clr/1978/1978_3_27.pdf

(1978)At the commencement of the hearing of the recourse counsel for therespondent arguedaspreliminaryobjections,twogrounds of law in the Opposition, namely that the said scheme of service is not an administrative act within the ambit of thejurisdiction under Article 146of the Constitution, and, also,that no existing 5 legitimate interest of the applicants had been adversely and directly affected byit in the senseof paragraph 2of Article

1. Held, (I) Withregardtothefirstissue: The matter has been put really beyond any doubt since the enactment of the Public Service Law, 1967 (Law 33/67) section 10 29*of whichprovides that the general duties and responsibilities of an office and the qualifications required for the holding thereof shall be prescribed in schemes of service made by decision of the Council of Ministers. A scheme of service made by the Council of Ministers, under section 29is delegated legis- 15 lation—in thesenseofPolicev.HondrouandAnother, 3R.S.C.C. 82—made under Article 54of the Constitution for the purpose of carrying into effect the provisions of Law 33/67, and, in particular, of provisions such as sections 33 and 34 thereof. It follows that, being an act of legislative nature, it does not 20 come within the ambit of the jurisdiction under Article
2. (C.f. the position applicable inGreece,at p.30post and relevant Cyprus case-law before the enactment of Law 33/67, vide pp. 31-32 post). Percuriam: Even if I had to decide the said issue before the 25 enactment of the Public Service Law, 1967(Law 33/67), I would have decided, bearing in mind the essential nature of a scheme of service and the purpose that it is destined to serve, that it is an act of a legislative nature made by the Council of Ministers and, that, therefore, it is not within the ambit of Article 30
3. Held,(II) Withregardto thesecond issue:

(1)I do not agree that the individual applicants, Nos. 2 to 8, who, on the basis of the material before me, appear to be all of them persons-who were eligible for appointment to the 35 post of Matron and did not apply for it because it was reserved by the scheme of service only for female candidates, are not * Quoted in full at p. 34 post. 28 3 C.L.R. PankypriosSyntechnlaDlmosiooYpallilon τ. Republic persons whose existing legitimate interests have been directly and adversely affected by the said scheme (see, too, in this connection, the decision of the Council of State in Greece in Case 910/67). 5 10

(2)Concerning applicant No. 1, which is a trade union, I do agree that, as, admittedly, both the female candidates for the post of Matronas well as the aforesaid individual applicants are members of it and, therefore, in promoting the interests of some of its members it would, inevitably, have to act against the interests of some other of its members, it cannot be treated as possessing a legitimate interest to make the present recourse (see case Nos. 839/57, 643/68 and 18/70 of the Greek Council of State. Case No. 1265/64 of the said council distinguished). Application dismissed. 15 Cases referred to: 20 25 Demetriades and Son and Another v. The Republic

(1969)3 C.L.R. 557; Kourrisv. The Supreme Council of Judicature

(1972)3C.L.R. 390, at pp. 400^01, 408-409, 411-412, 443,461, 462; Papapetrou v. The Republic, 2 R.S.C.C. 61 at pp. 66-67; Policev. Hondrou and Another, 3 R.S.C.C. 82 at p. 85; loannidou v. TheRepublic

(1965)3 C.L.R. 664 at pp. 671-672; Georghiades v. The Republic

(1966)3C.L.R. 252 at pp. 274-275; Decisions of the GreekCouncil of State in Case Nos. 910/67, 839/57, 643/68, 18/70 and 1265/64. Recourse. 30 Recourse against the decision of the respondent to adopt the scheme of service for the post of Matron in the Department of Medical Services. M. Christophides, for the applicants. N. Charalambous, Counsel of the Republic, for the re­ spondent. Cur. adv. vult. The following judgment was delivered by: 35 TRIANTAFYLLIDESP.: In this recourse the applicants seek, in effect, to annul the "scheme of service" (exhibit 1) for the post of Matron in the Department of Medical Services, which • t 29 Triantafyllides P . Pankyprios Syotechoia Dimosion Ypallilon v.Republic

(1978)scheme was adopted by the respondent Council of Ministers, by means of its decision No. 13,178, on April 4,

1. The first applicant is the trade union of the Cyprus Civil Servants and the other applicants are public officers, all males, who are serving in the Department of Medical Services; according to their contentions, as set out in their recourse, they are all eligible for appointment to the post of Matron, which is a "first entry and promotion post". 5 The complaint of the applicants is that the subjudice scheme of service is contrary to the Constitution and the law, in that 10 it discriminates against male candidates by being drafted in such terms as to render the post in question accessible only to female candidates. At the commencement of the hearing of this case counsel for the respondent argued, as preliminary objections, grounds of 15 law (A) and (B) in the Opposition, namely that the said scheme of service is not an administrative act within the ambit of the jurisdiction under Article 146 of the Constitution, and, also, that no existing legitimate interest of the applicants had been adversely and directly affected by it in the sense of paragraph 2 20 of Article
2. In relation to the first of the above issues I am inclined to agree with both counsel that if it had to be resolved in the context of the administrative law applicable in Greece I would have had to hold that the present recourse could have been 25 made against the subjudice scheme of service, because in Greece the main test by means of which the existence of jurisdiction concerning an administrative recourse is established is not the nature of the act or decision which is being challenged by a recourse, but the nature of the organ from which such act or 30 decision has emanated; thus, an act of general regulatory application, such as the scheme of service in question, emanating from the Council of Ministers, in the Executive Branch of the Government, could apparently be attacked by an administrative recourse in Greece(see Κυριακοπούλου " 'Ελληυικόν Διοικητικόν 35 Δίκαιον", 4th ed., vol. A, p. 52, Στ. Ά&ρεάδου " Ή 'Ακυρωτική Δικαιοδοσία τοϋ Συμβουλίου Επικρατείας", 1936, vol. Α. pp. 128-130, and Γ. Πατταχατζή " Μελέται έττϊ τοΰ Δικαίου τών Διοικητικών Διαφορών", 4th ed., pp. 43, 44). 30 3CX.R. PankypriosSyntechniaDimosionYpallilonr.Republic Triantafyllides P. In Cyprus the test which has been adopted and consistently applied, in view of the particular wording of paragraph 1 of Article 146 of the Constitution, is that of the nature of the act or decision concerned, but, of course, in determining such 5 nature, account must, also, be taken of the nature of the organ which has made such act or decision (see, interalia, Demetriades and Son and another v. The Republic,

(1969)3 C.L.R. 557, and Kourris v. The Supreme Council of Judicature,

(1972)3 C.L.R. 390,400-401, 408-409, 411-12, 443, 461, 462). 10 It is correct that in our case-law there are to be found some dicta which might be treated as creating some ambiguity concerning the issue of whether or not a scheme of service can be attacked by a recourse directly, as such, under Article 146: In Papapetrou v. The Republic, 2 R.S.C.C. 61, the following 15 were stated by the then functioning Supreme Constitutional Court (at pp. 66-67):- 20 25 30 35 " As the executive power relating to the creation of new posts in the public serviceof the Republic and to the making and amending of schemes of service concerning existing or new posts, is a power relating to public offices and not to the public officers, as holders of such offices, it is not, thus, included among the powers which are entrusted to the Public Service Commission by Article 125 and such power remains vested in the Council of Ministers. This view regarding the effect of paragraph 1 of Article 125 is clearly consonant with the powers of the Council of Ministers under Article 54 of the Constitution, particularly paragraphs (a) and (d) thereof. In the opinion of the Court, therefore, the Public Service Commission, in the absence of any organic law on the subject, is bound by all Schemes of Service relating to posts in the public service of the Republic which have either been expressly or impliedly approved by the Council of Ministers, either specifically or generally, and the Public Service Commission cannot deviate from such approved Schemes of Service and must observe their provisions in discharging its duties under the Constitution." It isto beobserved that, though in the above passage a scheme of service was treated as being of the same nature as, or com31 Itfantafyliides P. Pankyprios Syntechnfa DimosionYpallilon v. Republic

(1978)parable to, an organic law, nevertheless, its making was considered to be an exercise of the "executive power" vested in the Council of Ministers under Article 54 of the Constitution. Subsequently, however, to the. Papapetrott case there was decided, again'by the Supreme Constitutional Court, the case 5 of Police v. Hondrou and another, 3 R.S.C.C. 82, where (at p. 85) it was held that the expression "executive power" in Article 54 of the Constitution is used in relation to the Council of Ministers in a comprehensive manner so as to include the making of delegated legislation and that the use of that expres- 10 sion does not change the essential nature of the function of making delegated legislation, which is a legislative one. \ In Ioannidouy. The Republic,

(1965)3C.L.R. 664,the following passage appears in the judgment (at pp. 671-672):" Applicant has challenged, also, in this Case, the relevant 15 scheme of service, as such, and she has complained, in this connection, that the English language has been rated thereby highei as a qualification than the Greek or Turkish languages and that this was contrary to Article 3; a 'very good* knowledge of Greek or Turkish is required, whereas 20 the knowledge of English has to be 'excellent'. If my opinion, no recourse under Article 146 can be made directly against such scheme because it was published on the 24th January, 1963—when the post was advertised— and this recourse was not filed until the 18th April, 1963, 25 i.e.after the lapse of the period laid down byArticle 146

(3). Such scheme could also have been challenged through a recourse against the eventual appointment, but this course has not been followed by Applicant. Even if, however, the said scheme could be challenged 30 by means of this recourse, I would still not find in favour of Applicant for the simple reason that, so long as knowledge of the Greek or Turkish language to a sufficient degree was made a requirement by the relevant scheme of service, there was nothing contrary to Article 3 in requiring 35 knowledge of the English language to the high degree required by the nature of the post in question." As it appears from the above passage the matter whether the scheme of service could have been attacked by a recourse in 32 3 C.L.R. Pankyprios Syntechnia Dimosion Ypallilon?.Republic Trfantaf>HidesP. that case was not finally decided, but was left open, because it was held that, in any case, the recourse against the scheme could not have succeeded for other reasons; and the assumption on which the second paragraph of the above passage has been 5 based cannot be of any real help to the applicants in the present case. In Georghiades v. The Republic,

(1966)3 C.L.R. 252, the following (at pp. 274-275) were stated:10 15 20 25 " I, therefore, do not find that exhibits 4 and 5—even if they wtre to be found to allocate duties in a manner different from that in which such duties were distributed under the Chamber—could be said to contravene sections 7 or

1. Moreover, I have serious doubts as to whether Applicant can be held entitled at all to proceed directly against the validity of exhibits 4 and 5,because these schemes of service are not acts directed at him as a subject of administration, and, therefore, they cannot be held to be executory vis-avis the applicant, so as to entitle him to have a recourse against them under Article
2. Be that as it may—and irrespective of whether applicant could behtld to beentitled tofile a recourse directly against exhibits 4 and 5 or whether he could only raise the validity thereof in proceedings against the emplacement of himself or the Interested Party in the relevant posts—having held that such schemes are neither contrary to law nor made in excess or abuse of poweis, claim

(4)of applicant tails and' is dismissed." So, again, in the above case, the issue of whether a scheme 30 of service could be directly attacked as such by a recourse was not finally resolved. Even if I had to decide the said issue before the enactment of the Public Service Law, 1967 (Law 33/67), I would have decided, bearing in mind the essential nature of a scheme of 35 service and the purpose that it is destined to serve, that it is an act of a legislative nature made by the Council of Ministers and, that, therefore, it is not within the ambit of Article 146. 33 Triantafyllides P. Pankyprios Syntechnia Dimosion Ypallilonv.Republic

(1978)In my view the matter has been put really beyond any doubt since the entactment of Law 33/67, section 29 of which reads as follows:" 29.—

(1)The general duties and responsibilities of an office and the qualifications required for the holding thereof shall be prescribed in schemes of service made by decision of the Council of Ministers. 5

(2)A scheme of service may provide as a prerequisite to appointment or promotion the passing by candidates of an examination." 10 A scheme of service made by the Council of Ministers, under section 29 is, in my opinion, delegated legislation—in the sense of the Hondrou case, supra—made under Article 54 of the Constitution for the purpose ofcarrying into effect the provisions of Law 33/67, and, in particular, of provisions such as sections 15 33 and 34 thereof. It follows that, being an act of legislative nature, it does not come within the ambit of the jurisdiction under Article 146. Consequently, this recourse, which has been made under the said Article against a scheme of service, as such has to be dis- 20 missed for lack of jurisdiction of this Court to entertain it. Before concluding the judgment 1 shall deal, also, briefly with the other preliminary issue which was raised by counsel for the respondent, namely that relating to the legitimate interest of the applicants: I do not agree that the individual applicants, Nos. 2 to 8, who, on the basis of the material at present before me, appear to be all of them persons who were eligible for appointment to the post of Matron and did not apply for it because it was reserved by the scheme of service only for female candidates, 30 are not persons whose existing legitimate interests have been directly and adversely affected by the said scheme (sec, too, in this connection, the decision of the Council of State in Greece in case 910/67). Concerning, however, applicant No. 1, which is a trade 35 union, I do agree that, as, admittedly, both the female candidates for the post of Matron as well as the aforesaid individual 34 25 3 C.L.R. PankypriosSyntechniaDimosionYpallilonv.Republic Triantafyllides P. applicants are members of it and, therefore, in promoting the interests of some of its members it would, inevitably, have to act against the interests of some other of its members, it cannot be treated as possessing a legitimate interest to make the present 5 recourse; this view of mine is based on the relevant case-law of the Council of State in Greece, such as its decisions in cases 839/57, 643/68 and 18/70; the decision of the said Council in case 1265/64 seems to have been reached on the basis of the particular facts of that case, and not only it is distinguishable 10 from the situation in the present case, but, also, it cannot be regarded as having initiated a change in the course of the afore­ said case-law of the Council (as appears to be speculated in Τσάτσου " Ή Αίτησις 'Ακυρώσεως ενώπιον τοϋ Συμβουλίου της Επικρατείας", 3rd ed., pp. 56, 57). 15 20 I would, therefore, have dismissed, in any event, this re­ course, in so far as applicant No. 1 is concerned, for lack of legitimate interest, too. For all the above reasons this recourse fails and it is dis­ missed accordingly, but,in thelight of all relevant circumstances, I am not prepared to make an order as to its costs against the applicants. Application dismissed. No order as to costs. 35