clr/1981/1981_3_124.pdf

(1981)1981 April 9 [DEMETRIADES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PHIVOS B. ZACHAR1ADES. Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH

1. THE PUBLIC SERVICE COMMISSION,
2. THE MINISTER O F INTERIOR,
3. THE COUNCIL OF MINISTERS, Respondents. (Case No. 58/80). Public Officers—Appointments ami promotions·—Unless perfected or completed by offer and acceptance they can befreely revoked— Sections 37

(1)and

(2)and 44

(5)of the Public Service Law, 1967 {Law 33/67)-—Decision promoting applicant to post of DirectorGeneral Ministry of Interior·—Revoked before perfection— Applicant lias not acquireda legitimate interest and is not entitled to judicial redress. 5 Administrative Law·—Administrative acts—Revocation—Intended but never completed administrative act—Can be freely revoked— Public Officers-—Appointments or promotions—Unless completed 10 by offer and acceptance they can be revoked—Sections 37

(1)and

(2)and 44

(5)of the Public Service Law, 1967 (Law 33/67). Recourse under Article 146 of the Constitution—Legitimate interest—• Article 146.2—Decision promoting applicant to post of DirectorGeneral Ministry of Interior—Revoked before it was perfected— Applicant has not acquired a legitimate interest—Not entitled to judicial redress. ]5 Following the decision of the Council of Ministers to authorise the Minister of Interior to proceed, in concert with the Public Service Commission, to take steps for the filling of the post 20 of Director-General of the Ministry of Interior ("the said post") 124 3 C.L.R. 5 10 15 20 25 30 35 Zachariades v. Republic a letter signed on behalf of the Director-General of that Ministry was sent to the Chairman of the Commission requesting it to proceed forthwith with its filling. As the said post was a first entry and' promotion post the Commission advertised the vacancy and a number of persons, including the applicant who was holding the post of District Officer, submitted applications. The candidates were interviewed on the 11th, 22nd and 23rd January, 1980 and on the 30th January, 1980, tlie respondent Public Service Commission after deliberations and discussions on each candidate found* that the applicant was in every respect superior to all the other candidates and decided to promote him to the said post. On the 31st January, 1980, the Minister of Interior wrote a letter to the Chairman of the Commission and informed him that he was withdrawing the request for the filling of the "said post", giving as a reason for doing so a study that was being carried out for the re-organization of his Ministry. In view of this letter, the Commission met on the 2nd February, 1980, and decided to revoke their decision which had not, in the meantime, been communicated to the applicant. On the 25th February, 1980, all candidates interviewed for the "said post" were, by letter, informed by the Commission that the post was not to be filled as a result of a request by the appropriate authority which was studying schemes for the reorganization of the Ministry. Hence this recourse by applicant against thedecision of the respondent Public Service Commission not to proceed to give formal effect to its decision to appoint him to the said post. On the question whether the applicant, asa result of thedecision of the respondent Commission to promote him to the said post, has acquired a legitimate interest and, thus, isentitled to judicial redress: Held, that it is clear that unless a promotion is perfected or completed by offer and acceptance, the Public Service Commission can freely revoke the "intended but never completed See its minutes at pp.-132-33 post. 125 Zaehariades v. Republic

(1981)administrative act" (see sections 37

(1)and

(2)* and 44

(5)** of the Public Service Law, 1967 Law 33/67 and Panayides v. Republic

(1972)3 C.L.R. 467 and

(1973)3 C.L.R. 378 (C.A.)); that in thiscase therespondent Commission revoked its decision before it was perfected and therefore the applicant has not acquired a legitimate interest and is not entitled to judicial redress; accordingly his recourse must fail. 5 Application dismissed. Cases referred to: Contopoulos v. Republic, 1964 C.L.R. 347 at pp. 351-352; Panayides v. Republic

(1972)3 C.L.R. 467 at p. 480;

(1973)3 C.L.R. 378 at p. 383 (C.A.); Geodelekian v. Republic

(1970)3 C.L.R. 64 at p.

1. Recourse. . Recourse against the decision of respondent No. I not to proceed with the filling of the vacant post of Director-General of the Ministry of Interior after they had selected the applicant for appointment to the said post. 10 15 G. Cacoyannis, for the applicant. Λ'. Charalainbous,Senior Counsel of the Republic, for the 20 respondent. Cur. adv. vult. DEMETRIADES J. read thefollowing judgment. By his recourse the applicant attacks the decision of the respondents and in particular the decision of the first respondents not to proceed 25 to give formal effect to their decision to appoint him in the post of Director-General of the Ministry of Interior and prays :
2. Declaration of the Court that the omission of respon- * Section 37

(1)and

(2)reads as follows: "S.37(l) A permanent appointment shall be effected by a written offer made by the Commission to the person selected for appointment and accepted by him in writing.

(2)The offer shall state the remuneration offered and the other terms and conditions of service attached to the office to which appointment is offered". : * Section 44

(5)reads as follows: "

(5)A promotion shall be effected by a written offer made by theCom­ mission to the officer to be promoted and accepted by him in writing. The offer shall specify, inter alia, the date of promotion, the salary payable and the incremental date, if any". 126 Zachanades v. Republic Demetnades J. dents No. 1to proceed with the filling of the vacant post of the Director-General of the Ministry of Interior after they had selected the applicant for appointment to that post was null and void, as such omission was contrary to the provisions of the Constitution and/or the Law and/or because it was made in excess or abuse of powers; and/or Declaration of the Court that the omission of respondents No. 1 to appoint the applicant to the post of Director-General of the Ministry of Interior, having selected him for such appointment, was null and void being contrary to the provisions of the Constitution and/or the Law and/or because it was made in excess or abuse of powers; and/or Declaration of the Court that the decision of respondents No. 1not to proceed with the filling of the post of Director-General of the Ministry of Interior on the excuse of instructions received on 31.1.1980, from respondent No.2,not toproceed with thefillingofthat post, because apparently there existed, under consideration, plans for the re-organization of the Ministry of Interior, is null and void and of no legal effect whatsoever, being contrary to the provisions of the Constitution and/or the Law and/or because it was made in excess or abuse of powers; and/or Declaration of the Court that the act or decision of respondents No. 1 to accept and/or follow instructions and interventions from incompetent persons or authorities, and/or not the "proper authority" as specified in the Law, which led to the non filling of the post of Director-General of the Ministry of Interior by them, is null and void and of no.IegaLeffect whatsoever, being contrary to the provisions of the Constitution and/or the Law and/or because it was made in excess or abuse of powers; and/or Declaration of the Court that the decision of respondents No. 1 not to appoint "for the time being" the applicant to the vacant post of Director-General of the Ministry of Interior, communicated to the applicant 127 Demetriades J. Zacbariades v. Republic

(1981)by their letter dated the 25th February, 1980, is null and void and of no legal effect whatsoever, being contrary to the provisions of the Constitution and/or the Law and/or in that it was taken in excess or abuse of powers; and/or

1. 5 Declaration of the Court that the intervention of respondent No. 2to the duties and competences of respondents No. 1,and/or the "instruction" given by him to respondents No. 1 not to proceed "for the time being" to the filling of the post of Director-General of the Ministry 10 of Interior, because apparently there existed, under consideration, plans for the re-organization of the Ministry of Interior, was a decision and/or an act null and vcid and of no legal effect whatsoever, being contrary to the provisions of the Constitution and/or the Law 15 and/or outside the powers and competences of respondent No. 2 and/or because it was made in excess or abuse of powers and therefore such intervention and/or instruction ought to have been ignored by respondents No. 1; and/or 20
2. Declaration of the Court that the instruction given by respondent No. 2 to respondents No. 1 not to proceed with the filling of the post of Director-General of the Ministry of Interior (communicated to respondents No. 1 by his letter dated 31.1.1980), was a decision 25 and/or an act null and void and of no legal effect whatsoever, being contrary to the provisions of the Constitution and/or the Law and/or in that it was made in excess or abuse of powers; and/or
3. Declaration of the Court that any act, decision or omis- 30 sion of respondents No. 3, which in any way confirms and/or adopts and/or tolerates the "instruction" and/or intervention of respondent No. 2 to respondents No. 1 as described in sub-paragraphs

(1)to

(7)above, was null and void and of no legal effect whatsoever, 35 being contrary to the provisions of the Constitution and/or the Law and/or in that it was made in excess or abuse of powers. The applicant has been serving in the Public Service since 128 3 C.L.R. Zachariades v. Republic Denwtrlades J. 5 January 1940. He is a B.Sc (Economics) of the London Univer­ sity, a degree which he obtained in 1957 whilst serving in the Civil Service. He is, also, a Fellow of the Royal Statistical Society and a Fellow of the Royal Economic Society. He is now a District Officer posted at Paphos. 10 As a result of a submission made to the Council of Ministers by the Minister of Interior, dated the 20th October, 1978 (see copy of Annex I appended to the opposition), the Council of Ministers, by their decision No. 17.354 dated 26th October, 1978, decided— (

1. a)to extend the services of the Director-General of the Ministry of Interior, who was then due for retirement, until the 24th March, 1979, and 15 20 25 (
2. b)to authorise the Minister of Interior to proceed, in concert (en sinennoisi) with the first respondents, to take the soonest possible all necessary steps for the filling of the post of the Director-General of the Ministry of Interior. Copy of the decision of the Council of Ministers, which is appended to the opposition as Annex 1, was, on the 4th November, 1978, communicated by the Secretary of the Council of Ministers to the Chairman of the first respondents. On the 8th November, 1978, a letter signed by an official of the Ministry of Interior OP.behalf of the Director-General of that Ministry, was sent to the Chairman of the first respon­ dents with regard to the said decision of the Council of Ministers. This letter, which is Annex 2 to the opposition, reads: 30 " Ένετάλην όπως αναφερθώels τήν Άπόφασιν τοΰ Ύπουργικοϋ Συμβουλίου υπ' άρ. 17.354 της 26ης 'Οκτωβρίου, 1978, ήτις~έκοϊνοποιήθη els ύμδς, έττΐ τοΰ θέματος της πλη­ ρώσεως της θέσεως τοΰ Γενικού Διευθυντού τοΰ Υπουργείου "Εσωτερικών, καΐ να πληροφορήσω ύμας ώς άκολούθως:- 35 2. Ό κ. Ά. 'Αναστασίου, Γενικός Διευθυντής τοΰ Υπουρ­ γείου Εσωτερικών, θάεξακολούθηση να έκτελη τα καθήκοντα "^S θέσεως του μέχρι της 31ης Δεκεμβρίου, 1978. Άττό της 1ης 'Ιανουαρίου, 1979, οΰτος Θάδιατελή έπ' αδεία μέχρι της 24ης Μαρτίου, 1979, δτε άφυπηρετεϊ. 3. Λαμβανομένων ΰπ\ όψιν των πολλαπλών ευθυνών 129 Demetriades J. Zachariades v. Republic

(1981)της θέσεως τοΰ Γενικού Διευθυντού τού Υπουργείου 'Εσω­ τερικών καθώς και δια τήν όμαλήν καΐ άπρόσκοπτονλειτουργίαν τών υπηρεσιών τοΰ Υπουργείου τούτου, το ήμέτερον Υπουργεϊον Θεωρεί άναγκαΐον όπως ή Θέσις τού Γενικού Διευθυντού πληρωθη από της 1ης 'Ιανουαρίου, 1979, ήμερομηνίας καθ' ήν αρχίζει ή περίοδος αδείαςτού κ. 'Αναστασίου. 5

1. Παρακαλείσθε 6Θεν όπως προβήτε είς τάς σχετικάς διευθετήσεις δια τήν έγκαιρον δημοσίευσιν της θέσεως ούτως ώστε να καταστη δυνατή ή πλήρωσίς της άπό της 1.1.
3. Ή πλήρωσις θέσεως κατά τήν διάρκειαν της περιόδου 10 απουσίας τού κατόχου αυτής έπ' Αδεία πρό τηςάφυπηρετήσεώς του προβλέπεται Οπό τού άρθρου 21 τοΰ περί 'Ερμη­ νείας Νόμου, Κεφ.
4. (Υπ.) Χρ. Μαμμίδης . δια Γενικόν Διευθυντήν 15 Υπουργείου "Εσωτερικών". ("I have been directed to refer to the Decision of the Council of Ministers N o . 17.354 of the 26th October, 1978, which has been communicated to you, on the subject of the filling of the post of Director-General of the Ministry of Interior and to inform you as follows:- 20
5. Mr. A. Anastassiou, Director-General of the Ministry of Interior, will continue to perform the duties of his post until the 31st December,
6. As from 1st January, 1979 he will be on leave until the 24th March, 1979, when 25 he will retire.
7. Taking into consideration the multiple responsibi­ lities of the post of Director-General of the Ministry of Interior and for the smooth and unobstructed functioning of the services of this Ministry, our Ministry considers 30 it necessary that the post of Director-General be filled as from 1st January, 1979, the date on which the leave of absence of Mr. Anastassiou commences.
8. You are therefore requested to make the necessary arrangements for the advertisement of the vacancy in time, so that the filling of the post may be rendered possible as from the 1.1.
10. The filling of a post during the absence on leave 130 35 3 C.L.R. 5 Zachariades v. Republic Demetrfades J. prior to retirement of its holder is provided for by section 21 of the Interpretation Law, Cap.
11. (Sgd) Chr. Mammides for Director-General Ministry of Interior"). At their meetingof the 11th November, 1978, thefirstrespon­ dents considered the filling of the vacancy in the post of the Director-General of the Ministry of Interior—hereinafter to be mentioned as the "said post"—and decided that as the 10 "said post" was a first entry and promotion post, to advertise thevacancy and to allow two weeks for the submission of appli­ cations (this.decision of the first respondents is appended to the opposition as Annex 3), but on the 19th December, 1978, the Minister of Interior himself wrote to the Chairman of the 15 first respondents a letter (this is Annex 4 to the opposition) by which he informed him that certain difficulties connected with the scheme of service of the "said post" had arisen; that the Council of Ministers was studying the possibility of amen­ ding them, and that as the decision on this matter could take 20 some time he requested him to postpone the publication of the post until a final decision was taken. Complying to this request of the Minister, the first respondents took no further action on the matter. On the 12th March, 1979, another letter, signed on behalf 25 of the Director-Generalof the Ministry of Interior (see Annex 5 to the opposition), was sent to the Chairman of the first respondents by which he was informed that there was going to be no change in the scheme of service of the post of the Director-General of the Ministry of Interior and was requested 30 to proceed forthwith with its publication, if possible, in the issue of the Gazette of the following Friday, the 16th March,
12. In compliance with this request,~the post was-advertised in Gazette No. 1508 of the 16th March, 1979 (photocopy of same was produced and is exhibit A). 35 As a result of the publication of the "said post", a number of persons, one of whom was the applicant, submitted applica­ tions and.on the 12th April, 1979, thefirstrespondents decided to invite 19 of them, including the applicant, for interview (see Annex 6 ίο the opposition). As it appears from Annex 40 7 to the opposition, which are the minutes of the meeting of 131 Demetriades J. Zachariades v. Republic

(1981)the first respondents held on the 8th May, 1979, all 19 persons were interviewed on that day. However, before the first respon­ dents took their decision, their term of office expired and a new Chairman and new members were appointed. At their meeting of the 12th November, 1979 (see Annex 5 8 to theopposition), thenew Public Service Commission decided, and very rightly so according to learned counsel appearing for the applicant, that they had to consider the filling of the "said post" afresh and that they had to invite all persons inter­ viewed by the previous Public Service Commission, for a new 10 interview. The candidates were interviewed on the 11th, 22nd and 23rd January, 1980 and on the 30th January, 1980, the first respondents, as it appears from the minutes of their meeting (Annex 13 to the opposition), after deliberations and discussions on each candidate, found that the applicant was 15 in every respect superior to all other candidates and decided to promote him to the "said post". The relevant extract from the minutes of the meeting of the first respondents of the 30th January, 1980, reads as follows:" Έν κατακλείδι, ή Επιτροπή Δημοσίας Υπηρεσίας, άφοΰ 20 έίήτασε καΐ συνέκρινε τήν άϋίαν, τα προσόντα, τήν πεΐραν καΐ τήν σταδιοδρομίαν τών υποψηφίωνκαθώςκαι τήν αρχαι­ ότητα τών υποψηφίων δημοσίων υπαλλήλων, βάσει τών αΐτήσεων (μετά τών δικαιολογητικών), τών Προσωπικών Φακέλλων καΐ τών Εμπιστευτικών Εκθέσεων περί τών 25 υποψηφίων δημοσίων υπαλλήλων, καΐ άφοΰέλαβε ωσαύτως Οπ' δψιν τήν άπόδοσιν Ολων τών υποψηφίων κατά τάς χωριστάς συνεντεύξεις των μετά της Επιτροπής, έκρινεν δτι ό κ. Φοίβος ΖΑΧΑΡΙΑΔΗΣ υπερτερεί έν τ φ συνόλω τών υπολοίπων υποψηφίων,εύρε τούτονώςτόνπλέονκατάλληλον 30 καΐ απεφάσισε νάπροαγάγη αυτόνείςτήν θέσιν τού Γενικού Διευθυντού τού Υπουργείου Εσωτερικών απότης 15.2.80". ("In conclusion, the Public Service Commission, having considered and compared, the merits, qualifications, experience and service of the candidates as well as the 35 seniority of the candidates who are public officers, on the basis of the applications (with the justifications) the personal files and the confidential reports on the candidates who are public officers and having also taken into consi132 3 CX.R. 5 Zacbarlades v. Republic Demetriades J. deration the performance of all candidates during their personal interview with the Commission has found that Mr. Phivos ZACHARIADES was as a whole superior to all the other candidates found him to be the most suitable and decided to promote him to the post of DirectorGeneral Ministry of Interior as from 15.2.80"). On the 31st January, 1980, the Minister of Interior wrote a letter to the Chairman of the first respondents and informed him that he was withdrawing the request for the filling of the 10 "said post", giving as a reason for doing so a study that was being carried out for the re-organization of his Ministry. In view of this letter (which is Annex 14 to the opposition), the first respondents met on the 2nd February, 1980, and decided to revoke their decision which had not, in the meantime, been 15 communicated to theapplicant (see Annex 16 to the opposition). 20 On the 25th February, 1980, all candidates interviewed for the "said post" were, by letter (Annex 17 to the opposition), informed by the first respondents that the post was not to be filledas a result of a request by the appropriate authority which was studying schemes for the re-organization of the Ministry. On the 6th March, 1980, counsel foi the applicant wrote the following letter to the Chairman of the first respondents: 25 30 35 "Κύριοι, Ό πελάτης μας κ. Φοίβος Β. ΖαχαριάδηΓ ("Επαρχος Πάφου) ό όποιος έχει υποβάλει αίτηση γιά τή θέση τοΰ Γενικού Διευθυντή στά Υπουργείο Εσωτερικών, μας Ιδωσε εντολή ν' απαντήσουμε στην επιστολή σας ημερομηνίας 25 Φεβρουαρίου, 1980. Γιά νά μπορέσουμε νά συμβουλεύσουμε τόν πελάτη μας Υ διαβήματα πού δικαιούται νά λάβει, θά σας παρακα­ λέσουμε νά μας δώσετε τΙς ακόλουθες έπεΕηγηματικέςπληρο­ φορίες:ια τ α

(1)Πότεκαΐ πώς ή 'αρμοδία 'Αρχή' σας έχει πληροφορήσει δτι μελέτα σχέδιο γιά νέα διάβρωση τοΰ Υπουργείου 'Εσωτερικών.

(2)Ποια είναι στην προκειμένη περίπτωση ή 'αρμοδία 'Αρχή*. _

(3)Κατά πόσο τά σχέδια ποϋ μελετούνται προβλέπουν 133 Oemetriades J. Zachariades v. Republic

(1981)κατάργηση της θέσης τοΰ Γενικού Διευθυντήτού Υπουρ­ γείου Εσωτερικών.

(4)Κατά πόσο έχετε Ιγκυρη καΐ θετική πληροφορία ότι τό 'Υπουργικό Συμβούλιο σαν τό μόνο αρμόδιο σώμα πράγματι μελετά αναδιάρθρωση τού 'Υπουργείου Έσωτερικών. 5 "Οπως Θ' αντιλαμβάνεσθε, οι πληροφορίες πού ζητούμε θά μας βοηθήσουν νά συμβουλεύσουμε τόν πελάτη μας κατά πόσο Θά πρέπει νά καταχωρηθεί προσφυγή στό 'Ανώτατο Δικαστήριο σύμφωνα με τό "Αρθρο 146 τού Συντάγματος 10 γιά τήν παράλειψη της Επιτροπής σας νά προβεί στό σχετικό διορισμό έφόσο μάλιστα, όπως έχει περιέλθει σέ γνώση μας, μετά τις συνεντεύξεις της μέ τους διαφόρους υποψηφίους ή 'Επιτροπήσας πήρε τήν απόφασηνά διορίσει τόν πελάτη μας στην πιό πάνω θέση. 15 Βέβαια, δέν χρειάζεται νά σας υπενθυμίσουμε τις πρόνοιες τοΰ "Αρθρου 29 τοΰ Συντάγματος σχετικά μέ τά χρονικό όρια μέσα στά άποϊα θά πρέπει νά μας απαντήσετε. Διατελούμε μετά τιμής π. Λ. ΚΑΚΟΓΙΆΝΝΗς & ςΙΑ". 2 ("Gentlemen, Our client Mr. Phivos Β. Zachariades (District Officer Paphos) who has submitted an application for the post of Director-General, Ministry of Interior, has instructed us to reply to your letter dated 25th February, 1980. j$ In order to be able to advise our client on the steps he is entitled to take, we would request you to give us the following explanatory information:

(1)When and how the 'appropriate authority' has informed you that it is studying a scheme for the -JQ re-organization of the Ministry of Interior.

(2)Which is in the present case the 'appropriate autho­ rity'.

(3)Whether the schemes under consideration provide for the abolition of the post of Director-General of ^5 the Ministry of Interior.

(4)Whether you have valid and positive information 134 Ο 3 CUR. Zachariades v. Republic Denwirlade* J. that the Council of Ministers as the only appropriate body is in fact studying the reorganization of the Ministry of Interior. As you understand, the information we are asking will help us advise our client whether he should file a recourse to the Supreme Court in accordance with Article 146 of the Constitution for the omission of your Commission to proceed with the said appointment since, as has come to our knowledge, after the interviews with the various candidates your Commission has decided to appoint our client to the above post. 5 10 Of course there is no need to remind you of the provision of Article 29 of the Constitution regarding the time limit within which you must reply. Yours sincerely P. L. Cacoyannis & Co."). 15 The reply of the first respondents to counsel's letter, which gave rise to these proceedings, is the following:20 25 " "Εχω οδηγίες νά αναφερθώ στην επιστολή σας μέ αριθμό Γ.14/80, σχετικά μέ τήν κενή θέση Γενικού Διευθυντή τού Υπουργείου 'Εσωτερικών, καΐ νά σας δώσω τΙς ακόλουθες πληροφορίες: (α) Στίς 31.1.80 ή άρμοδίη αρχή μέ επιστολή της ζήτησε άπό τήν Επιτροπή Δημοσίας 'Υπηρεσίας νά μήν προχωρήσει έπ! τού παρόντος στην πλήρωση της θέσεως, γιατί βρίσκονται Οπό μελέτη σχέδια γιά νέαδιάρθρωση τού Υπουργείου. (β) Αρμόδια αρχή είναι ό Υπουργός Εσωτερικών, 30 - 35 (γ) Στίς ερωτήσεις στΙς παραγράφους

(3)καί

(4)της έπι.στολής, σας ή 'Επιτροπή Δημοσίας Υπηρεσίας εΐναι αναρμόδια νά απαντήσει. Μέ εκτίμηση, Γιά Πρόεδρο Επιτροπής Δημοσίας Υπηρεσίας". ("1 am directed to refer to your letter C. 14/80 regarding the vacant post of Director-General, Ministry of Interior, and to give you the following information :- 135 DemetriadeS J. Zachariades v. Republic

(1981)(

1. a)On 31.1.80 the appropriate authority has by letter asked the Public Service Commission not to proceed for the time being with the filling of the post, because schemes for the re-organization of the Ministry are under consideration. 5 (
2. b)The appropriate authority is the Minister of Interior. (
3. c)The Public Service Commission is incompetent to reply to the questions in paragraphs

(3)and

(4)of your letter. With respect. For Chairman Public Service Commission"). As I understand the complaints of the applicant in this recourse, they are the following: —Whether—

(1)the first respondents, having reached their decision to fill in the said vacant post, were entitled to revoke it; 15

(2)the Minister of Interior is the appropriate authority in matters relating to the appointment of the DirectorGeneral of his Ministry; and

(3)the first respondents, once they had reached their deci- 20 sion, were bound to perfect and/or complete the promotion Before proceeding, however, to deal with the above issues, 1 feel that I must examine which is the Body that decided to submit the request to the first respondents for the filling of 25 the said post and who in fact did submit such a request. After carefully reading and comparing the contents of Annexes I and 2 to the opposition, which are appended herewith, I find that the decision was taken by the Council of Ministers; that after this decision was taken, the Council of Ministers, acting 30 through their Secretary, submitted the request to the first respondents, and that the Minister was only authorised to see that this decision was to be put into effect the soonest possible. Having considered the facts of this case, I find that the first issue that has to be decided is whether the applicant, as a result 35 of the decision of the first respondents to promote him to the post of Director-General of the Ministry of Interior, has 136 10 3 C.L.R. Zachariades v. Republic Demetriades J. acquired a legitimate interest and, thus, is entitled to judicial redress. As I have earlier mentioned, the "said post" is a first entry and promotion post and the matter is governed, therefore, 5 by the provisions of sections 37 and 44 of the aforesaid law, Law 33/67, which read:S.37-"(l) A permanent appointment shall be effected by a written offer made bythe Commission to theperson selected for appointment and accepted by him in writing. 10 15 20 25

(2)The offer shall state the remuneration offered and the other terms and conditions of service attached to the office to which appointment is offered.

(3)When the person selected has signified his acceptance of the offer made to him and the report of the Government Medical Officer who has examined him is satisfactory, the Commission shall inform the person selected in writing that hehas been appointed and specify the date from which his appointment takes effect.

(4)A permanent appointment shall bo published in the official Gazette of the Republic as soon as possible after it has taken effect.

(5)Save with the prior approval of the Council of Ministers, no person shall be appointed to, or serve in, an office in a Department where his spouse, child, brother or sister is serving". S.44-"(

1. l)No officer shall be promoted to another office, unless— (
2. a)a vacancy exists in that office: 30 35 Provided that in the case of offices with a combined establishment, promotion from the lower to the higher office or grade of that office may be made irrespectively of whether there is a vacancy in the higher office or grade or not, and in accordance with any general directions given by the Council of Ministers in this respect; (
3. b)hepossesses the qualifications laiddowninthe schemes of service for that office; 137 Demetriades J. Zacbarltdes v. Republic (19*1) (
4. c)he has not been reported upon in the last two annual confidential reports as unsuitable for promotion; (
5. d)he has not been punished during the preceding two years for any disciplinary offence of a serious nature.

(2)The claims of officers to promotion shall be considered on the basis of merit, qualifications and seniority. 5

(3)In making a promotion, the Commission shall have due regard to the annual confidential reports on the candidates and to the recommendations made in this respect by the Head of Department in which the vacancy exists. 10

(4)When an officer is promoted to an office in which he has been acting, his promotion may take effect from the date on which the vacancy occurred or the date from which he was appointed to act, whichever is the later.

(5)A promotion shall be effected by a written offer 15 made by the Commission to the officer to be promoted and accepted by him in writing. The offer shall specify, interalia, the date of promotion, the salary payable and the incremental date, if any.

(6)Promotions shall be published in the official Gazette 20 of the Republic.

(7)For the purposes of this section Offices with a combined establishment' mean two or more separate offices or two or more grades of the same office which have a common establishment". Counsel for the applicant argued that once the Pubhc Service Commission had decided to promote the applicant to the "said post", they were under a duty to proceed and perfect and/or complete it. The question whether the Public Service Commission is under a duty to fill a vacant post existing in the Public 30 Service was answered in the case of Contopoulosv. The Republic, 1964 C.L.R. p. 347, in which Triantafyllides J., as he then was, in delivering the unanimous judgment of the Full Bench of this Court, said at pp. 351-352:"In the opinion of the Court theduties of the Public Service 35 Commission under Article 125 are limited to matters con138 25 3 C.L.R. 5 Zachariades v. Republic Demetriades J. cerning the officers and not the offices involved (vide Papapetrou and the Republic, 2 R.S.C.C. p. 61 at p. 66). It is not for the Public Service Commission, therefore, to decide when a vacancy is to be filled by way of promotion as this matter lies within the competence of the Executive Branch of the Government. Itis only when such a vacancy is to be filled that the Commission has exclusive compe­ tence to decide on who is to be promoted or appointed to the post in question. 10 In the present case, therefore, the Commission quite properly took into account the request of the Ministry of Interior not to fill the vacancies in the post of Land Officer pending the re-organization of the Department concerned". 15 Stasinopoulos, in his book "Mathimata Diikitikou Dikeou, 1957 ed. p. 311, expresses his opinion on the matter as follows:- 20 25 30 35 " Ό διορισμός υπαλλήλου κατατάσσεται,κατά τους γενικούς κανόνας τού δικαίου τών διοικητικών πράΕεων,εις τήν κατηγορίαν τών πράΕεων διακριτικής εξουσίας. Ή δημοσία αρχή ^ Υ ^ 1 δέν έχει ύποχρέωσιν ίνα πλήρωση μίαν κενωθεΐσαν Θέσιν, άλλα κέκτηται διακριτικήν έίουσίαν ίνα άποφασίση, έάν θά προέλθη ή οϋ eic τήν πλήρωσιν αϋτης, ώς και νά κρίνη πότε θά επιστή ό εύθετος χρόνος διά τήν πλή­ ρωσιν ταύτην. "Ενεκα τούτου, λέγομεν δτι, κατά γενικόν κανόνα, ό διορισμός δέν είναι ύποχρέωσις της Διοικήσεως, έν περιπτώσει δέ καθ* ην ή Διοίκησις αρνείται νά πλήρωση μίαν θέσιν, δέν εΐναι δυνατόν νά θεωρηθή ότι παραλείπει όφειλομένην ένέργειαν". ("The appointment of an employee is classified, according to the general principles of the law of-administrative acts, . in the category of acts of discretionary power. The public authority in general has no obligation to fill a vacant post, but has a discretionary power to decide, whether to proceed or not with its filling, and also to Judge when the proper time for its filling will come. Because of this, we say that, as a general rule, the appoint­ ment is not an obligation of the administration, and in case the administration refuses to fill a post, it is not 139 Demetriades J. Zachariades v. Republic

(1981)possible to consider that it omits todo an act which ought to be done"). The question as to when a promotion or appointment is effected, i.e. when the lawful existence of an administrative act commences, is dealt with in the case of Panayides v. The Republic,

(1972)3 C.L.R.

1. A. Loizou J. in his judgment in that case had this to say at p. 480:- 5 "It is important therefore in this respect to examine the exact moment at which the formal validity of the administrative act that is to say its lawful existence commences. 10 For that matter a distinction should be drawn between this and the substantial effect of the administrative act, that is to say their legal effect. The former commences from the time at which the procedure under the law by which they came into existence is completed. The latter 15 commences from a certain time which may either coincide with the timeof thecommencement oftheir formal validity or it may be a subsequent or prior point in time". And at p. 482:"An administrative actas ithas been stated, is a declara- 20 tion of the will of the administrative organ. Before it is declared the will has to take shape towards the stage of the formulation of the administrative will. The administrative procedure for its production corresponds and results to its issuing, i.e. to the drafting, the insertion of 25 the date and the signing by the appropriate organ. See Stassinopoulos {supra)
2. Hence, 'issuing' is called the formulation with certainty of thewill which is intended to be declared by the administrative act. Only when the will is declared, i.e. when outward direction is given to 30 it towards one or more persons, with the purpose that by its will their position will be affected, it is that this will has social significance and the law is interested in it and its consequences. Until so declared, the administrative act constitutes 35 internum of the administration. After however of its communication, it becomes binding on the administration and itisthenthat theact,in our casetheact of promotion, came into existence. Being as such a favourable admi140 3 C.L.R. Zachariades v. Republic Demetriades J. nistrative act, it cannot be freely revoked thereafter. Whereas before the administration can freely amend or abandon, the intended but never completed administrative act". 5 10 It is clear from the above quoted authority and sections 37

(1)and

(2)and44

(5)thatunless a promotion is perfected or comple­ ted by offer and acceptance, the first respondents can freely revoke the "intended but never completed administrative act". This view was also held by the Full Bench of this Court in the case of Panayides v. The Republic,

(1973)3 C.L.R. 378 at p. 383, and Geodelekianv. The Republic,

(1970)3 C.L.R. 64 at p.

1. In the present case, the first respondents revoked their deci­ sion before it was perfected and 1, therefore, find that the appli15 cant has not acquired a legitimate interest and is not entitled to judicial redress. In view of the above, I find it unnecessary to deal with the other issues arising in this case. 20 The application is' hereby dismissed with costs in favour of the respondents, if claimed. Application dismissed with costs. "ΠΑΡΑΡΤΗΜΑ 1 ΑΝΤΙΓΡΑΦΟΝ 25 'Απόσπασμα έκ τών Πρακτικώντης Συνεδρίαςτοΰ 'Υπουργικού Συμβουλίου 'Ημερομηνίας 26.10.78 Παράτασις τών υπηρεσιών τοϋ κ. Α.Κ. 'Αναστασίου, Γενικού Διευθυντού Υπουργείου 'Εσωτερικών Άπόφασις ύπ* (ΠρότασΓςύπ. άρΓ855/78)~ *Αρ. 17.354
2. Τό Συμ[*ούλιονάπεφάσισεν— 30 35 α ) άναφορικώς πράς τήν Άπόφασιν ύπ' Άρ. 16.225, όπως έπιτρέψη, προς τό δημόσιον συμφέρον, δυνάμει τοϋ εδαφίου

(4)τοϋάρθρου8τοΰπερίΣυντάξεων Νόμου, Κεφ. 311 καΐ Νόμων 17 τοϋ 1960Α, 9 καΐ 18 τοΰ 1967, 51 και 119 τοΰ 1968, 9 τοΰ 1971, 65 τοϋ 1973 καΐ 42 τοϋ 1976, εΐς τόν κ. Α.Κ. "Αναστασίου, Γενικόν Διευ141 Demetriades J. Zachariades v. Republic

(1981)θυντήν τοϋ Υπουργείου 'Εσωτερικών, νά παραμείνη είς τήν ύπηρεσίαν διά μικράν εΙσέτι περίοδον, ήτοι μέχρι της 24ης Μαρτίου, 1979- και β) εξουσιοδότηση τόν Ύπουργόν 'Εσωτερικών νά προβή έν συνεννοήσει μετά της 'Επιτροπής Δημοσίας Ύπηρεσίας, είς τά δέοντα διά τήν πλήρωσιν της θέσεως Γενικού Διευθυντού Υπουργείου 'Εσωτερικών, τό ταχύτερον δυνατόν. 5 Πρόεδρον 'Επιτροπής Δημοσίας Υπηρεσίας, Ή ϋπερθεν Άπόφασις, όμοΰ μετά της Προτάσεως ύπ." Άρ. 855/78, διαβιβάζεται προς από κοινού συνεργασίαν μετά τοΰ Γ.Δ., Υπουργείου Εσωτερικών, προς τόν όποιον απεστάλη άντίγραφον της ώς άνω 'Αποφάσεως, άναφορικώςπρος τήν υποπαράγραφον (β) αύτης. (Υπ.) Κ. Κλεάνθους Γραμματεύς Ύπουργικοΰ Συμβουλίου 4η Νοεμβρίου, 1978. 10 15 (Κν.: Γ.Δ., Υπουργείου Ο(κονομικών)." 20 "(APPENDIX 1 COPY Extract from the Minutes of the meeting of the Council of Ministers dated 26.10.78. Extension of the services of Mr. A.K. Anastassiou, Director-General of the Ministry of Interior. 25 (Submission No. 855/78) Decision No. 17.354 14. The Council decided— (a) With reference to Decision No, 16.225, to allow, in the public interest, in accordance with sub-section

(4)of section 8 of the Pensions Law, Cap. 311 and Laws 17 of 1960A, 9 and 18 of 1967, 51 and 119 of 1968, 9 of 1971, 65 of 1973 and 42 of 1976, Mr. 35 A.K. Anastassiou, Director-General, Ministry of 142 30 3 C.L.R. Zachariades v. Republic Demetriades J. Interior, to remain in the service for a still short period, i.e. until the 24th March, 1979; and 5 10 15 (

1. b)authorize the Minister of Interior to proceed, in concert with the Public Service Commission, with the necessary arrangements for the filling of the Post of Director-General, Ministry of Interior, the soonest possible. Chairman, Public Service Commission, The above Decision, together with submission No. 855/75, is transmitted for co-operation with the D.G., Ministry of Interior to whom copy of the above Decision was sent, with regard to sub-paragraph (
2. b)thereof. (Sgd) C. Cleanthous Secretary Council of Ministers. 4th November, 1978. (Copy t o : D.-G., Ministry of Finance))". "ΑΝΤΙΓΡΑΦΟΝ 20 ΠΡΟΤΑΣΙΣ ΠΡΟΣ TO ΥΠΟΥΡΓΙΚΟΝ ΣΥΜΒΟΥΛΙΟΝ Παράτασις τών υπηρεσιών τού κ. Α.Κ. Αναστασίου, Γενικού Διευθυντού 'Υπουργείου 'Εσωτερικών 25 30 35 Τό Ύπουργικάν Συμβούλιον διά της αποφάσεως του ύπ* άρ. 16225 τής 27ης Σεπτεμβρίου, 1977, άπεφάσισεν Οπως, προς τ ° δημόσιον συμφέρον, παρατείνη τάς υπηρεσίας τού κ. Α.Κ. 'Αναστασίου, Γενικού Διευθυντού τού Υπουργείου 'Εσωτερικών, μέχρι της 31ης Δεκεμβρίου, 1978. 2. 'Επειδή οΐ λόγοι διάτους οποίους ελήφθηή ώς άνω άπόφασις εξακολουθούν νά υφίστανται, ήτοι ή άναδιοργάνωσις τοΰ Ύπουργείου 'Αμύνης καΐ ή υπεύθυνοςδιαχείρησιςτών ηύΕημένωνευθυνών τοΰ Υπουργείου 'Εσωτερικών, τό Ύπουργεΐον 'Εσωτερικών Θεωρεί άναγκαίαν τήν περαιτέρω παράτασιντών υπηρεσιών τοΰ κ. 'Αναστασίου διά μικράν περίοδον ήτοι μέχρι της 24.3.1979 διά νά δοθη ή ευκαιρίαεϊς τήν ΈπιτροπήνΔημοσίας Υπηρεσίας ν ά προβή εϊς τόν διορισμόν καταλλήλου διαδόχου του άπό της 1ης Ιανουαρίου, 1979. 'Από της 1.1.79 ό κ. 'Αναστασίου θά είναι έπ' αδεία πρό της άφυπηρετήσεώς του μέχρι της 24.3.79. 143 Demetriades J. Zachariades v. Republic

(1981)("APPENDIX 2 No. M.I.290/60/5 COPY MINISTRY OF INTERIOR NICOSIA 8th November, 1978 Chairman Public Service Commission I have been directed to refer to the Decision of theCouncil of Ministers No. 17.354 of the26thOctober, 1978, which has 10 beencommunicated to you, on the subject ofthefillingofthe post of Director-General of the Ministry of Interior and to inform you as follows:

1. Mr. A. Anastassiou, Director-General of the Ministry of Interior, will continue to perform the duties of his post until 15 the 31st December,
2. As from 1st January, 1979 he will be on leave until the 24th March, 1979, when he will retire.
3. Taking into consideration the multiple responsibilities of the post of Director-General of the Ministry of Interior andforthesmoothandunobstructed functioning oftheservices 20 of this Ministry, our Ministry considers it necessary that the post of Director-General be filled as from 1st January, 1979, the date on which the leave of absence of Mr. Anastassiou commences.
4. You aretherefore requested to makethenecessary arrange- 25 ments for the advertisement of the vacancy in time, so that the filling of the post may be rendered possible as from the 1.1.
6. Thefillingof a post during the absence on leave prior to retirement of its holder is provided for by section 21 of the 30 Interpretation Law, Cap. I. (Sgd) Chr. Mammides for Director-General Ministry of Interior"). 146 5