clr/1986/1986_3_239.pdf

(1986)Pantaz'ts v. Republic the doctrine of Res Judicata—Decision 4213/79 Greek Council of State not followed. of the Natural Justice—Right to be heard—Rule applicable in pro­ ceedings of a penal or disciplinary matter, but not in res­ pect of purely administrative matters. Constitutional Law—Constitution Article 5 146.5. The applicant was promoted as from 1 1.78 to the Permanent (Development Budget) post of Senior Surveyor in the Department of Lands and Surveys. He was further promoted as from 15.5.79 to the post of Lands Officer 10 Permanent (Development Budget), and as from 1.12.1981 to the post of Land Officer 1st Grade (Surveys)—Perma­ nent (Ordinary Budget). The first of the above promotions was impugned by a recourse to this Court (Recourse 499/80). This recourse was successful and as a result the said promotion was annulled (see Koufettas v. The Republic

(1983)3 C.L.R. 1252. upheld by the Full Bench in Revisional Appeal 358

(1985)3 C.L.R. 1950). 15 It should be noted that the second of the above promo- 20 tions of the applicant had been challenged by two recourses. namely recourse 113/81 filed by the applicant in recourse 499/80 and recourse 333/79 filed by another unsuccess­ ful candidate. Recourse 333/79 was dismissed on the ground that as the applicant had died his heir did not 25 possess a legitimate interest to continue pursuing the re­ course (See Georghiou v. The Republic

(1984)3 C.L.R. 1571). Applicant in recourse 113/81, withdrew it on the 13.1.83. After the annulment of the first of the above promo- 30 tions the Public Service Commission, acting on the basis of the legal advice of the Attorney-General of the Republic to the effect that the annulment of the promotion of an officer carries along with it (συμπαρασύρει) the subse­ quent promotions to higher posts and having also in mind 35 the obligation of the administration to reinstate matters to the situation which was in force before the annulled de- 240 3 C.L.R. 5 10 15 20 Pantazis v. Republic cKion of the Commission was taken, decided that the said annulment carries along with it applicant's two subsequent promotions and that the applicant be notified that he reverts to the post he was holding before he received the first of the above promotions, i.e. the promotion to the post of Permanent (Development Budget) Senior Surveyor in the Department of Lands and Surveys. As a result the applicant filed the present recourse. His counsel submitted that the sub judice decision is null and void on the following grounds, namely; a) The prerequisites for the revocation of lawful administrative acts were not satisfied in the circumstances of this case, b) The rules of Natural Justice had been violated because the applicant was not given an opportunity to be heard before the sub judice decision to revoke the second and third of his above promotions was taken and c) That the sub judice decision was contrary to law as there has been a res judicata as regards the second of the said promotions. 30 Held,dismissing the recourse

(1)The principles governing the revocation of lawful administrative acts do not apply in case of revocation of an act in close link with an act which was annulled as the obligation to comply with the annulling judgment of the Administrative Court prevails. The revoking act, being an indirect, but necessary consequence of the annulling decision, does ' not constitute a revocation in the ordinary sense. If the principles governing revocation of lawful administrative acts were to be applied, there could be no compliance with the annulling judgments of the Court. 35

(2)The rules of Natural Justice require that an opportunity be given to a party to be heard in proceedings of a penal or disciplinary character. No comparable duty is cast upon administrative bodies with regard to purely administrative matters. 25

(3)(a) In case 4213/79 the Greek Council of State decided by majority that the administrative authorities must, in discharge of the obligation to comply with an annulling 241 Pantazis v. Republic

(1986)decision, revoke the acts which are contrary to what was decided by the Council and even those which had been issued before the annulled decision. Such obligation, however does not exist when as against the acts to be revoked there had been filed by the interested party a recourse for annulment in respect of which there has been a "resignation". 5 (b) Unlike Greece where the jurisdiction of the Council of State and its powers are regulated by Law, no statutory enactment has as yet been legislated in Cyprus and the 10 question of compliance to the decisions of the Supreme Court is governed by Article 146.5 of the Constitution. Inevitably the principles upon which the obligation to comply is governed must be the General Principles of Administrative Law evolved in the continental countries 15 (Greece, France and Germany) and applied there and elsewhere with such degree of consistency as to render them part of the science of Administrative Law. In accepting the traditionally established position the Court was guided by the way Article 146.5 is framed. The 20 principle that the annulment of an act carries with it subsequent acts in close link with it is a basic principle of good administration. Furthermore in non-following the majority decision in the said case of the Council of State ' the Court had in mind that it is not certain what is the 25 legal connotation of the word "resignation" in Greece and whether it is the same or not with the "withdrawal" of a recourse in our law. There must be a differentiation between a res jud'cata which covers only what is decided therein between the parties and the obligation of the administration to comply, which is much wider in its content. Moreover the obligation to reinstate legality cannot be thwarted by the action of anyone as it is a duty towards all and in particular to all possible candidates. Recoursedismissed. No order as to costs. 242 30 35 3 C.L.R. Pantazis v. Republic Cases referred to: Kontemeniotisv. C.B.C

(1982)3 C.L.R. 1027; Group of Five Bus Tour Ltd. and Others v. The Republic

(1983)3 C.L.R. 793; 5 Morsis v. The Republic

(1965)3 C.L.R. 1; Decisionsof the Greek Council of State in cases Nos.: 1072/50, 1776/66, 4213/79, 3731/74. Recourse. Recourse against the decision of the respondents revok10 ing their decisions to promote the applicant to the Permanent (Development) Post of Lands Officer and to the Permanent (Ordinary Budget) Post of Lands Officer 1st Grade. L. Papaphilippou, for the applicant. 15 R, Gavrielides, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. A. Loizou J. read the following judgment. By the present recourse the applicant seeks a declaration of the Court 20 that the act or decision of the respondent Commission dated the 31st December, 1983, by virtue of which they decided to revoke their decisions by which he had been promoted to the Permanent (Development) Post of Lands Officer and to the Permanent (Ordinary Budget) Post of 25 Lands Officer 1st Grade, is null and void and of no effect whatsoever. The Attorney-General of the Republic, by letter dated the 21st December 1983, (Appendix 1), sent to the respondent Commission copy of the judgment of the Supreme 30 Court given in a previous case regarding the same officer, reported now as Koufettas v. The Republic

(1983)3 C.L.R. 1252, by which the Supreme Court annulled the decision of the respondent Commission, by which the present applicant had been promoted as from 1st January 1978, to the 35 Permanent (Development Budget) post of Senior Surveyor 243 A. Loizou J. Pantazis v. Republic

(1986)in the Department of Lands and Surveys. The relevant minute of the respondent Commission of its meeting of the 30th December, 1983. Appendix 3, reads as follows: After the annulment by the Supreme Court of the 5 promotion of Alexandros Pantazis to the post of Senior Surveyor in the Department of Lands and Surveys, the Commission acting on the basis of the legal advice of the Attorney-General of the Republic under file No. 34/61/63 and dated 21st June, 1980, which was 10 given in a previous similar instance regarding the same officer and in accordance with which the annul­ ment of the promotion of an officer carries along with it (συμπαρασύρει) the subsequent promotions to higher promotion posts and having also in mind the obliga- 15 tion of the administration to reinstate matters to the situation which was in force before the decision of the Commission was annulled, decided: (

1. a)That the annulment of the promotion of Alexan­ dros Pantazi to the post of Senior Surveyor in 20 the Department of Lands and Surveys carries along with it (συμπαρασύρει) also these subse­ quent promotions to the higher posts of Lands Officer Permanent (Development Budget)—from 15th May 1979, and Lands Officer, 1st Grade 25 (Surveys)—Permanent (Ordinary Budget)— from the 1st December, 1981 and (
2. b)That the Officer be notified in writing that he reverts to the post at which he was serving be­ fore he was promoted to the Permanent (Deve- 30 lopment Budget) Post of Senior Surveyor in the Department of Lands and Surveys. The notice to be communicated also to the appropriate Au­ thority." Copy of the letter with which this decision was commu- 35 nicated to the applicant is attached both to the application and to the opposition, (Appendix 4). The legal opinion referred to above (Appendix 2) is as follows; 244 3 C.L.R. 5 10 15 20 25 30 35 Pantazis v. Republic A. Loizou J. "I refer to your letter under No. LSD 203/77 and dated 18th June, 1980, in which you asked me if the annulment by the Supreme Court of the promotion of Mr. Pantazis to the post of Senior Surveyor affects his subsequent promotion to the post of Lands Officer and consequently the legality of the composition of the Departmental Board in which Mr. Pantazis participates on account of the fact that he holds the post of Lands Officer. I am of the opinion that the reply to the above question must be in the affirmative as the promotion of Mr. Pantazis to the post of Lands Officer has as a direct basis the act which was annulled by the Supreme Court, that is his promotion to the post of Senior Surveyor and consequently participates in the defects of this act (see F. Vegleri, The Compliance of the Administration to the Decisions of the Council of State, 1934 edition pp. 103-106). E. Kyriakapoullos in his Textbook Greek Administrative Law, 4th Edition Volume C, p. 155 states the following: 'The obligation of the administration to exact compliance to an annulling judgment given on an executed already act, consists of the elimination of its results, that is in the reinstatement of the previous real situation. The obligation of the administration for compliance is not confined only to the taking of the necessary administrative measures for immediate execution of the annulling judgment but imposes immediately on the administration the duty, that by executory administrative acts it reinstates matters to the legal situation as if was before the annulled act. For th:s purpose the administration is obliged to revoke also every act which is in close connection with the annulled one.' Also in foot-note 58, of the same page of the aforesaid text-book it is stated: 'Nor is it permitted to enforce or continue enforcing the acts issued on the basis of the annulled ones.'" 245 A. Loizou J. Pantazis v. Republic

(1986)The authorities from which the aforesaid principles are discerned, set out in foot-note 52 -53 are the same as those to which I shall be immediately referring. To the above .authorities relied upon by the AttorneyGeneral of the Republic there are some more to which counsel for the respondents has referred me. The first one is from The Supplement to the Case Law of the Council of State (1935-1952) Vol. 1 at p. 135 paragraphs 3855, 3856 which read: 5 «3855-Εις συμμόρφωσιν npoc ακυρωτικην απόφασιν 10 του Σ.τ.Ε. η Διοίκησις υποχρεούται να ανακαλέση κα* πάσαν πράΕίν τελούσαν εν οτενώ συνδέσμω προς την ακυρωθείσαν, ίνα επαναφέρη τα πράγματα εις την προ της εκδόσεως της ακυρωθείσης πράΗεως κατάστασιν, 2309-2320, 2326, 2328, 2330/46, 1072/

1. 15 3856- ... η δ' ανακλητική πράΕις έμμεσος, άλλ' ανα­ γκαία συνέπεια της ακυρωτικής αποφάσεως, δεν απο­ τελεί ανάκλπσιν κατά την κοινήν έννοια δι' ό και διατην νομιμότητα της δεν απαιτείται να συντρέχωσιν αι ου­ σιαστικοί προς ανάκλησιν διοικητικής πράΕεως προϋ- 20 ποθέσε:ς και τηρηθή η σχετική διαδικασία. 1072/50.» In English they are as follows: "3855.- In compliance to the annulling decision of the Council of State the Administration is bound lo revoke also every act being in close link with the an- 25 nulled one in order to reinstate matters to the situation as it was before the annulled act, 2309-2320,
2. 2328, 2330/46, 1072/
3. 3856.-.... the revoking act, indirect, but necessary consequence of the annulling decision, does not con- 30 stitutc a revocation in the ordinary sense, hence for its legality it is not essential that there should exist the substantial for the revocation of an administrative act prerequisites and observe the relevant procedure, 1072/50." 35 In an article by Themistoclis Tsatsos, published in "Themis" (Year N') entitled, "The Obligation Cast on the Administration for Compliance to the Decision of the Council of State", it is said at p. 115: 246 3 C.L.R. 5 10 Pantazis v. Republic A. Loizou J. «Δηλαδή ενδέχεται να είναι η προς συμμόρφωσιν υποχρέωσις ευρύτερα του δεδικασμένου, ήτοι να αφορά πρόσωπα, ως προς τα οποία δεν υφίσταται δεδικασμένον, ιδίως οσάκις συντρέχει περίπτωσις καθ' ήν η συμμόρφωοις απαιτεί ενέργειαν ή παράλειψιν παρά μη δι­ αδίκου αρχής, αλλά και αντιστρόφως να υφίσταται δεδικασμένον εν σχέσει προς πρόσωπα μη προς συμμόρ­ φωσιν υπόχρεα, ιδίως οσάκις υπήρξαν τρίτοι διάδικοι παρεμβάντες ή τριτανακόψαντες την εκδοθε'σον a r o φασιν. Τέλος η προς συμμόρωσιν υποχρέωσις είναι πολλά­ κις ευρύτερα του δεδικασμένου ως προς τ ο περιεχό­ μενο οσάκις απαιτείται θετική προς τούτο ενέργε'α. 15 20 25 30 3 5 Εις το δεδικασμένον εμπεριέχεται μόνον, ό,τι έχει αποφασισθή. Εις την υποχρέωσιν όμως της διοικήσεως να συμμορφωθή προς την ακυρωτικήν απόφασιν του Συμβουλίου της Επικρατείας δεν εμπεριέχεται μόνον η υποχρέωσις να λάθη αύτη ως δεδομένον ό,τι και όπως έκρινεν η απόφασις, αλλά και να ενεργήση, ό.τι απαι­ τείται και να παράλειψη ό,τι αντιβαίνει ε φ ε ξ ή ς εις την συγκεκριμένην πραγματοποίησιν του σκοπού της επι­ ταγής, έ ν ε κ α παραβάσεως τ η ς οποίας η προσβληθείσα πρόΕις ηκυρώθη ή απερρίφθη τυχόν η αίτησις ακυ­ ρώσεως.» In English it reads: "That is, it is likely that the obligation for com­ pliance to be wider than res judicata, that is to refer to persons, for which there does not exist res judicata especially when there exists an instance for which the compliance demands, act or omission by a nonlitigant organ, but also the reverse to exist res judi­ cata in relation to persons not bound for compliance especially when there existed third parties taking part or intervening or who stopped the judgment delivered. Lastly the obligation for compliance is much wider than res judicata as regards its content whenever a positive action for it is demanded. Only what was decided is contained in the res ju247 A. Loizou J. Pantazis v. Republic

(1986)dicata. In the obligation of the administration to comply with the annulling decision of the Council of States there is contained not only the obligation to take for granted what and as it was decided by the judgment, but also to perform what is commanded and to omit what is contrary thereafter in the definite realization of the purpose of the command on account of the violation of which the challenged act was an­ nulled or the application for annulment was dis­ missed." 5 Furthermore in Themis (supra) foot-note 1, at p. 116, it is also stated that:«

(1)Η ανάκλησις των πράΕεων. αι οποίαι στηρίζον­ ται εις άκυρον πράξιν της διοικήσεως, αποτελεί την αναγκαίαν συνέπειαν της γενομένης υπό του Συμβου- 15 λίου της Επικρατείας δεκτής αρχής, καθ' ήν ακυρωθεί­ σης πράΕεως τίνος ακυρωτέαι τυγχάνουσι και αι εις ταύτην στηριζόμενοι, ως εφεξής εστερημέναι νομίμου ερείσματος. Βλ. Ολ. 20/1934, 33/1934. 15/1934. 121/1934, Β'508/1934. Ολ. 588/1934. 724/1934. 880/ 20 1934; 942/1934. 186/1935.» In English it reads: "

(1)The revocation of the acis which are based on the null act of the administration, is a necessary con­ sequence of the principle, accepted by the Council of 25 State by which upon the annulment of one act they are capable of being annulled and those based on it. as being thereafter devoid of a lawful basis. See Full Bench 20/1934, 33/1934, 15/1934, 121/1934, B'508/1934, Full Bench 588/1934, 724/1934, 880/ 30 1934, 942/1934, 186/1935." I was referred also to "The Consequences of the Annul­ ment of Administrative Acts vis-a-vis the Administration"

(1980)by Demetra Kontoyiorga-Theocharopoullou where the topic is dealt at length in pages 133-

1. I shall only 35 quote from page 143 where it is stated:«Δηλαδή, εις συμμόρφωσιν προς ακυρωτικήν απόφα­ σιν του ακυρωτικού δικαστού η Διοίκησις υποχρεούται 248 10 3 C.L.R. Pantazis v. Republic A. Loizou J. να ανακαλέση και κάθε άλλην πράΙΕιν τελούσαν έν στενώ συνδέσμω προς την ακυρωθείσαν. 5 Η δε ανακλητική πράξις, αναγκαία συνέπεια της α­ κυρωτικής αποφάσεως, δεν αποτελεί ανάκλησιν κατά την κοινήν έννοιαν, δια τούτο και δια την νομιμότητα της δεν απαιτείται να συντρέχουν αι ουσιαστικοί προς ανάκλησιν διοικητικής πράξεως προϋποθέσεις, ούτε να τηρηθή n σχετική διαδικασία.» Tn English it reads: 10 15 "That is in compliance to the annulling decision of the annulling Judge, the Administration is obliged to revoke and every other act being in close link to the annulling one.. And the revoking act a necessary consequence of the annulling decision does not constitute revocation in the ordinary sense, hence for its legality it is not required that there should exist the substantial for the revocation of an administrative act prerequisites nor the relevant procedure to be observed." 20 By way of a foot-note to the aforesaid passage which merely repeats the principles earlier referred to, reference is made to two decisions of the Greek Council of State, namely Decisions No. 1072/50, 1776/
2. Foot-note 66, however, invites a comparison of those decisions to Deci25 sion No. 4213/79 by which it was decided that such obli­ gation does not exist when as regards those acts to be re­ voked there has been pursued by the interested party an application for annulment which he abandoned (ούτος παρητήθη). I shall be dealing with this decision at some 30 length later in this judgment but before doing so I find it convenient at this stage to deal with some other grounds of Law relied upon on behalf of the applicant. 35 It was one of the arguments of learned counsel for the applicant that it was not possible to revoke the two successive promotions because the general principles governing the revocation of lawful administrative acts should apply and in the circumstances of the particular case their prere­ quisites were not satisfied. The simple answer to this conten249 A. Loizou J. Pantazis v. Republic

(1986)lion is that in the case of revocation of acts being in close link with the annulled one in compliance to an annulling judgment of the Administrative Court, the principles governing the revocation of administrative acts do not apply as the obligation to comply prevails. This is clearly born 5 out from the Deci^on of the Greek Council of State 1072/ 50 already referred to in this judgment in which it was held that the revoking act being indirect, but•necessary consequence of the annulling decision, does not constitute a revocat-on in the ordinary sense, hence for its legality 10 there are not required all the substantial for the revocation of an administrative act prerequisites and the relevant procedure need not be followed. In fact if these principles were to be applied there could be no compliance with the annulling judgments of the Court. (See Conclusions of the 15 Case Law of the Greek Council of State p. 200, Theocharopoullou (supra) p. 143, Decision 3731/74, at p. 4770 and Supplement of the Case Law of the Greek Council of State 1953-1960 Volume A - K p. 218, paragraph 3348. Another point that may briefly be disposed of is the 20 one referring to the violation of the Rules of Natural Justice in the sense that the applicant was not given the opportunity to be heard before the sub judice decision to revoke the subsequent acts of promotion was taken. The matter is well settled by the judgment of the Full Bench of this Court in 25 Kontemeniotis v. C.B.C

(1982)3 C.L.R. 1027 in which it was held that the Rules of Natural Justice require in Law that an opportunity be given to a party to be heard in proceedings of a penal or disciplinary character and that no comparable duty is cast upon administrative bodies with 30 regard to purely administrative matters. This principle was followed inter alia in the Group of Five Bus Tour Lid., and others v. The Republic

(1983)3 C.L.R. 793. I come now to what I consider the main issue in this 35 recourse. This relates to the litigation in relation to the subsequent promotion of the applicant and its outcome. The relevant facts are these. The successful applicant in Recourse No. 499/80—(Anionios Koufettas v. The Repu250 3 C.L.R. Pantazis v. Republic A. Loizou J. hlic

(1983)3 C.L.R. 1252, upheld by the judgment of the Full Bench in Revisional Appeal 358 delivered on 19th September 1985)*—had filed Recourse No. 113/81 challenging thereby the subsequent promotion of the present 5 applicant as from the 15th May, 1979 to the permanent post of Lands Officer which he withdrew on the 13th January. 1983. Also another unsuccessful candidate namely. Evripides Gecrghiou filed Recourse No. 333/79, seeking thereby the annulment of the same decision of the res10 pondent Commission by which it promoted the interested parties A. Kotsonis and A. Pantazis to the permanent post of Lands Officer as from the 15th May, 1979 which was dismissed on the 30th August 1983 by the judgment of the President of this Court. This case is reported as Georghiou IS v. The Republic

(1984)3 C.L.R.

1. The ground for its dismissal was that, as that applicant had died whilst the Recourse was still pending, his heir and son did not possess a legitimate interest of his own entitling him to continue pursuing the Recourse. 20 It was argued that as a result of this situation the revo­ cation of the subsequent promotions was contrary to Law as there has been a res judicata and consequently the res­ pondent Commission could not and ought not to revoke the said act which was challenged by these two recourses. 25 I am grateful to counsel for the applicant for making readily availabie a copy of Decision 4213/
2. of the Coun­ cil of State to which I have already referred. That applica­ tion was originally to be heard by a Bench of three Judges of the Third Section of the Council of State but it was introduced by that Court for hearing by a Bench of five Judges on account of the major importance of the issue that arose. The facts of the case appear in the text and I need not repeat them. The reasoning, however, of the De­ cision is as follows: 30 35 «Επειδή κατά τ ο άρθ. 50 παρ. 4 του Π. Δ. 170/1973, ως τούτο αντικατεστάθη δια του άρθ. 30 του Ν. 702/ 1977, αι δ ο ι κ η τ ι κ α ί αρχσι δέον εις εκτέλεσιν της εν άρθ. 95 παρ. 5 του Συντάγματος υποχρεώσεως των * Reported as Republic v. Koufettas in

(1985)3 C.L.R. 1950. 251 A. Loizou J. Pantazis v. Republic ^ 098Θ) συμμορφώσεως προς τας ακυρωτικός αποφάσεις τοJ Συμβουλίου, της Επικρατείας να συμμορφούνται δια θετικής ενεργείας npoc το περιεχόμενον τ ης αποφά­ σεως του Συμβουλίου, συνισταμένης εις την αποκατάστασιν της διαταρσχθείσης δ α των παρανόμων πρό5 Εεων η παραλείψεων νουιμότητοο όπως αύτη διαπι­ στούται υπό της αποφάσεως του Συμβουλίου της Ε­ πικρατείας Εις εκτέλεσιν δε αυτής της υποχρεώσεως η Διοίκησις οφείλει να σνακαλέση τας αντ θετούς προς τα υπό του Συμβουλίου της Επικοατείας κρ θέν- 10 τα πράΕεις της και εκείνος ακόμη σι οποίοι είχον εκδοθή προ της ακυρωθείσης πράΕεως ή παραλείψεως Τοιαύτη όμως υποχρέωσις δεν υφίσταται όταν κστά των ανσκλητέων κατά τα ανωτέρω πράΕεων είχεν ασκηθή υπό του ενδ αφερομένου αίτησις ακυρώσεως, 15 άφ' ής όμως υπεβλήθη πσραίτησις Κατά την άποψιν όμως ενός εκ των εχόντων αποφασιστικήν ψήφον μελών του Δικαστηρίου η υποχρέωσις της Διοικήσεως προς αποκατάστασιν της νομιμότητος, έχει ως αναγκαίαν συνέπειαν την ανάκλησιν όλων των παρανό- 20 μων πράΕεων της. η υποχρέωσις δε αυτή δεν δύναται να αδρανή από την συγκεκοιυένην συμπεριφοράν των ενδιαφερομένων (εάν ήσκησαν δηλ αίτησιν ακυρώσε­ ως ή παρητήθησαν από ασκηθείσαν κ λ π ) . δ*ότι α­ πορρέει απ* ευθε·ας εκ του Συντάγματος και του Νό- 25 μου Επειδή, εν προκειμένω, κατά της προαγωγής του παρεμβαίνοντος εις αναπληρωτήν γενικόν διευθυντήν και της παραλείψεως της Διοικήσεως να κρίνη npoc προαγωγήν εις τον βαθμόν τούτον τον αιτούντα, ούτος 30 είχε ασκήσει την από 1941977 αίτησιν ακυρώσεως. αφ' ής όμως παρητήθη (πρακτικόν παραιτήσεως 163/ 1978). Κατ' ακολουθίαν, η Διοίκησις, κατά τα εις την προηγουμένην σκέψιν εκτεθέντα, δεν παρέλειψε οφειλομένην νόμιμον ένέργειαν, όταν, μετά την προμνη- 35 σθείσαν υπ' αοιθμ 285/1975 ακυρωτικήν απόφασιν του Συμβουλίου της Επικρατείας, δεν επανέλαβε την όλην διαδικασίαν ήτις απέληΕε εις την προαγωγήν του πα­ ρεμβαίνοντος, δια της κρίσεως του αιτούντος προς προαγωγήν και ενδεχομένως συγκρίσεως του με τον 40 προαχθέντα παρεμβαίνοντα 252 5 C.L.R. Pontalis v. Republic A. LollOu J. In Engiish it reads:- 5 10 15 20 25 30 35 40 "Whereas under section 50 para. 4 of P.D. 170/ 1973 as same was replaced by section 30 of N. 702/ 1977 the administrative authorities must, in discharge of their obligation under Article 95, para. 5 of the Constitution for compliance to the annulling 'decisions of the Council of State, comply by positive action to the content of the Decision of the Council consisting in the reinstatement of the disturbed by the unlawful acts or omissions legality as ascertained by the decision of the Council of State. And in the discharge of this obligation the Administration must revoke the acts which are contrary to what was decided by the Coun­ cil of State and also those which had been issued before the annulled act or omission. Such obligation, however, does not exist when as against the acts to be revoked in accordance with the above there had been filed by the interested party a recourse for an­ nulment and for which there has been 'resignation* (παραίτησις). In the opinion, however, of one of those members of the Court having a decisive vote, the obligation of the Administration for reinstatement of the legality has as a necessary consequence the revo­ cation of all its unlawful acts, and this obligation cannot be made inactive on account of the concrete conduct of those interested (if they filed, for example, a recourse for annulment or 'resigned' from a filed one etc) because it emanates directly from the Con­ stitution and the Law. Whereas in the present case, as against the promo­ tion of the intervener to deputy director-general and the omission of the Administration to select for pro­ motion to that grade the applicant, he had f led as from 19.4.1977 application for annulment, from which, however, he 'resigned' (πσρητήθη) (minute of resignation 163/1978). It follows in accordance with the aforesaid reasoning that the administration d ; d not omit a due lawful action, when, after the afore­ mentioned annulling decision under No. 285/1975 of the Council of State, it did not repeat the whole pro­ cess which resulted in the promotion of the inter253 A. Loizou J. Pantazis v. Republic [198C) vener, by the selection of the applicant for promotion and possibly comparing him with the promoted in­ tervener." • I have quoted at some length from text-books and de­ cided cases so that the issue which is of paramonut im5 portance as the answer to it will regulate the obligation of the administration in Cyprus for compliance to the deci­ sions of this Court given in the exercise of its Revisional Jurisdiction under Article 146 of the Constitution, has to be settled and I thought that it would be useful to do so. Π) so that if the case goes before the Full Bench they will have, as far as I could be of help the maximum of the re­ levant material. Unlike Greece where the jurisdiction of the Council oi State and its powers are regulated by Law, no statutory 15 enactment has as yet been legislated in Cyprus and the question of compliance to the decisions of the Supreme Court in its revisional jurisdiction is to be found in pa­ ragraph 5, of Article 146 of the Constitution which pro­ vides that "any decision given under paragraph 4 of this 20 Article shall be binding on all Courts and on all organs or authorities in the Repubic and shall be given effect to and acted upon by the organ or authority or person con­ cerned." Inevitably the principles upon which this obligation is 25 governed must be the General Principles of Administra­ tive Law evolved, as said in the case of Morsis v. The Re­ public

(1965)3 C.L.R. 1, in the continental countries (i.e. Greece, France and Germany) and applied there and else­ where with such degree of consistency and universal appli- 30 cability as to render them part of the science of Admini­ strative Law, I must say that in accepting the traditionally established position as enunciated in the numerous cases and com­ mented upon by the various authors and the reference also 35 by them to the approach of French Administrative Law, I was guided by the explicit way in which paragraph 5, of Article 146 of the Constitution is framed demanding in clear and unambiguous terms compliance with the deci254 3 C.L.R. 5 Pantazis v. Republic A. Loizou J. sions of this Court by the administration. It commands them to give effect to and act upon such a decision and no doubt the principle that the annulment of an act carries with it all subsequent acts in close link with it is a basic principle of good administration and has to be given effect to the utmost, as without strict compliance there cannct he effective judicial control of the administration, and reinstatement of legality which it commands. Furthermore in nonfollowing the majority view in the 10 aforesaid decision of the Council of State I had in mind that it is not certain what the legal connotation in GreekLaw and in its procedure in particular, the term "resignation" (paretisis) is and whether it is the same or not is the withdrawal of a recourse in our law which to my mind 15 it does not by itself amount to abatement. It should not be forgotten that when the applicant of recourse No. 113/81 withdrew same the law was generally accepted as hereinabove explained to be. In fact there must be made a differentiation between res judicata which covers only what 20 it decided therein between the parties and the obhgation of the administration to comply, which is much wider as regards its content. Moreover the obligation to reinstate legality has a necessary consequence the revocation of the subsequent acts in close link with the annulled one and '•5 this cannot be thwarted by the action of anyone as it is a duty towards all and in particular to all possible candidates. It is not, however, without regret, I should say. that I dismiss the present recourse. The applicant has gone through 30 obviously tremendous strain, over a long period of years through litigation, though apparently he is a duly qualified officer. I am sure that ways will be found to do justice to him whilst at the same time observe the principles of good administration. 35 For nil the above reasons the recourse is dismissed but in the circumstances there will be no order :is to costs. Recourse dismissed. No order as to costs. 255