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(1986)1986 December 22 [ S A W I D E S . J.] IN THE MATTER OF ARTICLE 146 O F THE CONSTITUTION MARIOS IERONYMIDES AND OTHERS. Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE PUBLIC SERVICE COMMISSION. Respondent. , (Case No. 843/85). Administrative Law—Administrative act—Appointments of Public Officers—Annulment of—Reconsideration of matter of appointment—Principles applicable—Persons, who were not among the original candidates, are not eligible to be considered for appointment—They lack a legitimate inte5 rest to challenge the appointment made as a result of such reconsideration—Whereas persons, who were among the original candidates and who were later appointed to the post in question, should be considered for appointment, >f such appointment will have retrospective effect from a date 10 prior to such persons appointment to the post in question —Exclusion of such persons from being considered for appointment amounts to a misconception of law and fact and to lack of due inquiry. Executory act—Confirmatory act. Legitimate interest—See, also, Administrative Law, ante. Legitimate interest—Public Officers—Appointments—Annulment of—Reconsideration of matter—New appointment —Recourse filed by an unsuccessful candidate, who was, also, a candidate for the original appointment, withdrawn—New 20 decision giving to such new appointment retrospective effect— 2424 15 3 C.L.R. leronymides and Others v. Republic The applicant in the said recourse has no legitimate rest to challenge such new decision. 5 10 15 20 inte- Collective orgam—Change in composition —In reconsidering matter following annulment of a decision the organ cannot rely on the findings and views of the persons of which the same organ was composed when the original decision was taken. In 1981 there was a number ot vacancies in the post of Attache in the Ministry of Foreign Affairs. The interested party and the applicants, with the exception of applicants 2 and 4, were among the candidates for appointment. Applicants 3, 5 and 8 were among the six candidates who were found as the most suitable for promotion and, as a result, they were offered appointment as from 1.9.81. Applicants 3 and 5 accepted such appointment, but applicant 8 requested that her appointment should commence as from 2.10.81. The request was granted. The interested party filed rcourse 356/81, as a result of which the Court annulled the appointment of one of the interested parties in such recourse, namely G. Evriviades (See Kapsou v. The Republic
(1983)3 C.L.R. 1136). In the meantime applicants I, 2, 4 and 6 were appointed to the said post as from 15.9.
  1. 25 30 35 As a result of the said annulment of the appointment of Evriviades the respondent Commission re-examined the matter on the basis of the situation prevailing in 1981 and decided to appoint to the post the interested party as from 1.7.
  2. The decision was published in the Official Gazette of 31.8.
  3. In reaching this decision the Commission did not consider applicants 1 and 6, who were among the candidates of 1981 and were later appointed as from 15.9.
  4. The interested party requested that his appointment bemade with retrospective effect as from 1.9.
  5. His request was turned down and as a result the interested party filed a recourse to this Court, which, however, was withdrawn, when the Commission undertook to reconsider the matter of retrospectivity. Finally the Commission decided that the appointment be made with retrospective effect as from 2425 leronymides and Others v. Republic
(1986)1.9.
  1. The decision was published in the Official Gazette of 19.7.
  2. The recourse is directed against the decision published on 19.7.
  3. It should be noted that no one challenged the decision published on 31.8.
  4. 5 Held, annulling the sub jttdice decision:
(1)When an appointment to a post is annulled by this Court, the respondent Commission in reconsidering the filling of the post has to take into consideration the legal and factual situation that existed at the time when the annulled de- 10 cis:on was taken. It follows that applicants 2 and 4. who were not among the candidates of 1981 for the post in question, were not eligible for appointment and, therefore, they do not have a legitimate interest to challenge the appointment of the interested party. 15
(2)The sub judice decision consists of two parts. The first part reconfirms the decision of 31.8.84 to appoint the interested party to the post in question. The second part gives retrospective effect to the appointment. The first part cannot be challenged by a recourse, because of J\) its confirmatory nature.
(3)Applicants 3, 5 and 8 were offered appointment as from 1.9.81 and, therefore, no legitimate interest of theirs has been affected as the appointment of the interested part} was not effected with effect prior to 1.9.81. 25
(4)Applicant 7 was never appointed to the post and he was a candidate for appointment in 1981.He is the only applicant who had a legitimate interest to challenge the appointment of the interes'ed party as from 1.6.84 published on 31.8.84. He filed a recourse, which he later JO withdrew. It follows that since he did not insist on his challenge to the appointment of the interested party, he has no legitimate interest to complain now against the retrospectivity of such appointment.
(5)From the moment when the respondent Commiss'on 35 decided to re-consider the matter of retrospectivity the legitimate interest of applicants 1 and 6 comes into play. Bearing in mind the legal and factual situation existing in 2426 3 C.L.R. leronymides and Others v. Republic 1981 applicants 1 and 6 were entitled for being considered for appointment. Their exclusion from such consideration amounts to a misconception of law and fact and to lack of due inquiry. In the result their prayer succeeds. 5 Sub judice decision annulled. No order as to costs. Cat·» referred to: . Republic v. Safirides
(1985)3 C.L.R. 163; Nicolaou and Another v. Republic
(1985)3 C.L.R. 931; 10 Papaleontiou v. Republic
(1985)3 C.L.R.
  1. Recourse. Recourse against the decision of the respondent to promote and/or appoint the interested party to the post of Attache" in the Ministry of Foreign Affairs retrospectively 15 as from 1.9.
  2. C. Loizou, for the applicants. R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 20 SAVVIDES J. read the following judgment. The applicants in lh ; s recourse, whose names appear in the attached appendix, pray for a declaration that the decision of the respondent Commission which was published in the official Gazette of the Republic dated the 19th 25 July» 1985 under Notification 1946, whereby the interested party, Ch. Kapsos, was appointed and/or promoted to the permanent post of Attache in the Ministry of Foreign Affairs retrospectively as from the 1st September, 1981, is null and void, illegal and of no legal effect. 30 The recourse is based on the following grounds of Law:
(1)The sub judice decision was taken in abuse and/or in excess of power and is the result of misconception of law and fact and contrary to the Constitution. 2427 Savvides J. leronymides and Others v. Republic (1980}
(2)The sub judice decision violates the accepted prin­ ciples of administrative law and/or the case law and the principles of natural justice.
(3)The sub judice decision is not duly reasoned. The facts relevant to the present case date back since 5
  1. In 1981 there was a number of vacancies in the post of Attache in the Ministry of Foreign Affairs. The in­ terested party and the applicants, with the exception of appPcants 2 and
  2. were amongst the candidates who applied for appointment to such post and were amongst those who Ό were considered by the respondent Commission and were called for an interview. Applicants
  3. 5 and 8 were amongst the six candidates who were found by the res­ pondent as the most suitable candidates for appo:ntment to the post and were offered appointment to such post as '5 from 1.9.
  4. Applicants 3 and 5 accepted such appoint­ ment as from the aforesaid date, whereas applicant No. 8 requested that her appo:ntment should commence as from 2.10.1981 due to the fact that she could not come to Cy­ prus before such date. 20 The interested party filed recourse No. 356/81 challeng­ ing such decision in which judgment was delivered on the 20th January,
  5. (See Kapsou v. Republic
(1983)?. C.L.R. 1136), whereby h : s recourse against four of the in­ terested part-es in that case was dismissed but was success- 25 ful concerning the appo : ntment of another candidate, name­ ly, E. Evriviades. whose appointment as a result was an­ nulled. In the meantime new vacancies were created in the post of Attache in the Foreign Service in 1983 as a result of 30 : wh ch applicants 1, 2, 4 and 6 were appointed as from the 15th September.
  1. Applicants 1 and 6 were amongst the candidates for appointment in 1981 but were not so appointed and did not challenge the appointment of those candidates who were appointed as from the 1st September, 35
  2. As a result of the annulment of the appointment of Ev­ riviades, the Public Service Commission met on the 27th March, 1984, to consider the filling of the post which 2428 3 C.L.R. leronymides <snd Others v. Republic Sawides J. became vacant, [n the relevant minutes of the meeting of the 27th March, 1984, we read the following: 5 10 'The Commission having examined the material facts from the file concerning the filling of the post, includ'ng the minutes of the meeting of the 29th May. 1981 (subject 2) :n which the comments and opinion of the Director-General of the Ministry of Foreign Affairs are recorded as well as the evaluation by the Public Service Commission of the performance of the candidates before it. in the course of the interviews. decided to adjourn the further examination of the matter for 29.3.84." The respondent Commission met on the 29th March. 1984; ;ind after stating that it found it unnecessary to con15 sider for the promotion in question applicants Nos. 1 and 6, since they were appointed to that post by a later decis:on of its own. proceeded to select the interested party for appointment, on the basis of the situation prevailing in 1981, taking into consideration mainly his performance at 20 the interview, but also the material contained in his application, his qualifications and the fact that he was serving as ? casual public officer. By letter dated the 3rd April,
  3. the interested party was informed accordingly and was offered appointment to 25 the post of Attache m the Foreign Serv;ces of the Republic to which he replied by letter dated the 20th April. 1984, accepting his appointment but requesting that it should be effected retrospectively as from the date when the appointment of Evriviades was annulled, i.e. the 1st 30 September,
  4. The respondent sought the advice of the Attorney-General on the matter wlvch was given by one of the Senior Counsel of the Republic on the 13th May. 1984 and was to the effect that retrospective effect to the appointment could not be given. 35 The respondent mot on the 25th May. 1984 and after having taken into consideration the opinion expressed by the office of the Attorney-General decided that the request of the interested party for retrospective appointment could. not be accepted and fixed the date of .his appointment as 40 the 1st July.
  5. The interested party persisted in his 2429 Savvides J. leranymides and Others v. Republic
(1986)claim and on the 24th July, 1984, he submitted a long letter to the respondent through the Director-General of the Ministry of Foreign Affairs repeating his claim that his appointment should be given retrospective effect. The respondent Commission by letter dated the 1st August, 5 1984, informed the interested party that it had decided to appoint him as from the 1st June, 1984, in accordance with the terms of service embodied in the offer made to him on the 3rd April,
  1. His appointment was published in the official Gazette of the Republic of the 31st August, 10 1984 under Not.
  2. As a result the interested party filed a recourse in the Supreme Court challenging the refusal of the respondent to give retrospective effect to his appointment. In the course of the hearing of such recourse counsel appearing for the 15 respondent advised the respondent that in the special circumstances of the case the claim of the interested party for retrospective appointment should be reconsidered. In view of that, the interested party withdrew his recourse. The respondent Commission in the light of the new ad- 20 vice given by the Senior Counsel of the Republic who was representing it in the recourse, met on the 29th May, 1985, re-examined the claim of the interested party and decided that his appointment should be given retrospective effect as from the 1st September, 1981, the date of the ap- 25 pointment in such post of Evriviades whose appointment had been annulled by the Supreme Court in Recourse No. 356/
  3. A notification to that effect was published in the official Gazette of the Republic of the 19th July, 1985, under Not. 1946, hence the present recourse. 30 From what emanates from the above facts there were :wo different administrative acts concerning the appointnent of the interested party to the post of Attache in the vihrstry of Foreign Affairs. The first, the one that was mblished in the Gazette of the 31st August, 1984, where- 35 >y the interested party was appointed in the post as from he 1st June, 1984, and the second, the one that waspublished a the Gazette of the 19th July, 1985, annulling the preious one to the extent of the date of the appointment of 2430 3 C.L.R. leronymides and Others v. Republic the interested party and giving retrospective effect appointment as from the 1st September.
  4. 5 Sawides J. to his The decision cf the respondent which was published in the Gazette of the 31st August,
  5. was never challenged by any of the applicants. It is the decision published on the 19th July, 1985, that is being challenged by the applxants. In any event only applicant No. 7 would have had a legitimate interest to challenge the former decision. Having narrated the facts. I come now to consider the 10 issues before me and I shall deal first with the preliminary objections raised by the interested party who hand'ed the case in person, as to whether the applicants or any one of them has a leg'timate interest to challenge the sub judice decision and whether the present recourse is time barred. 15 It has been held time and again by this Court that when an appo:ntment to a post is annulled by the Supreme Court the Public Service Commiss:on in reconsider'ng the filing of the post has to take into consideration the legal and factual situation that existed at the time when the 20 annulled decis:on was taken which in the present case is the 1st September.
  6. the date of ihe appointment of Evriviades. whose appointment was annulled. Therefore, the only candidates who could be considered for the fill:ng of such post were those who were eligible 25 candidates on the 1st September. 1981 and no new candidates. Applicants 2 and 4 who were not in the picture in September, 1981 and were not amongst the eLgible candidates, have no legitimate interest to challenge the appointment of the interested party to such post. Their recourse. 30 therefore, fails. The decision of the respondent which was published on the 19th July, 1985 bearing in mind all the surrounding circumstances of 'he case consists ;n fact of two parts. The first part refers to the decision concerning the appointment 35 of the applicant, published on the 31st August,
  7. to the post of Attache and the second the decision giv:ng retrospective effect to such appointment as from the 1st September, 1981 instead of the 1st June,
  8. The first 2431 Sawidei J. leronymides and Others v. Republic
(1986)part is nothing more than merely confirmatory of the appointment of the interested party to the post which he was already holding and as such it could not be challenged by a recourse once the original act of his appointment was not challenged by any of the applicants within the 75 5 days time limit prescribed by the Constitution. (See nrnutcs of the meeting of 29.5.85 from which it is obvious that only the date of the appomtment of the interested party was reconsidered). The second part of the decision embodies in fact a new decision that of giving retrospective 10 effect to his appointment which is an executory administrative act by itself and as such it can be challenged by a recourse by any person who has a legitimate interest affected by such decision. Having reached the conclusion that applicants 2 and 4 15 have no legitimate interest to challenge the sub judice decision I shall proceed to examine the position of the remaining applicants. As already mentioned applicants 1, 3, 5, 6, 7 and 8 were amongst the candidates elig:ble for appointment in 20 1981, applicants 3, 5 and 8 were amongst the successful candidates to whom an appointment was offered as from the 1st September. 1981, which was accepted by applicants 3 and 5 whereas applicant 8 requested that her appointment should commence as from the 2nd October,
  1. 25 Evriviades whose appointment was annulled was also appointed as from the 1st September,
  2. This is the real and factual situation concerning the said three applicants and the interested party. The appointment of the interested party was effected retrospectively as from the 1st September, 30
  3. Bearing in mind the fact that the offer for appointment to the said three applicants was made to commence as from the 1st September, 1981, the same date from which appointment was offered to the interested party, I have come to the conclusion that no legitimate in- 35 terest of these applicants is affected by the appointment of the interested party as his appointment was not effected with retrospective effect prior to the 1st September,
  4. Therefore, the recourse of applicants 3, 5 and 8 also fails. 40 2432 3 C.L R. leronymides and Others ν Republic Sewides J Applicant No. 7 was a candidate for appointment in 1981, but was never appointed to the said post, and is now holding, since 1.3.1984, the post ot Civil Defence Office] He was therefore the only applicant who would have had 5 a legitimate interest to challenge the appointment ot the mterested party as from 16.1984 which was published on the 31st August,
  5. In fact, he did challenge the above decision by recourse No 589/84, which he later with­ drew. So, therefore, since he did not insist on his claim 10 against the appointment of the interested party, he ha:> no leg*timate interest to complain now against the retrospe­ ct vity of his appointment As a result, his recourse also fails 15 20 25 30 35 40 Applicants 1 and 6 were appointed since 1983 and were holding the same post as the one offered to the interested party As already found they had no legitimate interest tc challenge the part of the decision concerning the appoint­ ment of the mterested party as from the 1st June, 1984 as such appointment was subsequent to their own The\ were however, entitled to challenge the retrospective effect given to his appointment as by such decision the interester party was given an advantage over them that of nearls two vears seniority Having iound as above, I shall now examine whethei the sub mdice decision of the respondent is defective The respondent in dealing with the real and factual si tuation that existed in 1981 considered whether applicant* 1 and 6 who were candidates in 1981 should be taken mtr consideration for the filling of the vacant post According to the minutes of the 29th March. 1984 it was found un necessary that they should be taken into consideration ir the re-examination of the case in view of the fact that thc\ had already been appointed, since 1983 The Public Servict Commission could have proceeded as it d'd so far as the appointment ot the interested party was to take effect ak from 16 1984 as such appointment did not affect any le gitimate interest of the said applicants 1 rom the moment however, that it decided to reconsider the date of the ap pointment of the interested party for the purpose of g'vinj retrospective effect to it then the legitimate interest of ap 2433 Sswides J. leronymides and Others v. Republic
(1986)plicants 1 and 6 comes into play and, therefore, in the course of such re-examination bearing in mind the legal and factual situation prevaUing on the 1st September, 1981, the respondent had to take into consideration as eligible candidates applicants 1 and 6 and not to exclude them. 5 In the light of my above findings I have come to the conclusion that the respondent Commission by excluding applicants 1 and 6 from consideration when it decided to appoint the interested party retrospectively acted under a misconception of law and fact and failed to carry out a 10 due inquiry into the matter. Before concluding, and since the matter is going, back to the respondent for reconsideration as a result of this decision, I w'sh to observe that the respondent is not entitled, when reconsidering the appointment in question, to 15 take into consideration the findings of the Commission in 1981, in v'ew of its d:fferent composition. The evaluation of candidates is a subjective element, connected with the persons of which the respondent, being a collective organ, is composed, and the respondent in its present composition, 20 cannot rely on the findings and views of the persons of which the same organ was composed in 1981. (See the judgment of the Full Bench in Republic v. Safirides (19851 3 C.L.R. 163 and the cases of Nicolaou & Another v. Republic
(1985)3 C.L.R. 931 and Papaleontiou v. Republic 25
(1985)3 C.L.R. 1929). In the result the prayer of applicants 2, 3, 4, 5, 7 and 8 fails and is hereby dismissed whereas applxants' 1 and 6 prayer succeeds and the appointment of the interested party to the post of Attache in the Ministry of Foreign Af- 30 fairs with retrospestive effect as from the 1st September, 1981 is hereby annulled. In the circumstances I make no order for costs. Sub judice appointment of interested party annulled. No order as to costs. 243d 35 3 C.L.R. leronymides and Others v. Republic APPENDlX List of Applicants 1. Marios leronymides. 2. $tavros Amvrosiou. 5 3. Leonidas Markides. 4. Antonis Toumazis. 5. Alekos Zenon. 6. Phaedon Anastassiou. 7. Panaytotis Katsouras. 10 8. Popi Avraam. 243*1 Sawides J.

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