HJIGEORGHIOU ν. C.T.O. (1986) 3 CLR 1110 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup o

THE MATTER OF ARTICLE 146 OF THE CONSTITUTION KRINOS I. HJIGEORGHIOU, Applicant, v. THE CYPRUS TOURISM ORGANISATION, Respondents. (Case No. 217/83). Cyprus Tourism Organisation-The Cyprus Tourism Organisation Law 54/69 as amended by Law 48/78--Sections 5

s. 5

cludes promotion-Powers of the Board under s. 5

spector of the Department of Provision of Touristic Services is an "

specting Officer" within the meaning of said Regulation-Reg. 15

terested party-No reasons given for disregarding said seniority-Ground of annulment -Reg. 15(3}-Recommendation of Head of Department -No recommendations made

this case--Such failure is contrary to said Regulation-Committee therefore acted without due

quiry as to a material factor--Ground of annulment. Collective Organ-Appointing or Promoting Bodies--They need not record the questions and answers of candidates, but only their findings as to their performance. Schemes of Service-Delegated legislation

the sense of Police v. Hondrou and Another, 3 R.S.C.C., 82-They need not be published

the Official Gazette. Constitutional Law-Articles 122 and 125 of the Constitution -Law of Necessity-The provisions

the Cyprus Tourism Organisation Law 54/69 empowering the Board of C.T.O. to appoint its officers-Service under C.T.O. falls squarely under definition of "Public Service"

Article 122of the Constitution-But said provisions justified by the Law of Necessity.

Words and Phrases: "Appoint"

section 5

terested party to the post of Senior

spector, a first entry and promotion post

the respondent Organisation, on the following grounds namely: (

1. a)C.T.O. is empowered "to appoint" and not "to promote". (
2. b)The decision was taken 'by the Permanent Committee of Hearings, a Committee non-existent and unknown to the Law, (
3. c)The composition of such Committee was defective

that Mrs. Katsouri, a person not a member of the Board of C.T.0., participated, (d) The post

question is not provided

the Regulations. (e) The scheme of service was not published

the Official Gazette, (f) The answers of the candidates at the

terview were not recorded, (

1. g)The seniority of applicant was disregarded, and finally (
2. h)The sub judice decision was taken contrary to reg. 15

case of promotion the recommendations of the Head of the Department should be duly taken

to consideration. Argument was heard on the

vitation of the Court on the constitutionality of Law 54/69 empowering C.T.O. o "appoint" its officers. Counsel for applicant submitted that the relevant provisions are repugnant to Articles 122 and 125 of the Constitution. Whereascounsel for the respondents and Mr. Charalambous, who represented the Attorney General, who was called by the Court as an amicus curiae, submitted that such provisions are justified by the Law of Necessity. Held, annulling the sub judice decision:-

a strictly grammatical or etymological propriety of language nor even

their popular use, as

the subject, or

the occasion on which they are used and the object to be attained. The term "appoint"

the context of the said section

cludes promotion.

dustry or hisrepresentative". The Director-General did appoint as hisrepresentative Mrs. Katsouri. The Permanent Committee ofHearings was set up

virtue of the powers under section 5

this Department there are posts of "

specting Officer". The Senior

spector is such an officer.

the Official Gazette.

terviews.

to rested party. Reg. 15

this case the Committee made a general reference to merit, qualifications and seniority, but they failed to give reasons why applicant's seniority was disregarded. It follows that the relevant discretionary powers were exercised

a de fective manner.

the present case the Head of the Department made no recommendations as provided by reg. 15

accordance with aspecific statutory provision. It acted without due

quiry

to the factor of recommendations. A material factor was not within their knowledge and, therefore, it was not and could not be taken

to account. Consequently the exercise of their discretionary powers was defective.

view of the nature of C.T.O., service under i falls squarely under the definition of "Public Service"

Article 122

of the Constitution and, therefore, the exclusive powers of the Public Service Commission under Article 125 are applicable to the officers of the respondent Organisation.

the present case, however, having regard to the nonexistence of the Public Service Commission envisaged by the Constitution for so many years and the reasons for it the need of C.T.O. to function, the situation prevailing

the country, the application of the doctrine of necessity was necessary to fill the gap by setting up a substitute mechanism for the running of essential

stitutions. Sub judice decision annulled. No order as to costs. Cases referred to: Theodorides and Others v. Ploussiou

dustry Ltd. and Others v. Bank of Cyprus Ltd.

terested party to the post of Senior

spector,

the Cyprus Tourism Organisation,

preference and

stead of the applicant. A. S. Angelides, for the applicant. A. Dikigoropoulos. for the respondents. Cur.adv. vult. STYLIANIDES J. read the following judgment. The applicant by means of this recourse seeks the annulment of the promotion of the

terested party Michael Louca to the post of Senior

spector

preference to the applicant. The respondents-the Cyprus Tourism Organisation- (hereinafter "K.O.T.") is a corporation of public law established by the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969). Its functions and powers are set out

the Law. On 16.9.82 applications on the basis of a scheme of service.which had the prior approval of the Council of Ministers for the filling of the vacant post of Senior

spector, were

vited by advertisement

the local press. This was a first entry and promotion post. Twenty-six persons applied,

cluding the applicant and the

terested party. Five of the candidates did not possess the required qualifications. The 21 qualified candidates were

vited for

terview by "the Permanent Committee of Hearings" but only 16 of them turned up. During the

terviews questions were put to the candidates and the said Committee, after consideration of all the material before it,

cluding the answers of the candidates and their performance at the

terview, concluded that the candidates serving already with K.O.T. were superior to the outsiders and. then proceeded and issued the sub judice decision, exhibit No. 1, the material part of which is paragraph 6, that reads as follows:- «Η Επιτροπή μετά ταύτα εμελέτησε επισταμένως τους προσωπικούς και εμπιστευτικούς φακέλλους όλων των υποψηφίων οι οποίοι υπηρετούν εις τον Οργανισμόν και υπέβαλαν αίτηση για τη θέση του Ανώτερου Επιθεωρητή και αφού έλαβε υπόψη της το περιεχόμενο των εμπιστευτικών εκθέσεων, τα προσόντα, την αξία, την ικανότητα, την πείρα, την προσωπικότητα, αρχαιότητα και τις απαντήσεις που δόθηκαν από τον καθένα κατά την εμφάνιση του ενώπιον της Επιτροπής, έκρινε σαν καταλληλότερο τον κ. Μιχάλη Λουκά». (The Committee thereafter considered carefully the personal files and confidential reports of the candidates who serve with the Organisation and submitted application for the post of the Senior

spector and, having taken

to consideration the contents of the confidential reports, the qualifications, the merit, the capabilities, experience, personality, seniority and the answers given by each one of them during the

terview before the Committee, considered as the most suitable MichalisLouca (the

terested party)). One of the members of such Committee disagreed as he considered that a certain Phylaktides was the most suitable and should have been promoted to the post

question. This decision was taken on 29th December, 1982, and the applicant was officially

formed that he was not preferred on 24.3.83. The sub judice decision is impugned on the following grounds expounded

the written addresses of his counsel:- (

1. a)That K.O.T. was empowered "to appoint" and not "to promote" and, therefore, it acted without competence; (
2. b)The sub judice decision was taken by the Permanent Committee of Hearings, a Committee non-existent and unknown to the Law; (
3. c)Furthermore, if this Committee could be said that it was set up under Subsection

that Mrs. Katsouri, a person not member of the Board of K.O.T., participated; (d) The post of Senior

spector is not provided for

the Regulations made under Section 7

the Official Gazette and, therefore, is not valid; (f) The answers of the candidates at the

terview were not recorded, contrary to the principles of administrative Law; (g)The seniority of the applicant was disregarded; and lastly, (h) The sub judice decision was taken contrary to Regulation 15

case of promotion the recommendations of the Head of the Department

which the vacancy exists should be duly taken

to consideration. The Board of K.O.T. under Section 5

the same context is used

s. 10 of the Cyprus Broadcasting Corporation Law, Cap. 300A, and the Central Bank LawvLaw No. 48/63. The meaning of words of a statute is found not so much

a strictly grammatical' or etymological propriety of language, nor even

its popular use, as

the subject, or

the occasion on which they are used, and the object to be attained. The words of a statute, when there is doubt about their meaning, are to be understood

the sense

which they best harmonise with the subject of the enactment-(Maxwell on

terpretation of Statutes, 12th ed., p. 76). The term "appoint"

the context of s. 5

cludes promotion- (D. Theodorides and Others v. S. Ploussiou,

which the Director-General or any other officer of the Organisation may participate. These committees are different from the advisory committees for which provision is also made

the same subsection. The Board of K.O.T. is appointed by the Council of Ministers and its term is for a period not exceeding three years;-(Section 5(3 (a)). One of the members of the Board holding office after such appointment at the material time was "the Director-General; of the Ministry of Commerce and

dustry or his representative". The Director-General of the Ministry of Commerce and

dustry did appoint as his representative to the Board of Directors of the Cyprus; Tourism OrganisationMrsPhiviKatsourr as from July, 1982. The Board set up

virtue of the powers vested

it by s. 5

cluding the representative of the Director-General of the Ministry of Commerce and

dustry. To this Sub-committee the power of the Board to appoint under s. 5

question. Regulation 6 of the Cyprus Tourism Organisation (Structure and Conditions of Service) Regulations, 1970, made under s. 7

this Department there are posts of "

specting officers". The Senior

spector is such an officer. The scheme of service for the post was made by the Board and approved by the Council of Ministers

accordance with s. 7

the Official Gazette. A scheme of service made by the Council of Ministers is delegated legislation

the sense of Police v. Hondrou and Another, 3 R.S.C.C. 82, made under Article 54 of the Constitution for carrying

to effect the provisions of the Law-{PangypriosSyntechniaDimossionYpallilonv. Republic,

to operation on its publication

the Official Gazette of the Republic. Publication is mandatory and is more necessary

view of the presumption that every citizen knows the Law-(See, also, s. 7 of the

terpretation Law, Cap. 1).

IlterIshinv.The Republic, 2 R.S.C.C. 16, at p. 20, the Court observed that it would be quite useful if all schemes of service, which are relied upon by the appropriate authorities of the Republic as being at present

force, are to be published for general

formation.

Economides v.The Republic,

valid is

view of the aforesaid unfounded. A collective body is bound to keep a full record so as to enable this Court to exercise judicial control over its acts. The jurisprudence of this Court, however, does not require an appointing or promoting body to record the questions and answers given by the candidates. Their duty is limited to record their findings as to performance of each of the candidates at the

terviews and make their comments on the basis of such findings-(Hji-Antoni and Others v. The Republic,

terested party it emerges that the applicant was by five years senior to the

terested party. The claims of officers to promotion are determined on the basis of merit, qualifications and seniority-(Regulation 15

a plithora of cases by this Court. It is well settled that seniority, though one of the factors, is not the decisive one but it ought to prevail if all other things are more or less equal.

Partellidesv.The Republic,

terested party was just under two years. It was said by the Full Bench:- "

the circumstances we are of the opinion that it was not reasonably open to the respondent Commission to promote the

terested party

stead of the appellant. All other things being more or less equal, the appellant's seniority ought to prevail. It follows that the relevant discretionary powers of the respondent were exercised

an erroneous manner".

Vonditsianosv.The Republic,

the absence of any due reasons to the contrary-which I would expect to find duly recorded

the relevant minutes of the respondent-I fail to see how it was open to the respondent,

the exercise of its discretionary powers, to prefer the

terested party to the applicant,

spite of the greater seniority and experience of the latter over the former, and there being no difference

merit

favour of the

terested party".

Antoniou v.The Republic,

order to enjoy the benefit of the advantage of seniority". (See, also, Lardisv. The Republic,

the sub judice decision there is a general reference to seniority but there is no reasoning why the 5 years' seniority of the applicant was overweighed and he was not selected. It may not be excluded that the parties were not more or less equal

merit and qualifications.

deed the

terested party, as depicted

the confidential reports,

1981 is superior to the applicant;

1981 he was rated with 7 "Excellent" and 5 "Very good" where as the applicant with 1 "Excellent" and 11 "Very Good". The qualifications of the parties appear plainly

the material which was before the Committee. The Committee, however, made a general reference to the merit and the qualifications and seniority and they have not given reasons for disregarding the seniority of the applicant. Counsel for the respondents contended that

making the promotion

question the Committee did take

to consideration the recommendations "of the person

-charge of the Section before it reached its .final conclusion. This is evident from a perusal of the minutes of the Committee

question". I went carefully through the minutes placed before me but I could find nowhere therein any reference bearing out this contention. No reference is made at all to the recommendations ofthe Head of the Section or Head of the Department The matter of the recommendations of the Head of a department has been stressed

a number of cases by this Court. The recommendations of a Head of a Department were always considered a most vital consideration--(Theodossiouv. The Republic, 2 R.S.C.C. 44, at 48).

Evangelo.uv. The Republic, (1965.) 3 C.L.R. 292, at p. 297, Triantafyllides, J,, as he then was, said:- "Had there "been made a recommendation by the Head of the Department concerned

relation to the filling ;

1963 of the vacancies

question and had

such report a comparison been made between the Applicant and

terested Parties and had the applicant been described therein as more fit for promotion than those other two candidates, the Commission would normally have been expected to either follow it or give reasons for not doing so." The Head of a Department is

a position to appreciate the demands of the post to be filled and the suitability ofthe candidates to discharge the duties of the post. The promoting body, certainly, is not a rubber Stamp of the recommendations of the Director but it should not lightly disregard them, and if they decide not to act

accordance with such recommendations, they have to give specific reasons for so disregarding them and such reasons are subject to scrutiny by the administrative Court-(See,

ter alia, Lardisv. The Republic (supra); Hji-Constanlinou and Others v. Republic,

Karageorghisv. Republic,

making a promotion the Commission shall have due regard to the confidential reports on the candidates and to the recommendations made

this respect by the Head of Department. I take this provision to mean recommendations of the Head of Department relating to the candidates and yet as it appears

the relevant minutes of the Commission, no definite recommendation was made

favour of any of the candidates by the Head of Department;.... Thus, I am bound to arrive at the conclusion that the decision of the Commission was taken

a manner contrary to law, namely, the aforesaid s. 35

quiry

to all relevant factors, a situation that renders the sub judice decision contrary to law

the sense of Article 146.1 of the Constitution".

Christidesv. Republic,

quiry

to relevant factors leads to annulment of an administrative decision and that

exercising its discretionary powers the Administration must take

to account all relevant factors.

the present case the Head of the Department

which the vacancy existed made no recommendations. The Committee failed to act

accordance with a specific statutory provision. They acted without due

quiry

to the relevant factor of recommendations, They acted without sufficient knowledge and contrary to Law. A material: factor was not within the knowledge of the respondent at the relevant time and, therefore, it was not and could not have been taken

to consideration. Consequently, the exercise of their discretionary powers was for that reason rendered defective-(Soteriadou and Others v. Republic, the Full Bench case.

the context of s. 5

cludes promotion. Consequently, the Board of K.O.T. is the competent body for the promotion of the employees of the Organisation. The Permanent Committee of Hearings that effected the sub judice promotion was duly set up under s. 5

dustry. The Board of K.O.T. transferred to this Committee the power to appoint and promote. The post of Senior

spector is

cluded

the post of

specting Officers expressly provided by reg. 7

any way

validate it though it may be advisable that schemes of service should be published

the Official Gazette. The duty of the promoting body is limited to record their findings as to performance of each of the candidates at the

terviews and make a comment on the basis of such findings. Non-recording of questions put to candidates and the answers thereto is not mandatory and failure to do so does not taint

any way the final act. The respondents failed to give and record

the relevant minutes any reasons for non-selecting the applicant whose seniority was overwhelming. Therefore, they exercised their discretionary powers

an erroneous manner. The respondents did not give due regard to recommendations of the Head of the Department

which the vacancy existed as provided

reg. 15

to consideration a relevant factor and consequently the exercise of their discretionary powers was for this reason as well rendered defective. Argument was heard on the

vitation of the Court on the constitutionality of Law 54/69 empowering K.O.T. to "appoint" its officers. Counsel for the applicant submitted that the relevant provisions of the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969) are repugnant to the Constitution as they are contrary to the provisions of Articles 122 and 125 thereof. Counsel for the respondents and Mr. Charalambous representing the Attorney-General, who was called by the Court as amicus curiae, submitted that the said statutory provisions are justified by the Law of necessity and consequently they cannot be declared unconstitutional. "Public service," as defined

Article 122, means:- "Any service under....

any other public corporate or unincorporated body created

the public

terest by a law and either the funds of which are provided or guaranteed by the Republic or, if the enterprise is carried out exclusively by such body, its administration is carried out under the control of the Republic." K.O.T. is such a body as its Board of Management is appointed by the Council of Ministers; it is supervised and controlled by the Minister of Commerce &

dustry (Section 8); one of its main sources is subsidy and/or money provided by the Republic (Section 13

to effect of the provisions of the present Law are issued by the Council of Ministers-(Section 21). The service under K.O.T. falls squarely under the definition of "Public Service"

Article 122

of the Constitution and, therefore, the constitutional provisions for the establishment of a Public Service Commission and the exclusive power of such Commission under Article 125 to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinary control, over,

cluding dismissal or removal from office of all public officers, are applicable to the officers of K.O.T.

The Attorney-General of the Republic v. Mustafa Ibrahim and Others, 1964 C.L.R. 195, this Court

terpreted the Constitution (

cluding the provisions of Articles 179, 182 and 183) to

clude the doctrine of necessity

exceptional circumstances, which is an implied exception to particular provisions of the Constitution. The prerequisites for the application of the doctrine of necessity are set out

the judgment delivered-(See, also,

ter alia, Chimonidesv. Manglis,

dustry Ltd. and Others v. Bank of Cyprus Ltd.,

abstracto. The constitutionality of a law

a recourse challenging the validity of an administrative act has to be examined

order to decide the validity of such act or decision. An objection of unconstitutionality is considered only

relation to the issue of the validity of the subject-matter of the recourse and is decided solely for the purposes of the particular case- (Βλάχου-Η Έρευνα της Συνταγματικότητας των Νόμων,

relation to appointments and promotions

a number of cases the application of the law of necessity was judicially considered.

Iossifv. CY.T.A.,

HjiGeorghiouv.The Republic,

the specific circumstances of the case on the strength of the law of necessity.

the present case having regard to the non-existence of the Public Service Commission envisaged by the Constitution for so many years and the reasons for it, the need for K.O.T. to function, the situation prevailing

the country,

cluding the concentration of the Turkish population of the country

the occupied area

the north, beyond the reach of the organs of the Republic, I am satisfied that the application of the doctrine of necessity

this case was necessary to fill the gap by setting up a substitute mechanism for the running of essential

stitutions.

view of the above, without going

to any further detail, I am satisfied that the contraventions of the chapter of the Constitution dealing with the public service are justified by the law of necessity and consequently the statutory provisions of the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969) were validly enacted. Of course, it must be understood that the opinion of the Court on the matter applies to the present case and to the facts and circumstances prevailing at the material time.

view of the above the sub judice decision is annulled. Let there be no order as to costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο