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Obsah (4)Article 146Article 54Article 124Article 125

3 C.L.R. 1984 November 19 [L. Loizou, HADJIANASTASSIOU, MALACHTOS, SAVVIDES, JJ.] PHIVOS ZACHARIADES, Appellant, v. THE REPUBLIC OF CYPRUS, THROUGH 1. THE PUBLIC SERVICE COMMISSION, 2. THE MINISTER OF

the misconception of fact that the appropriate Authority was the Minister of Interior. Legitimate interest—Article 146.2 of the Constitution—Selection of appellant by respondentPublic Service Commissionfor appointment to post of Director-General Ministry of Interior—Public Service Commission not proceeding to the formalities necessary for the implementation of the' appointment—As a result of an unlawful interferenceby the Minister of Interior—Act of Minister, whichprevented appellantfrom being appointed to the post, adversely and directly affected an existing legitimate interest of the appellant, in the sense of the above Article—Moreover 1193 Zachariades v. Republic (19841 both the decision of the Commission not to proceed with the appointment and tlte act of the Minister can be made thesubjectmatter of a recourse

Article 146of the Constitution.

Act or decisionin the senseof Article 146.1 of the Constitution—Which can be made the subject-matter of arecourse thereundpr—Selection 5 of appellant by respondent Commission for appointment to a post in the Public Service—Commission not implementing its decision and revoking it as a result of an imlawf.itinterference by the Minister of Interior—Both the act of revocation and the act of the Minister can be made the subject-mattιr of a recourse. 10 Administrative Law—Misconception of fact—Annulment of admi. nistrathe decision because it was taken

a misconception of fact. Practice—Recoursefor annulment—Revisional appeal—Subject matter of, continues to be the administrative decision challengedby the 15 recourse. Executive Powers—Residue of—Vested in the Council of Ministers— Article 54 of the Constitution. On the 26th October 1978 and upon a submission of the Mini­ ster of Interior, the Council of Ministers, decided to authorise 20 the Minister of Interior to proceed, in concert with the Public Service Commissionto take the soonest possible all the necessary steps for the filling of the post of Director-Generalof the Mini­ stry of Interior ("the said post"). This decision was communi­ cated to the Commission by the secretary of the Council of 25 Ministers; and, also, in pursuance thereof the Ministry of Inter­ ior requested the Commission to proceed with the filling of < the said post. Before advertising the vacancy, however, the respondent Commission was requested by the Minister of Inter­ ior to postpone the publication of the post until a final decision 30 was taken with regard to theamendmentof the relevant schemes of service; and the Commission complying with this request took no further action. On the 12th March the Commission was asked again by the Ministry of interior to proceed with the filling of the post and following the completion of the inter- 35 views of the candidates, the Commission decided to "adjourn its final decision for another meeting and until the President of the Republic has been consulted*'. Before taking its final decision on the matter the term of office of the Commission 1194 3 C.L.R. Zachariades v. Republic expiredandnewmemberswereapposed. Thenewlyappointed members of the Commission decided to consider thefillingof the said post afresh and to invite all persons interviewed by the previous Commission for a new interview. Following the interviews the respondent Commission, after deliberations and discussions on each candidate found on 30.1.80 that the appellant was in every respect superior to all other candidates and decided to promote him to the "said post*'. 5 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 lequest for thefillingof the said post "due to the fact that plans for the restructuibig of the Ministry are

consideration". In view of this letter, the Commission met on the 2nd February, 1980 and decided* to revoke its decision, which had not in the meantime been communicated to the appellant. On the 25th February, 1980, all candidaies interviewed for the "said post" were informed by the respondent Commission that the post was not to be filled asa result of a request bythe appropriate authority which was studying schemes for the re-organizalion of the Ministry. 10 15 20 The trial Judge dismissed appellant's recourse, which was directed against the decision of the Commission not to proceed with the filling of the said post and against the instructions given by the Minister of Interior to the Commission not to proceed with the filling of the post, having held on a preliminary objection raised by the respondents, that the Commission revoked its decision before it was perfected and therefore appellant had not acquired a legitimate interest and was not entitled to judicial redress. Hence this appeal. 25 30 Held,

(1)that when a revisional appeal is taken, the subject matter of such appeal continues, in substance, to be an administrative decision which is challenged by the recourse and whether or not the applicant is entitled to the relief claimed; and tliat therefore, irrespective of the fact that this recourse was dismissed on the preliminary objection raised, this Court is entitled to examine all the issues before it and which the trial Court did not consider necessary to examme in view of its finding that the recourse was not maintainable due to the -absence of legitimate interest. 35 • The relevant decision is quoted at pp. 1208-1210 post. 1195 Zacbariades v. Republic
(1984)
(2)That the residue of the executive powers on all matters other than those for which express provision is made

the Constitution, are vested in the Council of Ministers (see Article 54 of theConstitution);thatoncetheMinister of Interior chose to submit the matterto the Council of Ministers and this 5 hierarchically superior organ in the exercise of its powers

Article 54

of the Constitution decided for thefillingof the post and communicated i's decision to the respondent Commission authorising it to proceed with thefillingof thepost,theMinister had no longer any competence on his own to act as he did (see 10 b.29 of the InterpretationLaw, Cap. 1 as tothepower loamend, rescind, \ar> or revoke ihe exercise of any power vested in an authority

the Law and the Constitution); that the only appropriate Authority, in the circumstances of the present case, to rescind its decision for thefillingof the post and with- 15 draw the lequest for suchfillingfrom the Commission was the Authority which took the decision for the filling of the post and such Authority was the Council of Ministers and not the Minister of the Interior and once the Council of Ministers has been seized of the matter, the Minister could not, on his own, 20 countermand the course set out by the Council of Ministers; and that, therefore, this Court is in agreement with the trial Judge that theappropriateauthority inthis casewas theCouncil of Ministers and not the Minister of the Interior;that in view ofthisconclusiontheactsotaken bythe Ministerof theInterior, 25 to interfere in the way he did, for the purpose of preventing the implementation of the decision of the first respondent was an act contrary to law (including fhe Constitution)and was in excess and abuse of poweis.

(3)On the questionswhether on existing legitimateinterest 30 of the appellant has beenadversely anddirectlyaffected, in the senseof Article 146.2 and whether the matters complained of Oreproper subjects of recourse

Article 146: ι That the unlawful interference by the

Minister of the Interior which prevented the appellant from being appointed to a post 35 foi which he had been selected by the competent organ, the Public Service Commission, and as a result of whichtheCom­ mission did not, inthecircumstances, pioceed to the formalities necessary for the implementationof his appointmentas aheady decided by it is an act which has adversely and diiectly affected, 40 in the sense of Article 146.2, an existing legitimate interest 1196 3 C.L.R. 5 10 15 20 25 30 35 Zachariades v. Republic of the appellant; that, furthermore, the unauthorised act of the Minister of the Interior an incompetent organ in the present case, for the the purpose of frustrating the implementation of the decision taken by the Commission in the exercise of its exclusive competence is by its nature so closely linked with such competence and individual administrative decision taken by the Commission

it, that it is itself subject to recourse .

Article 146

, in the same way as the relevant decision of the Commission would have been subject to such recourse; and, that, therefore the finding of the trial Court that the appellant had not acquired a legitimate interest and is not entitled to a redress is wrong and is hereby set aside (Georghiouv. The Electricity Authority of Cyprus and Another

(1965)3 C.L.R. 177 followed).
(4)On th? question whether the decision of the respondent Commission taken on th? 2nd February 1980 whereby it revoked its previous decision of the 30/A January 1980 by which it had decided topromote the appellant to the post ofDirector-General of the Ministry of Interior as from the \5th February, 1980, was a proper one in the circumstances of the present case: Bearing in mind the facts of the case and in particular the record of the minutes of the meeting of the first respondent of the 2nd February, 1980 there is no room for doubt that the first respondent in taking such decision acted

a misconception of fact that the appropriate authority was the Minister of the Interior; that both in the record of the said meeting and in the letter sent by the first respondent in answer to a letter of counsel for the appellant it isadmitted by the first respondent that it had \o annul its previous decision on the ground that (

  1. a)the appropriate authority withdrew the request for the filling of the post and (
  2. b)that the appropriate authority, at the request of which it acted, was the Minister of the Interior; that having found that the Minister of the Interior was not, in the circumstances, the appropriate authority and that his interference with theimplementation by the firstrespondentofitsdecisionwasunlawful the decision of the first respondent of the 2nd February, 1980 annulling its previous decision for the appointment of the applicant, is also tainted with illegality and it has, therefore, to be annulled. 40 Appeal allowed. 1197 Zacfaanades v. Republic

(1984)Cases referred to: Kazamiasν Republic
(1982)3 C.L.R. 239 at p. 301; President of the Republic v. LoucaandAnother
(1984)3 C.L.R. 241; Pikis v. Republic
(1968)3 C.L.R. 303; 5 Christou and Others v. Republic
(1982)3 C.L.R. 634 at p. 639; Papapetrou v. Republic, 2 R.S.C.C. 61 at pp. 65, 66; Contopoulos v. Republic, 1964 C.L.R. 347 at pp. 351, 352; Panayides v. Republic
(1972)3 C.L.R. 467 at p. 480; Geodelekian v. Republic
(1970)3 C.L.R. 64 at p. 68; 10 Papapetrou v. Republic, 2 R.S.C.C. 115 at p. 118; Gtorghiou v. ELctricityAuthority of Cyprus andAnother
(1965)3 C.L.R. 177. Appeal. Appeal against thejudgment of a Judge of the Supreme Court 15 of Cyprus (Dometriades,J.) given on the 9th April, 1981 (Revisional Jurisdiction Case No. 58/80)* whereby his recourse against the decision of therespondents not to giveformal effect to the decision to appoint applicant to the post of DirectorGeneral of the Ministry of Interior was dismissed. 20 G. Cacoyiannis, for the appellant. N. Charalambous,Senior Counsel of the Republic, for the respondents. Cur. adv. vutt. L. Loizou J.: The judgment of the Court will be delivered by Mr. Justice Savvides. SAWIDES J.: This is an appeal against the dismissal by a Judge of this Court, sitting in the first instance, of a recourse by the appellant challenging the decision of therespondents and * Reported in
(1981)3 C.L.R.
  1. ai{98 25 3 C.L.R. Zachariades v. Republic Savvides J in particular the decision of the first respondent not to give formaleffect toitsdecisiontoappointhimtothepostofDirector -General of the Ministry of Interior. Bythesaidrecourseappellantwasseekingthefollowingrelief: 5 10 15 20 25 30 35
  2. DeclarationoftheCourtthattheomissionofRespondent No. 1to proceed with thefillingof the vacant post of Director-General of the Ministry of Interior after it selected the applicant for appointment to the post was nullandvoid,assuchomission wascontrarytotheprovisionscf the Constitution and/or the Law and/or because it was made in excess or abuse of powers; and/or
  3. DeclarationoftheCourtthattheomissionof Respondent No. 1to appoint theApplicanttothepostof DirectorGeneral of the Ministry of Interior, having selected him for such appointment, wasnull and void being contrary to the provisions of the Constitution and/or the Law and/or becauseitwasmadeinexcessor abuseofpowers; and/or
  4. Declaration oftheCourtthat thedecision of Respondent No. 1not to proceed with the filling of the post of Director-General of the Ministry of Interior on the excuse of instruction received on 31.1.1980, from Respondent No. 2, not to proceed with thefillingof that post, because apparently there existed,

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 4. Declaration of the Court that theactor decision of Respondent No. 1to accept and/or follow instructions and interventions from incompetent persons or authorities, and/or not the "proper authority" as specified in the Law,whichledtothenonfillingofthepostof DirectorGeneral oftheMinistryof Interior byit,isnull and void and of no legal effect whatsoever, being contrary to theprovisionsoftheConstitution and/or theLawand/or becauseitwasmadeinexcessorabuseofpowers;and/or 1199 Savvides J. Zachariades τ. Republic

(1984)
  1. Declaration of the Courtthatthedecision of Respondent No. 1not to appoint "for the time being" the Applicant to the vacant post of Director-General of the Ministry of Interior, communicated to the Applicant by its letter dated the 25th February, 1980, is null and void and of 5 no legal effect whatsoever, being contrary to the provi­ sions of the Constitution and/or the Law and/or in that it was taken in excess or abuse of powers; and/or
  2. Declaration of the Court that the intervention of Res­ pondent 2 to the duties and competences of Respondent 10 No. 1, and/or the "instruction" given by him to Res­ pondent No. 1 not to proceed "for the time being" to thefillingof thepost of Director-Generalof the Ministry of Interior, because apparently there existed,

consideration, plans for the re-organization of the Mini- 15 stry of Interior, was a decision 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 outside the powers and competences of Res­ pondent No. 2 and/or because it was made in excess 20 or abuse of powers and therefore such intervention and/or instruction ought to have been ignored by Res­ pondent No. 1; and/or

  1. Declaration of the Court that the instruction given by Respondent No. 2 to Respondent No. 1not to proceed 25 with the filling of the post of Director-General of the Ministry of Interior (communicated to Respondent No. 1 by his letterdated 31.1.1980), was a decisionand/or an act null and void and of no legal effect whatsoever, being contrary to the provisions of the Constitution 30 and/or the Law and/or in that it was made in excess or abuse of powers; and/or
  2. Declaration of the Court that any act, decision or omis­ sion of Respondent No. 3, which in any way confirms and/or adopts and/or tolerates the "instruction" and/or 35 intervention of Respondent No. 2 to Respondent No. 1 as described in sub-paragraphs

(1)to
(7)above, was null and void and of no legal effect whatsoever, being contrary to the provisions of the Constitution and/or 1200 3 C.L.R. Zachariades v. Republic Sawides J. the Law and/or in that it was made in excess or abuse of powers. The facts of the case as emanating from the judgment of the learned trial Judge and thematerial before us, are as follows: 5 The appellant had been serving in the Public Service since January,
  1. He is the holder of the degree of B.Sc. (Econo­ mics) of the University of London, which he obtained in 1957 whilst serving in the Civil Service. He is, also, a Fellow of the Royal Statistical Society. At the material time he was holding 10 the post of a District Officer and he was posted at Paphos. From what has transpired in thecourse of the hearing the appel­ lant retired from the Public Service some time in or about September,
  2. t On the 20th October, 1978, the Minister of Interior made a 15 submission to the Council of Ministers for the extension, in the public interest, of the services of Mr. Anastassiou, the holder of the post of Director-General of the Ministry of Interior till 24.3.1979 and for its approval of thefillingof the post. As it appears from the contents of such submission (which is 20 attached as Annex 1 of the record) the matter of the filling of the post of the Director-General came up before the Council of Ministers once again in September, 1977, and by Decision No. 16225 of the 27th September, 1977 it decided to extend the services of Mr. Anastassiou, in the public interest till 31st 25 December,
  3. The submission of the Minister of Interior copy of which is appended to the opposition as Annex 1, was considered by the Council of Ministers on the 26th October, 1978, which, by its decision No. 17354 of the same date decided— 30 35 (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 (b) to authorise the Minister of Interior to proceed, in concert (Εν συνενυοήσει) with the first respondent, to take the soonest possible all necessary steps for the filling of the post of Director-General of the Ministry of Interior. 1201 Sav\ides J. Zachariades v. Republic
(1984)The said decision was communicated by the Secretary of the Council of Ministers to the Chairman of the Public Service Commission by letter dated 4.11.1978 which reads as follows: "Chairman Public Service Commission, 5 The above decision, together with submission No. 855/78is forwarded to you for joint action with the Director -General of the Ministry of Interior to whom copy of the said decision has been forwarded with reference to sub-paragraph (b) of same. 10 K. Kleanthous Secretaiy, Council of Ministers". ( On the 8th November, 1978, a letter signed on behalf of the Director-General of the Ministry of Interior was sent to the 15 Chairman of the Public Service Commission, the contents of which read as follows: " Ένετάλην δπως αναφερθώείς τήν Άπόφασιν τοΰ Υπουρ­ γικού Συμβουλίου ύπ' άρ. 17.354 τής 26ης 'Οκτωβρίου, 1978, ήτις έκοινοποιήθηε!ς ύμας,επί τοΰ θέματοςτής πληρώ- 20 σεως της Θέσεως τοΰ Γενικοΰ Διευθυντοϋ τοΰ Υπουργείου 'Εσωτερικών, καΐ νά πληροφορήσω ύμας ώς άκολούθως:
  1. Ό κ. Ά. 'Αναστασίου, Γενικός Διευθυντής τοΰ 'Υπουρ­ γείου Εσωτερικών, θά εξακολούθηση νά έκτελή τα καθή­ κοντα της θέσεως του μέχρι της 31ης Δεκεμβρίου,
  2. 25 'Από της 1ης Ιανουαρίου, 1979, ούτος θά διατελή έπ' αδεία μέχρι της 24ης Μαρτίου, 1979, δτε άφυπηρετεϊ.
  3. Λαμβανομένων ύπ' όψιν των πολλαπλών ευθυνών της θέσεως τοΰ Γενικοΰ Διευθυντού τοΰ Υπουργείου 'Εσωτερικών καθώς καΐ διά τήν όμαλήν καΐ άπρόσκοπον λειτουργίαν των 30 υπηρεσιών τοΰΥπουργείου τούτου,τό ήμέτερον Ύπουργεΐον θεωρεί άναγκαΐον δπως ή θέσις τοΰ Γενικού Διευθυντού πληρωθη άπό της 1ης Ιανουαρίου, 1979, ημερομηνίας καθ' ήν αρχίζει ή περίοδος αδείας τοΰ κ. 'Αναστασίου.
  4. Παρακαλείσθε δθεν δπως προβήτε είς τάς σχετικός διευθετήσεις διά τήν έγκαιρον δημοσίευση» της Θέσεως ούτως ώστε νά καταστη δυνατή ή πλήρωσίς της άπότής 1.1.
  5. 1202 35 3 C.L.R. Zachariades v. Republic Sawides J.
  6. Ή πλήρωσις θέσεως κατά τ ν διάρκειαντης περιόδου απουσίας τοΰ κατόχουαΰτηςέπ*αδεία πρό της άφυπηρετήσεώςτουπροβλέπεται ύπότοΰάρθρου21 τοΰπερί 'Ερμηνείας Νόμου, Κεφ.
  7. 5 (Υπ.) Χρ. Μαμμίδης διά Γενικόν Διευθυντήν Υπουργείου Εσωτερικών". 10 ("I am directed to refer to the decision of the Council of Ministers No. 17.354 of the 26th October, 1978, which was 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:- 15
  8. Mr.A. Anastassiou, Director-General of the Ministry of Interior will continue to perform the duties of his post until the 31st December,
  9. As from 1st January, 1979, he will be on leave until the 24th March, 1979 when he will retire. 20 25 20
  10. Taking into consideration the multiple responsibi­ lities of the post of Director-General as well as the smooth and unhindered functioning of theservices of this Ministry, our Ministry considers it is necessary that the post of Director-General be filled as from 1st January, 1979 on which date the period of leave of Mr. Anastassiou begins.
  11. You are therefore requested to proceed with the necessary arrangements for the publication of the post in time so that the filling of the post will be possible as from 1.1.
  13. The filling of a post during the period of absence of its holder on leave prior to retirement is provided for by section 21 of the Interpretation Law, Cap.
  14. (Sgd) Chr. Mammides for Director-General. Ministry of Interior"). At its meetingof the 1lth November, 1978,thefirstrespondent 25 considered thefillingof thevacancy inthepostof Director-Gene­ ral of the Ministry of Interior—hereinafter to be mentioned as the "said post"—and decided that as the "said post" was a 1203 Savvides J. Zachariades τ. Republic
(1984)first entry and promotion post, to advertise the vacancy and to allow two weeks for the submission of applications (this decision of the first respondent is appended to the opposition as Annex 3), but on the 19th December, 1978, the Minister of Interior h:mself wrote to the Chairman of the first respondent 5 a letter (thisis annex 4tothe opposition) by which he informed himthatcertaindifficulties connectedwith thescheme ofservice of the "said post" had arisen; thatthe Councilof Ministers was studying the possibility of amending them, and that as the decision on this matter could take some time herequested him 10 to postpone the publication of the post until a final decision was taken. Complying with this request of the Minister, the first respondent took no further action on the matter. On the 12th March, 1979, another letter, signed on behalf of the Director-Generalof the Ministry of Interior (see Annex 15 5 to the opposition), was sent to the Chairman of thefirst respondentinforming him thatthere was going to be nochange in the scheme of service of the post of the Director-General of the Ministry of Interior and requesting him to proceed forthwith with its publication, if possible, in the issue of the 20 Gazette of the following Friday, the 16th March, 1979. In compliance with this request, thepost was advertised inGazette No. 1508 of the 16th March, 1979.— As a result of the publication of the "said post", a numberof persons, oneof whom was theapplicant,submitted applications 25 and on the 12th April, 1979, the first respondent decided to invite 19 of them, including the applicant, for interview (see Annex 6 to the opposition). As it appears from Annex 7 to the opposition, which are the minutes of Chemeeting of the first respondent held onthe 8th May, 1979, all 19 persons were 30 interviewed on that day. The sequence of events after such interviews were completed, as recorded in the minutes of the meeting, was as follows: "The Commission considered the merit qualifications and experience of the candidates interviewed as well as their 35 performance during the interview (personality, alertness of mind, general intelligence and the correctness of an­ swers to questions put to them, etc.). The Personal Files and theAnnual Confidential Reports of all the candidates were also taken into consideration. 40 1204 3 C.L.R. Zachariades v. Republic Savrides J. The Commission then discussed the abilities and suitability of all the candidates for appointment or promotion to the post of Director-General, Ministry of Interior. 5 10 TheChairmaninformed theMembersofthe Commission that the President of the Republic expressed the wish to be consulted before a final decision was taken regarding thefillingof the vacancy in the above post, Having regard to the Chairman's statement referred to above,the Commissiondecided toadjourn itsfinaldecision for another meetingand untilthe President ofthe Republic has been consulted". Pausing here for a moment, we do not wish to overlook the contents of the last two paragraphs of the above decision andthe lamentable waythat thethen Chairman and member of 15 thefirstrespondent Commission acted inpostponing the taking of adecision on thematter for thereasons stated therein. The information conveyed by the Chairman of the first respondent to the other members of the Commission that the President of the Republic expressed the wish to be consulted before a 20 final decision was taken as to the person to be appointed and thedecisionthatfollowed toadjourn itsfinaldecisionforanother meeting "and until the President of the Republic has been consulted", is most unacceptable, unfortunate and

mining the impartiality and independence from political influence of 25 the Public Service Commission as contemplated by the Constitution. The said statement of the then Chairman of the first respondent and the action that followed tends to show that the executive had a keen interest in the selection of the persontobeappointedwhohadtobeapprovedbytheexecutive. 30 By the above action the Public Service Commission, a body whichhad to beindependent and impartial and bound to exercise its own unhindered discretion in the selection of the best candidate, relinguished its task to the executive and submitted its own authority and independent discretion to the wish and 35 approvaloftheExecutive. Astotheimportanceofthe function of the Public Service Commission and its independence from Governmental or any other influence,,we wish to adopt what wassaid by this Court in Kazamias v. Republic

(1982)3 C.L.R. 239 where at p. 301, it is stated:1205 Savvides J. Zacbariades v. Republic
(1984)"The object of the introduction in our Constitution of Article 125.1, as already explained, was to entrust the safeguarding of the efficiency and proper functioning of the public service of the Republic, expressly including the exercise of disciplinary control over public officers, 5 to the Public Service Commission, an independent and impartial organ • outside the governmental machinery, and, at the same time, safeguarding the protection of the legitimate interests of public officers". This was reiterated and followed in .a number of cases (see, inter alia, the recent decision of the Full Bench in President of the Republic v. Louca and Another (Rev. Jur. Appeals 323, 324,325,326,
(1984)3 C.L.R. 241. As a result of the said decision the process of selection and appointment of the Director-General was postponed. However, before respondent 1 took any final decision on the matter, its term of office expired and a new chairman and new members were appointed. 10 15 At its meeting of the 12th November, 1979 (see Annex 8 to the opposition),the newly appointed Chairman and members 20 of the Public Service Commission decided, and very rightly so, that it had to consider the filling of the "said post" afresh and that it had to invite all persons interviewed by the previous Public Service Commission,- for a new interview. The candi­ dates were interviewed on the llth, 22nd and 23rd January, 25 1980 and on the 30th January, 1980, the first respondent, as it appears from theminutes of its meeting (Annex 13to theopposi­ tion), after deliberations and discussions on each candidate, found that the applicant was in every respect superior to all other candidates and decided to promotehimto the "said post". 30 The relevant extract from the minutes of the meeting of the first respondent of the 30th January, 1980, reads as follows: " Έν κατακλείδι, ή 'Επιτροπή Δημοσία? Υπηρεσίας άφοΰ έξήτασε καΐ συνέκρινε τήν άξίαν, τά προσόντα, τήν πεϊραν κα! τήν σταδιοδρομίαντων υποψηφίων καθώς καΐ τήν άρ- 35 χαιότητα των υποψηφίων δημοσίων υπαλλήλων, βάσει τών αίτήσεων (μετάτων δικαιολογητικών), των Προσωπικών Φακέλλων καΐ τών 'Εμπιστευτικών Εκθέσεων περϊ τών υπο­ ψηφίων δημοσίων υπαλλήλων, καΐ άφοΰ έλαβε ωσαύτως 1206 3 C.L.R. 5 10 15 20 25 Zachariades v. Republic Sawides J. Οπ' όψιν τήν άπόδοσιν όλων τών υποψηφίων κατά τάς χωριστάς συνεντεύξεις των μετά της Επιτροπής, έκρινε ότι ό κ. Φοίβος ΖΑΧΑΡΙΑΔΗΣ υπερτερεί έν τ ώ συνόλω τών υπολοίπων υποψηφίων, εύρε τούτον ώς τόυπλέον κατάλληλον και απεφάσισε νά προαγάγη αυτόν είς τήν θέσιν τ ο υ Γενικοΰ Διευθυντού τοΰ 'Υπουργείου 'Εσωτερικών άπό της 15.2.1980". ("In concluding, the Public Service Commission, after having examined and compared themerit,the qualifications, the experience and the career of the candidates as well as the seniority of the candidates who are public officers, on the basis of the applications (w'th th« justifications), the personal files and the confidential reports on the candi­ dates who are public officers, and after taking also into consideration the performance of all candidates during their separate interviews with the Commission, found that Mr. Phivos Zachariades is superior as a whole of the rest of thecandidates,andfound himasthemost suitable and decided to promotehimtothe post of Director-General of the Ministry of Interior as from 15.2.1980"). On the 31st January, 1980, the day following that on which ihe decision of respondent (I) was taken regarding the selection of the applicant as the most suitable candidate for appointment to the post of Director-General, the following letter was sent by respondent
(2)to the Chairman of respondent
(1):"Dear Mr. Chahman, I refer to the previous correspondence by which the filling of the post of Director-General of the Ministry of Interior was requested. 30 35 Due to the fact that plans for the restructuring of the Ministry are

consideration, the above request is withdrawn and you are requested not to proceed with the fillingof the post for the time being. I shall communicate with you when the time is considered ripe in the light of new circumstances. (Sgd) Chr. Veniamin Minister of Interior". 1207 Sawides J. Zacbariades v. Republic (19*4) Such letter was sent early in the morning of the 31st January, 1980, obviously by hand, as later on the same morning respon­ dent

(1)asked the opinion of the Attorney-General of the Re­ public on the matter which was given by the later in a memo­ randum sent to respondent
(1)on the same morning. (Such opinion is attached as Annex 16, to the opposition). 5 in view of the said letter of the second respondent and the opinion of the Attorney-General, the first respondent met on the 2nd February 1980 and decided to revoke its previous decision which had not, as yet been communicated to the appel- 10 lant. Such decision reads as follows: " 1 . Έπανεξέτασις τοΰ θέματος της πληρώσεως της κενής θέσεως τοΰ Γεν. Διευθυντού τού Ύπ. Εσωτερικών. 'Αναφορά εϊς τό θέμα 1 τών πρακτικών της συνεδριάσεως της 'Επιτροπήςήμερ. 11,11.1978είςτό θέμα3 τών πρακτικών 15 της συνεδριάσεως της Έπ. ήμερ. 12.4.1979 είς τό θέμα 1 τών πρακτικών της συνεδριάσεως της *Επ. ήμερ. 8.5.1979 τών πρακτικών της συνεδριάσεως της Έπ. ήμερ. 12.11.1979 εΐς τό θέμα 1 τών πρακτικών της συνεδριάσεως της Έ π . ήμερ. 31.12.1979 είς τά θέμα 2 τών πρακτικών της συνέδρια- 20 σεως της 'Επιτροπής ήμερ. 11.1.1980 είς τό θέμα .1 τών πρακτικών της συνεδριάσεως της Έπ. ήμερ. 22.1.1980 είς το θέμα 1 τών πρακτικών της συνεδριάσεως της Έπ. ήμερ. 23.1.1980 καΐ είς τό θέμα 1 τών πρακτικώντης συνεδριάσεως της Έπ. ήμερ. 31.1.
  1. 25 Ή Επιτροπή κατά τήν συνεδρίασιν της 30.1.1980 άπεφάσισεν δπως προαγάγη τόν κ. Φοΐβον Ζαχαριάδην είς τήν θέσιν Γενικοΰ Διευθυντού τού Υπουργείου Εσωτερικών άπό της 15.2.
  2. Προτού κοινοποιηθη ή έν λόγω άπόφασιςείς τόν κ. Ζαχα- 30 ριάδην ό Ύπ. Εσωτερικών, ώς αρμοδία αρχή, δι' επιστολής του προς τόν Πρόεδρον τη? Έ π . ήμερ. 31.1.1980 απέσυρε τήν πρότασιν διά τήν πλήρωσιν της θέσεως τοΰ Γενικοΰ Διευθυντού τού Ύπ. 'Εσωτερικών καΐ παρεκάλεσεν δπωξ έπί τού παρόντος μή πληρωθη ή θέσις, επειδή ευρίσκονται ύπό 35 μελέτην σχέδια διά νέαν διάρθρωση» τοΰ Ύπ. του. Ό Γενικός ΕΙσαγγελέας της Δημοκρατίας απαντών είς τεθέν είς αυτόν ερώτημα ύπό τού Προέδρου της Έ π . ποία 1208 3 C.L.R. 5 10 15 20 25 Zachariades v. Republic Sanides J. ή νομική θέσις είς περίπτωσιν καθ' ήν αποφασίζεται ύπό της Επιτροπής ό διορισμός ή ή προαγωγή ώρισμένου προσώπου είς κενήν θέσιν προτού όμως κοινοποιηθή είς αυτό ή τοιαύτη άπόφασις αποσύρεται ύπό της αρμοδίας αρχής ή πρότασις διά τήν πλήρωσιν τής κενής θέσεως συνεβούλευσε διά σημειώματος του ύπ* άρ. 34 /61/4 και ήμερ. 31.1.1980 ότι ή Επιτροπή ανακαλεί ή/καΐ ματαιώνει τήν ληφθεϊσαν άπόφασιν της. Είς τό έν λόγω σημείωμα του ό Γεν. Εϊσαγγελέαςαναφέρει ότι "ή Έπ. Δ.Υ. σύμφωνα με τό άρθρο 37 τού περί Δημο­ σίας Υπηρεσίας Νόμου δεν έχει εξουσία νά προβεί στην πλήρωση της κενής αυτής θέσης εφόσον ή αρμοδίααρχή τώρα ζητεί νά μή πληρωθεί ή θέση" καΐ περαιτέρω ότι 1 έφόσο δεν κοινοποιήθηκε ό διορισμός στον ενδιαφερόμενο σύμφωνα με τήν διάταξη τού άρθρου 37 αυτός δέν μπορεί νά παραγάγει οποιοδήποτε νομικό αποτέλεσμα' και 'ή Επιτροπή Δημοσίας Υπηρεσίας κατά συνέπεια δέν μπορεί νά στηριχθεί στην απόφαση μέ τά διορισμό ώρισμένου προ­ σώπου για πλήρωση τής κενής θέσης πού δένανακοινώθηκε σ' αυτό σύμφωνα μέ τά άρθρο 37 τού περί Δημοσίας Ύπ. Νόμου'. Έν όψει τής επιστολής τοΰ Υπουργού Εσωτερικών καΐ στηριζομένη έπΐ τής γνωματεύσεως τοΰ Γενικοΰ Είσαγγελέως τής Δημοκρατίας ή Έπ. άπεφάσισεν όπως άνακαλέση τήν άπόφασίν της τής 30.1.1980 ή οποία τοιουτοτρόπως καΐ ματαιοΰται". ("
  3. Re-examination of the subject of the filling of the post of Director-General of the Ministry of Interior. 30 35 40 Reference to item 1 of the minutes of the meeting of the Commission dated 11.11.1978, to item 3 of the minutes of the meeting of the Commission dated 12.4.1979, to item 1 of the minutes of the meeting of the Commission dated 8.5.1979, the minutes of the meeting of the Commis­ sion dated 12.11.1979, to item 1 of the minutes of the meeting of the Commission dated 31.12.1979, to item 2 of the minutes of the meeting of the Commission dated 11.1.1980, to item 1 of the minutes of the Commission dated 22.1.1980, to item 1 of the minutes of the meeting of the Commission dated 23.1.1980 and to item 1 of the minutes of the Commission dated 30.1.
  4. 1209 Savvidcs J. Zachariades v. Republic
(1984)The Commission at the meeting of 30.1.80 decided to promote Mr. Phivos Zachariades to the post of DirectorGeneral of the Ministry of Interior as from 15.2.1980. Before the said decision had been communicated to Mr.ZachariadestheMinisterofInterior, astheappropriate 5 authority, byhis letter to the Chairman ofthe Commission dated 31.1.1980 has withdrawn his proposal for the rilling ofthe post of Director-General of the Ministry of Interior and requested that, for the time being,the post should not be filled because plans for the new restructuring of his 10 Ministry are

consideration. The Attorney-General in answering a question put to him by the Chairman of the Commission as to which is the legal position in the case in which the appointment or the promotion of a certain person to a vacant post is 15 decided by iJieCommission but before the communication tohim ofsuch decision the submission for the filling of the vacant post is withdrawn bytheappropriate authority hasadvised byhisnoteNo.34/61/4dated31.1.1980thatthe Commission revokes and/or frustrates the decision taken. 20 In his said note the Attorney-General states that 'The Public Service Commission in accordance with section 37ofthe Public ServiceLawhasno power to proceed with thefillingof this vacant post since the appropriate authoritynowasksthat thepost shouldnot be filled' and further 25 that 'since the appointment has not been communicated to the interested party in accordance with the proviso to section 37 it cannot produce any legal result' and the Public Service Commission therefore cannot rely on the decision for the appointment of a certain person for filling 30 the vacant post which has not been communicated to him in accordance with section 37 of the Public Service Law. InviewoftheletteroftheMinister ofInteriorandbasing itself on the legal advice of the Attorney-General of the Republic the commission decided to revoke its decision 35 of 30.1.1980 which is thus also frustrated"). On the 25th February, 1980, all candidates interviewed for the "said post" were, by letter (Annex 17 to the opposition), 1210 3 C.L.R. Zachariades v. Republic Sawides J. informed by the first respondent that the post was not to be filled as a result of a request by theappropriate authority which was studying schemes for the re-organization of the Ministry. 5 On the 6th March, 1980, counsel for the applicant wrote the following letter to the Chairman of the first respondent: "Κύριοι, 10 15 Ό πελάτης μας κ. Φοίβος Β. Ζαχαριάδης ("Επαρχος Πάφου) ό όποιος έχει υποβάλει αίτηση γιά τή θέση τοΰ Γενικοΰ Διευθυντή στο Υπουργείο 'Εσωτερικών, μας έδωσε εντολή ν' απαντήσουμε στην επιστολή σας ημερομηνίας 25 Φεβρουαρίου, 1980. Γιά νά μπορέσουμε νά συμβουλεύσουμε τον πελάτη μας γιά τά διαβήματα πού δικαιούται νά λάβει, θά σας παρα­ καλέσουμε νά μας δώσετε τΙς ακόλουθες επεξηγηματικές πληροφορίες:

(1)Πότε καΐ πώς ή Αρμοδία Α ρ χ ή ' σας έχει πληροφορήσει ότι μελέτα σχέδιο γ ι ά νέα διάρθρωση τοΰ Υπουργείου 'Εσωτερικών. 20
(2)Ποία είναι στην προκειμένη περίπτωση ή 'Αρμοδία 'Αρχή*.
(3)Κατά πόσο τά σχέδια πού μελετούνται προβλέπουν κατάργηση της θέσης τοΰ Γενικοΰ Διευθυντή τοΰ Υπουργείου Εσωτερικών. 25 30 35
(4)Κατά πόσο έχετε έγκυρη καΐ θετική πληροφορία δτι τό Υπουργικό Συμβούλιο σάν τό αρμόδιο σώμα πράγματι μελετά αναδιάρθρωση τού Υπουργείου 'Εσωτερικών. Ό π ω ς θ' αντιλαμβάνεσθε, οί πληροφορίες πού ζητούμε Θά μας βοηθήσουν νά συμβουλεύσουμε τόν πελάτη μαςκατά πόσο Θάπρέπει νά καταχωρηθεί προσφυγή στό 'Ανώτατο Δικαστήριο σύμφωνα μέ τό "Αρθρο 146 τοΰ Συντάγματος γιά τήν παράλειψη της 'Επιτροπής σας νά προβεί στό σχετικό διορισμό έφόσο μάλιστα, όπως έχει περιέλθει σε γνώση μας, μετά τΙς συνεντεύξεις της μέ τους διαφόρους υποψηφίους ή 'Επιτροπή σας πήρε τήναπόφαση νά διορίσει τόν πελάτη μας στην πιό πάνω θέση. 1211 Sawtdes J. Zachariades v. Republic
(1984)Βέβαια, δέν χρειάζεται νά σας υπενθυμίσουμε τΙςπρόνοιες τοΰ άρθρου 29 τοΰ Συντάγματος σχετικά μέ τά χρονικά δρια μέσα στά όποϊα θά πρέπει νά μαςαπαντήσετε. Διατελούμε μετά τιμής Π.Λ. ΚΑΛΟΓΙΑΝΝΗΣ & ΣΙΑ". ("Sirs, Our client Mr. Phivos Zachariades (District Officer Paphos) who has applied for the post o£Director-General of the Ministry of Interior, has directed us to reply to your letter dated 25th February, 1980. 5 10 In order to be able to advise our client as to the steps he is entitled to take, you are requested to give us the following explanatory information:
(1)When and how has the 'appropriate authority' informed you that it is considering a scheme for 15 the new restructuring of the Ministry of Interior.
(2)Which is inthe present case the 'appropriate author- . ity\
(3)Whether the schemes

consideration provide for the abolition of the post of Director-General 20 of the Ministry of Interior.

(4)Whether you have valid and positive information that the Council of Ministers as the appropriate body is in fact considering the restructuring of the Ministry of Interior. 25 As you

stand the information we are asking will help us advise ourclientas towhetherhemustfilea recourse in the Supreme Court in accordance with Article 146 of the Constitution for the omission of your Commission to proceed with the said appointment, especially in view, 30 as has come to out knowledge, after its interviews with the various candidates your Commission has decided to appoint our client to the above post. Of course, it is not necessary to remind you of the provi­ sions of Article 29 of the Constitution with regard to the time limits within which you have to give us a reply. 35 Your sincerely P. L. Cacoyiannis & Co."). 1212 3 C.L.R. Zachariades v. Republic · Sawides J- The reply of the first respondent to counsel's letter, which gave rise to these proceedings, is the following:- 5 10 "Εχω οδηγίες νά αναφερθώ στην επιστολή σας μέ αριθμό Γ. 14/80, σχετικά μέ τήν .κενή θέση Γενικού Διευθυντή τού Υπουργείου 'Εσωτερικών, και νά σας δώσω τις ακόλουθες πληροφορίες: (α) Στις 31.1.1980 ή αρμοδία αρχή μέ επιστολή της ζήτησε άπό τήν Επιτροπή Δημοσίας Υπηρεσίας νά μήν προ­ χωρήσει έπί τοΰ παρόντος στην πλήρωση τής θέσεως. vioni βρίσκονται οπό μελέτη σχέδια γιά νέαδιάρθρωση τοΰ Υπουργείου. (β) 'Αρμοδία αρχή είναι ό Υπουργός Εσωτερικών. 15 (γ) ΣτΙς ερωτήσεις στίς παραγράφους

(3)και
(4)τής επι­ στολής σας ή Επιστολή Δημοσίας Υπηρεσίας είναι αναρμόδια νά απαντήσει. Μέ εκτίμηση". ("I am directed to refer to your letter Γ.14/80 regarding the vacant post of Director-General of the Ministry of Interior and to give you the following information: 20 (a) On 31.1.1980 the appropriate authority by a letter asked from the Public Service Commission not to proceed, for the time being, with the filling of the post, because plans for the new restructuring of the Ministry are

consideration. 25 (

  1. b)Appropriate authority is the Minister of Interior. (
  2. c)To questions

(3)and
(4)of your letter the Public Service Commission is incompetent to reply. With respect"). The learned trial Judge after reviewing the principles emana30 ting from the Greek Administrative Law and the decisions of this Court, proceeded to examine whether, in the light of such authorities, the appellant as a result of the decision of the first respondent to promote him to the post of Director-General of the Ministry of Interior had acquired a legitimate interest 35 entitling him to judicial redress and came to the following 1213 Savvides J. Zachariades v. Republic
(1984)conclusion: (see Zachariadesv. The Republic
(1981)3 C.L.R. 124, at pp. 140, 141). "The question as to when a promotion or appointment is effected, i.e. when the lawful existence of an administrativeact commences,isdealt with inthecaseof Panayides 5 v. The Republic,
(1972)3 C.L.R. 467.1 It is clear from the above quoted authority and sections 37
(1)and
(2)and 44
(5)that unlessa promotion is perfected or completed by offer and acceptance, the first respondents can freely revoke the 'intended but never completed admi- 10 nistrative 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 Geodelekian v. The Republic
(1970)3 C.L.R. 64 at p.
  1. In the present case, the first respondents revoked Their 15 decision before it was perfected and I, therefore, find * that the applicant has not acquired a legitimate interest and is not entitled to judicial redress". As a result of such conclusion the present appeal wasfiled and the following grounds have been set out in support of 20 same:
  2. Once the learned trial Judge found that the decision to fill the post of Director-General of the Ministry of Interior was taken by respondent No. 3and the request to respondent No.1 toproceed withthefillingof such post camefrom therespondent 25 No. 3, and that respondent No. 2 "was only authorised to see that this decision was to beput into effect thesoonestpossible", the Court was wrong in concluding that "the first respondents revoked their decision before it was perfected" and that the apphcant-appellant "has not acquired a legitimate interest 30 and he is not entitled to judicial redress".
  3. The learned trial Judge was wrong in failing to proceed (notwithstanding his finding on the basis of which he dismissed the recourse) to determine the following questions:
(1)Whether viewing the clear decision of respondent 35 No. 3tofillthe post of Director-General of the Ministry of Interior which wasdulycommunicated to respondent 1214 3 C.L.R. 5 Zachariades v. Republic Savvides J. No. 1, respondent No. 1 did not have a duty to proceed the soonest possible" with the filling of such post and whether or not its failure to do so did not amount to an omission capable of being challenged by a recourse by a person (like the appellant) who had a present legitimate interest especially by reason of the fact that he had been selected for such appointment by respondent No. 1. 10
(2)Whether ornotrespondent No. 2was the"appropriate authority" wiihin the meaning given to this term in the Public Service Law, 1967, wiih power ίο revoke thedecision already taken by the Council of Ministers, a hierarchically higher administrative organ. 15
(3)If the respondent No. 2 was not the appropriate authority in the said sense and with such power, whether respondent No. 1 ought not to have ignored his letter dated 31.1.1980 and proceed to communicate to the appel­ lant his appointment as provided by Law 33/67. 20
(4)Whether respondent No. 2 in addressing to the res­ pondent No. 1 the letter dated 31.1.1980 wa^ not acting in abuse and/or in excess of powers. 25
(5)Whether or not respondent's No. 1 failure to com­ municate to the appellant his appointment to the post of Director-General of the Ministry of Interior was not in the circumstances an omission which the appellant could have challenged by recourse.
(6)Whether the act of respondent No. 2 in writing the letter dated 31.1.1980 addressed to respondent No. I was not an act capable of being challenged by recourse by the appellant. 30 35 40 The determination of the above issues was a necessary prere•quisite to the determination of the recourse as a whole, inclu­ ding the issue as to whether or not the appellan'. had a present legitimate interestinthesense of Article 146.2of theConstitution. 3. This was a case in which, even if the recourse were lost on the technical point on which it was decided by the learned trial Judge, the costs should have been awarded in favour of appellant let alone the appellant being ordered to pay the res­ pondents' costs (if claimed) as he in fact was inthis case (Contopoulos v. The Republic, 1964 C.L.R. 347—the case relied upon by the Court). 1215 Savvides J. Pachariades v. Republic
(1984)In arguing this appeal learned counsel for the appellant submitted that in the light of the authorities of this Court and the practice held and adopted, this:appeal being an administrative appealisnotonlyanappealagainstthejudgmentintheordinary sense but it is a rehearing of the administrative recourse. The 5 subject-matter still being the administrative decision or omission that ischallenged bythe recourse, the hearing, before this Court, of an appeal, is as a matter of fact i' rehearing of the whole recourse. Counsel went on arguing his case on two legs: First,that itwasdirected againstthefailure ofthePublic 10 Service Commission to take the remaining steps that were necessary to perfect theappellant's promotion and appointment and this wasbythe alternative remediesof declarations against the omission not to complete the appointment and/or the decision to frustrate the appointment; and the second leg of the 15 recourse was aimed at the letter of the Minister of Interior, dated 31st January, 1980, which is the"administrative act that interrupted thenormal course of eventsthat would have ended . up in the perfection of the appointment of the applicant. Counsel argued his case on the following five submissions: 20
(1)In support of the first leg of his argument he drew the distinction that the proceduretomakeappointments in Cyprus is different from that contemplated in the Greek Administrative Law, as in Cyprus the decision to make appointments vests in two bodies. The creation of a 25 post and the decision tofillsame lies with the administration, which istheappropriate authority, whereasthe actual filling of the post is with the Public Service Commission.
(2)The appropriate authority in the present case in taking the decision to fill the post was the Council of 30 Ministers and not the Minister of Interior.
(3)The Public Service Commission had no power to interrupt and discontinue or frustrate thefillingof a post onthedirectionsoftheMinisteroftheInteriorwhowasnot tho appropriate authority in the present case once the 35 appropriateauthority whichtook-thedecisionand directed thePublicServiceCommissionwastheCouncilofMinisters.
(4)Thedecisionnottofillthepostwasa decisiontaken in circumstance» that' rendered it subject to annulment

the principles of- administrative law and also,such 40 1216 3 C.L.R. Zachariades v. Republic Savvides J. decision could be challenged by a recourse because it is an act or decision in abuse or excess of powers. 5 10 15

(5)The decision of the Minister of Interior to postpone thefillingof the post isso closely connected with the actual filling of the post and the selection of the appellant as a candidate as to taint the decision of the Public Service Commission with illegality, once it accepted to act on it and renders the decision of the Public Service Commission to frustrate the appointment of the appellant null and void and of no effect whatsoever. He made extensive reference to the provisions in our legislation and to the decisions of this Court and in particular to the decision in Tatianos Georghiou v. Electricity Authority of Cyprus
(1965)3 C.L.R. 177 the facts of which, couniel submitted, are similar to the ones in the present case. Counselcompleted hisargument bysubmittingthat the appropriate authority in the present case to take the decision for the filling of the post and communicate such decision to the Public Service Commission for immediate action was the Council 20 of Ministers and that the intervention of the Minister, after hecametoknowthatthe PublicServiceCommissionhad selected the appellant for appointment, was illegal and/or in abuse of power. The Minister, counsel submitted, acted ultra vires his powers to stop the completion of an act decided by the 25 Council of Ministers and such intervention on his part was unauthorised and illegal and should have been ignored. Counsel for the respondents, on the other hand, argued that thefillingof a post isa matter within the discretion of the administration, i.e. the appropriate authority and the Public Service 30 Commission. He went on to support his contention that the appropriate authority

the law in this case was the Minister of interior, Counsel further contended that the decision of the Public Service Commission for promotion of the appellant did not acquire its formal validity and, therefore, 35 it has not produced any legal effect. Therefore, the decision of the Minister to withdraw the proposal for the filling of the post and the decision of the Public Service Commission not to fill the post in consequence thereof, have not violated any direct interest of theapplicant, as correctly found bythe learned 40 trial Judge. Hefinallysubmitted that the decision of the Mini1217 Satvids J . Zachariades v. Republic

(1984)ihr- to withdraw the proposal could not be challenged by itself .ι*, it was part of a composite administrative actand after the liml decision of the Public Service Commission not to fill the 1<· X tue decision of the Minister lost its executory nature. Λs to thefunction of this Court when dealing with a revisional 5 ίpi'eal it has been held time and again that when a revisional ipj'sal is taken, the subject matter of such..appeal continues, it : lbstance,tobe anadministrativedecision which is challenged l y the recourse and whether or not the applicant is entitled 13 'lie relief claimed. (See, Pikis v. The Republic
(1968)3 10 CI .R. p. 303). In the recent case of Christou and others v. Ί? Republic
(1982)3 C.L.R. 634 at p. 639, Triantafyllides, ι'. t dialing with thefunction of the Full Bench of theSupreme Omrt η revisional jurisdiction appea's, said: •' in the light of the relevant provisions of section 15 11 of Law 33/64, a revisional jurisd'Ction appeal is to be regarded as a continuation before the Full Bench of Hie. SupremeCourtof the proceedings intherecourse concerned νhich took place, in the first instance, before a Judge of > le Court; and what, in essence, continues to be in issue 20 at the stage of the revisional jurisdiction appeal is still the validity of the subject-matter of the particular recourse η which the appealed from judgment has been given". In.'refore, irrespective of the fact that this recourse was ditnib&d on the preliminary objection raised, this Court is 25 entitbO to examine all the issues before it and which the trial Coiin did not consider necessary to examine in view of its findng thattherecourse was not maintainableduetotheabsence of log.timate interest. Bel HO embarking on theissues before us, we find it necessary 30 to review briefly the position in Cyprus concerning thecreation and filling of posts in the public service. As early as 1961 the then Supreme Constitutional Court in the case of Papapetrou and The Republic (Case No. 26/61) 2 R.S.C.C. 61 at pp. 65, 66, explained the situation as follows: 35 "By the Constitution of the Republic of Cyprus express provision is made regarding the public service of the Re­ public in Part VII of the Constitution which comprises Articles 122 to 125. 1218 3 C.L.R. 5 10 15 20 25 30 35 Zachariades v. Republic Savvides J. Paragraph 1 of Article 125 provides that, save where other express provision is made in the Constitution and subject to the provisions of any law, 'it shall be the duty of the Public Service Commission to make the allocation of public offices between the two Communities and to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinary control over, including dismissal or removal from office of. public officers'. In the opinion of the Court the Public Service Commission, which isestablished

Article 124

, isvested

the Constitution with only those powers which it has expressly been given

Article 125

. The residue of any executive power in respect of any matters concerning the public service of a State, which by itsconstitution has not been expressly given to an independent body such as a Public Service Commission, remains vested in the organ of the State which exercises executive power and within whose province ihe public service of the State normally otherwise comes and in the case of the Republic of Cyprus such organ,

Article 54

of the Constitution and particularly paragraphs (

  1. a)and (
  2. d)thereof, is the Council of Ministers. It is clear from the wording of paragraph 1 of Article 125that the PublicServiceCommission, inadditionto being entrusted with the task of the allocation of public offices between the two Communities in accordance with Article 123, is only entrusted with powers, such as appointment, confirmation, etc., relating to public officers, as holders of public offices but not to the public offices in question themselves. As the executive power relating to the creation on new postsinthepublicserviceofthe Republicandto the making and amending of schemes of service concerning existing or new posts, is a power relating to public offices and not to the public officers, as holders of such offices, it isnot, thus, included among the powers which are entrusted to the Public Service Commission by Article 125 and such power remains vested in the Council of Ministers.. 1219 Savvides J. Zachariades v. Republic

(1984)This view regarding the effect of paragraph 1of Article 125 is clearly consonant with the powers of the Council of Ministers

Article 54of the Constitution, particularly paragraphs (a) and (d) thereof".

The Papapetrou case was cited with approval in the case of 5 Contopoullos and TheRepublic, 1964 C.L.R. 347, where at pp. 351, 352, Triantafyllides, J., as he then was, had this to say: "In theopinionoftheCourtthedutiesofthePublicService Commission

Article 125are limited to matters concerning the officers and not the offices involved. (Vide 10 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 isto befilledby way of promotion as this matter lies within the competence of the Executive BranchoftheGovernment. Itisonlywhensuchavacancy 15 istobefilledthat theCommissionhasexclusivecompetence to decide on who is to be promoted or appointed to the post in question". In 1967, the Public Service Law (Law 33/67) was enacted providingfor thefunctioning of the Public ServiceCommission, 20 its powers and the mode they were to be exercised including, inter alia, the appointment, promotion, emplacement, transfer, secondment, retirement, etc. of public officers and also disciplinary proceedings over them (see s. 5 and ss. 73-85 of Law 33/67), powers emanating from Article 125.1 of the Consti- 25 tution. It is clear from the above that when thefillingof a vacancy by way of promotion has been approved by the Executive Branch of the Government within the competenceof whichsuch matter liesandthePublicServiceCommissionisinformed accor- 30 dingly then exclusive competence to decide on who is to be promoted or appointed to the post in question lies with the Public Service Commission. Asto whenthecompetenceofthe Public Service Commission begins s. 17 of the law provides as follows: 35 "The Commission shall not proceed to fill any vacancy inanypublicoffice ortoretire,beforetheageofretirement, or to take disciplinary action against any public officer 1220 3 C.L.R. Zachariades v. Republic Savvides J. except upon the receipt of a written proposal to that effect from the appropriate authority concerned". As to when an appointment or promotion takes effect the matter is governed bysections 37and 44of Law 33/67. Section 5 37 provides as follows: "S.37-(l) A permanent appointment shall be effected by a written offer madebythe Commission totheperson selected for appointment and accepted by him in writing. 10 15 20

(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 selecled 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 be 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 beappointed to, or serve in, an office in a Department where his spouse, child, brother or sister is serving". 25 Section 44 provides, inter alia, as follows: "
(1)
(2)
(3)
(4)30
(5)A promotion shall be effected by a written offer made by the Commission 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. 35
(6)
(7)". 1221 Suvwdes J. Zachariades v. Republic
(1984)As to the requirement of publication in the official Gazette of the Republic contemplated by sub-section
(4)of section 37 and by sub-section
(6)of section 44, the position in Cyprus, unlike that in Greece, where for an administrative decision to take effect publication is necessary (see Kyriacopoulos on Greek Administrative Law, 4th Edition, Vol. C. at p. 179), has been considered in Panayides v. The Republic
(1972)3 C.L.R. 467, and we subscribe to the view expressed therein by Mr. Justice A. Loizou at p. 481 in this respect, as follows: 5 "The wording of section 44
(6)which provides that promo- 10 tions shall be published in the official Gazette of the Re­ public, makes it abundantly clear when read in conjunction with the preceding sub-section, and the interpretationgiven thereof by Geodelekian'scase (supra) that the requirement of publication is not a constituent element for its validity 15 but only a declaratory act of the already existing decision. It is a matter of interpretation how far the requirement

a law for the publication of an administrative act is a matter affecting its validity or not". Section 44

(5)was interpreted by the Full Bench of this Court in Geodelekianv. The Republic
(1970)3 C.L.R. 64, where Triantafyllides, .1. as he then was, had this to say at page 68: 20 " _ —though Their promotions to Assistant Collectors had been decided upon by the Respondent, they had not yet been 'effected', in the sense that they had not yet 25 been perfected or completed, in accordance with the provi­ sions of section 44
(5)of Law 33/67 _._". In Papapetrouv. The Republic(Case No. 127/61) 2 R.S.C.C. 15 at p. 118, it was held that the Public Service Commission /as not bound to appoint any particular candidate even though 30 e might have been found to possess the required qualifications pecified in the relevant schemes of service, if the Public Service :ommission was of the opinion that such candidate was not η the whole qualified for appointment to the post in question; nevertheless, no existing legitimate interest of his was thereby 35 dversely and directly affected in the sense of paragraph 2 f Article 146 of the Constitution. Such conclusion was cached in viewof the decision of the Public Service Commission lat none of the existing candidates was qualified for appoint1222 3 C.L.R. Zachariades v. Republic Savvides J. ment, and, that, therefore, applications for such post should be invited again. 5 The position in Greece as to when an appointment is per­ fected is explained in Kyriacopoulos Greek Administrative Law, 4th Edition, Vol. C at p. 178: "Διορισμός καλείται ή παρά τοΰ αρμοδίου οργάνου δήλωσις της βουλήσεως τοΰ κράτους προς σύναψιν μεθ' ώρισμένου προσώπου δημοσίας υπαλληλικής σχέσεως". 10 ("Appointment is the expression of the will of the state by the appropriate organ for the contracting with a certain person of public service relationship"). and at p. 180: 15 20 25 30 " Έπ! τώ τέλει, όπως καταστή γνωστή είς τόν ένδιαφερόμενον ή βουλησις τοΰ κράτους και πληρωθη ό έτερος ορός τής δημοσίας υπαλληλικής σχέσεως, ήτοι ή αποδοχή τοΰ διορισμού παρά τοΰ προς δν ούτος απευθύνεται, δέον, μετά τήν δημοσίευση», νά επακολούθηση ή κοινοποίησις τού διορισμού (άρ9. 30 1 ΚΔΔΥ). Διά τής κοινοποιήσεως τού διορισμού γνωστοποιείται είς τόν ένδιαφερόμενον ή βοΰλησις τού κράτους καΐ ούτω πληρούται ό πρώτος όρος τής δημοσίας υπαλληλικής σχέ­ σεως. Ό δεύτερος δρος, ήτοι ή αποδοχή τού διορισμού παρά τού προς δνέγένετο ή κοινοποίησης τούτου,πληρούται διά τής συναινέσεως τού διοριζομένου, ήτις δέον νά έκδηλωθή εντός τακτής προθεσμίας". ("For the purpose of making the will of the state known to the interested person and of fulfulling the other condi­ tion of the public service relationship i.e. the acceptance of the appointment by the person to whom it is addressed, there must, after the publication, follow the communication of the appointment. By the communication of the appointment the interested person is notified of the will of the state and thus the first 1223 Savvides J. Zachariades v. Republic
(1984)condition of the public service relationship is fulfilled. The second condition i.e. the acceptance of the appoint­ ment by the person to whom it is communicated is fulfilled by the consent of the appointee which should be manifested within a fixed time"). 5 Furthermore at p. 181: " Έφ' όσον, κατά τά προειρημένα, ή δημοσία υπαλληλική σχέσις τελειούται διάτής αποδοχής τού διορισμού,συμφώνως προς τά περί συμβατικής θεωρίας διδασκόμενα, πρό τής αποδοχής, ή έν τώ γίγνεσθαι τελούσα δημοσία υπαλληλική 10 σχέσις είναι δυνατόννά ματαιωθή μονομερώς παρά τής δημο­ σίας διοικήσεως δι' ανακλήσεως τοΰ διορισμού. Ή τοιαύτη άνάκλησις ουδέποτε δύναται νά θεωρηθή ώς προσβάλλουσα κεκτημένα δικαιώματα, έφ' όσον ή υπαλληλική σύμβασις δέν κατηρτίσθη είσέτι. Μόνον διά τής αποδοχής τού διο- 15 ρισμού τελειούται ή υπαλληλική σχέσις, διό και δέν δύναται πλέον ν' άνακληθη ούτος". ("Since, according to the aforesaid, the public service relationship comes to an end by the acceptance of the appointment, according to lessons about conventional 20 theory, before acceptance, the public service relationship to be created is possible to be cancelled by the admini­ stration by the revocation of the appointment. Such revocation can never be considered as offending vested rights since the service contract has not been prepared 25 yet. Only with the acceptance of the appointment the servicerelationship isfinalisedand thus it cannot be revoked any more"). Also in Kyriacopoulos Greek Administrative Law, 4th Ed. vol. Β at pp. 396-397 it is stated: 30 " Ή βεβαία διατύπωσις τής βουλήσεως τού διοικητικού οργάνου έν τη διοικητική πράξει διά τής συντάξεως καΐ υπογραφής ταύτης, δηλοί Οτι ή πράξις εξεδόθη. 'Αλλ' ή έκδοσις μόνη δέν συνεπιφέρει τά έξ αΰτή^ αναμενόμενα έννομα αποτελέσματα. Ή διοικητική πραξις, ώς δήλωσις 35 βουλήσεως, διά ν* απόκτηση νομικήν έυέργειαν, δέον νά παύση αποτελούσα internum καΐ έξωτερικευθή, ήτοι. νά περιέλθη t\% τό πρόσωπον, είς δ άφορα: 'Επομένως, ή διοι­ κητική πράξις δέον ν' άνακοινούται είς τόν ένδιαφβρόμενον. 1224 3 C.L.R. Zachariades v. Republic Savvides J. •-Κατάτίνατύπονδέοννάγίνη ή άνακοίνωσις αύτη, εξαρτάται έξ αυτής τής φύσεως της πράξεως,έφ' όσον έν τή συγκεκρι­ μένη περιπτώσει ό νόμος δέν όρίζη Ιδιαίτερον τύπον". (See also p. 398 of the same authority). 5 10 15 ("The positive expression of the will of the administrative organ in the administrative act by the drawing up and sign­ ing it shows that the act has been issued. But the issuing only does not entail the legal results expected from it. For the administrative act, as an expression of will, to acquire legal action, it must cease to form internum and be expressed, i.e. to reach the person to whom it refers. Therefore the administrative act must be communicated to the interested person.

what form should this notification be made, depends on the nature of the act, since in this case the law does not fix a special form"). In Stasinopoulos "The Law of Administrative Acts" 1951 Edition p. 366 it reads: 20 25 30 35 "Πρό τής δημοσιεύσεως ή τής κοινοποιήσεως κατά τάς άνω διακρίσεις, μήέπιστάσηςτής δεσμεύσεως τήςΔιοικήσεως, ή άνάκλησις της πράξεως είναι ελευθέρα. 'Αλλά μή δηλω­ θείσης της βουλήσεως, ουδέ περί ανακλήσεως δύναται νά γίνη κατ' άκριβολογίαν λόγος καΐ Βή καταχρηστικής,κατά τινά έκφρασιν, ανακλήσεως, άλλα κυρίως περί ματαιώσεως τής πράξεως, διά της ματαιώσεως τής δηλώσεως τής έν τη πράξει περιεχόμενης βουλήσεως, ήτις αποτελεί εΙσέτι internum τής Διοικήσεως".(See also Siassinopoulos 'Lessons on Administrative Law', 1957 Edition at pp. 311,320, 321). ("Before the publication or the communication

the above distinctions, the obligation of the Administration not having been studied thoroughly, the revocation of the act is free. But without the expression of the will not even mention of the revocation, and especially abusive, so to say, revocation may be made, but mainly for the annulment of the act, by the frustration of the expression of the will included in actual fact which still constitutes internum of the Administration"). Some of the opinions expressed above have been adopted in Panayides v. The Republic

(1972)3 C.L.R. 467 where A. Loizou, J. at p. 482, had this to say: 1225 Savvides J. Zachariades v. Republic
(1984)"An administrative act as it has been stated, isa declaration of thewillof theadministrativeorgan. Before itisdeclared 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 5 its issuing, i.e. to the drafting, the insertion of the date and the signing by the appropriate organ. See Stassinopoulos (supra) 359. Hence, 'issuing' is called the formulation with certainty of the will which is intended to be declared by the administrative act. Only when the will 10 isdeclared, i.e. whenoutward direction isgiventoit 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. 15 Until so declared, the administrative act constitutes internum of the administration. After however of its communication, it becomes binding on the administration and it is then that the act, in our case the act of promotion, came into existence. Being as such a favourable adinini- 20 strative act, it cannot befreely revoked thereafter. Whereas before that the administration canfreelyamendor abandon, the intended but never completed administrative act". Inthe Panayidescase (supra) the learned trial Judge in dealing with the question as to when the formal validity of an admi- 25 nistrative act begint said at pp. 480, 481: "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. For that matter a distinction should be drawn between 30 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

the law by which they came into existence is completed. The latter commences from a certain time which may either coincide 35 with the time of the commencement of their formal validity or it may be a subsequent or prior point in time. In this respect is will be useful to look to section 44 of the Public Service Law 33/67 which governs the question of promotion in the public service — — :_: ._ 1226 3 C.L.R. 5 Zachariades v. Republic Savvides J. This case should be taken as dealing with the question of the substantive validity of the promotions and not withtheformal existenceof an administrative act bywhich a promotion is decided. The requirement of an offer and the acceptance in writing do not relate to the making of the promotion, to the issuing of the administrative act for that purpose, but only to-the completion of the substantive validity of the promotion". Atthisstageweconsideritnecessarytomakeabrief reference 10 to thefacts ofthecasesof Contopoullos and Panayides to which reference has already been made. In the Contopoullos case the applicant had applied to the Public Service Commission for his appointment to the vacant post of Land Officer in the Department of Lands and Surveys 15 contendingthathewasentitledtobesopromoted. ThePublic Service Commission considered the question and called for interview anumber of Land Clerks 1stGradeone of whomwas the applicant. Before, however, the Commission had effected any promotion a letter was written by the Ministry of Interior 20 to the Commission, requesting them not to proceed with the filling ofthe vacanciesinviewoftheimpending re-organization of the Lands and Surveys Department. As a result the Public Service Commission abstained from taking any decision as to the appointment of the applicant and the other candidates 25 concerned and informed them accordingly. The Court dismissed the recourse haying been satisfied that the Ministry of Interior wastheappiopriate Authority to decide as totheexistenceofavacancyandtheneedofitsfillingandthattheCommission quiteproperlytook intoaccounttherequest oftheMinistry 30 of Interior, the appropriate authority in that case, not tofill the vacancies in the post of Land Officer pending the re-organization of the Department concerned. It is of significance to observe that in the Contopoullos case (a) the Public Service Commission had not taken any decision astothe appointment 35 of the applicant (b)the submission for postponing the appointment emanated from the appropriate authority. In Panayides case the applicant challenged the promotion ofanother personinpreference tohim,andinwhichsomeofthe issueswhichhad to beconsidered werethe validity oftheretro40 spectiveeffect giventothedecisionandalsothetimefrom which 1227 Savudes J. Zachariades v. Republic

(1984)the formal validity on the one hand and the substantial effect on the other hand of an administrative act commences. In Geodelekian case also, the applicant was challenging the promotions of others. All the above cases are distinguishable from the present one asthe appellant in the present caseisnot challenging the piomotions of others but the non-implementation of his own appointment, decided by respondent 1, as a result of the illegal interference of the Minister of the Interior. 5 The last case to which useful reference may be made is that 10 of Tatianos Georghiou v.
(1)The Electricity Authority of Cyprus
(2)The Republic of Cyprus
(1965)3 C.L.R. 177 which though decided before the enactment of the Public Service Law, nevertheless, is very enlightening in the present case. The facts of such case were as follows: 15 "On the 25th September, 1961, the Board of the Authority considered the vacant post of Internal Auditor of the Authority and itwasdecidedthat theperson to be appointed should be 'a Chartered Accountant or a Certified Accountant, preference to be given to a Chartered Accountant'. 20 Consequently a letter was written on the 27th September 1961, by the Secretary of the Authority to the Commission, conveying its effect and stating that as none of the existing staff possessed the necessary qualifications it was necessary to advertise the post. In a document, however, 25 attached to the said letter and setting out the qualifications, duties and remuneration of the post in question the aforesaid decision of the Board of the Authority was not reproduced fully, and it was only stated therein that the person to be appointed should be either a Chartered or a Certified 30 Accountant, no mention being made about preference to be given to a Chartered Accountant. The post of Internal Auditor was advertised by the Commission and Applicant applied and became one of, the candidates. On the 23rd January, 1962, after the interviews, it was decided by the Commission that Applicant should be appointed to the post of Internal Auditor and a letter 1228 35 3 C.L.R. 5 10 15 20 25 30 35 Zachariades v. Republic Savvides J. was written to the Authority accordingly, on the 25th January, 1962,requestingthepreparation bythe Authority of the usual offer of appointment; such offer was to be forwarded to the Commission for the purpose of implementing the appointment which had already been decided uponOn the 2nd February, 1962,the Board of the Authority informed theCommission that thedecision ofthe Board to the effect that preference should be given to a Chartered Accountant had not been clearly conveyed to the Commission and that the Commission was requested not to proceed tofillthe post of Internal Auditor unless a candidate possessing the qualification of Chartered Accountant was available; the Commission, therefore, was requested not to take action inrelation to implementing the appointment of Applicant to such post. It had been submitted inthat Casethat Applicant could not allege that any existing legitimate interest of his has been adversely and directly affected in the sense of Article 146.2 because theabolition ofthepost of InternalAuditor was not an administrative act directed at him, and, moreover, he had not any acquired right in the matter of his appointment, as such appointment had not beenfinally implemented by the Commission". The Full Bench in dealing with the question as to whether the applicant had an existing legitimate interest,

Article 146.2 of the Constitution, had this to say at pp.

184, 185(per Triantafyllides, J'., as he then was): "Thefirstquestion that has to be examined in determining this Case is the question of legitimate interest, both from the point of view of its existence when the recourse was filed aswellasfrom thepointof viewof its existencewhen the recourse is being determined, The question of legitimate interest of a candidate who ha»-applied for appointment to a vacant post, has been examined in the case of Papapetrou and TheRepublic (2 R.S.C.C. p. 61 at p. 64) as well'as in the later case of Neophytou and The Republic, 1964 C.L.R. p. 280. 1229 Ssmides J. Zachariades v. Republic

(1984)Those were cases, howe\er, in which there was being challenged the validity of the appointment of another, whereas in the present Case the Applicant is complaining against his own non-appointment, without anybody else having been appointed. It has been submitted in this Case that Applicant cannot allege that any existing legitimate interest of his has been adversely and directly affected in the sense of Article 146.2, because the abolition of the post of Internal Auditor was not an administrative act directed at him, and, 10 moreover, he had not any acquired right in the matter of his appointment, as such appointment had not been finally implemented by the Commission. The Applicant complains that his appointment has been, in effect, frustrated through the abolition of the post 15 of Internal Auditor. There can be no doubt whatsoever that the abolition of the post of Internal Auditor was decided upon by the Board of the Authority in order to prevent the final implementation, by the commission, of the appointment of Appli- 20 cant tosuchpost. Thesaidpostwasabolishedbywayof an ultimate measure taken by the Authority in an effort to preventApplicant,apersonwhowasonlyaCertified Accountant, and not also a Chartered Accountant, from being appointed to such post. This measure was taken after 25 the Board came to know that Applicant had been finally selected for appointment. To all intents and purposes the Commission had completed the discharge of its relevant function

its competence

Article 125

and there was nothing further to 30 be done by it

such competence in order to complete Applicant's appointment". And concluded as follows at pp. 185, 186: "Irrespective, therefore, of whether in other circumstances the abolition of a post in the establishment of the Authority 35 or of any other independent body might not be taken as directed against anybody aspiring for appointment or promotion to such post, inthe present Case it is abundantly 1230 5 3 C.L.R. 5 10 15 20 25 30 Zachariades v. Republic Savvides J. clear that the abolition of the post of Internal Auditor was purposely aimed at preventing Applicant from being appointed to a post for which he had been selected by the competent organ, the Commission, and, thus, it is an act which has adversely and directly affected, in the sense of Article 146.2, an existing legitimate interest of Applicant. During argument reference was made to a decision of theFrenchCouncilofState,inthecaseofSyndicatnational autonome du cadre de 1'administration generale des colonies, on the 20th May, 1955(Recueil des arrets du Conseil d'Etat, 1955, p. 273). In that case it was held that the cancellation of a competition for filling vacancies in the French overseas administration did not affect acquired rights of candidates in the competition. The difference with the present Case is that the present Applicant was not just a candidate in a competition which was cancelled but he had been actuallyfinallyselected for appointment. Likewise, the relevant legitimate interest of Applicant has been directly and adversely affected by the fact that the Commission did not, in the circumstances, proceed to the formalities necessary for the implementation of his appointment, as already decided upon by it. The fact that since thefilingof this recourse Applicant has ceased to be interested in appointment to the post in question does not deprive him of the right to have his recourse duly determined, because Applicant has already suffered the detriment involved in the frustration of his appointment. In this respect Applicant continued to havestillalegitimateinterestatthetimewhenthisrecourse came up for hearing and, therefore, he is entitled to have this Case determined". As to whether the matters complained of were the proper subject of arecourse

Article 146

,at page 187ofthesame judgment we read: 35 "The Court isof theopinion that whenever an act isdone by an organ, other than the Commission, for the very purpose of frustrating the implementation of an individual administrative decision taken by the Commission in the 1231 Savvides J. Zachariades v. Republic

(1984)exercise of its exclusive competence, that act is by its nature so closely linked with such competence and the individual administrative decision taken by the Commission

it, that it is itself subject to recourse

Article 146

, in the same way as the relevant decision of the Commission 5 would have been subject to such recourse". It should be noted that the decision of the Public Service Commission in the Georghiou case, had not been foimally communicated to the applicant but it came to his knowledge through the Head of his Department who happened to hear 10 about it. It was only the decision of the non-implementation of his appointment that was formally communicated to him by letter of the Commission. In Georghiou case the non-implementation of applicant's appointment wasthe result ofthe act of the Board of the Electri- 15 city Authority which was the appropriate authority and it was at its request that the machinery through the Public Service Commission was set in motion for the selection of the most suitable candidate for appointment. The question, therefore, which has to be considered first is 20 as to which was the appropriate organ in the present case which initiated the process for the filling of the post. The learned trial Judge in hisjudgment in dealing with this issue, found as follows: "Before proceeding, however, to deal with the above issues, 25 I feel that I must examine which is the Body that decided to submit the request to the first respondents for the filling of the said post and who in fact did submit such a request. After carefully reading and comparing the contents of Annexes 1 and 2 to the opposition, which are appended 30 herewith, I find that the decision was taken by the Council of Ministers; that after thisdecision wastaken, the Council of Ministers, acting 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 35 put into effect the soonest possible". There has not been a cross-appeal against the above finding of the trial Court. Nevertheless in the course of the hearing of theappeal counselfor respondents arguedthat the appropriate 1232 3 C.L.R. Zachariades v. Republic Savvides J authority in the present case was the Minister of Interior and not the Council of Ministers and in support of this argument he sought to rely on two decisions of the Council of Ministers dated March 1964 and 12th December 1968. Such decisions 5 are contained in two circulars dated the 17th March, 1964 and the 27th December, 1968 addressed, inter alia, to the Public Service Commission, the Directors-General of the Ministries etc., copies of which were produced before us as exhibits Ά ' and *B*. Thematerial part of thefirstcircular, reads as follows: 10 "We aredirectedtoinform youthattheCouncilof Ministers has decided that, in view of the present situation: (a) (b) 15 20 25 30 (c) in any case where the Ministry of Independent Office concerned considers that any vacancy or new post should befilled,it should refer the case to the Ministry of Financefor its views and then arrange for theneces­ sary Submission to be made to the Council incorpora­ ting the views of the Ministry of Finance; and (d) where the Council approves that a vacancy or new post should be filled, the method of filling it should be either on a temporary month to month basis or on a casual assistance basis, except that— (i) where the post is permanent and a permanent officer is selected to fill it, the appointment or promotion should be made on a permanent basis; (ii) where the post is temporary and a permanent officer is selected to fill it, the filling should be on secondment. (Sgd) T.E. MARKANTONIS Secretaiy, for Secretaries, Council of Ministers". The second circular embodies the decision of the Council 35 of Ministers dated 12th December, 1968 (Decision No. 8367) whereby all previous circulars concerning the filling of vacant posts were withdrawn and the following directions were given: 1233 Saivides J. Zachariades v. Republic

(1984)"
(1)Vacant posts included in the Annual Estimates and vacant permanent posts in the Development Estimates may be filled without reference to the Council of Ministers, where the appropriate Minister or the Head of the appropriate Independent Office, considers the filling of such posts as necessary for the effectiveness of the administration and the Minister of Finance agrees. 5
(2)
(3)In case of disagreement between the appropriate Minister or the Head of the appropriate Independent 10 Office and the Minister of Finance, in relation to thefilling of the vacant post, the appropriate Minister or the Head of the appropriate Independent Office may place the matter before ^the Council of Ministers, together with the views of the Minisiei of Finance. 15
(4)No vacant post will be filled by the Public Service Commission, unless the said Commission receives a request to that effect from the appropriate Minister or the Head of the appropriate Independent Office, stating that the Minister of Finance has agreed. (Sgd) T.E. MARKANTONIS Secretary to the Council of Ministers". What we have to consider in the present case is not whether 25 in normal circumstances the Minister of the Interior or any other Minister, acting in respect of his Ministry, in relation to matters concerning the appointment or promotion in the permanent establishment of the Republic, is the appropriate authority either

the provisions of section 2 of the Public 30 Service Law, 1967 (Law 33 of 1967) or

the powers delegated to him by the Council of Ministers by its decision No. 8367 of the 12th December, 1968, but whether in the circumstances of the present case the Minister of the Interior was the appropriate authority to act in the way he did by withdrawing 35 from thePublicServiceCommissionthe request for the filling of the vacant post of the Director-General of the Ministry of Interior, a request which emanated from the Council of Ministers. 1234 20 3 C.L.R. Zachariades v. Republic Savvides J.

Article 54

of the Constitution, the residue of the executive powers on all matters other than those for which express provision is made

the Constitution, or which are within the competence of a Communal Chamber, 5 are vested in the Council of Ministers. In Papapetrouv. The Republic(supra) the SupremeConstitutionalCourtin constiuing Article 54 of the Constitution, held that (page 66):- 10 15 'The residue of any executive power in respect of any matters concerning the public service of a State, which by its constitution has not been expressly given to an independent body such as a Public Service Commission, remains vested in the organ of the State which exercises executive power and within whose province the public service of the State normally otherwise comes and in the case of the Republic of Cyprus such organ,

Article 54

of the Constitution, and particularly paragraphs (

  1. a)and (
  2. d)thereof, is the Council of Ministers".

the Statutory Functions (Confermentof Exercise) Law, 1962 (Law 23/62) the Council of Ministers may delegate any 20 power vested in it and emanating from any law, to the appro­ priate Minister or the appropriate head of an independent office, unless such delegation is prohibited by the Law (see section 3) but such delegation does not deprive the Council of Ministers or other delegating authority from exercising 25 itself such power (see section 4). What happened in the present case is that the Minister of the Interior for reasons which do not,appear in the,record, probably due to the importance that the Government attached to this post, and its concern about its filling, if one takes into 30 consideration the decision of respondent 1 of the 8th May, 1979 to which reference has already been made,chose to submit ι the matter to the Council of Ministers and this hierarchically superior organ in the exercise of its powers

Article 54

of the Constitution decided for thefilling of the post and com35 municated its decision to the first respondent authorising it to proceed with the filling of the post. The Minister had no longer any competenceon his own to act as he did. He was only authorised to see, in concert with respondent 1, that such decision was to be given effect the soonest possible. 1235 Savvides J. Zachariades v. Republic

(1984)Asto the power to amend, rescind, vary or revoke the exercise of any power vested in an authority

the Law and the Constitution we read in section 29 of The Interpretation Law, Cap. 1, the following: "29. Where any Law confers power on any authority to 5 make any appointment or to make or issue any public instrument, the following provisions shall, unless the contrary intention appears, have effect with reference to the making, issue and operation of such instrument. (a) the instrument may be at any time amended, varied, 10 rescinded, or revoked by the same authority and in the same manner by and in which it was made; (b) : (c) (d) ". 15 (the

lining is ours). The only Appropriate Authority, in the circumstances of the present case, to rescind its decision for the filling of the post and withdraw the request for such filling from respondent 1, was the Authority which took the decision for the filling of the 20 post and such Authority was the Council of Ministers and not the Minister of the Interior and once the Council of Ministers has been seized of the matter, the Minister could not, on his own,countermand thecourseset out bythe CouncilofMinisters. We, therefore, find ourselves in agreement with the learned 25 trial Judge in his judgment that the appropriate authority in this case was the Council of Ministers and not the Minister of the Interior. In view of the conclusion we have reached, we find that the act so taken by the Minister of the Interior, to interfere in the 30 way he did, for the purpose of preventing the implementation of the decision of the first respondent was an act contrary to law (including the Constitution) and was in excess and abuse of powers. The next question which we have to consider is whether an 35 existing legitimate interest of the appellant has been adversely 1236 3 C.L.R. Zachariades v. Republic Savvides J. and directly affected, in the sense of Article 146.2 and whether the matters complained of are proper subjects of recourse

Article 146

. The answer to this question may be found in the powerful 5 dicta of the Full Bench in the Georghiou case to which reference has already been made and which we need not narrate in length once again. Suffices to say, relying on such dicta that the unlawful interference by the Minister of the Interior which prevented the appellant from being appointed to a post for which 10 he had been selected by the competent organ, the Public Service Commission, and as a result of which the Commission did not, inthecircumstances, proceed to theformalities necessary for the implementation of his appointment as already decided by it, is an act which has adversely and directly affected, in the sense 15 of Article 146.2, an existing legitimate interest of the appellant. Furthermorethe unauthorised actof theMinister ofthe Interior, an incompetent organ in the present case, for the purpose of frustrating the implementation of the decision taken by the Commission in the exercise of its exclusive competence "is by .20 its nature so closely linked with such competence and the individual administrative decision taken by the Commission

it, that it is itself subject to recourse

Article 146

, in the same way as the relevant decision of the Commission would have been subject to such recourse" (Georghiou case 25 (supra) at p. 187). Therefore the finding of the trial Court that the appellant had not acquired a legitimate interest and is not entitled to a redress is wrong and is hereby set aside. The last question which we have to consider is whether the decision of the first respondent taken on the 2nd February 1980 30 whereby it revoked its previous decision of the 30th January 1980 by which it had decided to promote the appellant to the post of Director-General of the Ministry of Interior as from the 15th February, 1980, was a proper one in the circumstances of the present case. Bearing in mind the facts of the case as 35 already explained and all material before us, and in particular therecord of the minutes of the meeting of the first respondent of the 2nd February, 1980,there is no room for doubt that the first respondent in taking such decision acted

a misconception of fact that the appropriate authority was the 40 Minister of the Interior. Both in the record of the said meeting K37 Savvides J. Zachariades v. Republic

(1984)and in the letter sent by the first respondent in answer to a letter of counsel for the appellant it is admitted by the first respondent that it had to annul its previous decision on the ground that (
  1. a)the appropriate authority withdrew the request for the filling of the post and (
  2. b)that the appropriate authority, 5 at the request of which it acted, wasthe Minister of the Interior. Having found that the Minister of the Interior was not, in the circumstances, the appropriate authority and that hisinterference with the implementation by the first respondent of its decision was unlawful the decision of the first respondent of 10 the 2nd February, 1980 annulling its previous decision for the appointment of the applicant, is also tainted with illegality and it has, therefore, to be annulled. In the result, the appeal succeeds and the following acts and/or decisions are hereby annulled: 15 (
  3. a)The act and/or decision of the Minister of Interior, respondent 2, to interfere with the implementation by the first respondent of its decision to promote the applicant. (
  4. b)The decision of the first respondent of the 2nd 20 February, 1980, whereby it annulled its previous decision for the promotion of the applicant. Regarding costs, we have decided to award to the appellant a lump sum of £150.- towards his costs and we make an order accordingly against the respondents. Appealallowed. Subjudice decisions annulled. 1238 25

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.