(1981)1981 January 12 [A. Loizou, DEMETRIADES AND SAVVIDES, JJ.] DEMETRAKIS CHRISTOF1DES, Appellant-Plaint ijf v. THE ATTORNEY-GENERAL OF THE REPUBLIC, Respondent-Defendan t. (Civil Appeal No. 6053). Constitutional Law—Judgment annulling an administrative act in a recourse under Article 146.1 of the Constitution—Compliance of tlie Administration with—Principles applicable—Paragraphs 5 and 6 of the said Article 146—Judgment annulling promotions of Public Officers upon a recourse by appellant—Reconsideration 5 of the matter by Public Service Commission—Fact that appellant has not again been promoted does not amount to non-compliance with the annulling judgment of the Court—And does not give the appellant a right to damages under Article 146.6. Administrative Law—Recourse for annulment—Judgment annulling 10 administrative act—Compliance of administration with—Principles applicable—Whether annulment can affect situations which came into existence subsequently to the issue of the annulled act on the basis of lawful acts of the administration—Paragraphs 5 and 6 of Article 146 of the Constitution. 15 At all times material to these proceedings the appellant was a Welfare Officer. By means of a decision taken in January, 1963 the Public Service Commission promoted Charilaos Kitromilides and Christakis ferides to the post of Senior Welfare Officer. The validity of these promotions was challenged by 20 a recourse, under Article 146 of the Constitution, by one of the unsuccessful candidates, Frangoullides, and they were annulled by the Supreme Court. There followed an amendment of the schemes of service and in November 1967 the Public Service Commission filled two vacancies in the post of Senior 25 Welfare Officer by the promotion of Christoforos Michael 18 1 CX.R. 5 10 15 20 25 30 35 40 Christofides v. Attorney-General and Christos Konis; but did not interview, or even consider, the appellant and certain other candidates, as they did not possess the new qualifications required by the amended scheme of service. These promotions were, again annulled by the Supreme Court in. 1975 upon a recourse by the appellant and other unsuccessful candidates. Following the second annulment the Commission at its meeting of the 22nd April, 1977 examined the position afresh and promoted to the post of Senior Welfare Officer Christoforos Michael and Christakis Ierides. Christos Konis was no longer a candidate at that time as, in the meantime, he had been promoted to the post of Principal Welfare Officer and later to that of Director of Welfare Services. The appellant did not challenge this latter decision of April 22, 1977bymeansofa recoursebutfiledanactioninthe District Court of Nicosia for damages and restitution under Article 146.6 of the Constitution. The District Court concluded that the appellant was not entitled to damages and dismissed the action. Hence this appeal. Counsel for the appellant mainly contended: That Christos Konis whose promotion to Senior Welfare Officer was declared void in 1967 should have been treated by the respondent as still being a Welfare Officer, in spite of his two successive promotions, be reverted to the post of Welfare Officer and be considered as a candidate once more; that in thiswaytheappellantwouldhavehad anopportunity for promotion to a third vacancy in the post of Senior Welfare Officer; and that as this had not been done there was no compliance with the judgment of the Supreme Court. Held,
(1)that an annulment of an administrative act has no influence on the situations which came into existence, subsequently to the issue of the annulled act, on the basis of lawful in themselves acts of the administration; that, therefore, the annulment of a promotion does not affect further promotions of public servants, which promotions are not connected with the annulled one as in the present case where the annulment of the promotion to the post of Senior Welfare Officer could not operate also as an annulment of the promotion of Christos Konis to the post of Principal Welfare Officer and Director of Welfare Services. 19 Christofides v. Attorney-General (1981
(2)That the duty of the administration under paragraphs 5 and 6 of Article 146 of the Constitution is to give effect to and act upon any decision by the Court given under Article 146, paragraph 4 of the Constitution; that the obligation of the administration is to comply strictly with the annulling decision 5 which was issued by the Court and which obligation consists in thedisappearance ofitsresults,thatisan obligation to restore the situation existing previously to the annulled decision; that this was done by the Public Service Commission in the present case because it gave effect to the decision of the Supreme Court 10 and filled the vacancies in the post of Senior Welfare Officer on the factual and legal situation that existed at the time that the annulled decision was originally taken; that the decision consisted in the exercise of an administrative discretion which for all intents and purposes was taken in accordance with the 15 Law; that the fact that they did not choose the appellant does not amount tonon-compliance withthejudgment oftheSupreme Court and at that does not give to the appellant the right to damages; accordingly the appeal must be dismissed. Appealdismissed. 20 Cases referred to: Frangoullides (No. 2) v. The Republic
(1966)3 C.L.R. 676; Kitromelidesand Othersv. The Republic
(1975)3 C.L.R.
- Appeal. Appeal by plaintiff against the judgment of the District 25 Court of Nicosia (Stylianides, P.D.C. and Fr. Nicolaides, D.J.) dated the 15th December, 1979 (Action No. 3079/77) whereby his claim for just and equitable damages and restitution under Article 146.6 of the Constitution was dismissed. C.P. Erotokritou, for the appellant. 30 CI. Antoniades, Senior Counsel of the Republic, for the respondent. A. Loizou J. gave the following judgment of the Court. This is an appeal against the judgment of the Full District Court of Nicosia, by which the action of the plaintiff for just 35 and equitable damages and restitution under Article 146.6 of the Constitution, was dismissed. The facts of the case as they appear from the judgment of the trial Court and which are not in dispute, are as follows: 20 1 C.L.R. Christofides v. Attorney-General A. Loizou J. The appellant was a Welfare Officer. The Public Service Commission at its meeting of the 24th January 1963, promoted Charilaos Kitromilides and Christakis Ierides to the post of Senior Welfare Officer with effect from the 1st February,
- 5 A recourse by one of the unsuccessful candidates was filed in the Supreme Court under Article 146 of the Constitution, and the Supreme Court, eventually, on appeal, (Revisional Appeal No. 10, reported as CharilaosFrangoullides (No. 2) and the Republic of Cyprus,
(1966)3 C.L.R. p. 676), annulled the 10 decision challenged by that recourse. We do not intend to deal with the details of that recourse, suffice it to say that the relevant scheme of service was later on revised and the post of Senior Welfare Officer which was previously a promotion post, was converted to a first entry and promotion post. By 15 the amendment of the scheme of service, a certificate or diploma of a University or other equivalent educational qualification was also made a necessary qualification for the post. The Public Service Commission then, at its meeting of the 20th November, 1967,proceeded with thefillingoftwo vacancies 20 in the post of Senior Welfare Officer, but did not interview, or even consider, the appellant and certain other candidates, as they did not possess the new qualification added by the aforesaid amendment of the scheme of service. Recourses were then filed by the appellant and two other 25 of the unsuccessful candidates and also by Frangoullides, challenging once more the validity of these new promotions. The Supreme Court in its administrative jurisdiction on the 22nd December 1975, by its judgment reported as Charilaos Kitromelides and others v. The Republic
(1975)3 C.L.R. p. 531 30 annulled the promotion of the two interested parties who had been promoted in lieu of the appellant the applicant, namely, Christoforos Michael and Christos Konis, having held that the question of the qualifications of the various candidates should have been decided as at the material time, i.e. at the time of the annulment of the previous appointment which 35 was setaside by the decision of the Supreme Court, in Revisional Appeal No. 10, (supra) that is, as the scheme of service was on the 24th January 1963. 21 A. Loizou J. Christofides τ. Attorney-General
(1981)The Public Service Commission examined the position afresh at its meeting of the 22nd April, 1977, and promoted, to that post, Christoforos Michael and Christakis Ierides. Christos Koniswas nolonger acandidateatthattime,asinthe meantime, he had been promoted to the post of Principal Welfare Officer 5 and later to that of Director of Welfare Services, obviously senior posts to the one under examination and consequently no longer available for the old post. The appellant did not challenge under Article 146 of the Constitution this decision, butfiled,in lieu, the present action 10 in the District Court of Nicosia against the Attorney-General of the Republic, claiming damages and restitution under Article 146.6 of the Constitution. The trial Court after dealing with the legal aspect of the case and the principles governing the duty of the administration 15 to comply with the judgments of the Supreme Court given in the exercise of its administrative jurisdiction under Article 146 of the Constitution,with which we shall be shortly dealing, concluded that the appellant was not entitled to damages and dismissed the action. 20 It has been argued on behalf of the appellant that Mr.Konis whose promotion to Senior Welfare Officer had been declared void in 1967 should have been treated by the respondentCom mission on the 2nd April 1977, as still being Welfare Officer inspite of his two successive promotions to higher posts and 25 that he should have been as counsel put it, reverted to the post of Welfare Officer and be considered as a candidate oncemore. In this way, he said, the appellant would have had anopportu nity for promotion to a third vacancy in the post of Senior Welfare Officer. As this had not been done there was no 30 compliance with the judgment of the Supreme Court, hence his claim for damages. We are not in agreement with this argument as the promotion of Mr. Konis to thepost hewas holding in April 1977,was not annulled, nor was annulled his previous promotion to Principal 35 Welfare Officer, and for all intents and purposes he was and is the lawful holder of thepresent post, and his position could not in Law be affected by the annulmentby the SupremeCourt of the decision, whereby hewas promoted to thepost of Senior Welfare Officer. 40 22 1 C.L.R. Christofides v. Attorney-General A. Loizou J. As pointed out by Vegleris in his textbook, Compliance of the Administration to the Decisions of the Council of State
(1934), p. 103. 5 10 15 " 'Αλλ' ή Διοίκησις υποχρεούται kv ταϊς ένεργείαις αυτής προς έπαναφοράν των πραγμάτων είς τήν προτέραν των κατάστασιν να σεβασθή τάς μεταγενεστέρου της εκδόσεως της ακυρωθείσης πράξεως νομίμως δημιουργηθείσας κατα στάσεις. Ή άπαγγελθεϊσα άκύρωσις δέν έχει επιρροήν επί των καταστάσεων αΐτινες ϋλαβον ΰπαρΕιν μεταγενεστέρως της εκδόσεως της ακυρωθείσης πράΕεωςέπ! τη βάσει νομίμων καθ' έαυτάς πράΕεων της Διοικήσεως. Ή έττίδρασις της ακυρώσεως δέν εκτείνεται, πράγματι, πέραν των πράΕεων καΐ των καταστάσεων, αΐτινες έχουν ως άμεσον έρεισμα τήν άκυρωθεϊσαν πραΕιν καΐ μετέχουν συνεπώς των έλαττωμάτων καΐ της άκυρότητος εκείνης". Which in English reads: 20 25 30 "But the administration is bound in its actions to restore the things in their previous situation to respect the acts lawfully created subsequent to the issue of the annulled decision. The announced annulment has no influence on the situations which came into existence subsequently to the issue of the annulled act on the basis of lawful in themselves acts of the Administration. The effect of the annulment does not extend in fact beyond the acts and the situations which have as an immediate foundation the annulled act and consequently share the defects of its nullity". Furthermore from the same textbook at p. 104 and with reference to the case of the French Conseil d' Etat in Rodiere (C.E. 26 December, 1925), Vegleris says the following: "Προδήλως ή άκύρωσις αύτη δέν ήδύνατο ν* άνακόψη, καθ* όλον το μακρόν διάστημα της προδικασίας της προ σφυγής τοϋ μή προαχθέντος έν νομίμω χρόνω υπαλλήλου, τήν σταδιοδρομίαν των συναδέλφων του". 35 ("Obviously this annulment could not suspend, during the long period of litigation of a recourse by a nonpromoted at a lawful time civil servant the careor of his colleagues"). 23 A. Loizou J. Christofides v. Attorney-General
(1981)It is clear from the aforesaid exposition of the general principles of Administrative Law that the annulment of a promotion does not affect further promotions of public servants, which promotions are not connected with the annulled one as in the present case where the annulment of the promotion to the post 5 of Senior Welfare Officer could not operate also as an annulment of the promotion of Christos Konis to the post of Principal Welfare Officer and Director of Welfare Services. Relevant to the examination, however, of the issue as to whether there has been compliance of the administration or 10 not to the decision given in a recourse under Article 146 of the Constitution are paragraphs 5-6 of the said Article, which reads as follows: "
- Any decision given under paragraph 4of thisArticle shall be binding on all courts and all organs or authorities 15 in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
- Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have 20 been made shall be entitled, if his claim if not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a Court for the recovery of damages or for beinggranted other remedyand to recover just and equitable damages to be assessed by the Court 25 or to be granted such other just and equitable remedy as such Court is empowered to grant". The duty of the administration under the aforesaid provisions of the Constitution is to giveeffect to and act upon any decision by the Court given under Article 146,paragraph 4 of the Consti- 30 tution. The obligation of the administration is to comply strictly with the annulling decision which was issued by the Court and which obligation consists in the disappearance of its results, that is an obligation to restore the situation existing previously to the annulled decision. This was done by the 35 Public Service Commission in the present case. It gave effect to the decision of the Supreme Court and filled the vacancies in the post of Senior Welfare Officer on the factual and legal situation that existed at the time that the annulled decision was 24 1 C.L.R. Christofides v. Attorney-General A. Loizou J. originally taken. The decision consisted in the exercise of an administrative discretion which for all intents and purposes was taken in accordance with the Law. The fact that they did not choose the appellant does not amount to non-compliance 5 to the judgment of the Supreme Court and at that does not give to the appellant the right to damages. Consequently this appeal is dismissed with no order as to costs as none have been claimed by the respondent. Appealdismissed. No order as 10 to costs. 25