clr/1983/1983_3_115.pdf

(1)of the Public Service Law, 1967 (Law 33/67) lays down that the powers of public servants shall be laid down 25 in a scheme of service approved by the Council of Ministers regulating their duties, rights and responsibilities; and the scheme of service approved by the Council of Ministers respecting the powers of the Director of Dental Services, expressly charges the Diiector with responsibility for the organisation 30 of his department, its administration and smooth functioning of the dental services, as well as supervision of subordinate staff. Held,

(1)that by the combined effect of s.29(l) of Law 33/67 and the scheme of service relating to the post of Director of Dental Services approved by the Council of Ministers, the Director of Dental Services was, to the exclusion of any other authority, empowered to organise his department in a manner best conducive to its efficient administration; that the allocation of duties among Senior Dental Officers was a matter directly 116 35 3 C.L.R. Costea v. Republic related to the organisation and smooth functioning of the Department of Dental Services and, as such, fell exclusively within the jurisdiction of the Director. 5 10 15 20 25 30 Held, further, that though theruleisthatthepowersvestedby law upon a body of government, cannot be delegated in the absence of express authority, in this case the powers exercised bythe Director of Dental Servicesvested inthe Director and no question of delegation arose.

(2)That an act is executory if it objectively affects the position ofan officer intheservice; that an actdoesnotbecome executory merely because the officer concerned feels subjectivelyaggrieved; that it isthe objectiveinsignia ofthe act that matter; that judicial control is available to safeguard the status of public officers in the interests of legality; that it is administration subject to law, not administration by the Courts; that matters of internal administration are the exclusive province of the administration; thatjudicial review in that area is regarded as an unjustified interference with matters of pure administration, the province of the executive, not thejudiciary; that the assignment of duties to the applicant,inthiscase,wasa matter of internal administration and, as such, not amenable to review. The recourse does not disclosea litigablecauseand must bedismissed as ill-founded. Held, further, with regardtothe thirdprayer, that omissions of the administration are of an executory character, only if they emanate from failure of the administration to act in the face of a mandatory legalprovisionrequiringthe administration to take action; that onlyif the act isordained bylaw,cantheinaction of the administration rank as an executory act amenable to review; that in the absence of such a provision, failure to act is but an expression of the discretionary powers of the administration and isconsequently notjusticiable in isolation from the discretionary powers otherwise vested in the administration. Application dismissed. 35 Cases referred to: Evlogimenos v. Republic

(1973)3 C.L.R. 184 at p. 190; Yiallourou v. Republic

(1976)3 C.L.R. 214; Karapataki v. Republic

(1982)3 C.L.R. 88. 117 Costea v. Republic

(1983)Recourse. Recourse against the allocation of duties by the respondents to the applicant and the interested party on their promotion to the post of Senior Dental Officer. A.S. Angelides with G. TriantafyHides, for the applicant. 5 N. Charalambous, Senior Counsel of the Republic, for respondent. Cur. adv. vult. PIKIS J. read the following judgment. The applicant, a highly qualified dentist, first joined the Government Medical 10 Service in 1967. In the course of her service, she ascended a number of rungs in the hierarchical ladder. Her last promotion came on 1st April, 1982, when appointed Senior Dental Officer, a post immediately below the Director in the Department of Dentistry of Government Medical Services. She was 15 promoted along with sixfellow dental medical officers, including Panikos Yannikos, the interested party. Soon after their promotion, the Director of Dental Services assigned new duties to them ostensibly compatible with their new duties under the scheme of service regulating duties and 20 responsibilities of Senior Dental Officers. The allocation of duties was explained by the Director in a meeting he held with Senior Dental Officers, the details of which were minuted and are embodied in a document attached to the opposition under "A". The applicant was assigned special duties in mouth 2^ and gnathic surgery. She felt aggrieved at the allocation, feeling she was unequally treated vis-a-vis the interested party who was assigned administrative duties for the Nicosia district. In her opinion, administrative duties carried, it seems, enhanced status in the service and opened wider avenues for promotion. 3 She felt she had superior claims to the interested party to be entrusted with administrative duties. She challenged the assignments made by the present recourse. By her first prayer, she asked the Court to declare invalid and set aside that part of the decision that concerns her and the interested party, 35 on the ground that she was unequally treated in breach of her right to equality safeguarded by Article 28 of the Constitution. Before resorting to Court, she addressed a letter to the Minister of Health for the reversal of the decision of the 118 3 C.L.R. Costea v. Republic Pikis J. Director, albeit without success. The Minister personally or through the Director of the Ministry, turned down her application, signifying thereby approval of the decision taken. The rejection of her claim by the Minister or the Direc_tor5 General of the Ministry of Health, is the subject-matter of the second prayer of this recourse whereby the applicant prays for the annulment of the confirmatory action of the head of theMinistry,ascontrarytotheschemeofservice. Thedecision of the Minister, like that-of the Director of the Department 10 of Dental Services, ought to be'annulled on the ground they were void. Lastly, by prayer 3, she seeks a declaration that the omission of the Minister or the Director of the Ministry to erase the assignmentsmade,is illegal and invalid and,consequently, ought not to be allowed to continue. 15 The application is opposed on legal and factual grounds It is the case for the respondents that none of the complaints of the applicant are justiciable in proceedings.,under Article 146 of the Constitution, for the reason that7"neither the acts, subject-matter of prayers 1 and 2, nor the alleged omission, 20 subject-matter of prayer 3, are executory. The executive character of an act or omission is a prerequisite for judicial reviewunderArticle 146oftheConstitution. More specifically, the acts challenged in this recourse are not executory, in the contention of the respondents, for the following reasons: 25 Thedecision ofthe Director, subject-matter ofprayer 1,isan internum of the administration and, as such, not amenable to review. It had no repercussions on the status of the applicant in the service. The Director was the only organ of administration competent to assign duties to his subordinates in the 30 Department ofDentalServices. TheMinisterhadnodiscretion in the matter nor was he vested with power to review thedecisions of the Director. Therefore, the reply of the Minister was devoid of legal consequences. The last prayer does uui reveal a cause amenable to review 35 in the absenceof a legal obhgation on thepart of the Minister or the Director of the Ministry to decide or approve the allocation of duties in the dental services. A& meobjections of the respondents goto thejurisdiction of the Court to take cognizance of the proceedings, they were set 119 Pikis J. Costea v. Republic

(1983)down, with the consent of the parties, for preliminary adjudication. It would beprofitless to embark on examination ofthe meritsintheabsenceofjurisdiction totrythecase. Mr. Charalambous argued that the power to allocate dutiesamongSenior Dental Officers vested exclusively in the Director of Dental 5 Services in accordance with the provisions of s.29(l) of the Public Service Law - 33/67-and the scheme of service defining thepowers and responsibilities ofthe Director. (See exhibit1). As the Minister had no power in the matter, his assent to the course taken by the Director, amounted to nothing other than 10 an expression of support for the actionsofadepartmental head. Mr.Angelides,on theother hand, submitted that theDirector of Dental Services made the assignments in question in abuse of his powers for, power to effect them vested either in the Council of Ministers, as therepositories of executive and admi- 15 nistrative powers or in the Minister of Health, by virtue of the provisions of Article 58oftheConstitution, defining thepowers of a Minister or as appropriate authority for the Ministry, in accordance with s.2 of Law 33/67. Logically, the first question we must answer is, who had 20 power to assign duties to Senior Dental Officers. It isa settled principle of administrative law that the product of the exercise of administrative powers by an unauthorised person or organ, constitutes a voidable act liable to be annulled in proceedings for the review of administrative actions as well as consequences 25 flowing thereof. (See, Conclusionsfrom Jurisprudence ofGreek Council ofState 1929-59,p.106). Under our system of government, executiveandadministrativepowersvestintheCouncilof Ministers, unless validly entrusted by law to a subordinate organ or authority of public administration. 30 Was thepower to assign duties to Dental Officers entrusted to any such organ of government? Section 29

(1)of the Public Service Law lays down that the powers of public servants shall be laid down in a scheme of •$$ service approved by the Council of Ministers regulating their duties, rights and responsibilities. Therefore, so far as powers vested in a public officer by a scheme of service are concerned, they are exercisable by virtue of a legislative authority, by an 120 3 C.L.R. Costea v. Republic Pikis J. authority other than the Council of Ministers. There is no conflict between the provisions of s.29(

1. l)and those vested by the Constitution, either upon the Council of Ministers or those ** conferred upon a Minister under Article 58. 5 The scheme of service approved by the Council of Ministers (exhibit 1), respecting the powers of the Director of Dental Services, expressly charges the .Director with responsibility for the organisation of his department, its administration and smooth functioning of the dental services, as well as supervision 10 of subordinate staff. By the combined effect of s.29(
2. l)of Law 33/67 and the aforementioned scheme of service approved by the Council of Ministers, the Director of Dental Serviceswas, . to the exclusion of any other authority, empowered to organise his department in a manner best conducive to its efficient admi15 nistration. The allocation of duties among Senior Dental Officers was a matter directly related to the organisation and smooth functioning of the Department of Dental Services and, as such, fell exclusively within the jurisdiction of the Director. Extensive reference was made, in the course of argument, to 20 theprinciples ofpublic law,forbidding, intheabsenceofexpress, legislative authority, the delegation of duties entrusted to a body or authority of public administration. The rule is that the powers vested,by law upon a body of government, cannot be delegated in the absence of express authority. The rule pro25 hibits, equally, delegation to a subordinate as well as a superior. Any such delegation is regarded in law as an impermissible encroachment upon the powers of legislature who are the sole arbiters of who shall exercise the powers conferred by law. (See, Conclusionsfrom Jurisprudenceof Greek Councilof State 30 1929-5J?, p.106). Delegation can only be strictly effected in accordance with and in furtherance to specific powers vested by law. (See, Evripides Evlogimenos v. The Republic

(1973)3 C.L.R. 184 at 190). A law authorising delegation of powers under certain circumstances is,asitmay benoted, the Delegation 35 of the Exercise of Powers, Deriving from a Law, Law23/62. In this case, the powers exercised by the Director of Dental Services, as above indicated, vested in the Director. No question of delegation arises. This being the case, we must next decide whether the assign40 ment of duties complained of and matters consequential thereto, 121 Pikis J. Costea v. Republic

(1983)are amenable to the jurisdiction of this Court, under Article 146 of the Constitution. The jurisdiction of the Supreme Court under Article 146 is confined to administrative acts of an executory character. The character of the act derives from its repercussions in law 5 and fact. It has been said timeand again that ifthe act affects the status of a public officer in the service, speaking of acts bearing on the position of civil servants, it is executory. The status of an officer may be affected by legal as well as factual changes in his position in the service. It is easy to identify 10 legal changes and determine their effect on the status of an officer. Factual changes must be empirically examined in each case in order to get to the core of the matter. If they affect his status, they are executory but not otherwise. The subject was discussed in detail by Triantafyllides, P., in 15 Chrystalla Yiallourouv. The Republic

(1976)3 C.L.R. 214. Recently, opportunity arose to debate the same subject in Karapataki v. The Republic

(1982)3 C.L.R. 88. The implications of a decision must be objectively examined. An act is executory if it objectively affects the position of an officer 20 intheservice. Anactdoesnotbecomeexecutorymerelybecause the officer concerned feels subjectively aggrieved. It is the objective insignia of the act that matter. In Yiallourou,supra, the Supreme Court adhered to the position, well established in other jurisdictions where admini- 25 strative law is practised as a separate branch of the law that, matters of internal administration, otherwise internums of the administration, are not subject to review. Therefore, the transfer of the applicant from one department of the Public Information Office to another, was held not justiciable as it 30 left thestatusoftheapplicant unaffected. Shewasnot required to do anything other than what was envisaged in the scheme regulating her duties in the Public Information Office. The case also serves to illustrate that where responsibility vests in the director of a department for internal organisation, the 35 director is solely responsible for the allocation of duties to his subordinates, subject alwaysto theassignment being compatible withthedutiesoftheofficer, asdefined intheschemeofservice. To the same effect, is the decision in Karapataki, supra (see, 122 3 C.L.R. Costea v. Republic . Pikis J. also, Conclusions from Jurisprudence of the Greek Council of ' State 1929-59, p.238). The principle emerging, is that judicial control is available to safeguard the status of public officers in the interests of legality. 5 It is administration subject to law, not administration by the Courts. Matters of internal administration are the exclusive province of the administration. - Judicial review in that area is regarded as an unjustified interference with matters of pure administration, the province of the executive, not the judiciary. 10 The assignment of duties to the applicant, in this case, was a matter of internal administration and, as such, not amenable to review. The recourse does not, in my judgment, disclose a litigable cause and must be dismissed as ill-founded. I need not discuss subsidiary issues in detail, such as those 15 relating toprayer 3; although it seemstomethat the contention of the applicant in that regard would, again, be doomed to failure. Omissions of the administration are of an executory character, only ifthey emanate from failure ofthe administration to act in the face of a mandatory legal provision requiring the 20 administration to take action. Only if the act is ordained by law, can the inaction of the administration rank as an executory act amenable to review. In the absence of such a provision, failure to act is but an expression of the discretionary powers of the administration and is consequently not justiciable in 25 isolation from the discretionary powers otherwise vested in the administration. (See, Conclusionsfrom Jurisprudence of the Greek Council of State 1929-59, p.243). Foj all the foregoing reasons, the application must be dismissed. There shall be no order as to costs. 30 Applicationdismissed. No orderas to costs. 123