(1986)1986 June 6 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION KRINOS I. HJIGEORGHIOU, Applicant, - v. THE CYPRUS TOURISM ORGANISATION, Respondents. (Case No. 217/83). Cyprus Tourism Organisation—The Cyprus Tourism Organisa tion Law 54J69 as amended by Law 48/78—Sections 5
(2)(e), 5
(3)(a), 5
(6), 7
(1)and
(3), 8, 13(l)(a), 14, 16 and 21 —The Cyprus Tourism Organisation (Structure and Con ditions of Service) Regulations, 1970—Regulations 6(e) 5 and 15
(2)—Appointments/Promotions—"Appoint" in s. 5
(2)(e) includes promotion—Powers of the Board under s. 5
(6)to set up Committees and transfer part of its powers to them—Power to appoint validly transferred to the Permanent Committee of Hearings—Reg. 6(e)—A Senior 10 Inspector of the Department of Provision of Touristic Services is an "Inspecting Officer" within the meaning of said Regulation—Reg. 15
(2)—A provision identical to s. 44
(2)of the Public Service Law 33/67—Seniority should prevail,, if all other factors are more or less equal—Appli15 cant senior by five years to interested party—No reasons given for disregarding said seniority—Ground of annulment —Reg. 15
(3)—Recommendation of Head of Department — N o recommendations made in this case—Such failure is contrary to said' Regulation—Committee therefore acted 20 without due inquiry as to a material factor—Ground of annulment. Collective Organ—Appointing or Promoting Bodies—They need Π10- 3 C.L.R. HjiGeorghiou v. C.T.O. not record the questions and answers of candidates, only their findings as to their performance. 5 10 Schemes of Service—Delegated legislation in the sense .of (Police v. Hondrou and Another, 3 R.S.C.C., 82—They .need not be published in the Official Gazette. Constitutional Law—Articles 122 and 125 of the Consiitiition — L a w of Necessity—The provisions in the 'Cyprus Tou rism Organisation Law 54/69 empowering the Board of C.T.O. to appoint its officers—Service under C.T.O. falls squarely under definition of "Public Service" in Article 122 of the Constitution—But said provisions justified by the Law of Necessity. Words and Phrases:_ "Appoint" in section .5
(2)(
- e).Cyprus Tourism Organisation Law 54/69. 15 20 25 30 35 but of The The applicant by means of this recourse -seeks Uhe annulment of the promotion of the interested party Ίο 'ihe post of Senior Inspector, a first en'ry and promoiion post in the respondent Organisation, on 'the 'following grounds, namely: (
- a)C.T.O. is empowered "to -appoint" -and no! "to promote", (
- b)The decision was 'taken 'by the 'Per manent Committee of Hearings, a Committee non-existent and unknown to the Law. (
- c)The composition of such Committee was defective in that Mrs. *Katsouri. a 'person not a member of the Board of C.T:0., participated, (
- a)The oost "in nues'ion is not provided in the Regulations. (
- e)The scheme of service was not ipublished tin the Of ficial Gazette, (0 The answers of the candidates at ihe interview 'were not recorded, (
- g)The seniority .of applicant was disregarded, and finally (
- h)The «sub '"judicr decision was taken contrary to reg. -15
(3)which provides that in case of promotion the recommendations -of the Head of the Department should be dulv taken "-into .con sideration. Argument was heard on the invitation of :the Court on the constitutionality of Law 54/69 empowering C.T.O. "n "appoint" its officers. Counsel for applicant submitted that the .relevant provisions are .repugnant to .Articles II22 and .125 •of 'the Constitution, whereas counsel .for the .respondent and Mr. Charalambous, -who represented the AttorneyΎΠΊ HJiGoorghiou v. C.T.O.
(1986)General, who was called by the Court as an amicus curiae, submitted that such provisions are justified by the Law of Necessity. Held, annulling the sub judice decision:-
(1)Section 5
(2)(e) of Law 54/69 empowers the Board of C.T.O. to ap- 5 point the servants of the Organisation. The meaning of words of a statute is found not so much in a strictly grammatical or etymological propriety of language nor even in their popular use. as in the subject, or in the occasion on which they are used and the object to be attained. The 10 term "appoint" in the context of the said section includes promotion.
(2)Section 5
(6)of Law 54/69 is amended by Law 48/78 empowers the Board of the Organisation to transfer part of its powers to Committees of its members; and 15 section 5
(3)(a) provides that the Board is appointed by the Council of Ministers for a period not exceeding three years. One of the members of the Board holding office at the material time after such appointment was "the DirectorGeneral of the Ministry of Commerce and Industry or his 20 representative". The Director-General did appoint as his representative Mrs. Katsouri. The Permanent Committee of Hearings was set up in virtue of the powers under section 5
(6). The power to appoint under s. 5
(2)(e) was tansferred to the said Committee. It follows that the said 25 Committee was properly set up and validly constituted.
(3)Regulation 6(e) of the Cyprus Tourism Organisation (Structure and Conditions of Service) Regulations 1970 made under s.7
(1)and
(3)of Law 54/69 sets out the posts for the Department of Provision of Touristic Service. 30 In this Department there are posts of "Inspecting Officer". The Senior Inspector is such an officer.
(4)A scheme of service need not be published in the Official Gazette.
(5)An appointing or promoting body is not required to record the questions and answers given by candidates, but only their findings as to the performance of the candidates at the interviews. 1112 35 3 C.L.R. 5 10 15 20 25 30 35 HjiGeorghiou v. C.T.O.
(6)The applicant was by five years senior to the inte rested party. Reg. 15
(2)of the said regulations is an idea tical provision to that of s. 44
(2)of Law 33/67. Seniority though one of the factors, is not the decisive one, but i ought to prevail if all other things are equal. In this cast the Committee made a general reference to merit, qualifi cations and seniority, but they failed to give reasons wh; applicant's seniority was disregarded. It follows that tht relevant discretionary powers were exercised in a de fective manner.
(7)The recommendations of the Head of the Depart ment were always considered a most vital consideratior and though an appointing body is certainly not a rubbei stamp, it has to give reasons, if it decides to disregarc them, why it disregarded them. In the present case tht Head of the Department made no recommendations a: provided by reg. 15
(3)of the said Regulations. It follow; that the Committee failed to act in accordance with ; specific statutory provision. It acted without due inquin into the factor of recommendations. A material factor wa; not within their knowledge and, therefore, it was not ant could not be taken into account. Consequently the exercis* of their discretionary powers was defective.
(8)In view of the nature of C.T.O.*, service under i falls squarely under the definition of "Public Service" π Article 122 of the Constitution and, therefore, the exclu sive powers of the Public Service Commission under Arti cle 125 are applicable to the officers of the respondem Organisation. In the present case, however, having regard to the non existence of the Public Service Commission envisaged b\ the Constitution for so many years and the reasons for it the need of C.T.O. to function, the situation prevailing ii the country, the application of the doctrine of necessity was necessary to fill the gap by setting up a substitute me chanism for the running of essential institutions. Sub judice decision annulled. No order as to costs. * See sections 8. 13
(1)(a), 14, 16 and 21 of the said Law. 1113 HjiGeorghiou v. C.T.O.
(1986)Cases referred to: Theodorides and Others v. Ploussiou
(1976)3 C.L.R. 319; Police v. Hondrou and Another, 3 R.S.C.C. 82; PA.SY.D.Y. v. The Republic
(1978)3 C.L.R. 27; Ishin v. 77ie Republic, 2 R.S.C.C. 16; 5 •Economides v. The Republic
(1973)3 C.L.R. 410; HjiAntoni and Others v. The 1145; Republic
(1983)3 C.L.R. Frangos v. The Republic
(1970)3 C.L.R. 312; Vourkos and Another v. The Republic 1442;
(1983)3 C.L.R. 10 Loizidou-Papaphoti v. 7fte Republic
(1984)3 C.L.R. 933; Partellides v. 7fte Republic
(1969)3 C.L.R. 480; Vonditsianos v. 7/ie Republic
(1969)3 C.L.R. 83; Antoniou v. 7fte Republic (\915) 3 C.L.R. 510; 15 Lardii v. 77ie Republic
(1967)3 C.L.R. 64; Smyrnios v. 7/ie Republic
(1983)3 C.L.R. 124; Soteriadou and Others v. 7Λ* Republic
(1983)3 C.L.R. 921, and on appeal
(1985)3 C.L.R. 300; Theodossiou v. 77ie Republic, 2 R.S.C.C. 44; 20 Evangelou v. The Republic
(1965)3 C.L.R. 292; HjiConstantinou and Others v. The C.L.R. 65; Republic
(1973)3 .Petrides v. Public Service Commission
(1975)3 C.L.R. 284; Mytides .and Another v. Republic
(1983)3 C.L.R. 1096; .Republics. Harts
(1985)3 CL.R. 110; Karageorghis v. The Republic
(1982)3 C.L.R. 435; 1114 25 \ 3 C.L.R. HjIGeorghiou v. C.T.O. Christides v. The Republic
(1966)3 C.L.R. 732; Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195; Chimonides v. Manglis
(1967)1 C.L.R. 125; Aloupas v. National Bank
(1983)1 C.L.R. 55; 5 Ambrosia Oils and Margarine Industry Ltd. and Others v. Bank of Cyprus Ltd.
(1983)1 C.L.R. 55; Kofteros v. Electricity Authority C.L.R. 394; of Cyprus
(1985)I losif v. CY.T.A.
(1970)3 C.L.R. 225; 10 HjiGeorghiou v. The Republic
(1966)3 C.L.R. 504; Papapuntclis v. The Republic
(1966)3 C.L.R. 515. Recourse. 15 Recourse against the decision of the respondents to promote the interested party to the post of Senior Inspector, in the Cyprus Tourism Organisation, in preference and instead of the applicant. A. S. Angelides, for the applicant. A. Dikigoropoulos. for the respondents. Cur. adv. 20 25 30 vult. SIVLIANIDI.S J. read the following judgment. The applicant by means of this recourse seeks the annulment of the promotion of the interested party Michael Louca to the post of Senior Inspector in preference to the applicant. The respondents—the Cyprus Tourism Organisation—• (hereinafter "K.O.T.") is a corporation of public law. established by the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969). Its functions and powers are set out in the Law. On 16.9.82 applications o n the basis of a scheme of service, which had the prior approval of the Council· of 1115 Stylianides J. HjiGeorghiou v. C.T.O.
(1986)Ministers for the filling of the vacant post of Senior In spector, were invited by advertisement in the local press. This was a first entry and promotion post. Twenty-six per sons applied, including the applicant and the interested party. Five of the candidates did not possess the required qualifications. The 21 qualified candidates were invited for interview by "the Permanent Committee of Hearings" but only 16 of them turned up. 5 During the interviews questions were put to the candi dates and the said Committee, after consideration of all the 10 material before it, including the answers of the candidates and their performance at the interview, concluded that the candidates serving already with K.O.T. were superior to the outsiders and. then proceeded and issued the sub judice decision, exhibit No. 1, the material part of which is pa- 15 ragraph 6, that reads as follows:«H Επιτροπή μετά ταύτα εμελέτηοε επισταμένως TOUC προσωπικούς και εμπιστευτικούς φακέλλους όλων των υποψηφίων οι οποίοι υπηρετούν εις τον Οργανισμόν και υπέβαλαν αίτηση για τη θέση του Ανώτερου 20 Επιθεωρητή και αφού έλαβε υπόψη της το περιεχόμε νο των εμπιστευτικών εκθέσεων, τα προσόντα, την α ξία, την ικανότητα, την πείρα, την προσωπικότητα,αρ χαιότητα και τις απαντήσεις που δόθηκαν από τον κα θένα κατά την εμφάνιση του ενώπιον της Επιτροπής. 25 έκρινε σαν καταλληλότερο τον κ. Μιχάλη Λουκά». (The Committee thereafter considered carefully the personal files and confidential reports of the candidates who serve with the Organisation and submitted appli cation for the post of the Senior Inspector and, having 30 taken into consideration the contents of the confiden tial reports, the qualifications, the merit, the capabili ties, experience, personality, seniority and the an swers given by each one of them during the interview before the Committee, considered as the most suitable 35 Michalis Louca (the interested party)). One of the members of such 1116 Committee disagreed as 3 C.L.R. HjiGeorghiou v. C.T.O. Stylianides J. he considered that a certain Phyiaktides was the most suitable and should have been promoted to the post in question. 5 This decision was taken on 29th December, 1982, and the applicant was officially informed that he was not preferred on 24.3.83. The sub judice decision is impugned on the following grounds expounded in the written addresses of his counsel:- 10 (a) That K.O.T. was empowered "'to appoint" and not "to promote" and, therefore, it acted without competence; (b) The sub judice decision was taken by the Permanent Committee of Hearings, a Committee non-existent and unknown to the Law; 15 20 (c) Furthermore, if this Committee could be said that it was set up under Subsection
(6)of Section 5 of the Law, as amended by Law No. 48/78, it could not have competence to promote and its composition was defective in that Mrs. Katsouri, a person not member of the Board of K.O.T., participated; (d) The post of Senior Inspector is not provided for in the Regulations made under Section 7
(2)of the Law; 25 (
- e)The scheme of service was not published in Official Gazette and, therefore, is not valid; the (0 The answers of the candidates at the interview were not recorded, contrary to the principles of administrative Law; 30 (
- g)The seniority of the applicant was disregarded; and lastly, (
- h)The sub judice decision was taken contrary to Regulation 15
(3)which provides that in case of promotion the recommendations of the Head of the 1117 Stylianides J. HjiGeorghiou v. C.T.O. (1986} Department in which the vacancy exists should be duly taken into consideration. The Board of K.O.T. under Section 5
(2)(e) is empowered to appoint the servants of the Organisation and exercise on them disciplinary control. The term "appoint" in the 5 same context is used in s. 10 of the Cyprus Broadcasting Corporation Law, Cap. 300A, and the Central Bank Law. Law No. 48/63. The meaning of words of a statute is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in 10 the subject, or in the occasion on which they are used, and the object to be attained. The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment—(Maxwell on Interpretation of Statutes, 15 12th ed., p.. 76). The term "appoint" in the centext of s. 5
(2)(e) includes promotion— (D. Theodorides and Others v. S. Ploussiou,
(1976)3 C.L.R. 319, at p. 343, a Full Bench case). Consequently, the Board of K.O.T. is the appropriate body for the promotion of the employees of the 20 Organisation. Under s. 5
(6), as amended by the Cyprus Tourism Organisation (Amendment) Law, 1978 (Law No. 48/78), the Board of Directors may transfer part of its powers to committees of its members in which the Director-Genera! or 25 any other officer of the Organisation may participate. These committees are different from the advisory committees for which provision is also made in the same subsection. The Board of K.O.T. is appointed by the Council of Ministers and its term is for a period not exceeding three 30 years—(Section 5(3 (a)). One of the members of the Board holding office after such appointment at the material time was "the Director-General of the Ministry of Commerce and Industry or his representative". The Director-General of the Ministry of Commerce and Industry did appoint as his re- 35 presentative to the Board of Directors of the Cyprus Tourism Organisation Mrs. Phivi Katsouri as from July, 1982. The Board set up in virtue of the powers vested in it by1 1118 3 C.L.R. 5 HjiGcorghiou v. C.T.O. Stylianides J. s. 5
(6)the Committee "Monimos Epitropi Akroasseon" (Permanent Committee of Hearings) consisting of the Chapman and the Director-General, Mr. Andronicou, and four members, including the representative of the DirectorGeneral of the Ministry of Commerce and Industry. To this Sub-committee the power of the Board to appoint under s. 5
(2)(e) was transferred. Therefore, both the establishment and functioning of the Committee and the exercise by the said Committee of the power to promote 10 are not contrary to the Law. The Committee was validly set-up. It was properly constituted and it exercised competence on the matter in question. Regulation 6 of the Cyprus Tourism Organisation (Structure and Conditions of Service) Regulations, 1970, made 15 under s. 7
(1)and
(3)of the Law provides for the structure of the central service of K.O.T. Regulation 6(e) sets out the posts for the Department of Provision of Touristic Services. In this Department there are posts of "inspecting officers". The Senior Inspector is such an officer. 20 25 .30 35 The scheme of service for the post was made by the Board and approved by the Council of Ministers in accordance with s. 7
(2)of the Law but not published in the Official Gazette. A scheme of service made by the Council of Ministers is delegated legislation in the sense of Police v. Hondrou and Another, 3 R.S.C.C. 82, made under Article 54 of the Constitution for carrying into effect the provisions of the Law—(Pangyprios Syntechnia Dimossion YpalUlon v. Republic.
(1978)3 C.L.R. 27); it is of leg;slative nature. Article 82 of the Constitution provides that every Law comes into operation on its publication in the Official Gazette of the Republic. Publication is mandatory and is more necessary in view of the presumption that every citizen .knows .the Law—(See, also, s. 7 of the Interpretation Law, Cap. 1). In niter Ishin v. The-Republic, 2 R.'S.C.C. 16, at p. 20, •the Court observed that iit'would ibe quite useful if alhsche11(19 Stylianides J. HjiGeorghiou v. C.T.O.
(1986)mes of service, which are relied upon by the appropriate authorities of the Republic as being at present in force, are to be published for general information. In Economises v. The Republic,
(1973)3 C.L.R. 410, the Full Bench held that a decision of the Council of Mi5 nisters under Article 57.4 that an act of the Council embodying the scheme of service should not be published, did not contravene Article 57.4 and, therefore, non-publication of the scheme of service was neither null nor void. The submission of counsel that the scheme of service is 10 invalid is in view of the aforesaid unfounded. A collective body is bound to keep a full record so as to enable this Court to exercise judicial control over its acts. The jurisprudence of this Court, however, does not require an appointing or promoting body to record Ihe 15 questions and answers given by the candidates. Their duty is limited to record their findings as to performance of each of the candidates at the interviews and make their comments on the basis of such findings—(Hji-Antoni and Others v. The Republic,
(1983)3 C.L.R. 1145. 1153-1154; Fran- 20 gos v. Republic,
(1970)3 C.L.R. 312. 335-339; Vourkos and Another v. Republic,
(1983)3 C.L.R. 1442, 1459: Loizidou-Papaphori v. Republic,
(1984)3 C.L.R. 933, 939-940). From the files of the applicant and the interested party 25 it emerges that the applicant was by five years senior to the interested party. The claims of officers to promotion are determined on the basis of merit, qualifications and seniority—(Regulation 15
(2)). This is an identical provision to that of s. 44
(2)of the Civil Service Law, 1967 (Law No. 30 33 of 1967). which was judicially considered in a plithora of cases by this Court. It is well settled that seniority, though one of the factors, is not the decisive one but it ought to prevail if all other things are more or less equal. In Partellides v. The Republic. 35
(1969)3 C.L.R. 480, the applicant's seniority over the interested party was just under two years. It was said by the Full Bench:"In the circumstances we are of the opinion that it 1120 3 C.L.R. 5 HJiGeorghiou v. C.T.O. was not reasonably open to the respondent Commission to promote the interested party instead of the appellant. All other things being more or less equal, the appellant's seniority ought to prevail. It follows that the relevant discretionary powers of the respondent were exercised in an erroneous manner". In Vonditsianos v. The Republic, at 91, it was said1:- 10 15 Stylianides J.
(1969)3 C.L.R. 83 : "On the whole of the material before the Court, and in the absence of any due leasons to the contrary—which I would expect to find duly recorded in the relevant minutes of the respondent—I fail to see how it was open to the respondent, in the exercise of its discretionary powers, to prefer the interested party to the applicant, in spite of the greater seniority and experience of the latter over the former, and there being no difference in merit in favour of the interested party". In Antoniou v. The Republic.
(1975)3 C.L.R. 510, a 20 Full Bench case, at p. 515 it was said:- 25 "We should sav that we have felt some anxiety because of the fact that the most senior candidate was not selected for appointment even though he was described as an 'average officer'; one does not have to be 'exceptional' m order to enjoy the benefit of the advantage of seniority". (See, also, Lardis v. The Republic,
(1967)3 C.L.R. 64, 77; Smyrnios v. Republic,
(1983)3 C.L.R. 124; Sotenadou and Others v. Republic,
(1983)3 C.L.R. 30 921). In the sub judice decision there is a general reference to seniority but there is no reasoning why the 5 years' seniority of the applicant was overweighed and he was not selected. It may not be excluded that the parties were 35 not more or less equal in merit and qualifications. Indeed the interested party, as depicted in the confidential reports, in 1981 is superior to the applicant; in 1981 he was rated with 7 "Excellent" and 5 "Very good" where1121 Stylianides J. HjiGeorghiou v. C.T.O.
(1986)as the applicant with 1 "Excellent" and 11 "Very Good". The qualifications of the parties appear pla;nly in the material which was before the Committee. The Committee, however, made a general reference to the merit and the qualifications and seniority and they have not given 5 reasons for disregarding the seniority of the applicant. Counsel for the respondents contended that in making the .promotion in question the Committee did take into consideration the recommendations "of the person in-charge of the Section before it reached its fnal conclusion. This 10 is evident from a perusal of the minutes of the Committee in question". I went carefully through the minutes placed before me but I could find nowhere 'herein any reference bearing out this contention. No reference is made at all to the re- 15 commendations of the Head of the Section or Head of the Department The matter of the recommendations of the Head of a Department has been stressed in a number of cases by this Court. The recommendations of a Head of :t Department were always considered a most vital consider.!- 20 tion—(Theodossiou v. The Republic, 7 R.S.C.C. 44, ;U 48). In Evangelou v. The Republic,
(1965)3 C.L.R. 292. at p. 297, Triantafyllides, J., as he then was, said:"Had there been made a recommendation by the 25 Head of the Department concerned in relation to the filling in 1963 of )he vacancies >n question and had in such report :* comparison been made between the Applicant and Interested Parties °.nd had the applicant been described -therein as more fit for promotion than 30 those other two candidates, the Commission would normally have been expected to cither follow it or give reasons for not doing so." The Head .of ? Department is in a position to appreciate the demands of the post to be filled and the suit- 35 ability of the candidates to discharge the duties of the post. The promoting body, certainly, i l l 22 is not a rubber-stamp 3 C.L.R. 5 10 HjiGeorghiou v. C.T.O. of the recommendations of the Director but it should not lightly disregard them, and if they decide not to act in accordance with such recommendations, they have to give specific reasons for so disregarding them and such reasons are subject to scrutiny by the administrative Court—(See, inter alia, Lardis v. The Republic (supra); Hji-Constantinoi: and Others v. Republic,
(1973)3 C.L.R. 65; Petrides v. Public Service Commission,
(1975)3 C.L.R. 284; Mytitte* and Another v. Republic,
(1983)3 C.L.R. 1096: Republic v. Haris,
(1985)3 C.L.R. 110). In Karageorghis v. Republic,
(1982)3 C.L.R. p. 459, it was said:- 15 20 25 30 35 Stylianides J. 435, at "Under s. 35
(3)of Law 10/69 in making a promotion the Commission shall have due regard to the confidential reports on the candidates and to the recommendations made in this respect by the Head of Department. I take this provision to mean recommendations of the Head of Department relating to the candidates and yet as it appears in the relevant minutes of the Commission, no definite recommendation was made in favour of any of the candidates by the Head of Department;.... Thus, I am bound to arrive at the conclusion that the decision of the Commission was taken in a manner contrary to law, namely, the aforesaid s. 35
(3)and also without sufficient knowledge of or inquiry into all relevant factors, a situation that renders the sub judice decision contrary to law in the sense of Article 146.1 of the Constitution". In Christides v. Republic,
(1966)3 C.L.R. 732, it was held that absence of knowledge of or inquiry into relevant factors leads to annulment of an administrative decision and that in exercising its discretionary powers the Administration must take into account all relevant factors. In the present case the Head of the Department in which the vacancy existed made no recommendations. The Committee failed to act in accordance with a specific statutory provision. They acted without due inquiry into the relevant factor of recommendations. They acted' without sufficient knowledge and1 contrary to> Law.. A material factor was not 1123• Stylianides J. HjiGeorghiou v. C.T.O.
(1986)within the knowledge of the respondent at the relevant time and, therefore, it was not and could not have been taken into consideration. Consequently, the exercise of their discretionary powers was for that reason rendered defective—(Soteriadou and Others v. Republic, the Full Bench case.
(1985)3 C.L.R. 300). 5 To sum up, the term "appoint" in ihe context of s. 5
(2)(e) of the Law includes promotion. Consequently, the Board of K.O.T. is the competent body for the promotion of the employees of the Organisation. The Permanent Com- 10 mittee of Hearings that effected the sub judice promotion was duly set up under s. 5
(6)and was duly constituted as Mrs. Katsouri was participating as representative of the Director-General of the Ministry of Commerce and Industry. The Board of K.O.T. transferred to this Committee 15 the power to appoint and promote. The post of Senior Inspector is included in the post of Inspecting Officers expressly provided by reg. 7
(6)(e). The scheme of service was 'awfully made by the Board and approved by the Council of Ministers and its non-publication does not in 20 any way invalidate it though it may be advisable that schemes of service should be published in the Official Gazette. The duty of the promoting body is limited to record their findings as to performance of each of the candidates at the interviews and make a comment on the basis of such 25 findings. Non-recording of questions put to candidates and the answers thereto is not mandatory and failure to do so does not taint in any way the final act. The respondents failed to give and ;ecord in the relevant minutes any reasons for non-selecting the applicant whose 30 seniority was overwhelming. Therefore, they exercised their discret'onary powers in an erroneous manner. The respondents did not give due regard to recommendations of the Head of the Department in which the vacancy existed as provided in reg. 15
(3). Thus they acted contrary to Law, 35 without sufficient knowledge; they failed to take into consideration a relevant factor and consequently the exercise of their discretionary powers was for this reason as well rendered defective. 1124 3 C.L.R. 5 10 HjiGeorghiou v. C.T.O. Stylianides J. Argument was heard on the invitation of the Court on the constitutionality of Law 54/69 empowering K.O.T. to "appoint" its officers. Counsel for the applicant submitted that the relevant provisions of the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969) are repugnant to the Constitution as they are contrary to the provisions of Articles 122 and 125 thereof. Counsel for the respondents and Mr. Charalambous representing the Attorney-General, who was called by the Court as amicus curiae, submitted that the said statutory provisions are justified by the Law of necessity and consequently they cannot be declared unconstitutional. "Public service," as defined in Article 122, means:- 15 20 25 30 35 "Any service under.... any other public corporate or unincorporate body created in the public interest by a law and either the funds of which are provided or guaranteed by the Republic or, if the enterprise is carried out exclusively by such body, its administration is carried out under the control of the Republic." K.O.T. is such a body as its Board of Management is appointed by the Council of Ministers; it is supervised and controlled by the Minister of Commerce & Industry (Section 8); one of its main sources is subsidy and/or money provided by the Republic (Section 13
(1)(a)); the Republic is guaranteeing any loans which this Corporation may contract and its loans have to be approved by the Council of Ministers (Section 14); its budget has to be approved by the Minister; its accounts and the balance-sheet and the financial administration of the Corporation are audited by auditors appointed by the Council of Ministers (Section 16); the Regulations for the better carrying into effect of the provisions of the present Law are issued by the Council of Ministers—(Section 21). The service under K.O.T. falls squarely under the definition of "Public Service" in Article 122 of the Constitution and, therefore, the constitutional provisions for the establishment of a Public Service Commission and the exclusive power of such Commission under Article 125 to appoint, 1125 Stylianides J. HjiGeorghiou v. C.T.O.
(1986)confirm, emplace on the permanent or pensionable esta blishment, promote, transfer, retire and exercise disciplinarycontrol, over, including dismissal or removal from office of all public officers, are applicable to the officers of K.O.T. In The Attorney-General of the Republic v. Mustafa 5 Ibrahim and Others, 1964 C.L.R. 195, this Court inter preted the Constitution (including the provisions of Articles 179, 182 and 183) to include the doctrine of necessity in exceptional circumstances, which is an implied exception to particular provisions of the Constitution. The prerequisites 10 for the application of the doctrine of necessity are set out in the judgment delivered—(See, also, inter alia, Chimonides v. Manglis,
(1967)1 C.L.R. 125; Theodorides v. Ploussiou,
(1976)3 C.I.R. 319; Aloupas v. National Bank.
(1983)1 C.L.R. 55; Ambrosia Oils & Margarine Industry 15 Ltd. and Others v. Bank of Cyprus Ltd.,
(1983)1 C.L.R. 55; Kofteros v. Electricity Authority of Cyprus,
(1985)1 C.L.R. 394). The constitutionality of a law should not be examined in abstracto. The constitutionality of a law in a recourse 20 challenging the validity of an administrative act has to be examined in order to decide the validity of such act or decision. An objection of unconstitutionality is considered only in relation to the issue of the validity of the subjectmatter of the recourse and is decided solely for the purposes 25 of the particular case—(Βλάχου—Η 'Ερευνα της Συντα γματικότητας των Νόμων,
(1954)ρ. 106; Σγουρίτσας— Συνταγματικόν Δίκαιον. 3rd edition,
(1965), Volume "A", p. 66). It is upon the party who seeks the assistance of the 30 doctrine of necessity to satisfy the Court that the prere quisites laid down by judicial pronouncements exist and that the measures taken were necessary and they go no further than the necessity warrants. In relation to appointments and promotions in a num- 35 ber of cases the application of the law of necessity was ju dicially considered. In lossif v. CY.T.A.,
(1970)3 C.L.R. 225, it was held that the making of two promotions on a permanent basis and not only on a temporary basis was 1126 3 C.L.R. 5 10 15 HjiGeorghiou v. C.T.O. Stylianides J. not justifiable by virtue of the law ot necessity. In HjiGeorghiou v. The Republic,
(1966)3 C.L.R. 504, and Papapantelis v. The Republic,
(1966)3 C.L.R. 515, the particular administrative action taken concerning public officers was said not to be justifiable, in the specific circumstances of the case on the strength of the law of necessity. In the present case having regard to the non-existence of the Public Service Commission envisaged by the Constitution for so many years and the reasons for it, the need for K.O.T. to function, the situation prevailing in the country, including the concentration of the Turkish population of the country in the occupied area in the north, beyond the reach of the organs of the Republic, I am satisfied that the application of the doctrine of necessity in this case was necessary to fill the gap by setting up a substitute mechanism for the running of essential institutions. In view of the above, without going into any further detail, I am satisfied that the contraventions of the chapter 20 of the Constitution dealing with the public service are justified by the law of necessity and consequently the statutory provisions of the Cyprus Tourism Organisation Law, 1969 (Law No. 54 of 1969) were validly enacted. Of course, it must be understood that the opinion of the Court on the 25 matter applies to the present case and to the facts and circumstances prevailing at the material time. In view of the above the sub judice decision is annulled. Let there be no order as to costs. 30 Sub judice decision annulled. No order as to costs. 1127