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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 371
1989 March 24
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
COSTAS THEODOSSIOU.
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
INTERIOR AND ANOTHER,
Respondents.
(Case No. 75/86)
Police - Promotions - The Police Regulations 1958, Reg. 10 - Temporary promotions - Save the case of gazetted officers, the matter is within the. exclusive competence of the Chief of Police - Chief of Police requesting approval of Minister of Interior - Abuse of power because of the subordination of the exercise of his competence to the approval of another authority.
Police - Promotions - The Police Law, cap. 285, section. 3(2) Minister approving recommendations of Chief of Police without inquiry with view to satisfying himself on the propriety of the recommendations - Lack of due reasoning.
Abatement of recourse for annulment -Revocation of sub judice act - Does not always lead to abatement, because annulment is always a pre-requisite of the right to damages under Art. 146.6 of the Constitution.
Following annulment of promotions by this Court, the Chief of Police recommended to the Minister of Interior the temporary promotions of the interested parties to the post of inspector under Reg. 10 of the aforesaid regulations and requested the approval of the Minister in respect of the promotion under section 13(2) of the PoliceLaw, Cap. 285 (as amended by section 2 of Law 2 9/66).
The Minister accepted the request arid as a result the interested parties were promoted to the post of Temporary Inspectors as from 15/11/85. However, these promotions were later revoked and, finally, all the interested parties were promoted to the post of Inspector retrospectively from 15/12/84.
The Court did not accept the submission that by reason of the revocation the recourse was abated. The Court proceeded further and annulled the sub judice decision on the ground that if the promotions had been made under Reg. 10, they have to be annulled as being in abuse of power, because the competent organ, i.e. the Chief of Police, subordinated his power to the discretion of another organ, whereas if the promotions were made under Section 13(2), they have to be annulled, because the Minister did not hold an inquiry as to the facts, before exercising his competence thereunder.
Sub judice decision annulled. No order
for costs.
Cases referred to:
Vakis v. Republic (1985) 3 C.L.R. 534.
Recourse.
Recourse against the decision of the respondents to promote the interested parties to the post of Temporary Inspector in the Police Force in preference and instead of the applicant.
J. Erotokritou, for the Applicant.
M. Florentzos, Senior Counsel of the Republic, for the Respondents.
Cur.adv. vult.
KOURRIS, J. read the following judgment. By the present recourse applicant challenges the decision of the respondents dated 25.11.1985 to promote the interested parties to the post of Temporary Inspector in the police force in preference to andinstead of the applicant.
The salient facts of this recourse shortly are as follows: The promotions of the interested parties to the post of Police Sergeants and subsequent promotion in the post of Inspectors were annulled by a decision of this Court given on 20.3.1985. In order to fill the gap left by the annulment of the appointments of the interested parties, the Chief of the Police made an invitation to Divisional Commanders and Section Leaders to make recommendations for temporary promotions to the post of Inspector.
The Chief of Police adopted their recommendations and by his letter dated 18.11.1985 to the Minister of Interior, suggested that the officers in question be promoted temporarily to the post of Inspector under Reg. 10 of the Police Regulations 1958 and he requested the approval of the Minister for the promotions under s. 13(2) of the Police Law, Cap. 285 (as amended by s.2 of Law 29/66).
The interested parties were promoted to the post of Temporary Inspectors w.e.f. 15.11.1985. These temporary promotions were revoked on 2.3.1987 and on 23.3.1987 all the interested parties were promoted to the post of Permanent Inspectors retrospectively from 15.12.1984.
The present recourse concerns the promotions of the interested parties to the post of Temporary Inspectors effected on 25.11.1985 and not the permanent promotion of the interested parties to the post of Police Inspectors effected on 23.3.1987 with retrospective effect as from 15.12.1984.
Counsel for the respondents contended that applicant has no legitimate interest to pursue the present recourse because the sub judice decision was revoked on 2.3.1987 and invited the Court to declare the proceedings as abated on account of the disappearance of the subject matter.
I do not agree with this submission. In the case of Vakis v. The Republic (1985) 3 C.L.R. 534, it was held that the right to pursue a recourse to the end notwithstanding revocation of an act is implicit under paragraph 6 of Article 146 of theConstitution requiring judicial annulment of the act as a prerequisite to proceedings for the recovery of damage; and that, therefore, the recourse can be proceeded with to the end. Also, at p. 538 Pikis, J. had this to say:-
"A revocatory decision constitutes of itself an executory act liable to review at the instance of a party prejudiced thereby, in this case the interested parties to the present proceedings. if that were to happen and the recalling decision was annulled, applicant would remain remediless for he could neither seek reinstatement of the present proceedings, if abandoned, nor claim damages arising from the act revoked. For this reason the Court cannot rest its decision on the assumption that the act revoked is invalid, an issue beyond the reviewing powers of the Court in these proceedings, but must make an independent assessment of the act."
I agree and with respect I adopt the reasoning of this Judgment and I likewise find that the point raised by counsel for the applicant cannot stand.
I now propose to examine the substance of the sub judice decision.
Counsel for respondents contended that the sub judice decision was lawfully taken in the proper exercise of the discretion of the Chief of the Police under Reg. 10 of the Police Regulations 1958 after a proper inquiry into the matter; he also contended that it is duly reasoned.
Counsel for the applicant on the other hand alleged that the sub judice decision was taken by the Minister of the Interior under s. 13(2) of the Police Law Cap. 285 (as amended) and that it was taken without a proper inquiry and in abuse of powers and he submitted that the temporary promotions should be annulled.
It is pertinent at this stage to set out the relevant law.
Regulation 10(1) of the Police (Promotions) Regulations, 1958 reads as follows:-
"A member of the Force who is required to perform the duties of a higher rank may be promoted temporarily to that rank by the Chief Constable:
Provided that-
(a) a vacancy exists In the rank;
(b) in the case of Gazetted officers, such promotions. Are made with the approval of the Governor."
Section 13(2) of the Police Law, Cap. 285 repealed by Law 29/66) reads as follows:-
"Ο Αρχηγός τη εγκρίσει του Υπουργού, διορίζει κατατάσσει, προάγει και απολύει πάντα τα μέλη. της Δυνάμεως μέχρι και συμπεριλαμβανομένου του Αρχιεπιθεωρητού."
("The Chief of Police, with the approval of the Minister, appoints, enlists, promotes and discharges all ranks up to and including Chief Inspector.").
Thus, it is apparent, that as a matter of law, power to make temporary promotions of all ranks up to and including Chief Inspector, vests exclusively in the Chief of Police. The approval of the Minister (following the delegation made to him of the powers of the Council of Ministers, by virtue of Decision 768 and dated 11.5.1961), is only required in the case of Gazetted officers, that is, officers above the rank of Chief Inspector Consequently, if the Chief of the Police had in mind to exercise the powers given to him under Regulation 10(1) he was bound to make the promotions himself. In the present case the Chief of the Police purported to act under Regulation 10, but he also asked for the approval of the Minister of Interior.
I have no doubt that the Chief of Police acted under a confusion of the law. He could have requested approval of the Minister of Interior in the case of officers above the rank of Chief Inspector; but in the present case we are concerned with Inspectors and the Chief of Police was bound to make the promotions himself. By asking the approval of the Minister he abused his powers by subordinating its exercise to the approvalof another authority, namely, the Minister of the Interior who was an incompetent authority in the circumstances of this case.
For this reason alone, the recourse succeeds, but I shall proceed and examine the contention of counsel for the applicant that the decision was that of the Minister of the Interior under s.13(2) of the Police Law Cap. 285.
The Minister approved the recommendations of the Chief of Police without holding any inquiry with a view to satisfying himself on the propriety of the recommendation. He merely relied on the written recommendations of the Chief of Police. Therefore, he reached his decision without making due inquiries for the effective exercise of the discretion given to him under s.13(2) of the said law and for this reason his decision fails for lack of due reasoning.
In the light of the above, it appears that if the Chief of the Police acted under Regulation 10 to make the temporary promotions, he abused his power by subordinating its exercise to the approval of the Minister of the Interior. Again, if the sub judice decision is the Minister's decision under s.13(2) of the Law, then the Minister failed to make the necessary inquiries before the exercise of his discretion, i.e. the sub judice decision is tainted with lack of due inquiry.
For all the above reasons, the recourse succeeds and the promotions of the interested parties to the post of Temporary Inspectors of the Police are annulled. No order for costs.
Sub judice decision annulled. No
order as to costs.