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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 645
1989 May 31
[A. LOIZOU. P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANTONIS IOANNOU AND OTHERS,
Applicants,
v.
THE CYPRUS ELECIRICITY AUTHORITY,
Respondent.
(Cases Nos. 505/87, 506/87,509/87,510/87)
Executory act-Internal administrative measure-Transfer of officers not entailing change in status or emoluments, but described by respondents as promotions and entailing enhancement of the chances of promotion of the transferees-An executory act.
Public corporations-Promotions-Head of Department-Recommendations of failure to record the same-Renders judicial control impossible-Ground for annulment.
Legitimate interest-Constitution, Art. 146.2-Promotions-Notwithstanding that such promotions have not yet actually adversely and directly affected applicants legitimate interest, they are unavoidably bound so to affect such interest eventually-Requirement relating to legitimate interest satisfied-Regulation 13(3) of the Electricity Authority Regulations, providing that if there is no candidate to fill a promotion post, there should be a supernumerary appointment to the immediately lower post-Since there were no candidates possessing the required qualifications for the promotion post, such post should have remained vacant-The filling of such post by promotion unavoidably will eventually affect applicants interest.
By means of recourses 505/87, 506/87 and 509/87, the applicants challenge the decision to promote or post the interested party to the postof Generation Engineer (Test and Efficiency) in the Electricity Authority of Cyprus. By recourse 511/87 the applicant, who is also applicant in recourse 509/87, challenges the decision to promote or post the interested party to the post of Generation Engineer (Operations).
Notwithstanding that the authority in filling the said posts followed the procedure relating to promotions and selected the appointees after comparison, counsel for the respondent authority raised a preliminary objection to the effect that the sub judice acts were internal measures of administration, because they were transfers of officers from one branch of the work to the other without a change in the salary scale of the post. The Court dismissed the preliminary objection for the reasons indicated in the first of the hereinabove Headnotes.
When the Joint Consultative Selection Committee met for the first time, in order to deal with the question of the filling of the said posts, its members reached the conclusion that no candidate with the required qualifications had applied for promotion to such post.
Regulation 13 of the respondent authority provides that if a promotion post cannot be filled due to the non-existence of a candidate possessing the required qualifications, the immediately lower post will be proclaimed for filling as supernumerary, provided that such post is a promotion post or a first entry and promotion post.
Notwithstanding the said Regulation the respondent authority proceeded and filled the aforesaid posts.
The Court annulled the sub judice decisions on the ground indicated in the second of the aforesaid Headnotes. Moreover, the Court did not accept that applicant in recourses 509/87 and 510/87, who did not possess the qualifications for promotion to the posts in question, had no legitimate interest, on the grounds indicated in the last of the hereinabove Headnotes.
Sub judice decisions annulled. No order
as to costs.
Cases referred to:
Yiallourou v. Republic (1976) 3 C.L. R. 214,
Thrasyvoulou v. Land Consolidation Authority (1986) 3 C.L. R. 1422,
Partellides v. Republic (1969) 3 C.L. R. 480,
Trimikliniotis v. Republic (1971) 3 C.L. R. 293,
Iosif v. CY.TA. (1977) 3 .L. R. 261,
Ellinas v. Republic (1975) 3 CL. R. 248,
Eleftheriou v. Central Bank (1980) 3 C.L. R. 85.
loannides and Another v. Cyprus Grain Commission (1988) 3 (C. L. R. 1250.
Christodoulides and Another v. Education Service Commission (1986) 3 C.L.R. 1637,
Antoniou v. Electricity Authority of Cyprus (1989) 3 C.L.R. 597,
Christofi v. Electricity Authority of Cyprus (No.1) (1989) 3 C.L.R. 603,
Christofides v. CY.T.A.(1979) 3 C.L.R. 99.
Recourses.
Recourses against the decisions to promote or post A. Kellas to the post of Generation Engineer (Test and Efficiency) and A. Loizides to the post of Generation Engineer (Operations) in the Electricity Authority of Cyprus in preference and instead of the applicants.
E. Efstathiou, for Applicants in Cases Nos. 505/87 and 506/87.
N Clerides, for Applicants in Cases Nos. 509/87 and 510/87.
G. Cacoyannis, for Respondents.
Cur.adv. vult.
A. LOIZOU, P. read the following judgment. The applicants in Recourses 505/87, 506/87 and 509/87 challenge the decisionof the respondent Authority to promote or post Adonis Kellas, hereinafter to be referred to as the interested party to the post of Generation Engineer (rest and Efficiency), in the Electricity Authority of Cyprus, and the applicant in Recourse 510/87, who is also applicant in Recourse 509/87, challenges the decision of the respondent Authority to promote or post A. Loizides to the post of Generation Engineer, (Operations).
On the 21st March 1987, the respondent Authority circulated a Notification No. 3/87, in respect of vacant posts which included.
(a) a post of Generation Engineer (rest and Efficiency), and
(b) a post of Generation Engineer (Operations).
To both above posts the applicants in Recourses 505/87 and 506/87 applied for transfer and applicant in Recourses 509/87 and 510/87 applied for promotion, in response to such advertisement.
The Joint Consultative Selection Committee, for promotion of Scientific Personnel at its meetings of the 7th and 8th April 1987, did not deal with the question of the filling of the above post because no candidate with the required qualifications applied for promotion to such post.
The respondent Authority dealt with the matter at its meeting of the 30th April 1987. The relevant minute reads:
"Consideration of the reports of the Joint Consultative Selection Committee for Promotion of Scientific Personnel, dated the 9th April 1987, for the filling of a number of posts (Notification of vacant posts 1/87 and 3/87).
The members considered the proposal of the Joint Consultative Selection Committee for promotion of Scientific Personnel, dated the 9th April 1987, for the filling of a number of vacant posts.
The Authority acting in accordance with Regulation 23 of the Electricity Authority of Cyprus (Terms of Service),Regulations 1986, dealt with the applications for promotion as appearing in the lists coloured white of the candidates for promotion who satisfied the Schemes of Service and who did not apply for the corresponding post, as appearing in the lists coloured green, of the instances of officers holding equivalent posts who did apply for transfer as appearing in the lists coloured yellow, and having evaluated all the material before it, that is to say, the service record of each one of the applicants, his experience, merit, ability, seniority in the Authority, qualifications in relation to the Scheme of Service applicable to the post from time to time and his performance in his service as same appear in more detail in paragraph 23(2) of the Regulations and having taken into consideration the recommendations and views of the Scientific Personnel Selection Committee, of the manager and whenever in its discretion it deemed necessary, the views of the heads of Services of the Authority and the recommendations and views of the Consultative Sub-Committee of the Authority on Personnel Matters and the confidential reports on the candidates on the proposal of the presiding member and the support of Mr. Xenophontos, there was unanimously decided the promotion of the following to the corresponding posts with effect from the date appearing next to the name of each one of the promotees:
NOTIFICATION OF VACANT POSTS No. 3/87.
One post of Generation Engineer (Test and Efficiency) Generation Department K.T. (Scale A13):
8270 A Kellas (posting) 1st May, 1987.
One post of Generation Engineer (Operations) Generation Department K.T. (Scale A13): 8603 A. Ch. Loizides, (posting) 1st May 1987."
Learned counsel for the respondent Authority raised a preliminary objection to the effect that the sub juclice act is not an executory one and cannot therefore be made the subject matter of a recourse because in this instance the sub judice act consists of the transfer of the interested parties from one branch of the work to the other without a change in the salary scale of the post. Furthermore in view of the above the transfer consistsof an internal measure and cannot be challenged by a recourse for annulment. (See Yiallourou v.The Republic (1976) 3 C.L.R. 214 and Thrasyvoulou v. The Land Consolidation Authority(1986) 3 C.L.R. 1422).
I have quoted in full the relevant minutes of the respondent Authority. In such minutes the sub judice act is described as "promotion" and the interested parties are described as "promotees" (προαχθέντες). Next to their name we find the word "posting" (τοποθέτηση). Once the respondent Authority by its very minute that it effected the sub judice act, it describes it as promotion, it cannot at this stage describe it as a transfer. It is clear from the material before me that irrespective of any change or not of the salary scale of the interested party by his posting to the post in question, certain posts in the respondent Authority are more attractive than others of equal scale, because in view of the duties and responsibilities envisaged by the Scheme of Service they enhance the chances of their holders for promotion. So for this reason too the sub judice act cannot be described as a mere posting or transfer with no beneficial effects to the holder of the post. Had it been a mere posting or transfer within the Authority there was no need to take the views and recommendations of so many bodies and persons.
It must also be pointed out that they are not concerned here with the case of an applicant complaining about his transfer or non transfer, but it is an instance where a selection after a comparison was made between several officers, after their applications for transfer were invited and where the officers considered the most suitable were preferred.
In view of the above I hold that the sub judice act constitutes an executory act because it affects the legal rights of the applicants. The preliminary objection therefore fails. On the merits of the recourse I turn to the minutes of the respondent Authority and we have it that in arriving at the sub judice decision it considered the proposal of the Joint Consultative Selection Committee, dated the 9th April 1987. It also took into consideration (a) the recommendations and views of the above Committee, (b) the recommendations and views of the Manager, and the views of the Heads of Services of the Authority whenever it deemed it necessary.
Whilst considering judgment I thought it useful to reopen the case so that I would ascertain if there existed any record of the views expressed under (a) and (b) above. Indeed learned counsel for the respondent Authority produced a minute of the Joint Consultative Selection Committee dated the 9th Apr11 1987, (Exhibit 7), which contains a proposal regarding the prevailing candidates for promotion after stating that it considered all relevant material and concluded by saying that it decided to recommend the "following" in alphabetical order as suitable or prevailing for promotion to the corresponding higher posts. However, there follows an observation that no one who had the required qualifications had applied but that for the post in question there were candidates who applied for transfer thereto whose names appear on the attached list marked yellow. (See lists appended to the opposition). There is, however, no recommendation for that post but only an enumeration of the candidates in order of seniority (in order of their dates of appointment to the post they held). In any event and irrespective of the absence of any recommendation by the Selection Committee there does not appear any record for the views of the others, i.e. the Manager and Head of Sections.
Therefore the case has to be examined in the light of this omission.
Learned counsel for the applicants in Recourses 505/87 and 506/87, submitted that such a situation renders judicial control of the sub judice act impossible. In the case of Partellides v. The Republic (1969) 3 C.L.R. 480, it was held that oral recommendations regarding candidates for promotion should be adequately recorded in the minutes of the collective organ concerned. (See also Trimikliniotis v. The Republic (1971) 3 C.L.R. 293; losif v. CYTA (1977) 3 C.L.R. 261; Ellinas v.The Republic (1975) 3 C.L.R. 248; Eleftheriou v. Central Bank (1980) 3 C.L.R. 85).
In the case of Eiinas (supra) it was held that inadequate recording of the recommendation of the appropriate Authority by the respondent Educational Service Commission in that case led to the annulment of the sub judice act because the Court was deprived of the ability to control its legality judicially. Inloannides and Koufopavlou v. Cyprus Grain Commission(1988) 3 C.LR. 1250, Stylianides J., dealing with the same situation said the following at p. 1255 of his judgment:
"The recommendations were not recorded. It was the duty of the Commission to put on record the recommendations of their Manager which influenced them in reaching the challenged decision. This is sufficient for the sub judice decision to be annulled."
Furthermore reference may be made to the case of Christodoulides and Another v. The Education Service Commission (1986) 3 C.L.R. 1637, where it was held by the Full Bench that the failure to record the views of the head of the Department not only has offended basic principles of proper administration but has also deprived the sub judice decision of an essential part of its reasoning thus making judicial control impossible.
The case of Christodoulides (supra) was followed in the case of Antoniou v. The Electricity Authority of Cyprus (1989) 3 C.L.R. 597, and Christofi v.The Electricity Authority of Cyprus (No.1) (1989) 3 C.L.R. 603.
In view of the above Recourses 505/87, 506/87, succeed and the sub judice decision in so far as the applicants in these recourses are concerned must be annulled.
Dealing now with Recourses 509/87 and 510/87, learned counsel for the respondent Authority submitted that the applicant in these recourses is not vested with a legitimate interest in the sense of Article 146.2 of the Constitution, because he does not possess the qualifications required by the Scheme of Service.
Learned counsel for the applicant in reply to the above submission referred to the case of Christofides v. CYTA (1979) 3 C.L.R. 99, which establishes that the requirement that the legitimate interest must exist both at the time of the filing and of the hearing of a recourse is satisfied also, where such interest "though not yet actually adversely and directly affected, is unavoidably bound to be so affected eventually."
The submission of learned counsel was based on a further ground to the effect that had the respondent Authority acted in accordance with Regulation 13(3), as it was bound to do, the sub judice post would have remained vacant arid so the applicant would have eventually the opportunity to be promoted thereto at a future time. Regulation 13(3) provides:
"3. Whenever a promotion post cannot be filled due to the nonexistence of a candidate, from amongst the officers in the service, possessing the required qualifications, the immediately lower post will be proclaimed for filling as supernumerary, provided that such post is a promotion post or a first entry and promotion, which will remain supernumerary until the filling of the above vacant promotion post."
From the material before me it is clear that the factual situation in this case was such that rendered applicable Regulation 13(3). In fact the sub judice post was (a) a promotion post, (b) none of the candidates in the service possessed the required qualifications, (C) the immediately lower post was a promotion or a first entry and promotion post. Therefore though the requirements envisaged by Regulation 13(3) were satisfied, yet the respondent did not adopt the procedure envisaged by Regulation 13(3) but the one envisaged by Regulation 13(2).
Learned counsel for the applicant submitted that Regulation 13(3) aims at safeguarding the service evolvement and the interests of the officers of the respondent Authority, and specifies in what manner their service evolvement will materialise, therefore the respondent Authority could not infringe the right of the officers to evolve in the service in the manner provided by Regulation 13(3).
Finally he submitted that by acting as it did the respondent Authority acted in breach of Regulation 13(3) and thus in a manner contrary to Law in the sense of Article 146 of the Constitution.
Having considered the submission of learned counsel, I find that there is merit in it as indeed Regulation 13(3) is applicable.Therefore for the reasons indicated in the submission of learned counsel the legitimate interest of applicant in Recourse 5 09/87 and 510/87, is affected because by the sub judice act he is deprived of the opportunity to be a candidate to the post in the future, and thus his legitimate interest is "unavoidably bound to be affected eventually". (See christofides case (supra)).
As the applicant in Recourse No. 509/87 and 510/87, is vested with a legitimate interest his recourse must also succeed for the reasons indicated in Recourses Nos. 505/87 and 506/87.
For all the above reasons all recourses succeed and the sub judice decisions are annulled but in the circumstances there will be no order as to costs.
Sub judice decisions annulled. No
order as to costs.