3 C.L.R. 1983 December 19 ITRIANTAFYLLIDES, P., HADJIANASTASSIOU, MALACHTOS, SAVVIDES, JJ.] CHARILAOS KITROM1L1DES, Appellant. v. THE REPUBLIC OF CYPRUS- THROUGH THE PUBLIC SERVICE COMMISSION, Respondent. (Revisional Jurisdiction Appeal No. 220). 5 10 15 20 Administrative Law—Administrative acts or decision·:—Preparatory act—Considerationof the candidates for purposes of promotio.i —A preparatory act which does not amount to an executory act andcannot be challengedbv means of a recourse imd.'rArticle 146of the Constitution—Subjudice consideration of the candidates merged in, and became part of. the composite administrative action culminating in the subsequent promotions, which were not challenged by a recourse—And though such consideration could not be challenged by a recourse on its own, its validity couldbeattackedonly if andwhen thefinaloutcomeof the relevant administrative process had been challenged. This appeal was directed against a first instance judgment of a Judge ofthis Court dismissing a recourse for a declaration that the consideration by the respondent Public Service Commission. on the 22nd April 1977, of the merits, qualifications, seniority and experience of all those public officers who were serving in the post of Welfare Officer on the 20th November 1967 was null and void in so far as the appellant was concerned. Held, that the recourse could not made under Article 145 of the Constitution inasmuch as the consideration of the candidates complained of by appellant was nothing more than a preparatory act and did not amount to an executory act which could be challenged by means of a recourse under Article 146. 1279
(1984)Kitromilides v. Republic Held,further, that the consideration of the candidates on the 22nd April 1977, which was attacked by the appellant in theseproceedings,mergedin,and becamepart of, thecomposite administrative action culminating in the subsequent promotions tothepost of SeniorWelfareOfficer againstwhichtheappellant 5 did not file a recourse and, consequently, such consideration of the candidate could not, in any case, be challenged by a recourse on its own, but its validity could only be attacked if and when the final outcome of the relevant administrative process had been challenged by a recourse for the annulment 10 of the aforesaid promotions. Appeal dismissed. ases referred to: Kitromilides v. Republic
(1975)3 C.L.R. 531; Tunisv. Republic
(1978)3 C.L.R. 314 at pp. 318, 319, 15 Cyprus TanneryLtd v. Republic
(1980)3 C.L.R. 405 at pp. ' 412, 413; Kemek {Transport) Ltd. v. Republic
(1981)3 C.L.R. 515 at pp. 520-523; Chryssafinis v. Republic
(1982)3 C.L.R. 320 at pp. 326, 327; 20 Holy Monasteryof Kykkc v. Republic
(1982)3 C.L.R. 1080 at pp. 1083, 1084; Vassilicu v. Republic
(1969)3 C.L.R. 417. apeal. Appeal against thejudgment of a Judgeofthe Supreme Court 25 Cyprus (A. Loizou, J.) given on the 15th December, 1979 '.«visional Jurisdiction Case No. 235/77)*whereby appellant's course against the promotion of the interested parties to the •st of Senior Welfare Officer was dismissed. L. Papaphilippou with H. Solomonides, for the appellant. 30 CI. Antoniades with N. Charalambous, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. Reported t s loanmdn and Another v. Republic
(1979)3 C.L.R.
- 1280 3 C.L.R. Kitromilides v. Republic TRIANTAFYLLIDES P. read the following judgment of the Court. By means of this appeal the appellant challenges a first instance judgment of a Judge of this Court dismissing his rescoursefor a declaration that theconsideration bytherespon5 dent Public Service Commission, on the 22nd April
- of the merits, qualifications, seniority and experience of all those public officers who were serving in the post of Welfare Officer on the 20th November 1967is null and void in so far as the appellant is concerned. 10 It is necessary to refer, first, to certain salient facts of this case: In a previous recourse of the appellant (see K'ttromelides v. TheRepublic,
(1975)3C.L.R. 531)judgment wasgiven annullingtwopromotions tothepost of Senior Welfare Officer which 15 were made on the 20th November 1967. The appellant and those who were promoted, as well as other Welfare Officers. were candidates for promotion to the said post. The appellant retired from the public service before judgment was given in his aforesaid recourse but afier such judgment he 20 filed an action in the District Court of Nicosia claiming just and equitable damages under Article 146.6of the Constitution. He wasinformed bymeans ofthe statement of defence which was filed in that action that the respondent Commission, on ,the 22nd April 1977,had examined the merits, qualifications. 25 seniority and experience of all those Welfare Officers whowere in the service on the 20th November 1967,that is on the date when there were made thepromotions which had been annulled by thejudgment in the previous recourse of the appellant, and that,the Commission, after such examination, decided to select 30 as the most suitable for appointment to the post of Senior Welfare Officer two other candidates and not the appellant. Against such decision theappellant didnotfileanewrecourse. but considering, apparently, that the fact thai he .was treated as a candidate .belatedly on the 22nd April 1977, even after 35 his retirement, on the basis of the situation which existed on the 20th November 1967, could .affect the eventual outcome of his action for compensation, he filed the recourse which was dismissed bythechallenged nowby.him first instance judgment of a Judge of this Court. 1281 Triantafyllides P. Kitromilides τ. Republic
(1984)In our opinion the new iecourse of the appellant could not be made under Article 146 of the Constitutioninasmuch as the consideration of the candidates complained of by him was notJung more than a preparatory act and did not amount to an executory act which could be challenged by means of a 5 recourse underArticle 146(see,inter alia, Tanisv. The Republic,
(1978)3 C.L.R. 314, 318, 319, The Cyprus Tannery Ltd. v. The Republic,
(1980)3 C.L.R. 405, 412, 4\3? Kemek (Transport) Limited v. TheRepublic,
(1981)3 C.L.R. 515, 520-523, Chryssa finis v. The Republic,
(1982)3 C.L.R. 320, 326, 327 and Holy 10 Monastery of Kykko v. TJie Republic,
(1982)3 C.L.R. 1080, 1083, 1084). In any event, theconsideration of thecandidateson the 22nd April 1977, which is attacked by the appellant in these proceed ings, merged in, and became part of, thecomposite administra- 15 tive action culminating in the subsequent promotions to the post of Senior Welfare Officer against which the appellant did not file a recourse and, consequently, such consideration of thecandidatescould not,inanycase,bechallenged by a recourse on its own, but its validity could only be attacked if and when 20° the final outcome of the relevant administrative process had been challenged by a recourse for theannulment of the aforesaid promotions (see, inter alia, in this respect, Vassiliou v. The Republic,
(1969)3C.L.R.417 andthecaseof theHoly Monastery of Kykko, supra). 25 For all the foregoing reasons we agree with the view of the trial Judge in the present case that the consideration of the candidatesonthe22ndApril 1977could notbe madethe subject -matter of a recourse, which was therefore rightly dismissed; and, so, this appeal fails and has to be dismissed, too; but we 30 have decided not to make any order as to its costs. Appeal dismissed with no order as to costs. 1282