clr/1987/1987_3_1341.pdf

(1))— TheEducational Service Commission cannotfillavacantpost,unlessitreceivesawnttenrequest from theAuthorityconcerned (Section14)—*PubhcEducationalservice»includes serviceatthepost ofInspector(Section2)—Promotion ofthetwo interested parties to the post of General Inspector ElementaryEducation— Decision taken following an annulment of promotions to such post — One of the annullingdecisionsset asideupon appealaftersubjudice promotions—As aresultatthetime,whenthesubjudicedecisionwastaken,thereexistedonly one vacantpost ofInspector—Sub judicepromotions annulled The appellant and interested party Papadopoullos were promoted on 22 1080to the postof General Inspector,Elementary Education witheffect from 11180 The aforesaid promotion of the appellant was annulled by this Courtin Karageorghisν The Republic

(1982)3 C L R 435 The promotion of Papadopoulos was,also, annulled by thisCourtin Tomarisν The Republic U982J3CLR 1165. Asaresultthe respondentCommission reconsideredthe matter,butonce again dedded topromote the apr-ellant andinterested party Papadopoullos 1341 Papaleontiou v. E.S.C.

(1987)with effect from 1 11 80 Thepromotionof theappellant was challenged by Karageorghi5 and the promotion of Papadopoulos by Tomans Both recourses succeeded and the aforesaid promotions were annulled (See Karageorghis ν The Republic

(1983)3 C LR 1211 and Tomans ν The Republic

(1983)3 C LR 1292) 5 The present appellant, however, as interested party in the recourse by Karageorghis lodged anappeal{RevisionalJurisdictionAppeal No 350)from thejudgment inKarageorghisν TheRepublic (\983) 3 C LR 1211 On 22 12 83, that is before the expiration of the time allowed for appeal against theaforesaid judgment,therespondentCommissionreconsideredthe matter and decided to promotewith effect as from 1 11 80 to the aforesaid post TomansandPapadopoulos 10 The appellant challenged the said decision of 22 12 83 by recourse 565/ 83 This is an appeal from the judgment dismissing such recourse (Papaleontiou and Anotherν The Republic

(1985)3 C LR 1929) 15 Itisobvious thatintakingthesubjudice decisiontheCommissionactedon the assumption that the promotion of the present appellant had been annulledjudicially {Karageorghisν TheRepublic

(1983)3 C L R 1211) This judgment was set aside in RA 350 (Papaleontiou ν Karageorghisand Another

(1987)3 C LR 751)andthepromotionof Papaleontiou with effect 2 0 as from 1 11 80 affirmed Held, allowing the appeal

(1)No educational officer is promoted to another post, «unless thereisa vacant post» (Section35

(1)of Law 10/69) «Public EducationalService· includesserviceinthepostofInspector(Section 2 of same law) Moreover, the Educational Service Commission cannot 2 5 proceed tofill any vacancy, except uponthewntten request of theAuthonty concerned (Section 14 of said law) Inthiscase therequest was for thefilling of two, not three posts of Inspector Inview of the result of RA 350, atthe timethesub judice decision was taken,therewas only onevacant postto be filled Itfollowsthatthesubjudicepromotionscannotsurvivejudicialscrutiny 3 0

(2)Thequestion now iswhether thepresentappellantwho was promoted to the post of inspector as from 111 80, possesses legitimate interest to challengethepromotionofthetwointerestedpartiestothesamepostasfrom thesame date Thereis nodisputethatby filling two posts instead of onethe seniority of the appellantisadversely affected 35

(3)Acitizencannotcontestthevalidity ofeveryadministrativeact,unlesshe possesses legitimate interest The cntenon is the existence of a direct relationshipandaffectation ofaninterest,matenalormoral,of theapplicant, otherwise therecourse isdepnved of its admissibility The Courtmust be satisfied thatthe legitimate interest of theapplicantis adversely anddirectlyaffected by thechallenged act 1342 40 3C.L.R. 5 10 Papaleontiouv. E.S.C. The requirements of Article 146 2 mustbe satisfied atthetimeof the filing andheanngof therecourse,butsuchrequirementsaresatisfied, ifatthesaid matenal timesitis clear that theexisting interestof an applicant, though not yet adversely and directly affected, is unavoidably bound tobe so affected eventually Trie decision of an administrative court regarding the issue of legitimate interest has tobe reached inthelight of the circumstancesof the particular case The senionty will nghtly be taken intoconsideration atthe timeof thefilling of a higher post Seniontypreexists andis notacquiredat thetimeofsuchfilling Inthepresentcasetheseniontyoftheappellantwould beaffected andasadmittedisaffected bythepromotionoftwopersonstoone vacantpost Appealallowed Sub judice decision annulled Noorder astocosts 15 Casesreferredto Papaleontiou ν TheRepublic {1987)3 C LR 751. Papasawasv TheRepublic {1967) 3 C LR 111, Panayidesv TheRepublic

(1973)3 CLR 378, Decision3679/75 of the GreekCouncilof State 20 Appeal. Appeal against the judgment of the President of the Supreme CourtofCyprus (Tnantafyllides, P.)givenonthe 1stAugust, 1984 (Revisional Junsdiction Case No.565/83*) whereby appellant's recourses against the promotion of the interested parties to the 25 postof GeneralInspectorofElementary Educationwas dismissed. AS. Angelides, for the appellant. A. Vassiliades, for the respondents. E.EfstathiouwithΜ Tsangandes, forinterestedpartyTomans. A. Pandelides,for interested party Papadopoullos. 30 Cur. adv. vuh. A. LOIZOUJ.:TheJudgment of theCourtwillbe delivered by Mr.Justice Stylianides. STYUANIDESJ.:Thisappeal is directedagainst the judgment of the President of this Court exercising original revisional •Reportedin

(1985)3CLR 1929 1343 Styttanld**J. Papaleontiouv.E.S.C.

(1987)jurisdictionwherebytherecourseoftheappellantchallengingthe validity of the promotion of Papadopoullos and Tomaris (interestedparties)tothepostofGeneralInspectorofElementary Educationwasdismissed. Thehistoryof thiscasegoesbackto 1980.Theappellant and 5 the interested parties were inspectors of elementary education. TheEducationalServiceCommissionwasrequestedon31/5/80 tofillapostofGeneralInspector-Elementary Education;afurther requestforthefillingofasecondsamepostwasmadeon9/9/

1. On 22/10/80 the Commission promoted George Papaleontiou, 10 the appellant, and A.Papadopoullos tothe aforesaid postswith effect 1/11/80.ThisdecisionwaspublishedintheOfficial Gazette on 7/11/
2. Candidates Karageorghis and Tomaris were aggrieved. Karageorghis instituted Recourse No. 371/80 prior to the 15 publication in the Official Gazette of the said decision and Recourse No. 483/80 after the publication. By means of those recourseshechallengedthepromotionofbothPapaleontiouand Papadopoullos.On14/3/81hewithdrewtherecoursesinsofaras they related to the act of promotion of Papadopoullos. The 20 recourses were tried together and on 5/5/82 Judge Hadjianastassiou annulled the promotion of Papaleontiou (see Karageorghisv.TheRepublic

(1982)3C.L.R. 435). Tomaris,another Inspector,filedRecourse No. 1/81 whereby hesought theannulmentofthepromotion ofbothPapaleontiou 25 and Papadopoullos. The promotion of Papadopoullos was annulled on21/10/82 (Tomansv.TheRepublic

(1982)3C.L.R. 1165).Hadjianastassiou, J.,inawell-consideredjudgmentfound asa fact thatTomaris wasstrikinglysuperiorto Papadopoullos. Thestrikingsuperiority oftheapplicantwasoneoftheoperative 30 reasonsforwhichthedecisionwasannulled. Noappealsweretakenagainsttheaforesaidannullingdecisions of Judge Hadjianastassiou. On 11/5/82, a few days after the judgment inRecoursesNo.371/80and483/80,the Educational ServiceCommissionpromotedagainPapaleontioutothepostof 35 GeneralInspectorretrospectivelyfrom 1/11/80.Karageorghisby Recourse No.258/82 challenged thevalidity ofthe decision for thepromotionofPapaleontiouinpreference tohim. On 25/10/82, a few days after the decision of the Court in 1344 3 CL.R. Papaleontiou v.E.S.C. Styttanldes J. Recourse No. 1/81, the Respondent Commission promoted Papadopoullos again to the remaining vacant post of General Inspector.Thispromotionwasimpugned byTomarisbymeansof Recourse No. 27/83. 5 Thedecision of 11/5/82forthepromotionofPapaleontiou was annulled by Demetriades, J., on 26/11/83 (see Karageorghisv. The Republic

(1983)"3 C.L.R. 1211). The decision to promote Papadopoullos was annulled by Pikis, J., in the Recourse of Tomaris No. 27/83 on 30/11/83 (see Tomans v. The Republic 10

(1983)3 C.L.R. 1292) on the grounds that the Commission disregarded the seniority of the applicant, that the sub judice decision wasvulnerable tobesetasideonthegroundof disregard of the decision of the Court in breach of the doctrine of res judicata,because,sincetheCourtfound inRecourseNo.1/81 that 15 the applicant Tomaris was strikingly superior, the only course open to the respondents, if they disputed such finding, was by challenging itbywayofappeal;thatcertainlytheyhad no power todisregard itona revaluation oftheselfsame materialandbyso doingtheyactedinbreach oftheirdutiesunderArticle146.5,thus 20 deviatingfrom thecourseof legality. The respondents did not appeal against either of the two annullingdecisionsoftheCourt.Thepresentappellant, interested party in Recourse No.258/82, who took part inthe proceedings before thetrialJudgeonhisownandwasrepresentedbycounsel, 25 beingentitled, lodgedon27December, 1983,Revisional Appeal No.

1. The Respondent Commission on 22/12/83, long before the expiration of the time allowed for appeal, having taken into consideration that the «Supreme Court by the new decisions in 30 Recourse No. 258/82 and 27/83 annulled the aforesaid promotions of Papaleontiou decided on 11/5/82 and Papadopoullos on 25/10/82» proceeded to thefillingof the two vacant posts of General Inspector - Elementary Education- and promoted Tomarisand Papadopoullos.Theappellanton 27/12/ 35 83 filed Recourse No. 565/83 against the decision of the respondents taken on 22 December,
2. This recourse was dismissed inPapaleontiou and Another v. TheRepublic

(1985)3 C.L.R.1929.Theapplicanttookthispresentrevisionaljurisdiction appeal againstthejudgmentinRecourseNo.565/83. 1345 StpBantde·J. Papaleontiou v.E.S.C.

(1987)Itisplainly obvious thatthe Respondent Commission took the sub judice decision on 22 December, 1983, on the assumption that the earlier promotion of the appellant had been annulled judicially. The Supreme Court in Revisional Appeal No. 350 (Papaleontiou v.KarageorghisandAnother, stillunreported)*,set aside the annulling first-instance judgment and confirmed the promotion ofPapaleontiou on 11/5/82 withjeffect 1/11/80under Article 146.4of the Constitution. 5 On 22/12/83, therefore, there was only one vacant post, the 10 one resulting from the annulment of the promotion of Papadopoullos in the recourse of Tomaris. It is plainly obvious that the Respondent Commission would not have made two promotions to the post of General Inspector of Elementary Education if the earlier promotion of the appellant to such post 15 had not been annulled on26November, 1983,inRecourseNo. 258/82 by the first-instance judgment, which was reversed on appeal.The Commission laboured onthewrongassumption and misconception thatthesaidearlierpromotionoftheappellant had been annulled judicially. 20 UnderSection35

(1)ofTheEducationalServiceLaw, 1969(10 of 1969)noeducationalofficer ispromotedtoanotherpostunless -(a)there isa vacant post. «Educational officer» means a person holding post in the Public Educational Service. «Public EducationalService»includesserviceatthepostofInspector.(See 25 definition Section 2of Law 10/69.) Under Section 14 of the same statute (Law 10 of 1969) the respondent EducationalServiceCommissionshallnotproceed to fill any vacancy except upon the receipt of a written proposal to that effect from the appropriate authority concerned. In the 30 presentcasetheproposalsbytheappropriateauthorityweretofill two posts of Inspector General. The Commission in excess of powerfilledthreeposts.Thisissufficient ground forannulmentof thesubjudice decision. Thesubjudicedecisiontopromote theinterested partiestothe 35 post of General Inspector Elementary Education is faulty and cannotsurvivejudicialscrutiny.Itistheproductof misconception 'Reportedin

(1967)3C.LR.

1. 1346 3C.L.R. Papaleontiouv.E.S.C. StyUanldeaJ. that atthe materialtimes,22/10/83and ]/ l 1/80, therewere two vacant posts and further it is contrary to law and in excess of power. The Educational Service Commission were requested in 1980tofilltwoposts.SincebytheRevisionalAppealNo.350the 5 promotion of the appellant on 11/5/82, with effect 1/11/80,was confirmed, at the material time, there was only one post to be filled. It is not for this Court to say which of the two interested parties would have been promoted to the vacant post. The Commission would have exercised its own discretionary power 10 subject tothe lawand theoperative partofthe annulling decision of the Court. Counsel for the respondents and counsel for the interested parties submitted, however, that the appellant has no legitimate interest after his,asthey called it,«reinstatement» bythe decision 15 ofthe Full Bench in Revisional Appeal No.
2. Counsel for theappellant on the other hand submitted thathis clientcontinuestohave legitimate interest,asbythepromotionof the two interested parties, instead of one, his seniority in the service is affected and, therefore, he continues to possess 20 legitimate interest. To this argument counsel for the respondent and the interested party Papadopoullos replied that the Civil Servantandeducationalist haveonlyaprospectofpromotion and no vested right to any further advancement in their career in the serviceandthustheseniorityisnotapresentlegitimateinterestbut 25 a factor to be taken into consideration in the future. Interested party Papadopoullos was appointed by the Public Service Commission to the post of Director, Primary Education. This appointment waschallenged bythepresentappellantinRecourse No. 371/
3. The Court annulled and declared the said 30 appointment null and void and of no effect whatsoever under Article 146.4of the Constitution (GeorghiosPapaleontiou v. The Republic ofCyprusthroughthePublicService Commission, Case No.371/84,judgment of30/5/87 stillunreported*). One of the grounds of annulment wasthat in a Revised Table 35 showingthe seniority ofthecandidates,amongst whom werethe appellant and both interested parties,theappellantwasgiven the sixthplace,asholderofthepostofInspector B,andthe erroneous *Reportedin

(1987)3CLR. 751 1347 StytianldesJ. Papaleontiouv.E.S.C.

(1987)seniority of the candidates inthe educational service wasa factor thatwastaken into consideration. There isnodisputethatbythefillingoftwopostsinsteadof one theseniority ofthe appellant isadversely affected. The point that falls for consideration is whether or not the 5 appellant continues to have a legitimate interest. Anapplicant to file orpursue a recoursemustbe possessed oflegitimate interest, existingatthetimeofthefilingoftherecourseanduntiltheendof the case. Paragraph 2 ofArticle 146"readsasfollows:- 10 «Such a recourse may be made by a person whose any existinglegitimateinterest,whichhehaseitherasaperson or by a virtue of beinga member of a Community, isadversely and directlyaffected bysuch decision oractor omission.» Arecourse isadmissible byan administrative Court only ifthe 15 applicant possesses a direct present concrete legitimate interest. Thoughtraditionallyarecourseforannulmentofanadministrative decision isvery widely open itisnot an action popularis open to every citizen. A citizen cannot contest the validity of every administrative act unless he possesses legitimate interest. Had it 20 been otherwise, the influnx of the recourses would paralyse administrativejusticeandthejudicialcontrolwouldhave become illusory; furthermore, for practical reasons, the administration wouldalsobehandicappedinthedueperformance ofitsfunction. The criterion is the existence of a direct relationship and 25 affectation of an interest, material or moral, of the applicant; otherwise the recourse isdeprived of itsadmissibility. Arecourse forannulment requiresinrespectof theapplicanta legitimatioad causum (Reiner Administrative Law 8th Edition pages 212 and 243: Odent Contentieux Administratiff Fascicule IVpages 1280- 30 1281;TsatsosTheRecourseForAnnulmentBeforetheCouncilof State,3rd Editionpage30). «Legitimateinterest»whichisnotsynonymouswith«right»must be adversely and directly affected by the decision attacked. For this Court to have competence to inquire and determine the 35 validityofthesubjudicedecisiontheremustbealegalrelationship of the applicant with the challenged act. The Court must be satisfied that the legitimate interest of the applicant is adversely and directlyaffected bythechallenged act. 1348. 3 C.L.R. Papaleontiouv. E.S.C. Styttanlde· J. Itisquite correctthattherequirementsof Article 146.2 must be satisfied atthetimeofthefilingandhearingofa recourse,butsuch requirementsaresatisfied ifatthesaid materialtimesitisclearthat the existing interest of an applicant,though notyet adversely and 5 directlyaffected isunavoidably boundtobesoaffected eventually (Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959, page 260). The decision of an administrative courtregarding theissueof legitimate interesthastobe reachedin the light of thecircumstances of theparticular case. 10 Useful guidance for the determination of the point raised may be found inPapasawas ν TheRepublic

(1967)3 C.L.R. 111 and Petrakis Panayides v. The Republic

(1973)3 C.L.R. 378. In Papasawas case itwas held by the President of this Courtthata Dental Officer, 1st Grade, had legitimate interest tochallenge the 15 omission of therespondentPublicService Commissiontocorrect thedateofbirthof theinterestedparty,whowas theSeniorDental Officer, as he had an interest in the matter of the legality of the interested party's continuing service in the post of SeniorDental Officer. Itwas commonground thattheissueof thecorrectage of 20 theinterested partyhadbeen raised inconnectionwiththeproper dateof her retirement from service on herattainingtheage of 55 years. When that took place the post of Senior Dental Officer would fall vacant.Theapplicant,when thepostfellvacant, would be one of the candidates and would stand a chance to gain both 25 moral and material advancement through promotion to Senior Dental Officer. Triantafyllides, P., referred to the French case of Charles (reported in Collection Lebon, Volume 1955 page 379) where it was held by the French Council of State that public officers may challenge illegalappointmentswhich prejudicethem 30 by retarding irregularly theiradvancement. Though theapplicant would not be the only candidate for promotion to the post of Senior Dental Officer, Triantafyllides, P.,concludedatp. 124:- 35 «.... I have reached the conclusion that the Applicant possesses a legitimate interest in the matterof the legality of the Interested Party's continuingservice inthe post of senior Dental Officer; such interest is an existing one, because the Applicant hasbeen qualified forsuchpostatallmaterialtimes, and ithas been adversely and directly affected by the refusal of the Respondent Commission toexamine thematterof the 1349 StyUanldesJ. Papaleontiou v.E.S.C.

(1987)proper date of birth,and, consequently, of the lawful dateof retirement, of the Interested Party.» In Panayides case, a FullCourt case, the appellant challenged the decision to give retrospective effect to the promotion of the interested party. Atpage383-384 itwassaid:- 5 «... It could be said that he was entitled to do so, in view, especially, of what wasstated by Stassinopoulos on the Law of Administrative Disputes.

(1964)p.200, tothe effect thata legitimate interest ofa publicofficer isinvolved inthe proper application of provisions relating to the branch of the public 10 service to which he belongs; but in a later decision of the Council of State in Greece, No. 570/1970, there appears to have been stressed that merely a general interest of a public officer in connection with compliance with provisions applicable to the branch of the public service to which he 15 belongs does not suffice to vest in him a personal legitimate interest enabling himto make a recourse against promotions of colleagues of his. As, however, the appellant is a Port Officer, 2nd Grade, and as in the above decision of the Council of State in Greece there has been made express 20 reference to the possibility of a legitimate interest being involved if an officer isaffected adversely from the point of viewofseniority, weareoftheopinionthattheappellanthad a legitimate interest soas to entitle him, under Article 146of the Constitution, tochallengethe decision ofthe26thMarch, 25 1971,bymeansofwhichretrospective effect wasgiventothe promotion of the interested party, because such retrospectivity couldadverselyaffect theappellant's seniority afterhisownpromotiontothepostofPortOfficer, 1stGrade.» The seniority isone of the three factors on which the claimof persons in the Public Service for promotion or appointment are based. The seniority was rightly stated by counsel for the respondents and the interested party will be taken into considerationatthetimeofthefillingofthe higherpost. Seniority preexists and is not acquired at the time of such filling. In the presentcasetheseniority oftheappellant would beaffected, and as admitted is affected by the promotion of two persons to one vacantpost. In Case No. 3679/75 the Greek Council of State held thata memberofthegendarmeriewhowasnotpromotedcontinued to 40 1350 30 35 3C.L.R. Papaleontiou V.E.S.C. StyUanldeeJ. possess legitimate interest, though he was promoted retrospectively, asajuniortohim, amember ofthe gendarmerie, waspromoted tothe same rank before the appellant and"thushe gained seniority over the applicant. 5 Inallthe circumstances ofthepresentcase,asthepromotionof the two interested parties adversely • affects the appellant's seniority,the appellanthasanexistinglegitimateinterest enabling him topursue thisappeal. Inviewofwhat wehavesaid the appeal succeeds. 10 Before concluding,wewouldliketopointoutthattheproblems created in this case would have been avoided, had the revisional jurisdiction of thisCourt been administered inone tierand notin twotierswith inevitable lapse of time inbetween them. Inthe resultthesubjudice decision ofthepromotion ofthetwo 15 interested partiesisherebydeclared nullandvoidand ofno effect whatsoever, but, inallthe circumstances ofthe case,wemake no orderastocosts. Appeal allowed. No orderastocosts. 1351