been created without the adoption of a "scheme of service" setting down the qualifications needed for appointment thereto, and the duties and responsibilities to be discharged by its holder. Regarding the latter I think that they can quite easily be deduced from the very title of the post; and regarding the former, in the absence of special provision for the purpose, they must be taken to be of no rigid nature, but to be such qualifications of experience and specialized knowledge as the Municipal Commission would deem sufficient in the light of the nature of the post. For this reason I would not be prepared to hold that the non-existence of a scheme of service for the post concerned, though most unfortunate, violates to such an extent the notion of good administration as to lead to the annulment of the decision to create such post — if, of course, such decision could be at all challenged by this recourse.

There remains the question of the validity of the decision of the Commission to appoint to the post in question the Interested Party, and not the Applicant:

The Applicant had, at the time, more than ten years' service in the Markets' Service of the Respondent. He had been without doubt one of the highest — if not the highest — in rank officer in such Service; definitely there did not exist therein any post above his own, such as the one filled by the sub judice decision. He had, moreover, acted for a period of time in the past (in 1958) as Assistant Town Clerk. He was the holder of the certificate of the Royal Sanitary Institute in London.

The Interested Party had been serving the Respondent much longer than the Applicant; since 1935. In 1955 he became Chief Sanitary Inspector. He possessed a Government of Cyprus Certificate of Sanitary Inspector. He entered the Markets' Service of the Respondent only in April 1965, a few months before his appointment over the head of the Applicant to the new post of General Inspector of Municipal Markets.

It is complained of by the Applicant that the decision to appoint the Interested Party to the said post is not duly reasoned.

I do find this complaint of the Applicant most justified:

The sub judice decision (exhibit 23) is completely devoid of any reasoning whatsoever. Nor is any reasoning, in relation to such decision, to be derived, at all, from any record related thereto; none has been produced before the Court (see Papaleontiou and The Republic, (1967) 3 C.L.R. 624).

The need for due reasoning of decisions of collective organs has been more than once stressed by this Court (see Peo and The Board of Cinematograph Films Censors, (1965) 3 C.L.R. 27; Constantinides and The Republic, (1967) 3 C.L.R. 7; Kasapis and The Council for Registration of Architects, (1967) 3 C.L.R. 270). Such need was even more great in the present case, in view of the already stated circumstances in which the Interested Party, a newcomer to the Markets' Service, was appointed over the head of the Applicant to the newly- created senior post in that Service, when until then there was no higher post than that held by the Applicant in such Service.

Actually, an attempt has been made to disclose the reasoning for the sub judice decision by means of evidence given by the Chairman of the Municipal Commission, Dr. Ioannides, at the hearing of the case before the Court. It is correct that, exceptionally, the reasoning for an administrative decision may be disclosed belatedly, but this can only be accepted when there exist relevant records from which such reasoning can be clearly derived (see Stasinopoulos on the Law of Administrative Disputes (1964) p. 228); and this is not so in the present instance; no such records appear to exist; no recommendation of any nature by the Town Clerk, the Head of the Municipal Services, or reports of any kind regarding the work of the persons concerned, were produced; it is not even clear — from the evidence of Dr. Ioannides — whether the whole Municipal Commission had available before them, at the material time, the personal files of the Applicant and the Interested Party.

Even if, however, I would be prepared to treat the evidence of Dr. Ioannides as disclosing the reasoning for the sub judice decision, again I would have to annul it, on the basis of such reasoning itself, because I am of the opinion that the length of service of the Interested Party was erroneously approached and evaluated, thus leading to a defective exercise of the relevant discretion. It is clear from such evidence that the Interested Party's longer service, in all capacities in the employment of the Respondent, was one of the factors which were taken decisively into account in his favour; and, so, it materially influenced the outcome of the selection for the post in question. In my opinion, the factor to be taken into account — along, of course, with all other relevant factors — was not the overall length of service of each candidate in the employment of the Respondent, but their service in the particular branch of the Municipal Services, namely, the Markets' Service.

It is now up to the Municipal Commission to decide afresh, in the proper manner, and giving due reasons, the matter of the filling of the vacancy in the post of General Inspector of Municipal Markets.

Before concluding I would observe that it has been pleaded that the recourse was out of time, but on the material before me, regarding the date when the sub judice decision was made known to the Applicant, I cannot find any substance in this contention.

Regarding costs I have decided to make no order as to costs, because a considerable part of these proceedings has been taken up by contentions of the Applicant which, as it appears from this judgment, he has not been able to establish to my satisfaction.

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