clr/1986/1986_3_1551.pdf

(1)—The competency thereunder as regards promotions was lawfully delegated by the Council of Ministers to the Minister of Defence (The Statutory Functions (Conferment of Exercise) Law, 1962. section 3

(1)*—Factor relevant to promotions—Interested parties better in merit and qualifications—Seniority of applican's cannot prevail. By means of the above recourse the applicants challenge the promotion of the interested parties to ihe rank of lieutenant in the Cyprus Army on the following grounds, namely that the Minis'er of Defence had no competency in the matter—the competent organ being the Council of Ministers—that the Minister acted under a misconception of fact in that he disregarded the applicant's bravery during the Turkish rebellion in 1963 and the Turkish invasion of 1974, considering the patriotism shown by the applicants on the said occasions as an adverse element, and that he acted in a discriminatory manner against the applicants in that he did not consider 9 Quoted at D. 1555 post. 1551 Malais and Others v. Republic objectively the relevant factors, but ulterior motives.

(1986)was influenced by Held, dismissing the recourse:

(1)The. competency of the Council of Ministers under s. 5

(1)of Law 8/61 was lawfully delegated under s. 3

(1)of Law 23/62 by the Council of Ministers to the Minister of Defence, who, consequently, had competence in the matter. 5

(2)From the material before the Court there is nothing to indicate that any so called "adverse elements" were taken into account or were existent either against the ap- 10 plicants or the interested parties.

(3)Eleven of the interested parties are graduates of the Scholi of Evelpidon. This fact renders them by far superior in qualifications to all the applicants. The remaining interested parties have higher qualifications to those of the applicants. Moreover, as it emanates from the service reports all the interested parties are better in merit than the applicants. It follows that any seniority of the applicants cannot prevail.

(4)There is no evidence of any discrimina'ion against the applicants or that the respondent was influenced by any ulterior motives. 15 20 Recourse dismissed. No order as to costs. tecourse. 25 Recourse against the decision of the respondent to pronote the interested parties to the rank of lieutenant in he Cyprus Army in preference and instead of the appliant. Ph. Valiantis, for the applicant. A. Vassiliades, 30 for the respondent. Cur. adv. vuh. MALACHTOS J. read the following judgment. The appliants in this recourse claim a declaration of the Court that he act a n d / o r decision of the respondent, published in 35 1552 3 C.L.R. Malais and Others v. Republic Malachto* J. the Official Gazette of the Republic of 13.6.80 to promote the fifty-two interested parties to the rank of lieutenant in the Cyprus Army instead of the applicants, is null and void and of no legal effect whatsoever. 5 The applicants are:

1. Georghios Malais,
2. Ioannis Economides,
3. Panayiotis Katsouris,
4. Demos Xenophontos,
5. Kyriakos Pirikkis,
6. Andreas Spyrou,
7. Ioannis Constantinou,
8. Michal's Paraschou,
9. Costas Hadji Eftychiou,
10. Kyriakos Koudounas and
11. Demetrios 10 Anastassiou. Ail the applicants are serving in the Cyprus Army in the rank of second lieutenant. Applicants No. 2 Ioannis Economides and No. 7 Ioannis Constantinou withdrew their recourses during the hearing and were dismissed accordingly. 15 The facts of the case briefly are as follows: The General Staff of the National Guard by letter dated 25.5.80 to the Ministry of Defence, recommended for promotion to the rank of Lieutenant fifty-two officers holding the rank of second lieutenant, out of those eligible 20 for promotion. 25 The Minister of Defence considered each and every case submitted for promotion and approved the promotion of the fifty-two interested parties from the rank of second lieutenant to the ronk of lieutenant as from 1.6.
12. This decision of the Minister of Defence was submitted by him to the Council of Ministers for approval. The Council of Ministers approved the said promotions which were subsequently published in the Official Gazette on 13.6.
13. 30 35 Hence the applicants filed the present recourse is based on the following grounds of Law:- which A.
14. The respondent Minister acted in excess and/or abuse of power in that the competent organ for appointment of officers in the Cyprus Army according to section 5

(1)of Law 8 of 1961 is the Council of Ministers and not the Minister of Defence. 1553 Malachtos J. Malais and Others v. Republic

(1986)2. Even if the respondent was acting on the authority delegated to him by the Council of Ministers, such authority is null and void and of no legal effect on the legal principle "Delegatus non potest delegare". B. Notwithstanding and in further support of the above, 5 1. The respondent acted under a misconception of fact, sincd:(

1. a)he disregarded the fact that the applicants were superior to the interested parties as regards seniority, experience and qualifications. 10 (
2. b)he disregarded the fact that the applicants had rendered valuable services and displayed bravery in fighting against the Turkish Cypriot rebels and the Turkish invading forces. (
3. c)he disregarded the fact that the applicants or some of 15 them, have served in the rank of lieutenant and/or as company commanders satisfactorily in contradistinction to the interested parties who do not have any such experience. (
4. d)he misinterpreted the national spirit and patriotism of the applicants which he mistook as an adverse element against them. 2. The respondent acted in discrimination as against the applicants as he did not consider objectively the substantial qualifications, experience, seniority and merit of the applicants, but he was influenced by foreign interventions and ulterior motives. 20 25 It has been argued on behalf of the applicants in respect of the first ground of law in accordance with the Army of the Republic (Composition, Enlistment and 30 Discipline) Law of 1961 (Law 8 of 1961), section 5

(1), the competent organ for effecting promotions of officers is the Council of Ministers and not the Minister of Defence and thus, the Minister has acted in excess of power. Moreover, it was argued that the Council of Ministers was not 35 empowered to delegate such powers to the Minister of Defence on the principle of delegatus non potest delegare. 1554 3 C.L.R. Malais and Others, v. Republic Malnchtos J. The Council of Ministers was not empowered to delegate the powers vested in it to another organ without specific statutory authority. 5 10 15 20 25 Law 23 of 1962, The Statutory Functions (Conferment of Exercise) Law, 1962, section 3

(1)provides: "Where by or under any Law or public instrument the Council of Ministers is empowered to exercise any statutory functions the Council of Ministers may, unless by law expressly prohibited from so doing, by a decision in this respect, authorise the appropriate Minister or the appropriate Independent Officer of the Republic or other appropriate Authority in the Republic, to exercise such statutory functions on behalf of the Council of Ministers subject to such conditions, exceptions and qualifications as the Council of Ministers may in such decision prescribe." In the present case the Council of Ministers by its decision No. 4545 of 18/3/

1. decided to confer its statutory function of effecting promotions of officers in the Cyprus Army to the Minister of Defence and on the strength of this decision the Minister of Defence effected the said promotions which were subsequently approved by the Council of Ministers in accordance with its above decision. From the above it is dear that the Minister of Defence did not act in excess of power, as these powers were delegated to him in accordance w!th the law. This ground must. therefore, fail. It was further argued on behalf of the applicants that the respondent acted under a misconception of fact in that 30 he disregarded their superiority, experience, qualifications and bravery during the Turkish rebellion in 1963 and the Turkish invasion of
2. Such patriotism was misinterpreted and was considered as an adverse element. Furthermore. he failed to take into consideration that the applicants or 35 certain of them, had in the past exercised the duties of a lieutenant and they had thus acquired experience in such rank. 1555 Malachtos J. Malais and Others v. Republic

(1986)Finally, it was argued that the respondent acted in a discriminatory manner as regards the applicants in that he did not consider objectively the basic factors i.e. of qualifications, experience, seniority and merit of the applicants but was influenced by ulterior motives. 5 It transpires from the comparative tables, which have been produced in court, the contents of which have not been contested, that eleven of the interested parties are graduates of the Scholi of Evelpidon which renders them by far superior to all the applicants. As regards the 10 remaining 41 all have higher qualifications to those of the applicants. It is equally obvious from their service reports that all the interested parties are in merit better than the applicants. In view of the above, any seniority of the applicants to 15 the interested parties, cannot prevail over the marked higher qualifications and merit of the interested parties and, therefore, I must dismiss this argument also as I find in the circumstances that it was reasonably open to the respondent to promote the interested parties instead of the appli- 20 cants. As regards the so called "adverse elements," allegedly taken into account by the Minister, I must say that from the material placed before me, there is nothing to indicate that any such elements were taken into account by the 25 respondent or were existent either against the applicants or the interested parties. Finally, I find that there is no evidence of any discrimination against the applicants or that the respondent was influenced by any ulterior motives when effecting the sub 30 judice promotions but considered the applicants in the same objective manner as the interested parties. For the above reasons this recourse fails and is hereby dismissed, with no order as to costs. Recourse dismissed. No order as to costs. 1556 35