clr/1986/1986_3_1481.pdf

(1)An act or decision of the appropriate Authority to withdraw a proposal to fill a vacancy in the Public Service does not affect the legitimate interest of a candidate, unless the procedure of 1481 Charalambous end Others v. Republic

(1986)selection has gone so far—and possibly for other reasons that do not arise in the present case—that such withdrawal can be safely considered to have been intended to prevent such candidate's appointment.

(2)As in the present case there cannot be ascribed to 5 the appropriate Authority the intention to frustrate the appointment of anyone of the candidates and as there had been no selection whatsoever out of the numerous candidates, the applicant has no existing legitimate interest. 10 Recoursedismissed. No order as to costs. Cases referred to: Matsoukari v. The Republic,

(1986)3 C.L.R. 1469; Contopoullos v. The Republic, 1964 C.L.R. 347; IS Tatianos Georghiou v. Electricity Authority of Cyprus

(1965)3 C.L.R. 177; Zachariades v. The Republic,

(1984)3 C.L.R.

1. Recourse. Recourse against the decision of the respondents not to proceed with the filling of the vacant posts of Technician 2nd Grade in the Water Development Department. 20 C. Loizou, for the applicants. M. Tsiappa (Mrs.), for the respondents. Cur, adv. vult. A. Loizou J. read the following judgment. The applicants by their present recourse claim a declaration of the Court that the decision and/or omission of the respondents not to proceed with the filling of the vacant posts of Technicians, 2nd Grade in the Water Development De- 30 partment which were advertised in the Official Gazette of the Republic, dated 14th May, 1982, and for which post the applicants were candidates, is null and void and with no legal effect and/or the omission ought not to have 1482 25 3 C.L.R. Charalambous and Others v. Republic A. Loizou J. occurred as per the relevant decision communicated to them by letter dated 11th February 1985 (Appendix B) by respondents
2. S 10 15 20 25 30 35 The facts of this case are briefly these. By letter dated the 4th November 1984, (Appendix I), respondent 1, sent a written propcsal to respondents 2 for the filling of, inter alia, a number of vacant posts of Technician 2nd Grade in the Water Development Department, having first secured, as stated therein, the approval of the Ministry of Finance fcr that purpose, as per their letter of the 2nd November
3. The aforesaid post is a first entry post and applications were invited by advertisement in the Official Gazette of the Republic under Notification No. 934 of the 14th May, 1982, (Appendix IT). The present applicants were among those who submitted applications for the post in question. Respondents 2 set the machinery, prescribed by the Public Service Law and the relevant Regulatory Orders in motion and after interviewing separately the various applicants who had been re­ commended by the Departmental Board, which recom­ mendation included the present applicants to this recourse, respondent 1, by his letter dated 18th December 1984, withdrew his proposal for the filling of the vacancies in question. As stated in the relevant minute of respondents 2, (Ap­ pendix IV), "The appropriate Authority came to the said decision having taken seriously into consideration the con­ sequences and reactions which could probably be created in view of the warning and demand of the Branch Com­ mittee of the Officers of the Water Development Depart­ ment for the cancellation of the procedure of filling the vacancies for Technician 2nd Grade fcr the reason that there was unresolved the question of the absorption in organic posts of the (εκτάκτων) temporary Technicians serving in the Department. After the withdrawal of the proposal of the appropriate Authority there cannot proceed further with the procedure for the filling of the aforesaid posts." 1483 A. Loizou J. Charalambous and Others v. Republic

(1986)The applicants were notified about it by the letter of the 11th February 1985, (Appendix B). Further to the documents referred to already there were produced the minutes of respondents 2, of the 17th December 1984 (exhibit 1), at which the Director of the 5 Water Development Department referred to the performance of the various candidates both at the interviews by respondent 2 and the performance at work, of those candidates who were serving as temporary officers in the Department. There were also produced the minutes of a 1© meeting of the Director-General of the Ministry of Agriculture and Natural Resources and the Branch Committee of the Department of Water Development which look place on the 17th December, 1984, (exhibit 2), in which the Director-General is recorded to have pointed out 15 a number of reasons why the procedure for the filling of the post should not be interrupted. The Branch Committee on the other hand gave the following three reasons why that should be done: "(

1. a)At, a secret ballot the overwhelming majority of 20 the temporary employees.decided to ask the cancellation of the procedure for the filling of the fourteen vacant posts of Technician II Grade. (
2. b)There was possibility as it happened with other posts in other departments for persons who are not 25 employed in the Department to be appointed to those posts and in such a case there would be created negative repercussions to the temporary staff which serves and which will react dynamically, and (
3. c)The Cyprus Civil Servants Trade Union tries within the framework of the procedure of the Joint Personnel Committee (MEP), the question of the absorption of the temporary employees of the vacant posts which exist, or which will be created, as it 3f happened on previous occasions by the enactment of a relevant law." A letter was addressed to respondent 1, also dated the 3rd December 1984. in which the position of the Branch 1484 30 3 C.L.R. Charalambous and Others v. Republic A. Loizou J. Committee as expressed at the extraordinary general meeting of its members was put to him in strong terms, (exhibit 3). There is also a minute of the Director-General addressed to respondent 1, summing up the position and 5 explaining why the request for the filling of the post should be withdrawn, saying, inter alia, that in case that even if one person from outside the service is appointed, then possibly the interested officers will react dynamically. The Minister approved the proposal to withdraw the re10 quest for the filling of the post. Counsel for the applicant has made it clear that he challenges both the decision of respondent 1, to withdraw the proposal for the filling of the posts and also the omission of respondents 2 to proceed with the filling of 15 the posts. The grounds of law relied upon in the recourse are the following: (
4. a)That respondent 1 acted having taken into consideration facts and interventions of persons that had no 20 right to intervene to the whole procedure on the basis of any law or the Constitution. More concretely the Branch Committee and the members of the Branch in acting as they did were not duly authorised to do so. The threat of dynamic measures in no case should be a criterion for the 25 taking of any administrative decision or act. (
5. b)That the reasoning for the sub judice decision is unlawful in view of what was said as to ground 1. Counsel for the applicants argued that though the facts in Zachariades v. The Republic

(1984)3 C.L.R. 1193. 30 were different in the sense that the procedure of appointment by the Public Service Commission had reached a more advanced stage when the revocation of the proposal to fill the post took place, yet it could be discerned from it the principle that the request for the filling of a post 35 cannot be withdrawn without a reasonable cause. As regards the omission of the respondents 2, not to fill the post the stand of counsel for the applicant has been that. that was contrary to Law as they accepted the withdrawal of the proposal for the filling of the post without examining 1485 A. Loizou J. Charalambous and Others v. Republic

(1986)the legality or the correctness of such request by respondent I. It was urged that respondent 2 had the competence and a duty to examine and inquire into the grounds of such revocation. It was argued on behalf of the respondents that the 5 applicants had no existing legitimate interest adversely and directly affected by the challenged decision or omission, within the ambit of Article 146 of the Constitution in view of the fact that the withdrawal of the request for the filling of the post took place before any decision was 10 taken by respondent 2 to appoint any of the applicants or any of the other cand:dates. They had not acquired any rights in the matter of their appointment and no appointment of theirs has been frustrated and the act of withdrawal of the request was not directed against any of the 15 applicants. It was argued thaf the present case is distinguishable from that of Tatianos Georghiou v. Electricity Authority of Cyprus

(1965)3 C.L.R. 177 in whxh the respondent Authority abolished the relevant post after the Public Service Commission had already taken a decision 10 to appoint the applicant and that it was on the facts of that case that the Court found that the post had been abolished in order to prevent and frustrate the applicant's appointment to the post. I was also referred to the case of Zachariades v. The Republic (supra) in wh:ch the Court 25 likewise decided that, that applicant had a legitimate interest, but again the Public Service Commission had already made its decision to appoint the applicant and was about to communicate its decision to him when the respondent Ministry of Interior withdrew its proposal for 30 the filling of the post. In my judgment in Anastassia Matsoukari v. The Republic (Case No. 729/85).* just delivered, I had the occasion to review the authorities in relation to the same preliminary po : nt also raised therein. In addition to the 35 aforementioned cases I referred to that of Contopoiillos v. The Republic, 1964 C.L.R. 347, and quoted from the judgment of TriantafyHides, J., as he then was, on the same issue. I need not therefore reproduce here all that and unnecessarily lengthen this judgment. It is sufficient 40 to say that the position in the present case is the same as * Reported in

(1966)3 C I R. 1469. I486 3 C.L.R. 5 Charalambous and Others v. Republic A. Loizou J. the position was in the Contopoullos case in which there was likewise a withdrawal by the appropriate Authority of the proposal for the filling of the post in view of the impending reorganization of the Department in which the vacancy existed. I further distinguished the cases of Tatianos Georghiou. and Zachariades (supra), and I concluded that the principle that may be discerned from the authorities is that the act or decision of an appropriate Authority to withdraw a 10 proposal to fill a vacancy cannot be the subject of a recourse under Article 146 of 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 the present case.— 15 that such withdrawal can be safely considered in the circumstances to have been intended to prevent such a person's appointment. This principle applies with equal force to the facts of the present case in which there cannot be ascribed to the 20 appropriate Authority the intention to frustrate the appointment of anyone of the candidates more so of the present applicant, as there had been no selection whatsoever out of the numerous candidates. This recourse therefore should fail on the ground that the applicant has no existing le25 gitimate interest, having had or acqu:red no vested right in the matter. As this disposes of the recourse. I find it unnecessary to deal with the rest of the grounds. In the result the recourse is dismissed but in the cir30 cumstances there will be no order as to costs. Recourse dismissed. No order as to costs. 1487