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clr/1984/1984_3_400.pdf

(1984)1984 April 30 [SAWTOES, J.] IN THE MATTER OFARTICLE 146OF THE CONSTITUTION THEOPHRASTOS NICOLAOU, Applicant, v.
  1. THE PUBLIC SERVICE COMMISSION
  2. THE MINISTER OF AGRICULTURE AND NATURAL RESOURSES, Respondents, (CaseNo. 86/82). CHARALAMBOS ANTONIADES, Applicant, v.
  3. THE PUBLIC SERVICE COMMISSION,
  4. THE MINISTER OF AGRICULTURE AND NATURAL RESOURSES, Respondents. (Case No. 87/82). Legitimate Interest—Article 146.2 of tke Constitution—Recourse against omission to emptace applicants topost of Animal Husbandry Officer—Applicantsnot entitledunder theprovisions ofthe relevant lawsto be emplaced to thesaidpost—Andpersons who were so emplacednotholding thesamepost astheapplicants so thata question of different treatment might arise—Applicants do notpossessany legitimate interestto pursue the recourse. Administrative Law—Omission—Recourse against omission to emplaceapplicantstopost of AnimalHusbandry Officer—No provision in the relevant laws entitling respondents to emplace applicants to thesaidpost—No omission onthe part of the re400 3 C.L.R. Nicolaou and Another v. Republic spond?nfs to do anything which they were legally bound or infilled to do. 5 10 15 20 25 30 35 Public Officers—Salary Scales and Posts—Emplacement to—Legitimate interest tofile a recourseagainstomission to be emplacedto a certain post. With the enactment, on 22.4.1981, of the Public Officers (Conversion of SalariesandArrangement of Other Matters) Law of 1981 (Law 22/81), in combination with the Supplementary Budget Law (No. 3) of 1981 (Law No. 20/81) and the Special Supplementary Appropriation (Development Fund) Law of 1981 (Law 21/81) the post of Assistant Animal Husbandry Officer (Scale A.8), was substituted with the post of Animal Husbandry Officer (Scales A.8 and A.10), as from 1.1.1981; and the holders of the post of Assistant Animal Husbandry Officer were emplaced, on the basis of the above Laws, to the post of Animal Husbandry Officer, having been notified in writing about the change in the title of their post. By means of these recourses the applicants, who were holding the post of Animal Husbandry Superintendent 1st Grade challenged the omission of the respondents to emplace them to the post of Animal Husbandry Officer, scale 8-10 as from 30.12.
  5. Held,
(1)that no provision is made in the above Laws about the emplacement of holders of the post of Animal Husbandry Superintendent 1st Grade to the scales applicable to the post of Animal Husbandry Officer; that the respondents had to apply the law as it was and they had no right under the law or a duty cast upon them to emplace the applicants on the scale of any other post; and that, consequently, there isno omission on the part of the respondents to"do anything which they were legally bound or entitled to do.
(2)That the applicants do not possess any legitimate interest to pursue these recourses because they were not entitled, under the provisions of the relevant Laws to beemplaced-to the post of Animal' Husbandry Officer or Assistant Animal Husbimdry Officer and because'the persons mentioned in the recourses were not holding the same post as that· of the applicants so that a ' different treatment or emplacement of persons1holding the same post might have vested the applicants with a legitimate interest 401 Nicotaou and Another v. Republic
(1984)to challenge such emplacement; accordingly the recourse should fail. Application dismissed. Cases referred to: Police Association v. Republic
(1972)3 C.L.R. I; CyprusFlour Mills v. Republic
(1968)3 C.L.R. 12; Economides v. Republic
(1983)3 C.L.R/ 506; Leontiouv. Republic
(1983)3 C.L.R. 221 at p.
  1. 5 Recourses. Recourses against the refusal of the respondents to emplace 10 applicants to the post of Assistant Animal Husbandry Officer, scale A8-A
  2. L. N. Clerides, for the applicants. S. Matsas, for the respondents. Cur. adv. vult. 15 SAVVIDESJ. read the following judgment. By these recourses which were heard together as presenting common questions of law and fact, the applicants pray for a declaration of the Court that - "
(1)The omission of the respondents or any of them to em- 20 place the applicants to the post of Assistant Animal Husbandry Officer, scale 8 - 10, as from 30.12.81 should not have been made and that the applicants should have been emplaced to the above post and scale.
(2)The act and/or decision of the respondents to emplace 25 the applicants to the post of Assistant Officer (scale 8 - 10) as from 30.12.81, is void and of no legal effect whatsoever." The facts, which are common in both cases, are as follows: Applicant in Case No. 86/82 was first appointed in the Mi- 30 nistry of Agriculture in 1955 and since 1973 he holds the post of Animal Husbandry Superintendent 1st Grade. Applicant in Case No. 87/82 was first appointed in 1954 and he also holds since 1973 the post of Animal Husbandry Superintendent 1st Grade. Both applicants have been promoted to the above post, 35 which they hold till today, from the immediately lower post of Animal Husbandry Superintendent 2nd Grade. 402 3 C.L.R. Nicolaou and Another v. Republic Loris J. With the enactment, on 22.4.81, of the Public Officers (Conversion of Salaries and Arrangement of Other Matters) Law of 1981 (Law 22/81), in combination with the Supplementary Budget Law (No. 3) of 1981 (Law No. 20/81) and the Special 5 Supplementary Appropriation (Development Fund) Law of 1981 (Law 21/81) the post of Assistant Animal Husbandry Officer (scale A8), was substituted with the post of Animal Husbandry Officer (scales A.8 and A.10), as from 1.1.81and the holders of the post ofAssistant Animal Husbandry Officer were 10 emplaced, on the basis of the above Laws, to the post of Animal Husbandry Officer, having been notified in writing about the change in the title of their post. By the same Laws, the scale2 of the post of Animal Husbandry Superintendent 1st Grade (which was scale A8) was changed to scales A8 and A
  1. 15 The applicants whowere at all material times holding the post of Animal Husbandry Superintendent 1st Grade, filed, on the 18th February, 1982,the present recourses, which are based on the following grounds of law: "
  2. 20 That the act and/or omission of the respondents is contrary to the provisions of Law 20/
  4. The respondents or either of them acted under circumstances amounting to discriminatory treatment in contravention of Article 28 of the Constitution. 25
  5. On the basis of the Schemes of Service and their qualifications, the applicants should have been emplaced to the post of Assistant Animal Husbandry Officer." The application was opposed and counsel for the respondents based his opposition on the following grounds of law:- 30
  6. The subjudice decision was properly and lawfully taken after all relevant facts and circumstances of the case were taken into consideration.
  7. The respondents did not in any way omit to do anything with regard to the applicants, which they were required to do under any law. 35
  8. The sub judice act and/or omission was taken and/or made reasonably.
  9. The applicants lack legitimate interest in the sense of 403 Lorn J. Nicolaou and Another v. Republic
(1984)Article 146 of the Constitution for challenging any act and/or omission of the respondents.
  1. The present recourses are out of time.
  2. The applicants at all material times did not possess the required qualifications and/or hold the relevant post in order to be entitled to a change of, their title. 5 Before proceeding to examine the issues raised in these lecourses, 1wish to observe thattheprayer in both recourses as set outthereinis sovagueandconfusing that1 hadtogo throughthe Budgetary provisions for several years and the provisions in the 10 respective laws to find out the nature of the various posts and whether some of them doexist. . By thefirst part of theprayer in both cases the applicants complain about the omission of the respondents to emplace them to the post of "Assistant Hus­ bandry Officer". Such post is a non-existent post since it has 15 been substituted as from 1.1.81 with the post of Animal Hus-' bandry Officer. I presume what applicants meant to say is the post of Animal Husbandry Officer. In the second part of the prayer, applicants complain about their emplacement to the post of "Assistant Officer (Βοηθοΰ Λειτουργού) I could 20 trace nosuch post in thestructure of theMinistry of Agriculture and Natural Resources and no such post exists or existed in the Budgets for several years both prior and after
  3. I regret to observe that it is not clearly stated what the applicants really challenge by this part of their prayer since thereis noevidence or 25 any material before me showing thatthe applicants were empla­ ced, within the time material for the filing of these recourses in any particular post. Theonly post undertheheadingof Animal Husbandry which is on scales A8 and A10 is that of Animal Husbandry Officer to which, as 1have presumed in dealing with 30 the first part of the prayer, the applicants were not emplaced and having been aggrieved they filed the present recourse. Subject to theabove, Icome now to consider theissues before me. The first issue that falls for consideration is whether, there is any omission on the part of the respondents to do anything 35 which they ought to ha\e done and which could be the subject matter of a recourse (sec Stassinopoulos on the Law of Admini­ strative Disputes
(1964)4th Ed. p. 195, and the cases of Police 404 3 C.L.R. Nicolaou and Another v. Republic Loris J. Association v. The Republic
(1972)3 C.L.R. I: CyprusFlour Mills v. The Republic
(1968)3 C.L.R. 12). 5 ]'» 15 20 Inresolvingthisissue, Ihaveto consider whether anyduty was cast on the respondents under Laws 20/81, 21/81 or 22/81 to emplace the applicants to the post of Animal Husbandry Officer. The above laws provide that the title of the post of Assistant Animal Husbandry Officer (which wasa first entry post on scale A8) should be substituted by the title of Animal Husbandry Officer (scales A8 and A10, aslo a first entry post). By section 3(a) and Schedule A of Law 22/81, provision is made for those holding the post of Assistant Animal Husbandry Officer on the date of the publication of the Law, to be placed, as from 1.1.81, to the post of Animal Husbandry Officer on personal Salaries on scalesA8,AlOand A l l . No provision is made in the1said laws about the emplacement of holders of the post of Animal Husbandry Superintendent 1st Grade to the scales applicable to the post of Animal Husbandry Officer. The respondents had to apply the law as it was and they had no right under the law or a duty cast uponthemtoemplacetheapplicants onthescaleofany other post. Consequently, there is no omission on the part of therespondents to do anything whichthey werelegally bound or entitled to do. If the applicants feel that provision should' also havebeen madein thelaw for the upgrading oftheir post, this is a matter outside the ambit of this recourse. 25 1 wish.further to add-that withregard tothepersons mentioned in these recourses as interested parties; they were not emplaced to the post of Animal Husbandry Officer under the-provisions of theabove laws but in fact they wereholding'the post of Animal Husbandry Officer 2nd;Grade (which before 1981'was on scale 30 A9 and was-a first entry and promotion post)'having been promoted to such post'on various dates between 1962 and 1978. In accordance with a note in the relevant schemes-of service in force prior to 1981', when the new schemes of servicewere made, holders of the post"of Animal- Husbandry Superintendent 1st 35 Grade· possessing certain qualifications specified therein were eligible for promotion to-the post of Animal Husbandry Officer 2nd Grade; subject to the·condition that persons so promoted would-not be deemed1as possessing the necessary qualifications required by the schemes of service for promotion to the imme40 diately higher post of Animal Husbandry Officer, 1st Grade. 405 Loris J. Nicolaou and Another v. Republic
(1984)Theapphcantsdid not, withintheappropriatetime,challengethe promotions of the above persons and as counsel for themcon­ cededin his written address they did notchallenge them sincethe persons so promoted were senior to them. In any case, as already explained, the above persons did not change post or title by virtue of the 1981 Laws mentioned above. 5 In view of the situation as explained above, I find that the applicants do not possess any legitimate interest to pursue these recourses for the following reasons: (
  1. a)They were not entitled, under the provisions of the !0 relevant Laws to be emplaced to the post of Animal Husbandry Officer or Assistant Animal Husbandry Officer, the latter of which, as Ihave already explained, ceased to exist since 1981. (
  2. b)The persons mentioned in the recourses were not 15 holding the same post as that of the applicants so thata different treatment or emplacement of persons holding the same post might have vested the applicants with a legitimate interest to challenge such emplacement. The claims of the applicants amount, in fact, to a claim for 20 appointment or promotionto another post and as such it has no foundation as there is no vested right to promotion. (See Economides v. Republic
(1972)3 C.L.R. 506; Leontiou v. Republic
(1983)3 C.L.R. 221, 229). If applicants consider that they have the qualifications re- 25 juired by the schemes of service for the post of Animal Hus)andry Officer, they may apply for appointment or promotion ο it, whenever a vacancy to such a post is published and any egal remedy will be opentothemif theyfeel thatthey are aggrie­ ved. 30 As Ihave already explained, inthepresent cases nosuchremely exists as they are not vested with a legitimate interest. With regard to the second part of the prayer of the recourses, here is no evidence of any kind before me tending to show that η administrative act or decision of any kind concerning the 35 ipplicants' status or post has taken place, which can be challen­ gedbytherecourses. I,therefore,find thatthereis nosubstance 406 3 C.L.R. Nicolaou and Another v. Republic Loris J. in such part of the recourses and, consequently, it has to be dismissed. In the result, both the above recourses fail and are hereby dismissed. 5 10 As to costs, bearing in mind that an order has already been made against the respondents to pay £15.- costs in view of the default of counsel on their part to appear at the stage of directions,I have decided not to disturb such order, but on the other hand, to allow £15.- costs in favour of respondents. Recourses dismissed. Orderfor costs as above. 407

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