clr/1987/1987_3_1737.pdf

(1987)The applicants did noi possess either of the first two qualifications The question, therefore was vt-hether ihe^ possessed «Equivalent qualifications acceptedby the Authonty» The Personnel Management of the respondentAuthonty decided thatthe applicants did not possess such qualification Inarriving at such a decision they relied on a letterof theDirectorof PublicAdministration and Personnel of the Ministry of Finance dated 7th January 1983 to the effect that -no decision hasbeen takenregarding iheequivalence» of the HigherDiplomaof the Higher College of Technology and to the effect that the matter was referred tothecompetentTechnical Committeefor consideration anda final decision on the equivalence of the said diploma will be taken upon the submission of the reportof theTechnicalCommittee By letter dated 9 2 85 the applicants were informed that as they did not satisfy the required qualifications, they could not be included in the list of candidates The process of appointments to the said post was finalised on 19 4 85bytheappointmentof56candidates These recourses werefiled after such finalisahon By meansof these recourses theapplicantschallenged the refusal toinclude theminthelistof eligiblecandidate1·for the post Held, dismissing the recourses

(1)An executory act forming part of a composite administrative action may be challenged by arecourse of itsown so longasthesaidcompositeactionhasnotyet been completed by afmal act ordecision,anditcanalsoheattacked by arecourse directedagainst the final outcome of thecomposite action

(2)Itiswellsettled thatthecomponentpartsof acomposite administrative act loose theirexecutory characterafter thefinal act hasbeencompleted 5 10 lo 20 ^>

(3)In this case it is undisputed that the composite administrative act on which thesubjudice actformed part hasbeen finalized by theappointments Therefore after the final act was completed, the sub judice act/or decision whichwas apartof thefinal act,haslostitsexecutory characterandasa result thisrecourse hasbeen deprived of asubject matterandhastobe dismissed 30

(4)Ifthesubjudice acthadnotlostitsexecutory character,these recourses would succeed and the sub judice decision would have been annulled on the following grounds, namely' (a) That the organ which took such decision, ιe the Personnel Managementof theAuthority hadnocompetencymthematter, »E> (b)Thatinany event therehad been nodue mqurry intothematterof the Equivalence of the third qualification, the absence of a decision on the question of equivalence, as indicated by the letter of the Director of Public Administration and Personnel dues not mean that the diploma is not equivalent tothequalifications under(.0or(b)of thescheme,and,also,does 4 0 1738 3CX.H. Hadjipetron v. CY.TΛ. notrelievethecompetentorgan of theAuthonty from thedutytocanyoutan inquiry intothequestion of equivalence of thesaiddiploma (c)Theabsence ofanyrecorddepnves thesubjudiceactofdue reasoning 5 Recourses dismissed No orderas to costs Casesreferredto Koupepa υ Republic

(1968)3 CLR 496, Papanicolaou (Nol)v 7rteRepuWfcU968)3CLR 225. Gavnelv The Republic{}97\) 3 C LR 185 10 loannouv EiectncttyAuthontyofCyprus

(1981)3 CLR 280, Markouv The Republic

(1968)3 CLR 267 Fellas ν The Republic

(1972)3 CLR 310, PrezaandAnotherν The Republic(198513C LR 1010, Frangosv The Republic

(1982)3 CLR 53, 15 Prodromou ν EducationalServiceCommission

(1982)3 C LR 1055, Vassihouand Othersν 7heRepuWic

(1969)3CLR 417, Mikelhdouv The Republic

(1981)3 CLR 461, Chnstodoulou ν The Republic

(1967)3 CLR 50, loannouv The Republic

(1970)3 C L R 183, 20 PhoeniciaHotelsν The Republic

(1978)3 CLR 94, Tourpekhv 7heRepublic{1973)3C LR 592. HadjtSawav 7h*ffepuWic

(1969)3C LR 570 Recourses. Recoursesagainst thedecision of therespondentwhereby the 25 applicants were not considered eligible for appointmenttothe post of Technician Ill/Technologists, Electronics/Electricians as they did not possess the required qualifications and/or prerequisites as set outin the announcement of therespondent Authoritypublished inthedailypresson 11thNovember, 1984. 1739

(1987)Hadjipetronv.CY.T Λ. Ν Papaefstathiou for Τ Papadopoulos, for the applicants A Hadjiloannou, for the respondent * Cur adv vult A LOIZOU J read the following judgment These two recourses have been heard t-gether as they present common questions of law and fact The applicant mrecourse No 493/85 (hereinafter to be referred to as applicant 1), is a graduate of the Technical School of Xeros and Fredenkos Technical School, Nicosia, and he is the holder of the Higher Diploma in Electrical Engineenng. The applicant in Recourse No 494/85, (hereinafter to be referred to as applicant 2), is a graduate of the Technical School, Nicosia, and the holder of the Higher Diploma in Electncal Engineenng 5 10 On the 11th November, 1984, the respondent Authonty advertised in the daily press vacancies of Technician HI/ 15 Technologists, Electronics/Electncians, and invited applications from qualified persons The required qualifications set out in the said advertisement whichcorrespondto thoseintherelevantSchemeofService were the following 20 «(a) Diploma of the Higher Technological Institute(ATI)of the Branch of Electricity orof theCentresof HigherTechnical and Professional Education (KATEE), of the branch of Technicians, Electronics Technicians and Electncal Technicians or equivalent qualifications accepted by the 25 Authonty; (b)perfect knowledge of the GreekandEnglish languages » Bothapplicantswereamongthosewhohadapplied for the post and both of them, were informed by letter dated 9th February, 1985, thatthey did notpossess therequired qualifications and/or 30 prerequisites as set out in the1 announcement of the respondent Authonty published inthedaily press of the 11thNovember 1984 and for that reason theirname could notbe included inthelistof candidates An affidavit was filed on behalf of the respondent Authonty 35 sworn by theOfficer incharge of itsDepartmentof Administrative Services and responsible for the keeping of minutes of the meetings of its Board inwhich itwas stated thatatthe meeting of 1740 3 C.L.R. Hadjlpetrou v.CY.T.A. A.Loizoa J. the Board ofthe Authority,24/85,dated 9th April 1985,(Exhibit 4), it was explained to the members as mentioned in page 2, thereof under(C),that«therehadbeensubmitted463applications foremploymentasTechniciansIII(Technologists,Electriciansand 5 Electronics) of which only 181 satisfied the requirements put by theAuthority. Furthermore,thattheapplicationsofthe applicants were among the number of the applicants which were dismissed and had notbeen invitedtoaninterviewand thatthereasoningof such dismissal was elaborated and the whole procedure was 10 approved by the Board and that only 56 candidates were appointed. The saidaffiant wascross-examined bytheapplicantswhosaid that the decision upon which theletterof9th February, 1985,was sent, wastaken bytheappropriate servicesoftheAuthoritywhich 15 isthe Personnel Department; that no minutes were kept, but that the check wascarried outonthebasisofthepress announcement and the applications submitted. Further asked, as to whether the Boardhadcarriedoutafurther inquiryregardingthe qualifications oftheapplicants, heanswered that the Board does not engagein 20 the initial procedure as a Committee isappointed which carries out the interviews for those that satisfy the *necessary qualifications. ThisCommittee isappointed bythe Board andthis appears from Exhibit4, and that the Board wasinformed aboutit but no detailswere recorded inthe minutes. 25 Before dealing however, with the meritsof the recourse I shall dealexpropriomotu-asIamentitledtodo,andseeinthisrespect Koupepa v. The Republic

(1968)3 C L R . 496,withthe question whether the actscomplained ofare of executory character andas such they come within thejurisdiction of the Court under Article 30 146 of the Constitution. Ihave adopted thiscourse because asit appears from thematerial before metheprocessfor appointment tothe above posts hasbeenfinalizedbytheappointment of fiftysixcandidates on the 19thApril 1985.Thisrecourse wasfiledon the 30th April 1985, i.e. after thefinalactof the appointments in 35 question. In the case of Papanicolaou (No. 1)v. TheRepublic

(1968)3 C.L.R. 225, TriantafyHides J., as he then was, held that an executory act forming part of a complete administrative action may be challenged by a recourse of itsown, so long as the said 40 composite action has not yet been completed by afinalact or 1741 A.LolzottJ. Ha4iIp«troav.CY.TJL

(1987)decision; and it can also, be attacked by a recourse directed against the final outcome of thecomposite action. The Papanicolaou case was followed by me in the case of Gavriel v. The Republic

(1971)3 C.L.R. 185 at p. 202 and hannou v. ElectricityAuthority of Cyprus

(1981)3 C.L.R. 280at 5 pp. 299-302.ItwasalsoappliedbyTriantafyllides P.,in Koupepa (supra),Markou v.TheRepublic

(1968)3C.L.R.267atp.276and by Hadjianastassiou J., inFellasv. The Republic

(1972)3 C.L.R. 310atp. 317.Itwasfurtherveryrecentlyfollowed bySawides J., in Preza and Another v. The Republic

(1985)3 C.L.R. 1010. 10 Indeed inFrangosv. TheRepublic

(1982)3C.L.R. 53,appears to disagree with the judgment in Papanicolaou (supra) by Triantafyllides P., in dealing with the Frangoscase in the caseof Prodromou v. EducationalService Commission

(1982)3 C.L.R. 1055didnotfeel inclined todepart from hisrelevantreasoning in 15 the Papanicolaou case(supra). Similarly,havinganxiouslyreconsideredtherelevantissue,1am not prepared to depart from the relevant reasoning in the Papanicolaou case (supra). Itiswell settled that the process for the filling of the said posts 20 started from the moment the Personnel Services of the respondents considered the applications which were submitted for thepost inquestion and wascompleted withthe appointment of the candidates who were finally selected for appointment. Therefore the sub judice decision forms part of a composite 25 administrative act. It is well settled that the component parts of a composite administrative act losttheirexecutory character after thefinal act has been completed. In Vassiliouand Others v. The Republic

(1969)3 C.L.R. 417 inwhichthe respondentsprepared apriority 30 list containing the names of the candidates tobe considered for appointment to the post of Master of Commercial subjects in the GreekSecondary Education and such listwasadopted and relied upon for the purpose of appointments which were eventually made,itwasheldthatthelistwasan executoryactanditcouldbe 35 challengedbyarecourseunderArticle146oftheConstitution.As, however, the said listwaspart of a composite administrative act whichresultedinappointments,itlostitsexecutorycharacter after the appointments weremade.Therefore therecourse against the list, which was filed before the appointment could not be 40 1742 3 C.L.R. Hadjlpetrou v.CY.T.A. A. L o b o a J . proceeded thereafter as such recoursewas deprived oitne subject matter that could be attacked by a recourse underArticle 146 of theConstitution. In Preza (supra) Sawides .

1. cit-:d the following passage from 5 Tsatsos on Recourse for Annulment before the Greek Councilof StateThird Editionpp. 152,
2. itreads:'- 10 15 20 25 «Πμο της περατώσεως της συνθέτου διοικητικής ενεργείας εκάστη εκ των βαθμιαίως συναρμολογουμένων πράξεων διατηρεί τον εκτελεοτόν αυτής χαρα­ κτήρα καιείναι προσβλητή κεχωρισμένως. Αφ' ης όμως η σύνθετος διοικητική ενέργεια ιιεματωθή, αποβαίνει απαράδεκτος η προσβολή δι αιτήσεως ακυρώσεως τηςαρχικήςή μεμονωμένης των ενδιοιίΓπ.'ονπράξεων, αίτινες αποβάλλουσι πλέον τον αυτοτελώς εκτελεοτόν αυτών χαρακτήρα. Προσβλητή εφεί,ης ιιναι μόνον η όλη σειρά των ούτω δια του απυ.^λεσματος, εις ο απέβλεψαν, συνεχόμενων πράξεων. Προσβαλλομένης δετυχόν μόνηςτηςτελικής πράξεως θεωρείται συμπροσβαλλομένη η όλη σύνθετος διοικητική ενέργεια και τ ο ύ τ ο διότι μετά την περάτωσιν της συνθέτου διοικητικής ενεργείας αι προηγηθείσαι της τελικής μερικώτεραι καιπρότερον αυθύπαρκτοι πράξεις απόλλυσι την αυτοτέλειαν αυτών.». («Before the completion of the composite administrative act, each of the gradually adopted acts retains its executory character and itcan be attacked separately. 30 35 Butwhen thecompositeadministrative actiscompletedthe attack by an application for annulment of the onginal or separately the intermediate acts which lose their self executory characterisunacceptable.Amenable toa recourse hereafter is only the whole line of such continuousacts, the result to which they aimed. But only the final act being attacked, the whole composite administrative act is also considered as being attacked and this because after the completion of the composite administrative act which preceded the final, partial and self-existent acts lose their independence»). 1743 A. Lolzou J. H«4jip«trou v.CY.T.A.

(1987)Sawide.: J.,then went on torefer tothe cases of Papanicolaou and Vassiliou (Supra)andhe citedthe following passage from the latter case: «On the otherhand,thereisnodoubtthatsuch listwas part of the composite administrative action which resulted in tiV 5 said appointments. Once this is so I am of the opinion that after the appointments were made, the list lost its executory nature and, therefore, Case 327/68, which was filed before the appointments, could not be proceeded with thereafter, as it 10 was deprived of a subject-matter that could be attacked by recourse, viz. thelistas an executory act. In this respect useful reference might be made to the conclusions from the Jurisprudence of the Greek Councilof State (1929-1959) p. 244. Also, to Decision 648

(56)of the . 15 Greek Council of State; in that case the facts were different from those of our Case 327/68, but itisuseful illustration of a situation where an originally executory act lost, due to subsequent developments, itsexecutory nature.» And concluded by referring to the following passage from the 20 decision of the Greek Councilof State in Case 812/1933.«Εφ' όσον όμως επήλθεν ήδη και ητελευταία πράξις του διορισμού των εκλεγέντων, δεν δύναται πλέον π α ρ α δ ε κ τ ώ ς να προσβληθώσι κατ' ιδίαν αι ενδιάμεσοι διοικητικοί ενέργειαι, αίτινες έπαυσαν πλέον έχουσαι 25 αυτοτελή υπόστασιν, μόνον δε διατης προσβολής της περί διορισμού πράξεως του Υπουργού ηδύνατο να προστατευθή ο αιτών, επικαλούμενος και τυχόν ελαττώματα των ενδιαμέσων διοικητικών ενεργειών . τούτω δετ ω λόγω απορριπτέα καθίσταται ηυ π όκρίοιν 30 αίτησις». («Butsince the lastactof theappointmentof those selected has already happened,isnotpossible anymoreto acceptably attack inparticulartheintermediateadministrative acts,which have ceased to have an independent basis, but only with a 35 recourse against the act of the Minister to make the appointments could the applicant be protected by invoking any defects of the composite administrative acts, and for this reason the sub judice application is dismissed»). 1744 3 C.L.R. Hadjlpetrou v.CY.T.A. A. Lolzou J . Inthiscase itisundisputed thatthecomposite administrativeact ot which the subjudice act formed part has bee·- finalized by the appointments Therefore after thefinal actwascompleted, thesub judice act/or decision which wasa part of the final act, has lostits 5 executory character and asresultthisrecourse hasbeen depnved of asubject matter and hastobe dismissed Though in view ofmyabove conclusion no need ansesto deal with the ments of the recourse, I shall proceed to make my pronouncements on thesubstance of the recourse aswell 10 The first ground of law relied upon bythe applicants isthat the respondent Authonty failed to carry out the due and/or proper and/or any inquiry in the circumstances, as to whether the applicantssatisfied atthe matenal timetheScheme ofService and thatthesubjudiceactwastaken underamisconception oflawand 15 fact The second ground isthat there iscomplete absence of any minutes and/or decision by the respondent authonty, the third ground is that the sub judice act and/or decision lacks proper reasoning,and the fourth isthatthesubjudiceactand/or decision isthe result of wrong exercise of discretion and/or itwas taken in 20 excessand/ orabuse of power Theminutesoftherespondent Authority,(Exhibit4),insofaras relevant to the subjudice decision, read as follows 25 30 35 «The Acting Director-General informed the Board that the authonty by announcement published in the daily press on the 11th November 1984, announced vacancies regarding a number of posts in vanous departments In response to this announcement there had been submitted applications by interested persons which were studied by the service and invited tointerviewthosethatsatisfied theprerequisitesputby the authonty The interviews were earned out by the Committee which,byvirtueof a decision oftheauthonty was composed of the President, the Director-General, the Acting Director-General and the Heads of the Technical and Financial Services for the Senior Staff and the General Manager, and the ActingGeneral Manager and the Headsoi theTechnical and Financial Services for the 'ower staff (c) Technicians III {Technicians/Electncians/Electronics) there were submitted 463applications by -nterested persons from which 181 satisfied the requirements placed by the 1745 A. Lofaoa J . Hadjlpetrou v. CY.T.A.

(1987)authority and were invited for interview on 18th, 19th, 21st and 22nd February, 1985.» Itappears that the respondent Authority had inquired into the level of the higher diploma possessed by the two applicants, not only in relation to the present post, but also on similar occasions 5 and itaskedtheappropriate servicesoftheGovernment to inform themastowhetherthisdiplomawhichapparentlyisobtained after a two-year attendance atthe College in question, isequivalent to the diploma one obtains after a three year attendance and upon graduation from the Higher Technological Institute.The relevant 10 correspondence between the General Manager of the Authority and theappropriate Government department hasbeen produced as Exhibit 1. Now under the relevant Scheme of Service the qualifications required for the post in question are (

1. a)Diploma of the Higher 15 Technological Institute (ATI), or (
2. b)Diploma of the Centre of Higher Technical and Professional Electricians (KATEE), of the branch of ElectronicsTechniciansand ElectricalTechniciansor(
3. c)Equivalent qualifications accepted bythe Authority. Itisundisputed that applicants did notpossess qualifications (
4. a)20 or (
5. b)above. And the question which arises is whether his qualifications, namely «HigherDiploma inElectrical Engineering» constitutes «equivalent qualifications accepted bythe Authority». Inthecaseitisclear-seetheminute Exhibit4andthe evidence of- Nicos Malekkos - that it is not the competent organ of the 25 respondent Authonty which decided about the equivalence of applicants qualifications but the Personnel Management of the Authority. Itisalsoclearthatindeciding ontheequivalence ornot of the applicants qualifications they relied on the letter of the Directorof Public Administration and Personnel of the Ministryof 30 Finance dated 7thJanuary 1983totheeffect that«nodecision has been taken regarding the equivalence» of the Higher Diplomaof theHigherCollege ofTechnology,andtotheeffect thatthematter was referred to the competent Technical Committee for consideration and a final decision on the equivalence of the said 35 diploma will be taken upon the submission of the report of the Technical committee. Inaletterdated 7th February 1985,addressed bythe Personnel Department of the respondent Authority to the Director-General Ministry of Communications and Works the latter was ,,,,'^.med 40 1746 3 C.L.R. Hadjlpetrou v.CY.T.A. A.Loizou J. that neither the Ministry of Education, nor the Public Administrationand Personnel Departmenthadtakenany decision regarding the ecjuivalence of the said diploma and that the respondent Authority awaitsGovernment policyon the matter. 5 10 15 2Q 25 30 35 40 In Mikellidou v. Republic

(1981)3 C.L.R. 461, a case which dealt with the question whether applicant's qualification was«an equivalent qualification» under the relevant Scheme of Service,I said the following atpp. 469-471: «There is ample authority that the interpretation of a scheme of service and its application will not be interfered with by the Court, so long as such interpretation and application was reasonably open to the competent administrative organ;theapplication,however,bysuchorgan of ascheme ofservicetothecircumstances ofeach particular case has to be made after sufficient inquiry regarding all the material considerations (see, inter alia, Papapetrou v. The Republic, 2R.S.C.C.61; Georghiadesv. TheRepublic

(1967)3 C.L.R. 653;and Tourpeki v. The Republic

(1973)3 C.L.R. 592). Furthermore in determining whether a certain candidate, in fact, possesses the relevant qualifications the competent administrative organ isgiven a discretion and the Supreme Courtcanonlyexaminewhethersuchorgan, onthe material before it,couldreasonably havecometoa particular conclusion (see Petsas v. The Republic, 3 R.S.C.C. 60; Phylachtou v.TheRepublic

(1973)3C.L.R.444;Zinieris(No. 1)v. The Republic

(1975)3 C.L.R. 13;and Stylianou v. The Republic

(1980)3 C.L.R. 11).Thequestiontherefore whichis posed, is whether the respondent Committee made a sufficient inquiryregardingallmaterialconsiderations. Infact, the respondent Committee initiated the procedure for an inquiry as envisaged by the aforequoted para 3(iii) of the Scheme of Service But before obtaining the requested opinion of the Evaluation Committee, itproceeded to decide itself on the application ofthe applicant. in Constantinidou & Others v. The Republic

(1976)3 C.L.R. p. 98 the sub judice decision of the Public Service Commission wasannulled because theCommission failed to carry out an inquiry into the aspect of whether the certificate held by the applicant met the requirements of the relevant scheme of service. Furthermore in Aristotelous v. The 1747 A. Lolzou J. Hadjlpetrou v. CY.T.A.

(1987)Repuola,

(1969)3 C L R 232, the said Commission had before itontheone handanexpress statementof theDirector of the Public Information Office that one of the interested parties did not possess the knowledge of English required by the relevant schemes of service, and on the other the 5 statement of theofficer representing theMinistry of Interiorto theeffect thattheinterestedparty's English was asgood asthe applicant's The Court following the case of Ceorghiades ν TheRepubhc

(1967)3C LR ρ 65 heldthatitwas incumbent on the Public Service Commission to satisfy itself that the 10 interested party possessed therequired knowledge of English and that since not the slightest attempt was made by the Commission toascertain foritself whether theinterested party satisfied the relevant scheme of service in respect of his knowledge of English, his appointmenthad to be annulled 15 Itisestablished thatafailure tomake adueinquiry results, due to contravention of well settled principles of administrative law, in the invalidity of the relevant administrative action because thenotionof 'law' inArticle 146 1of theConstitution 20 has to be construed as including the well settled pnnciples of administrative law (see Ioannides ν The Republic

(1972)3 C L R 318, Tourpeh (supra), Antoniou ν The Republic

(1978)3 C L R 308, and HadjiPaschah ν The Republic ( 1 9 8 0 ) 3 C L R 101)» In this case in view of the wording of the relevant Scheme of Service -«equivalent qualification accepted by theAuthonty» - it was incumbent for the competent organ of the respondent Authonty to carry out an «inquiry into the aspect ot whether the diploma held by the applicant met the requirements of the 30 relevant Scheme of Service», or whether it was an equivalent qualification· accepted by theauthonty Insteadof carrying outan inquiry as above stated they left the matter in the hands of the services of the Personnel Departmentof the Authonty And the latter did not carry out any inquiry at all on the question of the 35 equivalence -and by inquiry Imean examination of the standard of the diploma by reference to the subjects taught etc ,but they relied on the fact that the Ministry of Education and the Public Administration and Personnel Department had not as yet taken any decision on the question of equivalence of the saiddiploma 40 Let me say thatthe absenceof any suchdecision does not mean 1748 25 3 C.L.R. Hadjlpetrou v.CY.T.A. A. Lolzou J . that the said diploma is not equivalent to the qualifications under (a) or (b) above and. also does not relieve the competent organ of the Authority from the duty to carry out an inquiry into the question of equivalence of the said diploma 5 The sub judice decision therefore w o u l d have been annulled because (a) it was taken by an organ having no competence in the matter (see Chnstodoulou ν The Republic

(1967)3 C L R 5 0 , loannouv TheRepubhc(\970)3CLR 183. Phoenicia Hotels ν The Republic

(1978)3 C L R 94) and (b) It was a decision taken 10 without a due and properinquiry Tourpekkt ν The Republic

(1973)3 C L R 5 9 2 A n d regarding this last ground of annulment let me say that even if the Personnel Services of the Authority h a d competence to decide on the equivalence of the applicants qualifications, still, as above stated, they have not carried out any 15 inquiry into the matter In addition to the above the sub judice decision w o u l d have been liable to annulment for absence of any recordwhich absence depnves same of due reasoning (see HadpSawa ν The Republic ( 1 9 6 9 ) 3 C L R 570) 20 In the result both recourses fail and are hereby dismissed but in the encumstances there will be POorder as to costs Recourses dismissed No order as to costs 1749