ANTONAKIS VAKIS AND ANOTHER ν. REPUBLIC (PUBLIC SERVICE COMMISSION) (1974) 3 CLR 38

(1974)3 CLR 38 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1974)3 CLR 38 1974 February 15 [HADJIANASTASSIOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANTONAKIS VAKIS AND ANOTHER, Applicants, and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondents. (Cases Nos. 158/72 and 159/72), Public Officers-Promotions-Recourses against validity of two promotions to the post of Counsellor or Consul-General 'B' in the Ministry of Foreign Affairs-Existence of two vacancies in the post, required-Section 44

(1)(a) of the Public Service Law, 1967 (Law 33/1967)-In fact and in law there existed under the establishment of the said Ministry two such vacancies on the date of the sub judice two promotions of the interested parties-Notwithstanding that short time previously the respondent Public Service Commission purported to fill said two vacancies by erroneously appointing two other public officers to the said post who had been recommended only for temporary supernumerary appointments in the (higher) office of Counsellor (or Consul-General 'B'), under the provisions of section 39

(1)and

(2)of the said Law 33/1967. Promotions-Vacancies-Section 44

(1)(a) of the said Law-Temporary supernumerary appointments under section 39

(2)of the same Law-Erroneous permanent appointment-Effect-See supra. On March 23, 1972, the respondent Public Service Commission took the decision to fill the then existing two vacancies in the post of Counsellor or Consul-General B, in the Foreign Service, by promoting thereto the two interested parties in the present proceedings Messrs. Michaelides and Lycourgos. This promotion, having been duly accepted by the said two public officers, was published in the Official Gazette of the Republic of April 6,

1. The applicants public officers, feeling aggrieved by the said decision, filed their present recourses challenging the validity thereof on the main ground that at the material time there were no vacancies in the aforesaid office of Counsellor (or Consul-General 'B'), once the establishment in the relevant post was
2. Counse for the applicants stated in this respect that the two vacancies intended to be filed by the sub judice promotions of the interested parties, had already been duly filled previously, namely on December 14, 1971, when the respondent Public Service Commission filled the then existing two vacancies by promoting to the said office two other public officers (Messrs. A. Nicolaides and C. Papademas). Consequently, the argument went on, the sub judice subsequent two promotions are clearly contrary to section, 44

(1)(a) of the Public Service Law, 1967 (Law 33/1967), which lays down that no officer shall be promoted to another office unless a vacancy exists in that office Counsel on behalf of the respondents argued that, the Commission did not act contrary to section 44

(1)(a) of the said Law 33/1967 because On the date of the promotions of the two interested parties there were in fact and in law two vacancies in the office of Counsellor or Consul- General 'B'. Dealing with the alleged promotions of Messrs. Nicolaides and Papademas on December 14, 1971 as aforesaid, learned counsel explained that what really happened on that occurrence was simply that the Public Service Commission, acting under section 39

(1)of the said Law (infra), proceeded to make temporary, supernumerary appointments to the post, but hot promotions, the Commission erroneously using the words "promotion", "you have been promoted" etc. to describe the position. Section 39 of the Public Service Law, 1967 (Law 33/1967) provides: "

(1)Whenever there is a vacancy in a public office which, owing to the absence of any candidate possessing the qualifications required, cannot be filled, the Commission may, at the request of the appropriate authority concerned, make a supernumerary appointment in another office of lower status and salary in the same Department.

(2)Every supernumerary appointment shall be made on a temporary basis and shall lapse as soon as possible after the vacancy against which it was made is filled. Provided that if a vacancy occurs in the public office to which the supernumerary appointment was made, the supernumerary appointment may continue until such vacancy is filed". The learned Judge of the Supreme Court agreeing with the argument advanced by counsel for the Republic, dismissed these recourses holding that in fact and in law there were on March 18, 1972 two vacancies in the aforesaid post and that, consequently, the respondent Commission did not act in contravention, of section 44

(1)(a of the Public Service Law, 1967, (Law 33/1967). Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Counsellor B, in the Ministry of Foreign Affairs in preference and instead of the applicants. St. Erotokritou, (Mrs.), for the applicants. N. Charalambous, Counsel of the Republic, for the respondent. Cur. adv. vult. The following judgment was delivered by:- HADJIANASTASSIOU, J.: In these proceedings, which have been heard together under Article 146 of the Constitution, both applicants, Messrs. Antonakis Vakis and Sotiris Ellinas, seek to challenge the validity of the promotion of Messrs. Constantinos C. Michaelides and George C. Lycourgos, to the post of Counsellor B, as being null and void and of no effect whatsoever. The facts are these: The applicant in the first case has been member of the Foreign Service of the Republic as from May 18, 1961, holding the post of an Attache, and on August 1, 1970, was promoted to the post of Secretary 1st Grade. The second applicant also joined the Foreign Service on the same date and was attached to the same post as the first applicant. He was promoted to the post of Secretary 1st Grade on the same date, that is to say, August 1, 1970. On March 16, 1972, the Director-General of the Ministry of Foreign Affairs addressed a letter to the Chairman of the Public Service Commission, informing him that, in accordance with the 1972 Budget, the offices of Counsellor A and B have been increased by one more in number, that is to say from 16 to 17; and in paragraph 2 he says, "The Commission is requested to proceed with the filling of two vacant posts", that is to say, of the new office and the one which remained unfilled because of the case of Mr. Lefkos Georghiades. Furthermore, the Chairman of the Commission was informed that the Ministry of Finance had also agreed with the filling of those two posts. On March 18, 1972, the Commission met for the filling of those two vacancies in the post of Counsellor or Consul-General B, which is a promotion post, and decided that the question of both those vacancies should be considered on the 23rd of the same month. On that date the Commission, in the presence of the Director-General of the Ministry, considered the merits, qualifications, experience, and seniority of all the candidates, 7 in number, including both the interested parties, as reflected in their personal files and in their annual confidential reports. The Commission, having further heard the Director-General who recommended both the interested parties, reached this conclusion: "Bearing in mind all the above,. decided unanimously that the following officers were on the whole the best and that they be promoted to the permanent post of Counsellor or Consul-General B, w.e.f. 1.4.72: C. C. Michaelides G. C. Lycourgos". On April 6 the promotion of both interested parties was published in the Official Gazette of the Republic under notification No. 662 and both applicants, feeling aggrieved because of the decision of the Commission filed the present recourses, claiming the same relief and the points of law raised in support of both applications were identical. Although during the filing of both recourses five grounds of law were raised, counsel of both applicants argued three grounds only during the hearing, and abandoned the two grounds, that is to say, grounds

(3)and

(4)which in effect deal with the superior merit and ability of the two officers concerned. The grounds of law argued are these:-

1. That the decision of the Commission was made in excess or in abuse of powers vested in such organ, and/or without any legal authorisation.
2. That the Commission was acting on a misconception of both the legal position regarding their powers, and/or the true construction of the law, and/or of the real facts regarding the establishment of the number of offices in the Foreign Service; and
3. That the said decision was taken by the Commission in excess or in abuse of powers and contrary to the principles of administrative law. On July 15, 1972, the opposition was filed and counsel on behalf of the respondent claimed that "the decision of the respondent Public Service Commission to promote the interested parties was taken after a careful consideration of all the facts and circumstances of the case, and upon a proper exercise of the discretionary power vested in the respondent Commission". It appears, from the facts in support of the opposition that counsel conceded that, "the establishment of the relevant post was 17". There is no doubt that the Commission, acting under the provisions of section 44 of the Public Service Law, 1967, (No. 33 of 1967) wrote to both interested parties informing them that they were promoted to the permanent post of Counsellor or Consul-General B and on March 28, in reply to the Chairman of the Commission, they accepted the said promotion. Counsel on behalf of both applicants contended that the Commission, in promoting the interested parties, have exercised their discretionary powers in a defective manner, because no vacancy existed, once the establishment of the Foreign Service was only 17; and that such promotions were contrary to section 44

(1)(a) of Law 33/67, which lays down that no officer shall be promoted to another office unless-a vacancy exists in that office. Counsel further argued in support of his contention that the two vacant posts referred to in the minutes of March 23, 1972, were not vacant because they were filled by the Commission when they promoted Messrs. A. Nicolaides and C. Papademas on December 14, 1971. Counsel on behalf of the respondent argued that the Commission did not act contrary to section 44

(1)of Law 33/67 because on the date the promotions of the two interested parties were made there were, as the minutes clearly show, two vacancies in the office of Consul-General. He further conceded that when Messrs. Nicolaides and Papademas were promoted on December 14, 1971, the Commission erroneously used the word 'promotion' because the appointments which were made on that date were appointments under the provisions of section 39

(1)of the said law, which deals with supernumerary appointments only and not promotions. I think that in order to answer the contention of counsel for the applicants, one has to turn to the minutes of the Commission, dated November 1, 1971, and also December 14, 1971; but before doing so I find it constructive to read a letter dated November 19 of the same year, addressed to the Commission by the Director-General. That letter reads as follows:- "I have been instructed to inform you that the Ministry of Finance has agreed to fill the two vacant offices of Minister Plenipotentiary, posts which are referred to in the letter of the Director of the Personnel Department, under No. 6000/69/H of the 12th October, addressed to me with a notification to you". The said letter further reads:- "In view of the fact that among the candidates for the post of Minister Plenipotentiary during the selection which took place at the beginning of October, there were no suitable candidates for the said office, (your letter 46/63 of the 7th October), the Commission is requested that, in accordance with the provisions of section 39 of the Public Service Law, to proceed and make supernumerary appointments to the office of Counsellor". Then I turn to the minutes of November 1 (exhibit 3) which show that on that date the Director-General was also present and that there were 5 vacancies (permanent) in the post of Counsellor or Consul-General B, and three consequential vacancies which Were created as a result of the promotion of an equivalent number of officers, to the post of Minister Plenipotentiary, and apparently, out of a number of candidates, including Messrs. Papademas and Nicolaides, the Commission promoted to the permanent post of Counsellor 7 candidates, but not the latter ones, thus leaving one office unfilled, a post which was previously held by Mr. L. P. Georghiades. Reverting now to the minutes of the Commission of December 14, 1971, one reads that on that date, and in the presence of the same Director-General, the Commission had in mind that there were three vacancies regarding the post of Counsellor, two supernumerary appointments (permanent) against two vacancies in the higher post of Minister Plenipotentiary, (vide letter No. 1425/69 of 19.11.71 referred o earlier in this judgment), and one vacancy (on secondment) in the place of Mr. M. Pissas, who has been absenting himself from duty without pay. Although it was made clear that it was a question of making supernumerary appointments when the Commission considered the candidates before them, including Messrs. Michaelides and Lycourgos (present interested parties), and in spite of the statement of the Director-General that the two supernumerary appointments would be made in the post of Counsellor against two vacancies in the higher post of Minister Plenipotentiary, the Commission, after considering all the merits, qualifications, experience and seniority of all the officers holding the post of Secretary A or Consul, decided unanimously that Messrs. Nicolaides and Papademas were on the whole the best, and instead of proceeding to make two supernumerary appointments, erroneously they promoted them to the permanent post of Counsellor of Consul-General B with retrospective effect as from 1.12.71. As it appears from the said minutes, the Commission had some difficulty in selecting another officer for the third vacancy (on secondment) and decided not to fill, for the time being that vacancy. That the Commission was not making a supernumerary appointment in that office, but a promotion, appears also from a letter addressed to both Messrs. Nicolaides and Papademas, dated January 28 and 13, 1972, in which they were offered a promotion to the permanent post of Counsellor or Consul-General B. Furthermore, there is a further letter written by the two officers concerned accepting the promotion and thanking the Commission. (See red 28 in the personal file of Mr. Nicolaides and red 34 in the personal file of Mr. Papademas). With this background in mind, I propose reading section 39 of Law 33/67, which makes the position very clear:- "

(1)Whenever there is a vacancy in a public office which, owing to the absence of any candidate possessing the qualifications required, cannot be filled, the Commission may, at the request of the appropriate authority concerned, make a supernumerary appointment in another office of lower status and salary in the same Department.

(2)Every supernumerary appointment shall be made on a temporary basis and shall lapse as soon as possible after the vacancy against which it was made is filled: Provided that if a vacancy occurs in the public office to which the supernumerary appointment was made, the supernumerary appointment may continue until such vacancy is filled" It is unfortunate, I repeat, that although the Commission under the provisions of section 39 of the law in question, could only make supernumerary appointments on a temporary basis, regarding the post of Counsellor B-once no vacancies existed-nevertheless, it proceeded to promote those two officers contrary to section 44 of Law 33/67, apparently because the Director- General is recorded in the minutes as saying that he "requested that the two officers who will be selected for promotion to the permanent posts, might be promoted retrospectively from the same date as the other officers already promoted". There is no doubt that in this minute, the Director-General, when using the words, "as the other officers already promoted", he was referring to Messrs. Nicolaides and Papademas, who, as I said earlier in this judgment, ought to have made a supernumerary appointment on a temporary basis and not a permanent one. Counsel on behalf of the respondent quite fairly conceded that, irrespective of what has happened in the past regarding the two officers, Messrs. Nicolaides and Papademas, on March 16, 1972 (exhibit 11) it was made quite clear by the Director- General to the Chairman of the Commission, that there were two vacant posts, regarding the office of Counsellor A and B, and the Commission exercising rightly their discretionary powers-once 2 vacant posts existed-promoted Messrs. Michaelides and Lycourgos, in accordance with the provisions of section 44 of Law 33/67. Although it is regrettable indeed, that due to a misunderstanding to say the least, the two officers, Messrs. Nicolaides and Papademas, were not even considered on March 18, 1972 when the promotions took place, nevertheless, I find myself in agreement with counsel for the Republic, that once there were two vacant posts the interested parties were rightly promoted, and that the Commission did not act in excess or in abuse of their powers. I think that in these circumstances it is necessary for the appropriate authority, in the light of this judgment, to consider the question of Messrs. Nicolaides and Papademas, in order to decide whether those two officers in effect were, and are, continuing holding a supernumerary appointment of Counsellor B, in order to do justice to the said officers, who had very good recommendations indeed. In the light of the facts and circumstances of these cases, I have reached the conclusion that the decision or act of the Commission, is not contrary to any of the provisions of this Constitution or of the Public Service Law 1967, or is made in excess or in abuse of powers vested in such organ, and I would, therefore, dismiss both recourses. Regarding the question of costs, I think in these circumstances and for the reasons I have given earlier in this judgment, I am not making an order of costs against the applicants. Applications dismissed; no order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο