(5)of Law 33/67 was modelled on Article 124.6

(2)(c), ofthe Constitution, with the omission, however, from section 4

(5)of the "twelve months" and "six months" periods which are to be found in the aforesaid constitutional provision; that such, omission was a step which was deemed necessary by the Legislature appaiently in order not to exclude from participation in the new Public Service Commission, at times very critical for our country, persons who were otherwise belt qualified to serve on it; that the omission in question falls within the scope of the justification by the "law of necessity" and does not undermine in a manner incompatible with suchjustification, the essential, in view of its mission, independence of an organ such as the Public Service Commission, inasmuch asthe said two periods appear to be merely desirable, and not indispensable, elements for the purpose of securing the independence of the Commission; accordingly section 4

(5)of Law 33/67 was validly enacted. 5 10 15 20 25 Order accordingly. Cases referred to: 30 Bagdassarian v. The Electricity Authority of Cyprus

(1968)3 C.L.R. 736 at pp. 743-744; Koupepides v. The Republic

(1980)3 C.L.R. 258 at p. 263; Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195; hannides v. The Police

(1973)2 C.L.R. 125; Mcssaritou v. The Cyprus Broadcasting Corporation

(1972)3 C.L.R. 100. 1174 35 3 C.L.R. 5 Hadjianastassiou v. Republic Recourse. Recourse against the decision of the respondent to promote the interested party to the post of Director-General, Ministry of Finance in preference and instead of the applicant. G. Cacoyiannis, for the applicant. CI. Antoniades, Senior Counsel of the Republic, I·» the respondent. A. TriantafyHides, for the interested party. Cur. adv. villi. 10 TRIANTAFYLLIDES P. read the following judgment. Bymeans of this recourse the applicant challenges the validity of the decision of the respondent Public Service Commission, dated May 7, 1980,to promote, instead of him, Charalambos HadjiPanayiotou, an interested party in the present proceedings, to 15 the post of Director-General of the Ministry of Finance. The vacancy in the said post was advertised on January 5, 1980, and in respect of it there were submitted six applications, including those of the applicant and of the interested party. At its meetings of March 26, 1980, and April 2, 1980,the 20 respondent Commission interviewed five of the candidates, as the sixth one, Fr. Drakos, did not present himself for an interview. On April 15, 1980,the Commission, after having considered all the relevant material which was befoie it rea !:ed thecon25 elusion that the applicant and the interested party were on the whole superior to :he other candidates and that both of them were suitable for promotion to the post of Director-Genera:·»\ the Ministry of Finance; and then it postponed its final selection to a later meeting. 30 Its sub judice decision was reached by majority on May 7, 1980 It wasdirected byconsent of a'l the parties to these proceedings that at its present stage the hearing of this case should be confined to the ground of law which relates to the validity of 35- the composition of the respondent Commission. It has been submitted, in this respect, on behalf of the applicant, that the composition of the Commission was, at all maieiial times, 1175 Triantafyllides P. Hadjiaaastassiou v. Republic

(1982)defective and contrary to the Constitution, as, allegedly, the appointment of one of its members, Mr. Antonios Anastassiou, was made contrary to the provisions of Article 124.6 of the Constitution in that at the time of his appointment Mr. Anastassiou was siill a public officer, and, in any event, his appoint- 5 ment did not take effect after the expiration of a period of six months from the date when he had ceased to be a public officer. The relevant provisions of Article 124,6 of the Constitution aie as follows:"

(1)„_

(2)No person shall be appointed as, or be, a member of 10 the Commission who is, or within the preceding twelve months in the case of the Chairman or six months in the case of any other member, has been • (

1. a)^ (
2. c)a public officer or a member of any of the armed forces; (
3. d)15 - (
4. e)" On June 20, 1979 (sec No. 1198 in the Official Gazette of the Republic of June 29, 1979) the President of the Republic appointed Mr. Titos Phanos as Chairman and Messrs. Antonios Anastassiou, Yiannakis ·Louca, Loizos Christodoulou and Theodosios Christou as members of the Public Service Commis- 20 sion, with effect as from July 1, 1979. Mr. Anastassiou had been the Director-General of the Ministry of Interior until his retirement from the said post which took effect on July 1, 1979 (see No. 1267 in the Official Gazette of the Republic of July 6, 1979). He would normally have 25 retired from the said post in December 1974, but his services were extended, in the pub'ic interest, on divers occasions, by the Council of Ministers, prior to July 1, 1979, when he finally retired. The aforementioned appointments of the Chairman and of the 30 members of the respondent Commission were effected under 1176 3 C.L.R. Hadjianastassiou v. Republic Triantafyllides P. * section 4 of the Pubhc Service Law, 1967 (Law 33/67), the relevant parts of which provide as follows: 5 *'4.-(
5. l)There shall be a Public Service Commission con­ sisting of a Chairman and four other members appointed by the President of the Republic.

(5)No person shall be appointed as, or be, a membei of the Commission, unless (

1. a)„ . . _ (
2. b)_ 10 „ .. (
3. c)he is not a Minister or a member of the House of Representatives or of the public service or of a trade union or of an association affiliated to a tradeunion." Prior to the enactment of Law 33/67 there was in force, as Λ stopgap measure, the Public Service Commission (Temporaly Provisions) Law, 1965 (Law 72/65), which was repealed by Law 33/67. 15 20 25 30 As regards the effect of Law 33/67 reference may be made to the following passage from the judgment in Bagdassanan ν The Electricity Authority of Cyprus,

(1968)3 C.L.R. 736, 743744: "Moreover, in section 5of Law 33/67, which lays down the powers of the 'Commission' appointed under such Law, no reference at all is made to Article 125 of the Consti­ tution; and though he provisions of such section 5 are in many respects similar to the corresponding provisions in Article 125, nevertheless there arises the following most material, for the purposes of the present case, difference: By reading section 5 of Law 33/67 together with the re­ levant definitions in section 2 of the Law, and by comparing the position thus resulting with that which results when Article 125 is read together with the relevant definitions m Article 122, one is led inevitably to the conclusion that the 'Public Service Commission' set up, as from the 1st July, 1967, under Law 33/67, possessescompetenceover members of the 'public service', which is defined in such Law in a manner not including the personnel of the Authority, 1177 Triantafyllides P. Hadjianastassiou v. Republic

(1982)whereas under Article 125 the Public Service Commission is entrusted with competence over the personnel of the Authority, in view of the definition of 'public service' in Article 122. It follows, therefore, that when the sub judice appointment was made, after the promulgation of Law 33/67, there was not in existence a Public Service Commission empowered under Article 125 to make such an appoint­ ment, but only a 'Public Service Commission' set up under Law 33/67 and not so empowered." 5 10 The Bagdassariancase, supra, as well as other relevant caseJaw in this respect were referred to in the case of Koupepidesv. The Republic,

(1980)3 C.L.R. 258, where there were stated the following (at ρ 263): "Before pioceeding any further, I think that it is proper, 15 at this stage, to mention that the provisions of Article 125.1 of the Constitution, regarding the competence of the Public Service Commission created by Article 124 of the Constitution, are irrelevant for the purposes of deciding on the preliminary issue which I am now examining, because 20 the Public Service Commission created by Law 33/67 is not the same oigan as that which was set up pursuant to Article 124 of the Constitution(see, in this respect, Bagdassarian v. The Electricity Authority of Cyprus,

(1968)3 C.L.R. 736, Nicolaou v. The Republic,

(1969)3 C.L.R. 42, 54, losif v. 25 The Cyprus TelecommunicationsAuthority,

(1970)3 C.L.R. 225, 229, Georghiadesv. The Republic,

(1970)3 C.L.R. 257, 263, Poutros v. The Cyprus Telecommunications Authority,

(1970)3 C.L.R. 281, 286 and Theodorides v. Ploussiou,

(1976)3 C.L.R. 319, 338, 352)." 30 The Theodorides case, which is referred to above, is a case which was decided on appeal by the Full Bench of our Supreme Court. I still adhere to the view that the Public Service Commission, wltich was created by Law 33/67, is not the Commission which 35 was set up pursuant to Article 124 of the Constitutionand which ceased to function due to the abnormal situation which has been prevailing, in many ways, from 1963 onwards. Due to such 1178 3 C.L.R. Hadjianastassfou v. Republic Triantafyludes P. situation it has been, and it is still, impossible for the said Commission,

(1973)2 C.L.R. 125,and the Theodorides case, supra). It may be noted, at this stage, that Law 33/67 adopts a different approach from that of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64): Whereas by 15 means of Law 33/64 there were vested expressly in the new Supreme Court, created by it, the jurisdictions of the Supreme Constitutional Court and of the High Court of Justice, which are not now functioning as envisaged by the Constitution due to the prevailing abnormal situation, in Law 33/67 there is not 20 to be found any provision refeiring expressly to the no longer functioning Pubhc Service Commission,

(1972)3 C.L.R. 100, it was held that the Public Corporations 30 (Regulation of Personnel Matters) Law, 1970 (Law 61/70), by means of which there was filled the vacuum which was created due to the exclusion of matters lelating to the peisonnel of public corporations, such as the Cyprus Broadcasting Corporation,from thecompetence of the new Public Service Commission 35 created by Law 33/67, was validly enacted on the strength of the "law of necessity". In setting up, by means of Law 33/67, a new Public Service Commission the Legislature proceeded to make such provisions as were deemed necessary to meet the unforeseen and abnormal 1179 Triantafyllides P. Hadjianastassiou v. Republic (1982 situa'ion that had arisen; and in doing so the Legislature appears to have chosen, in so far as such a course was practicable, to follow the guidelines contained in the relevant Articles of the Constitution. Thus, it is obvious that section 4

(5)of Law 33/67 wasmodelled on Article 124.6

(2)(c) of the 5 Constitution, with the omission, however, from section 4

(5)of the "twelve months" and "six months" periods which are *" to be found in the aforesaid constitutional provision. In my opinion the omission from section 4

(5)of Law 33/67 oftheaforementioned twoperiodswasastepwhichwasdeemed 10 necessary by the Legislature apparently in order not to exclude from participation in the new Pubhc Service Commission, at times very critical for our country, persons who were otherwise best qualified to serve on it. It was one of the new features required for thepuiposes ofLaw 33/67,and suchwere,also,the 15 limitation of the number of the members of the new Public Service Commission to five and the, already mentioned earlier, restriction oftheextent ol thecompetence ofsuch Commission; and these features were obviously introduced as a result of policy decisions which were reasonably within the scope of the 20 justification by the "law of necessity" of the enactment of Law 33/67,just in the samemanner ascertainnewfeatures regarding the administration of justice, such as those in section 11 of Law 33/64,werewithin thescope ofthejustification bythe"law of necessity" of the enactment of Law 33/64. 25 In particular, the non-inclusion in the provisions of section 4

(5)of Law 33/67 of the disqualifying period? of "twelve months" and "six months" which are to be found :n Article 124.6 of the Constitution does not, in my opinion, fall outside the scope of theaforesaid justification by the "law ofnecessity" 30 and does not undermine, in a manner incompatible with such justification, the essential, in view of its mission, independence of an organ such as the Public Service Commission, inasmuch as the said two periods appear to be merely desirable, and not indispensable, elements for the purpose of securing the in- 35 dependence of the Commission. In the light of all the foregoing Ihave reached the conclusion that section 4

(5)of Law 33/67 was validly enacted and, con1180 \ 3 C.L.R. Hadjianastassiou v. Republic Triantafyllides P. sequently, the appointment of Mr. Anastassiou under it, as member of the Public Service Commission, was lawfully made. Nor could it be held that such appointment isdefective since it was made on June 20, 1979, before the retirement of Mr. 5 Anastassiou from thepubhcserviceonJuly 1, 1979,becausethe saidappointment,eventhoughmadeearlier,itwasto,anditdid, take effect from July 1, 1979, and, therefore, when Mr. Anastassiou became a member of the Public Service Commission he was not a member of the public service. 10 Consequently, the composition of the respondent Public Service Commission wasnot defective and, thus, I do not have to examine whether or not the sub judice promotion of the interested party could beannulled on this ground. Order as above. 1181