3 C.L.R. 1982 March 27 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION IOANNTS ST. MILIATOS, Applicant, THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Case No. 24/80). Fublic Service Law, 1967 {Law 33/67)—Section 4<5) of the Law validlyenacted—Not contrary to Article 124.6 of the Constitution —Hadjianastassiou v. Republic, reported in this Part at p. 1173 post adopted. 5 10 15 The sole issue in this recourse was whether, in view of the provisions of Article 124.6* of the Constitution, the composition of the respondent Commission at the material time was defective in that the Chairman and one of its members had, prioi to their appointment, been public officers and their appointments were made in a manner incompatible with the periods provided by paragraph
(2)of the above Article. Held, that the appointments of the Chairman and one of the members of the Public Service Commission were validly made under section 4
(5)**ot the Public Seivice Law, 1967; accordingly at the material for the purposes of this recourse time the composition of the respondent Commission was not defective (reasoning in Hadjianastassiou v. Republic, reported in this Part at p. 1173 post adopted mutatis mutandis). Order accordingly. 20 Cases referred to: Hadjianastassiou v. Republic, reported in this Part at p. 1173 post. • Article 124.6 is quoted at pp. 1162-1163 post. ** Section 4
(5)is quoted at p. 1163 post. 1161 Miliatos v. Republic
(1982)Recourse. Recourse against thedecision of therespondent to promote the interested party tothepost ofMigration Officer in preference and instead of the applicant. A. S. Angelides with G. Michaelides, for the applicant. 5 CI. Antoniades, Senior Counsel of the Republic, for the respondent. C. Loizou, for the interested paity. Cur. adv. vidt. TRIANTAFYLLIDES P. read thefollowing judgment. Bymeans 10 of this recourse the applicant challenges the validity of the decision of the respondent Public Service Commission, reached on 24th January 1980, to promote, instead of the applicant, N. Zavros (to be"referred to hereinafter as the "interested party") to the post of Migration Officer in the Ministry of 15 Interior. As it appears from the relevant scheme of service the said post is a first entry and promotion post. On 16th March 1979 a vacancy in such post was advertised in the Official Gazette of the Republic and among those who 20 applied for appointment were the applicant and the interested party. It hasbeen directed byconsent ofall theparties tothepresent proceedings that the issue of the validity of the compos;tion of the respondent Commission shall bedeierjuined asa preliminary 25 issue; therefore, at this stage of these proceedings, I shall deal only with such issue. In support of the assertion that at the material time the composition of the respondent Public Service Commission was defective counsel for the applicant submitted that theprovisions 30 of section 4
(5)(c) of the Public Service Law, 1967(Law 33/67), are repugnant to the provisions of Article 124.6 of the Constitution and that their unconstitutionality cannot be saved by the "law of necessity" on the strength of which Law 33/67 was enacted. 35 Article 124.6 of the Constitution, by its relevant part, provides as follows: "6.
(1)1162 3 C.L.R. Millatos v. Republic Triantafyllides P.
(2)No person shall beappointed as, or be,a member of the Commission who is, or within the preceding twelve monthsinthecaseoftheChairmanorsixmonthsinthecase of any other member, has been 5 10 (
- a)a Minister; (
- b)a member of the House of Representatives or of any Communal Chamber; (
- c)apublicofficer oramemberofanyofthearmed forces; (
- d)an officer or employee of any local authority or of a body corporate or authority established by law for public purposes; (
- d)amember of a trade union or of a body or association affiliated to a trade union." Section 4
(5)(c) of Law 33/67 provides as follows: 15 "
(5)No person shall be appointed as, or be, a member of the Commission, unless (
- a)(
- b)(
- c)he is not a Minister or a member of the House of Representatives or of a public service or of a trade union or ofanyassociation affiliated toatrade union." 20 Counsel for the applicant has contended that the omission from section 4
(5)(c) of Law 33/67 of the periods of "twelve months" and "six months", respectively, which are provided for in Article 124.6of the Constitution, renders the said section 4
(5)(c) unconstitutional to that extent and, therefore, the ap25 pointments as Chairman of the Public Service Commission of Mr. Titos Phanos and as a member of the Commission of Mr. Antonios Anastassiou were invalidly made on 20th June 1979 (and published in the Official Gazette on 29th June 1979) with effect as from 1st July 1979,in that they were made in a 30 manner incompatible with the aforementioned two periods. It is not disputed that the contract oi service of Mr. Phanos in the Foreign Service of the Republic as Head of a Diplomatic Mission expired on 31stDecember 1978,that islessthan twelve months before his appointment as Chairman of the respondent 1163 - Triantafyllides P. Miliatos v. Republic
(1982)Commission, and that Mr.Anastassiou wasservingas DirectorGeneral of the Ministry of Interior up to 30thJune 1979,that is upto thedatt prior tothe takingofeffect ofhisappointmenl as a member of the respondent Commission. I am of the opinion that the appointments of Mr. Phanos 5 and of Mr. Anastassiou, as Chairman and member respectively of the Public Service Commission, were validly made under section 4
(5)of Law 33/67 and my reasons for reaching such conclusion are, mutatis mutandis, the same as those which 1 have given today in thecaseofHadjianastassiou v. The Republic 10 (caseNo.256/80)*in relation to thevalidityof the.appointment of Mi. Anastassiou as a member of the Commission. Consequently I canno; find that at the material for the purposes of this recourse time the composition'of the respondent Public Service Commission was defective. 15 Order accordingly. • Now reported in
(1982)3 C.L.R. 1173. 1164