(1981)1981 February 28 [TRIANTAFYLLIDES, P.] THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Appellant, v. SAVVAS PETRIDES, Respondent, (Application inRevisional Appeal No.243). Civil Procedure—Practice—Stay of execution pendingappeal— Applicationfor—To be first madeto the trialJudge—Rules 18 and 19 of Order35 of the CivilProcedure Rules. Stay of execution pendingappeal—Revisionaljurisdiction case under Article 146 of the Constitution—Judgment annulling appoint- 5 mentsof publicofficers—Given under Article 146.4
(6)of the Constitution—Does not require Public Service Commission to fill posts concerned at once—Thereforestay of execution on groundthat appealwillbe rendered nugatory if Commission proceeded to reconsiderfillingof saidposts,before determination 10 of the appeal, cannot be granted. By virtue of a judgment of a Judge of this Court there were annulled the appointments of two persons to the post of Assistant Cultural Officer. The Public Service Commission having appealed against the judgment, applied, also, for an 15 order staying the operation of the said judgment until the determination of the appeal. The stay was sought on the ground that the appeal will be rendered nugatory if the Commission proceeded, before the determination of the appeal, to reconsider the matter of the filling of the two posts 20 concerned. The application was at first placed before the trial Judge who made the following minute: "Once an appeal has been filed in this case, I do not feel I should deal with this application ". Held,
(1)that this application was quite properly taken at 25 first to the trial Judge in view of the provisions of Order 35, 246 3C.L.R. Republic v.Petrfdes rule 19, of the Civil Procedure Rules ; but, since he has not granted the order sought by the appellant, the matter is being dealt with now under the provisions of rule 18 of the said Order 35. 5 10
(2)On the merits of the application : That if the order applied for by the appellant Public Service Commission is refused the present appeal will be not rendered nugatory, since the judgment annulling the appointments of the interested parties, which was given under Article 146.4
(6)of the Constitution does not require the appellant Commission to proceed to fill the two posts concerned at once or at any specified time in the future ; accordingly the application must fail (pp. 248-49 post). . Application dismissed. 15 Cases referred to : Veis v. Republic
(1979)3 C.L.R. 537 ; Katerina Shipping Inc. v. TheCargo on Board the Ship "Poly"
(1978)1 C.L.R. 355. Application. 20 Application by appellant for an order staying until the determination of the present appeal the operation of the judgment which was given by a Judge of the Supreme Court (Hadjianastassiou, J.) (Case No. 225/78) whereby the appointment of the two interested parties to the post of Assistant Cultural 25 Officer in the Ministry of Education were annulled. R. Gavrielides, Senior Counsel of the Republic, for the applicant. A. S. Angelides, for the respondent. Cur. adv. vult. 30 TRIANTAFYLLIDES P. read the followingjudgment. The appellant seeks, in effect, an order staying until the determination of the present appeal the operation of the judgment which was given by a Judge of this Court inrecourse No. 225/78* and against which this appeal has been made. 35 Byvirtueofthesaidjudgment therewereannulledthe appointments to the post of Assistant Cultural Officer of two persons * See
(1981)3C.L.R.57. 247 Triantafyllides P. Republic v. Petrides
(1981)who were the interested parties in the proceedings before the trial Judge. As they have not been madeparties to thepresent application, they remain free to apply too—if they so wish— for an order staying the operation of the judgment by means of which their appointments were annulled. Thereason for whichtheappellant PublicServiceCommission seeks to stay the operation of thejudgment in question is that, allegedly, this appeal will berendered nugatory if the Commission proceeds, before the determination of theappeal, to reconsider the matter of the filling of thetwo postsconcerned. 10 The power of this Court to grant, in a case of this nature, an order staying the execution or the operation of a judgment annulling, under Article 146 of the Constitution, an administrative act or decision, has not been disputed; and what, in my opinion, constitutes the legal basis for such a course has 15 been expounded in Vet's v. The Republic,
(1979)3C.L.R. 537. The principles governing stay of execution pending appeal have been referred to, interalia, in Katarina Shipping Inc. v. The Cargoon Boardthe Ship "Poly",
(1978)1 C.L.R.
- The present application was at first placed before the Judge 20 of this Court who has given the first instancejudgment inthis caseand who, on January 28, 1981,madethefollowing minute: "Onceanappealhasbeenfiledinthiscase,Idonot feel Ishould deal with this application". This application was quite properly taken at first to the trial 25 Judge in view of the provisions of Order 35, rule 19, of the Civil Procedure Rules; but, since he has not granted the order soughtbytheappellant,thematter isbeingdealtwithnowunder the provisions of rule 18 of the said Order
- I do not think that if I refuse the order applied for by the 30 appellant Public Service Commission the present appeal will berenderednugatory, sincethejudgment annullingtheappointments of the aforementioned interested parties, which was given under Article 146.4(b) of the Constitution, does not require the appellant Commission to proceed to fill the two 35 posts concerned at once or at any specified time in the future. Once the appointments made by the Commission to such 248 5 3 C.L.R. Republic v. Petrides Triantafyllides P. . posts have been annulled, it is quiteprobable that theCommission, in thenormal courseofevents,will,eventually, deal again with thefillingof the said posts; but, in view of the nature of the jurisdiction under Article 146 of the Constitution, there 5 is not, as already stated, anything in thejudgment complained of which compels the appellant Commission to reconsider the filling of the posts in question immediately or at any specified time in the future; and, therefore, if the Commission decides eitheron itsown, or on beingmoved accordingly by the—under 10 thePublicServiceLaw, 1967(Law33/67)—appropriate authority toallowthesetwopoststoremainvacantpendingthedetermination of the present revisional jurisdiction appeal, it could not, inmyview,becontendedthattheCommission, bynot proceeding tofillthe said two posts in the meantime, is acting indiso15 bedience to the appealed from judgment of the trial Judge in this case. For the foregoing reasons 1do not think that it is necessary or proper to grant in the present instance the order applied for by the appellant. 20 1am making no order as to the costs of this application. Applicationdismissed. No order as to costs. 249