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clr/1986/1986_3_1469.pdf

3 C.L.R. 1986 September 20 [A. Loizou, i-1 IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANASTASSIA A. MATSOUKAR1, Applicant, v. THE REPUBLIC OF CYPRUS. THROUGH (A) 1. THE PUBLIC SERVICE COMMISSION

Article 146

.2 an existing legitimate interest of the applicant and likewise the relevant legitimate in- 25 terest 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 it. It has to be noted in relation to the principles therein 30 expounded that the Commission had completed the discharge of its relevant function and there was nothing further to be done by it under such competence in order to complete the applicant's appointment. Consequently it was rightly so, if I may say with respect, held by the Full Bench 35 of this Court that the abolition of the post in question was purposely aimed at preventing that applicant from being appointed to the post for which he has been selected, hence it was found to be an act which adversely and

Article 146.2 of the Constitution 40 an existing legitimate interest of his.

1476 3 C.L.R. 5 10 15 20 25 30 35 Matsoukari v. Republic end Others A. Loizou J. Furthermore reference was made therein to a decision of the French Council of State, namely in the case of Syndicat national autonome du cadre de Γadministration generate 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. It was further differentiated with the case of Tatianos in that that applicant was not just a candidate in a com­ petition which was concelled and this is the gist of it but "he had been actually finally selected for appointment". At pp. 186, 187, in the judgment of the Full Bench delivered by Triantafyllides, J., as he then was, the following was said: "In the present Case the Court is not, in reality, faced with a decision of the Board of the Authority to abolish a post in its establishment, which was taken in the interests of the efficiency of such establishment, as viewed apart from personalities involved (see Rossides and the Republic, 3 R.S.C.C. p. 95). Only in such a case could there have been a possibility of genuinely describing such decision as an organic one. In the present Case we are concerned with the abolition of a post for the purpose of preventing the ap­ pointment thereto, by the Commission of a particular person. It was an act made by the Authority, which had no competence to decide upon the selection of the person to occupy the post in question, in order to frustrate the outcome of the exercise of the compe­ tence of the body which was entrusted with such selection under Article 125, namely the Commission. In other words what could have been an organic decision of the Authority has in effect been used as a means of frustrating an individual administrative act of the Commission. The Court is of the opinion that whenever an act is done by an organ, other than the Commission, for the very purpose of frustrating the implementation of 1477 A. Loizou J. Matsoukari v. Republic and Others

(1986)an individual administrative decis:on taken by the Commission in the exercise of its exclusive competence, that act is by its nature so closely linked with such competence and the individual adm'nistrative decision taken by the Commission under it, that it 5 is itself subject to recourse under Article 146, in the same way as the relevant decision of the Commission would have been subject to such recourse." It was also held that the abolition of the post, in the circumstances constituted an act or decision subject to the competence of this Court under Article 146 of the Constitution. 10 In Zachariades v. The Republic
(1981)3 C.L.R. 124, Demetriades J., trying the case in the first instance, on the question whether the applicant as a result of the de- 15 cision of the Public Service Commission, to promote him to the post of D'strict Officer had acquired a legitimate interest and thus he was entitled to judicial redress, held that unless a promotion is perfected or completed by an offer and acceptance the Commission can freely revoke 20 the "intended but never completed administrative act" and that in that case the respondent Commission revoked its decision before it was perfected and therefore the applicant had not acquired a leg'timate interest and was not entitled to judicial redress. It may be noted here that the 25 Minister of Interior had written to the Chairman of the Commission and informed him that he was withdrawing the request for the filling of the said post giving as a reason for do : ng so a study that was be ; ng carried out for the re-organization of his Ministry. It was upon that, that the 30 selection of that applicant was revoked. On appeal, however, to the Full Bench. Zachariades v. The Republic
(1984)3 C.L.R. 1193, it was held that "the unlawful interference by the Minister of Interior" which prevented that applicant from being appointed to a post 35 for which he had been selected by the competent organ, the Public Service Commission, and as a result of which the Commission did not in the circumstances proceed to the formalities necessary for the implementation of his 1478 3 C.L.R. Matsoukari v. Republic and Others A. Loizou J. appointment as already decided by it, was an act which adversely and

Article 146.2 of the Constitution an existing legitimate interest of the applicant.

5 10 15 20 25 30 35 It has to be observed that both in Tatianos and Zacha­ riades cases the procedure of selection and appointment of the person so selected was prevented by the decision of the appropriate Authority or some other person found not to be competent to do so and the appointment was frustrated. The position in the present case is different. The principle, therefore, that may be discerned from these Authorities is that the act or decision of an appro­ priate Authority to withdraw a proposal to fill a vacancy cannot be the subject of a recourse under Article 146 οί the Constitution as it does not as such affect a legitimate interest of a candidate unless the procedure of selection has gone so far—and possibly for other reasons that do not arise in this case—that such withdrawal can be safely considered in the circumstances to be intended to prevent such a person's appointment. In the present case it is obvious that there cannot be ascribed to the appropriate Authority an intention to fru­ strate the appointment of anyone of the candidates, more so of the present applicant as there had been no selection whatsoever out of the 748 candidates. This recourse there­ fore should fail on the ground that the applicant does not have an existing legitimate interest, having acquired no right in the matter. In view, however, of the nature of the issue, I feel that I should proceed to examine also the recourse on its merits on the assumption that the sub judice act constitutes an act or decision subject to the competence of this Court under Article 146 and the applicant had an existing legiti­ mate interest which entitled her to file the present recourse. It is clear that once the proposal for the filling of the vacancy was withdrawn by the appropriate Authority in all good faith, and validly so for a legitimate reason, name­ ly the furtherance of an agreement for the solution of what 1479 A. Loizou J. Matsoukari v. Republic and Others

(1986)may be described as a labour problem and so the vacancies might not ultimately exist, the respondent Commission was left with no authority to proceed with the procedure for the filling of the vacancies—as the duties of the Public Service Commission are limited to matters concerning of5 ficers and not the offices involved, as held in the Contopoullos case (supra) and the authorities therein mentioned. It is only when such a vacancy has to be filled that the Public Service Commission has exclusive competence to decide on who has to be promoted or appointed to a 10 post. For all the above reasons this recourse is dismissed but ,in the circumstances there will be no order as to costs. Recourse dismissed. No order as to costs. 1480 15

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