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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 56
1989 January 14
[A. LOIZOU, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREASS. PAPASAVVAS.
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF MEDICAL SERVICES,
Respondent.
(Case No. 317/87)
Administrative Act.- Appointment on hourly basis of an ambulance driver in Paphos - In the circumstances it is in the domain of Public Law - Principles applied to determine that question.
Collective organs - Composition - Participation of a non-qualified person - Vitiates the decision.
Collective organs - Circular by the competent organ determining composition of Committee for appointment on hourly basis - Director General of Ministry participating in Committee in virtue of clarification of circular made by himself - As he was not entitled to amend the circular under the guise of clarification, his participation vitiated the sub judice appointment.
Having assumed jurisdiction to try the present recourse the Court annulled the sub judice act on the grounds that appear in the last two of the above Headnotes.
Sub judice decision annulled. No order
as to costs.
Cases referred to:
Papakyriakou v. Health Services of Cyprus etc. (1970) 3 CL.R. 351,
Hadjigeorghiou v. Republic (1965) 3 C.L.R. 121,
Androklis v. Republic (1985) 3 C.L.R. 11,
Zavros v. District Officer Paphos (1986) 3 C.L.R. 44,
Loizou v. Cyprus Inland Telecommunications Authority 4 R.S.C.C 48,
Syghariotis Republic (1965) 3 C.L.R. 317,
Gavriel v. Republic (1967) 3 C.L.R. 638.
Recourse.
Recourse against the decision of the respondent to appoint and/or employ the interested party to the post of Ambulance Driver paid by the hour in preference and instead of the applicant.
A. S. Angelides, for the Applicant.
L. Koursoumba (Mrs), Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
A. LOIZOU P. read the following judgment. By the present recourse the applicant seeks a declaration of the Court:
1. That the decision of the respondent to appoint and/or employ Christakis Nicolaou to the post of Ambulance Driver paid by the hour, at the Paphos Hospital as from 1st April 1987, instead and in the place of the applicant, is null and void and with no legal effect whatsoever.
2. Declaration of the Court that the refusal and/or omission of the respondent to appoint the applicant to the post of Ambulance driver is null and void and with no effect whatsoever.
Before proceeding, however, any further I would like to say a few words touching the issue of my assuming jurisdiction in this case, although both sides do not question same in view of the facts and circumstances of the case, and I have no reason to disagree with this consensus to the effect that in the particular circumstances the case falls within the domain of Public Law and the sub judice decision as such being an executory administrative act is amenable to the jurisdiction of Article 146(1) of the Constitution.
Support for the above proposition is to 'be found in the cases of Papakyriakou v. The Health Services of Cyprus etc. (1970) 3 C.L.R. 351; Nitsa Hadjigeorghiou v. The Republic (1965) 3 C.L.R. 121; Androklis v. The Republic (1985) 3 C.L.R. 11; Zavros v. The District Officer Paphos (1986) 3 C.L.R. 44; and Doloros Loizou v. The Cyprus inland Telecommunications Authority 4 R.S.C.C. 48 there the Supreme Constitutional Court held that the issue whether a particular workman was regularly employed within the definition of "public service" in Article 122, was one of fact "to be determined in each case on the basis of all relevant circumstances. The period of his service, the security of tenure, the nature of the duties the view taken of the status of such workman by his employing authority, are all relevant matters to be weighed together with other pertinent factors, in order to arrive at a proper conclusion."
The position being so, I turn now to the facts of the case.
The applicant was employed on the 18th July 1983, as night watchman of the Paphos Hospital on an hourly basis. On the 11th February, 1986, by a decision of the appropriate services of the Ministry of Finance, that is the Public Administration and Personnel Service there was approved the employment of a person as an ambulance driver on an hourly basis for the needs of the Paphos Hospital.
The duties and qualifications and other terms of such a driver employed on remuneration calculated on an hourly basis are set out in the relevant Scheme of Service (Appendix I). The qualifications in question were that the "candidate should be the holder of a driving licence for all types of vehicles and have at least three years experience as driver. Graduate of Elementary School."
The Selection Committee which was composed of Dr. A. Markides, the Director of Medical Services and Public Health Services, Dr. Ph. Theofanous, the District Medical Officer, Mr. Andreas Polyviou, representing the Director of Public Administration and Personnel Service and Mr. Vassiliou, as representative of the District Labour Officer, Paphos, considered the matter and detailed the District Medical Officer to ask from all interested labourers of Paphos Hospital, whose remuneration was calculated on an hourly basis and who were interested to perform the duties of ambulance driver, to report to him. Among those who responded to this invitation were the applicant and the interested party.
The Selection Committee at its meeting of the 18th February 1987, considered the matter and after exchange of views and examination of all factors relating to the candidates, namely, qualifications, seniority, and suitability, came to the conclusion and recommended the engagement of the interested party Christakis Nicolaou, who was until then employed at the Paphos Hospital as a Porter/Messenger, as from the 30th July 1979, as the most suitable for employment as ambulance driver. The relevant minute is attached to the opposition as Appendix II. The appropriate Authority of the Ministry of Health namely the Medical Services and Public Health Services ultimately decided to post the said Christakis Nicolaou as an ambulance driver at the Paphos Hospital as from the 6th April 1987.
The first question for determination in the present recourse is whether the said Selection Committee being a collective organ was properly constituted at the time it reached the sub judice decision. On this point reference has to be made first to the Circular letter of the Director of Public Administration and Personnel Services, dated the 12th January 1982, Exhibit V. addressed to the Director General of the Ministry of Health. In it he states that he was acting on instructions, and refers to the reorganization which took place in the field of government labourers employed on an hourly basis, and deals with the collective agreement reached on the reorganization, the schemes of service, the classification of workers, the number of the establishment and finally with the procedure of filling of vacant or new posts. It is with this latter matter that we are concerned here. It is provided that the filling of such posts will be made by a Selection Committee which will be composed of the Officer in charge of the Institution or Hospital, the District Labour Officer or his representative and a representative of the Public Administration and Personnel Services. This Circular was sent by the Director of the Ministry of Health to the Director of Medical Services and all other Officers concerned by letter dated the 21st January 1982 (Exhibit Y), for compliance. In fact in its last paragraph he stresses that "there should be absolutely no deviation from the procedure set out in the Circular for the filling of organic posts and none will be permitted."
As already seen the composition of the Selection Committee included Dr. Markides, Director of Medical Services and Public Health Services, appearing in fact first on the list of participants in the minutes of the 18th February 1987 (Appendix II). His presence and participation in the deliberations of the said Committee, as there is nothing to suggest the contrary, was justified by counsel for the respondent by referring to a Circular Letter of the said Director dated the 3rd February 1982, Exhibit "Y.1", entitled "The reorganisation of Organic Posts of labour Employees of the Ministry of Health" and to the "Duties and Responsibilities" as set out in the Scheme of Service for his post" (Exhibits Y.3).
In the said letter (Exhibit Y.1) addressed to all Principal District Medical Officers, including the Acting Principal Medical Officer, Paphos, and the Officers in charge of other Institutions, he refers to the letter of the Director General of the Ministry of Health, dated the 21st January 1982 and the said Director of Medical Services gives his own instructions. Under the heading "Procedure for the filling of Vacant or New Post" he concludes as follows:
"It is clarified that in the Committee which will propose the filling of the post I shall participate in person or through a representative of mine. For that reason you are asked to inform me on every occasion in time so that I shall proceed to make the appropriate arrangements. Also in cases of creation of new posts, the same procedure will be followed.
In cases, when in your opinion, immediate filling of a post is imperative. then you may refer this to my office by telephone (tel. No. 403165), so that your request will be pursued without delay."
It was argued on behalf of the applicant that the Director of Medical Services was not competent to participate in the composition of the Selection Committee, which for that reason had a defective composition, which constitutes a ground of annulment of the Sub judice decision reached by it.
On behalf of the respondents it was argued that the letter of the Director of Medical Services, (Exhibit. "Y.1"), does not change the Circular of the Public Administration and Personnel Service, but merely clarifies something and it clarifies in that matter that the said Director has the right to be present personally at these meetings. It was further argued that the Circular of the Public Administration and Personnel Services does not exhaustively enumerate the persons to compose the said Selection Committee, and that the Director of Medical Services has the authority to be present in view of the provisions of his Scheme of Service which provides among the Duties and Responsibilities of his office that he is "responsible for the administration and organization of the Medical Department in both the curative and preventive fields". (Exhibit "Y.3").
I am afraid I cannot agree with this submission of learned counsel for the respondents. The duties and responsibilities of the post of the Director of Medical Services are not in issue before me, nor are they questioned by the circular of the Public Administration and Personnel Services which appears to have intended to keep this matter, a selection of such category of employees, on a local basis and within the institutions or hospitals concerned. Had the said Director thought that, being head of the Medical Services, he should have been participating in such committees, either personally or through a representative of his, other than his subordinate officer in charge of such an institution or service, he should then have taken up the matter with higher organs rather than himself "clarify", as he put it, the said circular, which clarification was in effect an amendment of such circular issued by another organ which for all intents and purposes appears to be the duly authorised organ to deal with such matters. Therefore the participation of the Director of Medical Services at the deliberations of the Selection Committee in question was not a duly authorised one.
The question of the composition of an administrative collective organ came up for consideration by this Court in a number of cases. For the purposes of this case it is sufficient to refer to the case of Syghariotis v. The Republic (1965) 3 C.L.R. 317, in which it was held that the participation at the material time of members who were disqualified from doing so, led to the annulment of the administrative act reached by such a body. Reference may be made also to the case of Gavriel v. The Republic ('1967) 3 C.L.R. 638, in which it was held that bad or defective composition leads to its incompetence and renders its decisions void.
The concept of lawful composition of a collective organ is repugnant to the participation in its deliberations of persons who are not members or are no longer members of such collective organ according to law. This ground therefore succeeds.
Having reached this conclusion I consider it unnecessary to deal with the remaining grounds of Law relied upon by the applicant, namely that the interested party did not have the required qualifications and that the interviews of the candidates took place eleven months before the date of the selection and appointment, matters on which I do not pronounce, as they are connected with the facts of the case which will inevitably come up for consideration at the re-examination of the case.
In the result, therefore, the recourse succeeds and sub judice decision is declared null and void and with no effect whatsoever in the circumstances, however, there will be no order as to costs.
Sub judice decision annulled. No order as to costs.