1976 July ΙΟ PANTELIS KYPRIANOU V. [A. Loizou, J.] IN THE MATTER OFARTICLE 146 OFTHE CONSTITUTION PANTELIS KYPRIANOU, Applicant, REPUBLIC (PUBLIC SERVICE COMMISSION) and THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 96/75). Administrative Law—-Collectiveorgan—Defective composition—Prin ciples governing validity of decisions taken by a collective organ with a defective composition—Exclusion of member of collective organfrom a meeting on erroneous view that he could not parti cipate—Collective organ cannot be considered as properly com· 5 posed even if there is a quorum—Decision taken at such meeting annulled on the ground of wrong composition of the collective organ. Collective Organ—Composition of—Principles governing validity of decision taken by a collective organ witha defective composition. 10 Public Service Commission—Composition of—Exclusion of members from a meeting on erroneous viewthat they couldnot participate— Annulment of the decisiontaken by the Commission on the ground of defective composition. Following the annulment by the Supreme Court, of the pro- 15 motion of the interested party to thepost of Accounting Officer 1st Grade, the Public ServiceCommission met on the 14thJune to consider thefillingof the vacancy which had been created by means of the annulment. Two members of the Commission were excluded from themeeting on theerroneous view that they 20 could not participate at such meeting; and the sub judice de cision, promoting theinterested party to thesaidpost was taken by the chairman and two other members of the Commission. In a recourse challenging the validity of the said promotion: Held, that in order toconsider a collective organ as duly composed, it is not sufficient if the members necessaryto constitute 210 25 5 10 15 a quorum are present; that it must be clearly shown that the administration madepossible the presence of all members of the organ by inviting them in time to be present at such a meeting; that if a member or membersare excluded on an erroneousview that they could not participate at such a meeting the collective organ in question cannot be considered as properly composed whenan administrative decision istaken evenifthereisquorum; that, such decision should be annulled on the ground of wrong composition of the organ; and that, in this case, in view of the fact that itwassoconceded regarding thereasonsfor theabsence of two members of the commission, the subjudicedecision will be annulled on the ground that the respondent commission at the time it took same was not properly constituted (seePissas v. The Republic (reported in this Part at p.30 ante)). Sub judice decision annulled. Cases referred to: Panayiotou &Others v. The Republic
(1972)3 C.L.R. 337; Kyprianou &Others (No. 2) v.TheRepublic
(1975)3C.L.R. 187; Pissasv. TheRepublic (reported in this Part at p. 30ante). 20 Recourse. Recourse against the decision of the respondent to promote the interested party to the post of Accounting Officer, 1st Grade, in the Treasury Department, in preference and instead of the applicant. 25 K. Talarides, for the applicant. R. Gavrielides, Counsel of the Republic, for the respondent. Cur. adv. vult. The following judgment was delivered by:30 A. Loizou, J.: The filling of a vacancy in the post of Accounting Officer 1st Grade in the Treasury Department, was first decided upon by the respondent Commission on the 27th July, 1971, by the promotion to it of Joseph Mousa, the interested party in the present recourse. Its legality was challenged 35 by the present applicant and other officers having ligitimate interest in the matter, by Recourses Nos. 304/71 and 336/71, filed to this Court under Article 146 of the Constitution. That decision wasannulled (seePanayiotouandOthersv. TheRepublic (P.S.C.)
(1972)3 C.L.R. 337), on the ground that the delibera40 tions of the respondent Commission extended to two meetings 211 1976 July 10 PANTELIS KYPRIANOU v; REPUBLIC (PUBLIC SERVICE COMMISSION) 1976 July 10 PANTELIS KYPRIANOU v. REPUBLIC (PUBLIC SERVICE COMMISSION) and that when the decision was taken at the second meeting the matter was not examined ab initio, although there had been a changeinitscomposition through thepresenceofamemberwho did not take part at the previous meeting. After the annulment of that decision, the respondent Commission considered again thefillingofthesaid vacancy andpromoted the interested party to thesubjudice post, retrospectively, as from the 1st August, 1971. 5 Thevalidity of that decision waschallenged again by thepresent applicant and other officers eligible for promotion to that 10 post by Recourses Nos. 362/72 and 366/72, and this Court annulled again the subjudice decision by itsjudgment of the23rd May, 1975 (see Kyprianou and Others (No.2) v. The Republic (R.S.C.)
(1975)3 C.L.R. 187),on the ground that that decision was not duly reasoned because of lack of clarity. 15 The Public Service Commission at its meeting of the 14th June, 1975 and in the presence of the Accountant-General, considered thefillingof the said vacancy in the permanent post of Accounting Officer, 1st Grade, in the Treasury which was created by the annulment of the promotion of Mr. J. Mousa by 20 the Supreme Court in the aforesaid two recourses. As it appears from the relevant minute of the respondent Commission (exhibit 1, enclosure 1) Messrs. Y. Louca and M. Economopoullos did not attend the meeting and the subjudicedecision was taken by the Chairman and the two other members of the 25 Commission. It decided that the interested party was, on the whole, the best, and promoted him to the permanent post of Accounting Officer 1st Grade with retrospective effect from the 1st August,
- Though thesubjudice decision waschallenged on anumber of 30 grounds oflaw,it istheone regarding thedefective composition of the respondent Commission that disposes of the case and with which I shall be dealing in thisjudgment. It was claimed bytheapplicant that Messrs.Y.Loucaand M. Economopoullos were advisedly excluded from the meeting, although the whole 35 matter was considered afresh. Counsel for the respondent Commission after considering the written address filed on behalf of the applicant, stated that he came to the conclusion that the argument in support of this ground of law was correct and adopted by him and that if the 40 212 Court agreed with this legal proposition, then the sub judice decision should be annulled without consideration of the re maining grounds of law. The principles governing the validity of decisions taken by a collective organ with a defective composition were considered in the case of Pissas v. The Republic (reported in this Part at p. 30 ante) where reference is made to analogous situations in Greece, as set out in Kyriacopoullos, Greek Administrative Law, 4th Ed.vol. Βp.23 and theConclusions of the Case Law of 10 the Greek Council of State (1929-1959) p.
- They are to the effect that in order to consider a collective organ as duly composed, it is not sufficient if the members necessary to con stitute a quorum are present. It must also be clearly shown that the administration made possible the presence of all mem15 bers of the organ by inviting them in time to be present at such a meeting. On the other hand, if a member or members are excluded on an erroneous view that they could not participate at such a meeting, the collective organ in question cannot be con sidered as properly composed when an administrative decision 20 is taken even if there is quorum and, therefore, such decision should be annulled on the ground of wrong composition of the organ. 5 25 30 In view of the fact that it was so conceded in the present case regarding the reasons for the absence of Messrs. Louca and Economopoullos, the sub judice decision is hereby annulled on the ground that the respondent Commission at the time it took same was not properly composed. In the circumstances, how ever, I make no order as to costs. Subjudice decisionannulled.No order as to costs.
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