clr/1966/1966_3_801.pdf

1966 June 17, Nov. 26 • [TRtANIAIYLUOLS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOS THEOFYLACTOU and THH REPUBLIC GEORGHIOS THEOFYLACTOU, Applicant, and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, ' Respondent. (Case No. 225/65) Public Officers—Promotions—Promotion to the post of Senior Air Traffic Control Officer—Invalidity of the decision—As taken in a legally invalidmanner by a not properly constituted collective organ, viz. the respondent Commission, contrary to the relevant principle of Administrative Law governing the properfunctioning of collective organs—Said defect not cured by the subsequent enactment of the Public Service Commission (Temporary Provisions) Law, 1965 (Law No. 72 of 1995). section 5, at a time when the present recourse, challenging the aforesaid decision, had already been filed—And the main groundoflawreliedonintherecoursewas precisely the defective constitution of the respondent Commission at the material time, i.e. the verydefect whichsection5of thesaidlawpurported to cure—Toapply the saidsection 5for thepurpose ofbringing about, ex post facto, the validity of the said decision, would lead to unconstitutionality—Because it wouldamount, inejfect. to interfering with the constitutionally safeguarded right of recourseunder Article 146of the Constitution—See alsounder Public Service Commission, Administrative Law. Collective - Organ, Constitutional Law. hereafter. Public Service Commission—// is a collective organ—Therefore the principles governing the functioning of collective organs not properly constituted are applicable to the said Commission —"Constitution" of the Public Service Commission as distinct from its "Quorum"—Validity of certain decisions taken by the Public Service Commission—Law No. 72 of 1965, section 5 supra—Its effect—See under Public Officers above, and under Administrative Law, Collective Organ, Constitutional Law, hereafter. 801 OF C Y P R U S , THROUGH T H E PUBI IC SLRVICL COMMISSION 1966 June17, Nov.26 GEORGHIOS THEOrYLACTOU and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION Public Service Commission—Quorum—Prior to the enactment of Law No. 72 of 1965, (supra,) five members couldnot constitute α proper quorum (see Maratheftis case infra,)—invalidity of a decision, taken by a collective organ,for lack of proper quorum—"Quorum" as distinct from "constitution" of a collective organ. Administrative Law—Collective Organ—Proper Constitution— Quorum—"Constitution" as distinct from "Quorum"—Col­ lective organnotproperly constituted dueto existence ofvacan­ cies either throughdeathor resignation—Cannotfunction validly —Because it is a well settled principle of Administrative Law that a collective organ should be fully constituted—And the Public Service Commission being a collective organ, cannot be held to be exempt from the application of the aforesaid general rule of Administrative Law—See, also, under Public Officers, Public Service Commission, above, and underCol­ lective Organ, Constitutional Law, hereafter, Collective Organ—Properly constituted—The proper constitution of a collective organ is a necessary requirementfor the validity of its decisions—Well settled principles of Administrative Law in the matter—Therefore, a decision taken by the Public Service Commission at a time when due to two vacancies it was not properly constituted, is a decision taken in a legally invalid manner and, thus, has to be annulled—Effect of the subsequent legislation viz. Law No.72 of 1965, section5, supra —See, also, underPublic Officers, Public Service Commission, Administrative Law, above, and under Constitutional Law, hereafter. Constitutional Law—Administrative Law—Recourse filed under Article 146 of the Constitution—Challenging a decision ex hypothesi invalid on certain grounds—Enactment after the filing of the said recourse of legislation purporting to cure retrospectively the very defects relied on in the said same recourse—Such legislation cannot affect that recourse—It would be indeed unconstitutional to hold otherwise—Because to apply such legislation for the purpose of bringing about, ex post facto, the validity of the said decision, wouldamount. in effect, to interfering with the constitutionally safeguarded right of recourse under Article 146 of the Constitution—How­ ever, such legislation would affect the recourse, although filed prior to the enactment of the said legislation, where the defect purported to be cured thereby was for the first time put 802 forward andreliedon insupport oj the recoursenot in the body of the applicationfiled but at the hearing of the case after the enactment of the said legislationpurporting to cure the defect. 1966 June 17, Nov. 26 GEORGHIOS THEOFYLACTOU and Quorum—Seeabove. Article 146 of the Constitution—Right of recourse thereunder safeguarded—Legislation improperly interfering therewith— See under Public Officers, Constitutional Law, above. Legislation—Retrospective legislation purporting to cure defects in decisions already taken—Effect of such legislation on pending recources—See under Public Officers, Constitutional Law, above. Decisions—Defective decisions—Cured by subsequent legislation etc. etc.—See above. In this case, the applicant challenges the validity of the promotion of the Interested Party, Mr. Μ. H., to the post of Senior Air Traffic Control Officer. The said promotion was decided upon by the respondent Public Service Commis­ sion at its meeting of the 27th October, 1965. It is common ground that only five members of the Public Service Commis­ sion were present at such meeting; one of such five members being the Chairman of the Commission. It is, also, common ground thai, at this material time (viz. on the 27 October, 1965), the Public Service Commission was not fully constitu­ ted due to the existence of two vacancies. This recourse was filed on the 26th November, 1965 and some time thereafter viz. on the 16th December, 1965, the Public Service Commission (Temporary Provisions) Law, 1965 (Law No. 72 of 1965) was enacted, curing retrospectively certain defects in the decisions taken by the said Commission between the 21st December 1963 and the 16th December 1965, (date of the enactment of the Law), those defects being the defective constitution of the Commission as well as the lack of proper quorum thereof. Counsel for applicant has submitted that the sub judice decision is invalid in that the Commission at the time was not properly constituted and that, in any c£>,e,the then present members of the commission could not form a proper quorum. On the other hand, counsel for the respondent has relied on the aforesaid law (supra) and particularly section 5 thereof, which, as stated, was enacted on the 16th December 803 THE REPUBLIC OF CYPRUS, THROUOH THE PUBLIC SERVICE COMMISSION June 17, Nov. 26 GEORGHIOS THEOFYLACTOU and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION 1965 viz. after the filing of this recourse (supra). It is to be noted that the question of improper quorum of this Commission at the materia! time had not been raised in the body of the application in this recourse. But only at the stage of the hearing of the case—viz. on the 17th June, 1966. Section 5 of the aforesaid Law N o . 72 of 1965, supra, provides : " 5 . Πάσα άπόφασις της Ε π ι τ ρ ο π ή ς ληφθείσα διαρκούσης τής περιόδου της αρχομένης από της 21ης Δεκεμβρίου 1963 καϊ ληγούσης κατά την ήμερομηνίαν ενάρξεως τής Ισχύος του παρόντος Νόμου, {note: 16 Δεκεμβρίου 1965), ανεξαρ­ τήτως της κατά τήν ήμερομηνίαν λήψεως τής αποφάσεως κατά νόμον συγκροτήσεως τής 'Επιτροπής, θά θεωρήται ως νομίμως ληφθείσα και έγκυρος καθόσον άφορα τήν συγκρότησιν καϊ άπαρτίαν τής Επιτροπής έάν ελήφθη είς αυνεδρίασιν καθ' ήν παρίστατο ή κατά τό εδάφιον