T H E CONSTITUTION M I K I S MARATHEFTIS, Applicant, and T H E REPUBLIC T H R O U G H T H E PUBLIC SERVICE COMMISSION, Respondent. (Case No. 156/64;. Administrative Law—Public
ficers—Promotions—Recourse against promotion, on secondment, to the post
Senior Supervisor
Accounts, Treasury Department—Relevant decision
the Respondent Body annulled due to the participation therein
two members thereof, who were disqualified from doing so, becauseof close relationship with the person promoted (Interested Party)—Validity
promotion could not besaved ontheground that the said two disqualified membersof the Commissionhad to participate in order to preserve a quorum, which did not exist in the first place, at the material time. Constitutional Laze—Constitution
Cyprus, Article 125.3, and proviso to sub-paragraph
the Public Service Commission should be taken by an absolute maforily vote
itsmembers—Effect
proviso to sub-paragraph
whether or not the Commission, in the anomalous circumstances prevailing at the material time in Cyprus could have functioned without a quorum, on the basts
the law
necessity, left open. Administrative Law—Constitution
Cyprus, Article 146—Promotion on secondment, treated, in the particular circumstances
the present case, as a final decision which can be the subject
a recourse under Article 146 Applicant seeks the annulment
the promotion, on secondment, to the post
Senior Supervisor
Accounts,
a certain Mr. GeorgeHartsiotis. One
the main points which has been raised on behalf
Applicant in these pro576 ceedings, is that the relevant decision
the Commission, for the secondment
the Interested Party, is void due to the participation therein
two members
the Commission who were disqualified, due to close relationship with the said Interested Party, from so doing. At the hearing
this Case it was agreed between counsel that this point
the participation
allegadly disqualified members
the Commission should be determined first, before the hearing
the Case would proceed further. Held, I. The question
the effect
the participation
a disqualified member
a collective body has been dealt with by this Court in the case
Kallouris and The Republic, 1964 C.L.R. p. 313 and the relevant principle, as expounded therein, does not have to be repeated. Only, particular attention is drawn to the basis
such principle, as it is to be found set out at p. 317
the report
the Kallouris case. (i) The degree
relationship between the Interested Party and Mr. Theocharides and Mr. Lapas, — Mr. Theocharides in particular—is so close by present-day realities,
which I take judicial notice, that, in accordance with the principles expounded in the Kallouris case, the participation
the said two members in the decision to promote on secondment the Interested Party defeats the appearance
an independent judgment
the Commission and, also, shakes the confidence in its impartiality even though,
course, there is no ground for believing that either Mr. Theocharides or Mr. Lapas have in fact favoured improperly the Interested Party. The fact remains that through their participation the composition
the Commission, for the particular purpose, has been rendered defective in law, with the result that its relevant decision is invalidated. Kallouris and The Republic, 1964 C.L.R. 313 followed. (it) It is a well-known exception to the principle expounded in the case
Kallouris—and it is actually referred to therein, vide p. 322—that a member need not be treated as disqualified if the remaining members cannot constitute a quorum. (Hi) When, even with the participation
a disqualified member, no proper quorum can be formed, then such 577 1965 Oct. 18, Nov. 27 MIKIS MARATHEFTIS and THE REPUBLIC THROUGH T H E PUBLIC SERVICE COMMISSION 1965 Oct. 18, Nov. 27 MIKIS MARATHEFTIS member is not entitled to participate in the proceedings
a collective organ on the ground
the above exception, because in such a case such organ is not worse
f, through his absence, as regards quorum. and THE REPUBLIC THROUGH THE PUBLIC SERVICE COMMISSION (iv) The validity
the appointment
the Interested Party cannot be saved on the ground that the two disqualified members
the Commission had to participate in order to preserve a quorum, which did not exist in the first place, at the material time. (v) I leave entirely open the question
whether or not the Commission, in the anomalous circumstances prevailing at the material time in Cyprus,
which I do take judicial notice, could have nevertheless functioned without a quorum, on the basis
the law
necessity. (vi) The effect
the proviso to paragraph
the Constitution, is, merely, that the Commission, when meeting with a proper quorum, is bound to act on the unanimous recommendation provided for therein. It does not prescribe a minimum number
votes necessary for the purpose
the selection
the candidate to be appointed nor—as already stated—a special quorum. (vii) Moreover, such proviso can only come into play when the Commission is meeting with a proper quorum, enabling it to take a decision by an absolute majority vote; and the same applies, also, to the provisions regarding special majorities, to be found in sub-paragraph
If it were to be found — and I have left it open—that the Commission, by the law
necessity, was entitled at the material time to act without its proper quorum, then necessarily and a fortiori, provisions such as those
sub-paragraphs
(viii) T h e two disqualified members
the Commission were not bound to participate in the taking
the decision to promote on secondment Mr. Hartsiotis, to the post
Senior Supervisor
Accounts, and that, because
the participation
such members, the sub judice decision
the Commission is bound to be declared null and void; there shall be an order
this Court accordingly. 578 //. As regards costs: I have decided to award only part
the costs in favour
Applicant, viz. £1$.-. Sub judice decision declared null and void. Cases referred to: Kallouris and The Republic,1964 C.L.R. p. 313; Ozturk and The Republic, 2 R.S.C.C. p. 35. Recourse. Recourse against the decision
the Respondent to promote on secondment to the Post
Senior Supervisor
Accounts a certain Mr. George P. Hartsiotis in preference and instead
the applicant. A. Anastassiades for the applicant. M. Spanos, Counselof the Republic, for the respondent. Cur.adv. vult. The facts
the Case sufficiently appear in the following judgment delivered by:— TRIANTAFYLLIDES, J.: In this Case Applicant applies for the annulment
the promotion, on secondment, to the post
Senior Supervisor
Accounts,
a certain Mr. George Hartsiotis. Such promotion, though made on secondment, should, in the circumstances
this Case, betreated as a final decision which can be the subject
a recourse, under Article 146, because, as it has been explained by counsel for Respondent, the said promotion has been made on secondment not because
the temporary nature or duration thereof, but because
the, for the time being, temporary nature
the post concerned; when such post becomes a permanent one, then Mr. Hartsiotis will be appointed to it, subject
course to satisfactory service in the meantime. It is abundantly clear that this is not a case
a temporary secondment, leaving open for future consideration the final selection
the person to be promoted eventually to the post in question, 579 1965 Oct. 18, Nov. 27 MIKIS MARATHEFTIS and THE REPUBLIC THROUGH THE PUBLIC SERVICE COMMISSION 1965 Oct. 18, Nov. 27 but a case where such selection has already been decided upon. MIKIS MARATHEFTIS Both Applicant and Mr. Hartsiotis (to be referred to as "the Interested Party") were at the material time Supervisors
Accounts, enjoying equal seniority in such post, since" April, 1956. and THE REPUBLIC THROUGH THE PUBLICSERVICE COMMISSION When vacancies in the promotion post
Senior Supervisor
Accounts came to be filled by the Public Service Commission, the Supervisors
Accounts, including Applicant and the Interested Party, were duly considered. As it appears from the relevant minutes
the Commission,
the 8th October, 1964, {exhibit 1) it was decided to appoint a certain Mr. M. Joannides to one such post and, also, to second the Interested Party, in the circumstances already explained in this judgment. One
the main points, which has been raised on behalf
Applicant in these proceedings, isthat the relevant decision
the Commission, for the secondment
the Interested Party, isvoid due to the participation therein
two members
the Commission who were disqualified, due to close relationship with the said Interested Party, from so doing. Such members are Mr. Theocharides, the Chairman
the Commission, and Mr. Lapas, both
whom are related to the wife
the Interested Party; her mother is the sister
the Chairman
the Commission and also the sister
the wife
Mr. Lapas. In other words the Interested Party is the nephew by marriage
both Mr. Theocharides and Mr. Lapas. At the hearing
this Case it was agreed between counsel that this point
the participation
allegedly disqualified members
the Commission should be determined first, before the hearing
the Casewould proceed further. Having heard arguments thereon I have reserved my decision until today. The question
the effect
the participation
a disqualified member
a collective body has been dealt with by this Court in the case
Kallouris and The Republic, 1964, C.L.R. 313 and the relevant principle, as expounded therein, does not have to be repeated. Only, particular attention is drawn to the basis
such principle, as it is to be found set out at p. 317
the report
the Kallouriscase. 580 I am quite satisfied that the degree
relationship between the Interested Party and Mr. Theocharides and Mr. Lapas,— Mr. Theocharides in particular—is so close by present-day realities,
which I take judicial notice, that, in accordance -with—the-principles-_expounded_in_the Kallouris case, the participation
the said two members in the decision to promote on secondment the Interested Party defeats the appearance
an independent judgment
the Commission and, also, shakes the confidence in its impartiality (vide Kallouris, supra, at p. 320)—even though,
course, there is no ground for believing that either Mr. Theocharides or Mr. Lapas have in fact favoured improperly the Interested Party. The fact remains that through their participation the composition
the Commission, for the particular purpose, has been rendered defective in law, with the result that its relevant decision is invalidated. Counsel for Respondent has tried to avoid the, thus, inevitable annulment
the subjudice decision
the Commission by relying on the contention that had the said two affected members
the Commission not participated,' in the relevant proceedings
the Commission, there would not have been formed the necessary quorum enabling the Commission to function. It is a well-known exception to the principle expounded in the case
Kallouris—and it is actually referred to therein, vide p. 322—that a member need not be treated as disqualified if the remaining members cannot constitute a quorum. (Vide also Conclusions from the Jurisprudence
Greek Council
State 1929-1959, p. 112). 1 am
the opinion, however, that when, even with the participation
a disqualified member, no proper quorum can be formed, then such member is not entitled to participate in the proceedings
a collective organ on the ground
the above exception, because in such a case such organ is not worse
f, through his absence, as regards quorum. The five members
the Commission who participated in reaching the decision to promote on secondment the Interested Party—and it is common ground that they were only five—did not, in any case, constitute a quorum
the Commission. The quorum
the Commission is not fixed expressly either by the Constitution or by any legislation. The general rule applicable to the question
quorum
a 581• 1965 Oct.18, Nov.27 MIKIS MARATHEFTIS and THE REPUBLIC THROUGH THE PUBLIC SERVICE COMMISSION 1965 Oct. 18, Nov. 27 MIKIS MARATHEFTIS and T H E REPUBLIC T H R O U G H THE PUBLIC SERVICE COMMISSION collective organ viz. that, in the absence
specific provision, such quorum ishalf its members plus one, (vide Jurisprudence
Greek Council
State, supra, p. 109), governs, therefore, the matter
the quorum
the Commission. Actually in the case
the Commission this is, also, so by inescapable implication, because
the provision, to be found in Article 125
the Constitution, that all decisions
the Commission shall be taken by an absolute majority vote
its members i.e. six. So the validity
the appointment
the Interested Party cannot be saved on the ground that the two disqualified members
the Commission had to participate in order to preserve a quorum, which did not exist in the first place, at the material time. I leave entirely open the question
whether or not the Commission, in the anomalous circumstances prevailing at the material time in Cyprus,
which I do take judicial notice, could have nevertheless functioned without a quorum, on the basis
the law
necessity. Counsel for Respondent has referred me to sub-paragraph
The said sub-paragraph
the Greek or Turk to be appointed or promoted, the decision shall, subject to sub-paragraph
this paragraph, be taken by an absolute majority vote: Provided that the unanimous recommendation,
five Greek members in the case
the selection
a Greek shall be acted upon by the Commission". When, however, the proviso to sub-paragraph
such sub-paragraph, and in the context
the whole paragraph 3
p. 35) there can be no doubt that the said proviso does not specially prescribe the quorum
the Commission for the purpose
selecting the person to be appointed and, thus, no question
preserving such quorum, by means
the participation
the two disqualified members
the Commission, could have arisen in the present Case. The effect
the proviso in question is, merely, that the 582 Commission, when meeting with a proper quorum, is bound to act on the unanimous recommendation provided for therein. It does not prescribe a minimum number
votes necessary for the purpose
the selection
the candidate to be appointed nor—as already stated—a special quorum. Moreover, in my opinion, such proviso can only come into play when the Commission is meeting with a proper quorum, enabling it to take a decision by an absolute majority vote; and the same applies, in my opinion, also, to the provisions regarding special majorities, to be found in sub-paragraph
If it were to be found—and I have left it open—that the Commission, by the law
necessity, was entitled at the material time to act without its proper quorum, then, necessarily and afortiori, provisions such as those
sub-paragraphs
For all the reasons set out, above, in thisjudgment, I hold that the two disqualified members
the Commission were not bound to participate in the taking
the decision to promote on secondment Mr. Hartsiotis, to the post
Senior Supervisor
Accounts, and that, because
the participation
such members, the subjudice decision
the Commission is bound to be declared null and void; there shall be an order
this Court accordingly. It isnow up to the Commission to reconsider the matter
a promotion on secondment to the temporary post
Senior Supervisor
Accounts, without the participation in its proceedings
the Chairman and
Mr. Lapas so long as Mr. Hartsiotis is one
the candidates under consideration. Should the Commission decide, after a proper exercise
its discretion—and this Court is expressing no view whatsoever in this respect—to select for promotion Mr. Hartsiotis once again, then the observations
this Court in the Kallouris case{supra, at p. 324) are drawn to the attention
the Commission, in relation to the possible date
effect
such promotion. In view
my decision on the question
disqualification
two members
the Commission no other issues in this Case need be considered or determined. As regards costs I have noted that the promotion
Mr. Hartsiotis was decided upon before the judgment in the 583 1965 Oct.18, Nov.27 MIKIS MARATHEFTIS and THE REPUBLIC THROUGH THE PUBLIC SERVICE COMMISSION ni?6fft Nov.27 — MARATHEFTIS and Kallouris case, supra,and it is quite possible that if the Commission had in mind the said judgment the two disqualified members might not have chosen to participate. So I have decided to award only part
the costs in favour
Applicant viz. £15.- THE REPUBLIC THROUGH THE PUBLIC SERVICE $ub judice decision declared null and void. Order as to costsasaforesaid. 584
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.