clr/1970/1970_3_97.pdf

(1). It is common ground that the Applicant in this case had a legitimate interest at the time when he filed the present recourse (February !4, 1969). The question, therefore, which is posed before me is whether the Applicant still has a legitimate interest whenthe validity of the act of the Respondent is challenged today in Court (May 22, 1970). in view of his dismissal on June 12, 1969.

(2)Having given the matter my best consideration and in the light of the authorities (see infra) I have reached the conclusion that because the Applicant has been dismissed from his post on or about June 12, 1969, for misconduct, he has no longer an existing legitimate interest today and, therefore, cannot complain that another person was emplaced in that post. Note: The authorities referred to by the Honourable Judge are: 98 The decisions of the Greek Council of State in cases: No. 1433/56 and No. 1823/56, reported in the " Decisions of the Council of State" Volume Γ of 1956 at pp. 35and 547 respectively. Neophytou and The.Republic, 1964 C.L.R. 280, Conclusions from the Jurisprudence of the (Greek) Council of state 1929-1959 at p. 260; Tsatsos " Recourse for annulment before the Council of State " 2nd edition at p. 42.

(3)For these reasons this recourse is dismissed. Application dismissed. No order as to costs. Cases referred to: Neophytou and The Republic.1964 C.L.R. 280 at pp. 292-3; Chrysostomidei and The Greek Communal Chamber, 1964 C.L.R. 397; Papapetrou and The Republic, 2 R.S.C.C. 61, at. p. 64; Decisions of the GreekCouncil of State in cases: No. 1433/56 and 1823/56. Recourse. Recourse against the decision of the Respondent to appoint the four Interested Parties to the post of Warder in the Department of Prisons in preference and instead of the Applicant. Chr. HadjiNicolaou, for the Applicant. S. Nicolaides, Counsel of the Republic, for the Respondent. L. Clerides, for the Interested Parties. Cur. adv. vult. The following judgment was delivered by: HADJIANASTASSIOU, J.: Γη these proceedings, under Article 146 of the Constitution, the Applicant seeks to challenge the decision of the Public Service Commission to appoint Messrs. Andreas Pontikides, Andreas Menikou, Christakis Shakallis and Kostakis Patroklou, to the post of a warder in the 99 1970 May 22 ELIAS CHRISTOFIS ν REPUBLIC (PUBLIC SERVICE COMMISSION) 1970 May 22 ELIAS CHRtsTons v. REPUBLIC (PUBLIC SERVICE COMMISSION) department of prisons. The Applicant has been appointed on January 8, 1964, as a warder in the department of prisons on a daily temporary basis, and on June 1, 1964, he was appointed again on a temporary monthly basis to the same post. On September 12, 1968, the Council of Ministers by its Decision No. 8094, authorized, inter alia, the filling of twenty vacancies on a permanent basis, in the post of warder in the department of prisons, as well as any other vacancies which might be created as a result of the filling of vacancies in the higher grades. The post of warder, in accordance with the scheme of service, is a first entry post, and on September 27, 1968, the Public Service Commission at its meeting, decided that the vacancies in the post of warder be advertised, and two weeks allowed for the submission of applications. The advertisement appeared under notification No. 15/65 in the official Gazette on October 11, 1968, and in response to it 66 applications were received. On December 2, 1968, the Public Service Commission decided that 44 candidates only, including the Applicant and the Interested Parties, be called for an interview on December 6, 1968. On December 6, 1968, the Commission interviewed the Applicant and the interested parties, and its decision was adjourned. The Commission, further, at its afternoon meeting, after considering the merits, qualifications and experience of the candidates interviewed in the morning, as well as their performance during the interview with regard to the alertness of mind, general intelligence and the correctness of answers put to them, and bearing in mind the views expressed by the senior superintendent of prisons on each one of them, decided unanimously that 23 officers, including the Interested Parties, were on the whole the best, and that they be appointed on probation to the permanent post of warder w.e.f. January 1, 1969. On December 18, 1968, the Public Service Commission wrote to the Applicant informing him that it was not found possible to be selected for appointment to the post of warder in the department of prisons. As I said earlier, the post of warder is a first entry post, and the duties and responsibilities are as follows: 100 " T o perform such duties;as may be laid down in the Prisons Legislation and Regulations; to be responsible under the supervision of a superior officer, for the observation, welfare, training and discipline'of prisoners; in some cases clerical'work; and any other duties which may be assigned to him." 1970 May 22 ELIAS CHRJSTOFIS v. REPUBLIC (PUBLIC SERVICE · COMMISSION)» QualificationsRequired: A minimum of 3 years' secondary school education; knowledge of Turkish in the case of a Greek Officer and - i.Greek-.in: the case of» a Turkish Officer!would be an '. •advantage; training and experience in any. of the trades used in the· Prisons (e.g. carpentry, tailoring,- plumbing and welding, bookbinding) would be an additional qualification. Age between 19and 25 years; a'height of not less than 5 feet 6 inches; strong physique and exemplary character; good personality and interest and ability in handling prisoners." On February 14, 1969, the Applicant, feeling, aggrieved because of the refusal of the Commission to appoint him, filed the present recourse. On April 4, 1969, the opposition was filed, to the effect that the .decision complained of was properly and lawfully taken after all relevant circumstances were taken into consideration. id. , , i On May 8, 1969, the hearing of this case began and, counsel for the Applicant, before concluding the opening of his case, requested the Court for an adjournment because, as he-put it: " As 1 have been now briefed that some of theInterested Parties were appointed without possessing the necessary qualifications under the scheme of service, I am asking for an adjournment in order to investigate more fully this allegation, ahd in order to file particulars within a period of fourteen days".. See the record at p. 3. .-On May 21, 1969, the particulars with regard to this new ground of law were filed. On July 8, 1969, the Interested Parties filed their opposition, and paragraph1 4 reads as follows:' " 4 . · Interested Parties.allege the following misgivings of Applicant and contend that by reason thereof Applicant's claims, qualifications and merit for appointment' to the 101 1970 May 22 said post are inferior to the claims of the Interested Parties:- ELIAS CHRISTOFIS (

1. a)On 21 .5.64 he was reprimanded for disobedience and unbecoming behaviour. v. REPUBLIC (PUBLIC SERVICE COMMISSION) (
2. b)On 23.7.65 he was reprimanded for negligence of duty. (
3. c)On 18. 1 .66 he was reprimanded for unjustified absence from lessons. (
4. d)On 1 3 . 4 . 6 6 he was admonished for not carrying out his duties satisfactorily i.e. carrying out an inquiry in connection with a case of use of drugs by a convict. (
5. e)On 7 . 10.68 he was reprimanded for presenting himself late at Parade. (
6. f)On 1 9 . 2 . 6 6 he was reprimanded for unbecoming behaviour. (
7. g)On 12. 11.68 he was reprimanded following a complaint by his relatives i.e. his sister for having immoral relations with a woman in such a way as to bring discredit to the Prisons Dept." On October 15, 1969, counsel for the Interested Parties gave notice to both counsel for the Applicant and the Respondent that he intended to argue on behalf of the Interested Parties that Applicant's recourse cannot proceed inasmuch asApplicant has been dismissed from the service on the 29 .7.69 for misconduct, and hence he has no legitimate interest to proceed with his case. The case was fixed for mention on October 20, 1969, and counsel for the Applicant made this statement:" I would like to inform the Court that I have already filed a new recourse with regard to the Applicant in this case, because he was dismissed from the service, and intend to proceed with the present case also. I would, therefore, apply for a date for hearing." On December 4, 1969, counsel for the Applicant, in addressing the Court, had this, inter alia, to say:- ** In view of the legal argument raised by my learned friend in the opposition on behalf of the Interested Parties, I propose to argue this point first, because if I fail to convince the Court, then this point disposes of the whole of the case". Counsel 102 then contended that although the Applicant has been dismissed from the service when this case was already before the Court, the Applicant has still a legitimate'interest within the ambit of Article 146 of the Constitution. He further invited the Court to take the view that the case of Kyriakos Chrysostomides and the Greek Communal Chamber, 1964 C.L.R. 397, should be distinguished, because the facts in that case are entirely different from the present case. Counsel for the Interested Parties, on the contrary, has contended (
8. a)that it was an accepted principle that the existing legitimate interest of a party must subsist at the time of the filing of the recourse, and also at the hearing of his case; (
9. b)that although the Applicant had a legitimate interest when he filed this recourse, nevertheless, because he was dismissed from the service, he no longer had such interest for the purpose of proceeding with his case; and because he was no longer in the public service he could not complain that another person was emplaced in his post. He relied on the authority of Neophytou v. Republic, 1964 C.L.R. 280 at pp. 292-3. It is pertinent to add that this contention has also-;been adopted by counsel for the Respondent. Now with regard to existing legitimate interest, paragraph 2 of Article 146 of the Constitution reads as follows;" Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community is adversely and directly affected by such decision or act or omission." It would be observed that this provision is more or less modelled on the lines of section 48 of the Greek Law No. 3713/28. I would- like to quote a passage from the Greek reports in the " Conclusions from the Jurisprudence of the Council of State" (1929-1959) at p. 260, under the heading "Έυεστώς". « Ή προς την πραϋιν σχέσις τοϋ αΙτούντος, it ής πηγάζει τό συμφέρον του, δέον νά υφίσταται ήδη κατά τον χρόνον της προσβολής αύτης, ή δέ βλάβη αύτοϋ δέον νά έχη ήδη επέλθει ή νά έμφανίζηται ώς λογικώς αναπόφευκτος. Ούτω τό Ιννομον συμφέρον δέον νά εϊναι ένεστώς.» 103 1970 May 22 ELIAS CHRISTOFIS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1970 May 22 ELIAS CHRISTOFIS v. REPUBLIC ( P U B L I C SERVICE COMMISSION) In English, this passage reads as follows:- " The Applicant's relationship to the act from which his interest flows must exist already when the act has been challenged, and his injury must have already taken place or appears reasonably unavoidable. Thus, the legitimate interest must be existing". See also the "Recourse for annulment before the Council of State", 2nd edn., by Tsatsos at p. 42. In the case of Theodoros G. Papapetrou and The Republic, 2 R.S.C.C. 61 at p. 64, it was stated that: "Once it is a fact that the Applicant had applied to the Public Service Commission for the appointment to the post in question, and that somebody else has been appointed instead to such post, it follows from this fact alone that an existing legitimate interest of his was adversely and directly affected by his not being appointed". In fairness, however, to counsel for the Interested Parties, he has conceded during the argument, that the Applicant, in this case had a legitimate interest at the time when he filed the present recourse. The question, therefore, which is posed before me is whether the Applicant still has a legitimate interest when the validity of the act of the Respondent is challenged today in Court. In the Greek reports of the " Decisions of the Council of State" reported in 1956 Volume 'Γ, there are two cases: The first is No. 1433/56 at p. 35. It was held at p. 36 in Greek:« Επειδήτό κατά τό άρθρον48 τοΰ ν.3713 ί-ννομονσυμφέρον, τό άπαιτούμενον προς άσκησιν αϊτήσεως ακυρώσεως, δέον συν τοις άλλοις νά είναι καΐ ένεστώς. Έν τη έννοία δέ τοΰ ένεστώτος, προκειμένουπερί προσβολής διοικητικής πράξεως, οία ή .προσβαλλομένη, δι' ής ενεκρίθη ή επί τής γραμμής Όμονοίας - Πειραιώςκυκλοφορίατών τεσσάρων λεωφορείων της παρεμβαινούσης περιλαμβάνεται, κατά τήν εννοιαν τοΰ νόμου, καΐ ή προϋπόθεσις, όπωςτό εννομονσυμφέρον πηγάζη ίί είδικής τινός σχέσεως τοΰ διοικούμενου προς τήν προσβαλλομένην ύπ' αύτοΰ άτομικήν διοικητικήν πραίιν, υφι­ σταμένης κατά τε τόν χρόνον της εκδόσεως τής πράξεως ταύτης καϊ κατά τόν χρόνον της προσβολής αυτής.» It would be observed that the legitimate interest required must exist both at the time of the making of an act and at the time when its validity is challenged. 104 The second case is No. 1823/56 at p. 547. It was held at p. 549 that the legitimate interest must arise out of a legal relationship of an Applicant which is already in existence when the act concerned is challenged. See also Castas Neophytou and The Republic, 1964 C.L.R. 280. Having given the matter my best consideration, and in the light of the authorities to which 1have referred, I have reached the view that because the Applicant has been dismissed from his post on or about the 12th.June, 1969, for misconduct, he has no longer an existing legitimate interest today and, therefore, cannot complain that another person was emplaced in that post. For the reasons I have endeavoured to explain, this recourse is dismissed. No order as to costs. Applicationdismissed; no order as to costs. 105 1970 May 22 ELIAS CHRISTOFIS v. REPUBLIC (PUBLIC SERVICH COMMISSION)