UM7) 1987 January 23 [SAWIDES J ] INTHE MATTER OF ARTICLE 146OF THE CONSTITUTION STELIOSPHYLACTIDES AND OTHERS, Applicants, ν THE REPUBLIC OF CYPRUS,AND/OR 1 THE EDUCATIONALSERVICECOMMISSION, 2 THE MINISTRY OF EDUCATION, Respondents. (CasesNos 67/83 and147/83) Recourse forannulment—Abatement—Revocation ofsub judlce act—Whether and in what circumstances therevocation results in the abatement ofa recourse Damages—Constitution,Article146 6—The annulment ofan act ordecisionIs a prerequisitefor a claimofdamages underArticle146 6 5 The sub judice promotions of theinterested parties intheabove two recourses were revoked because someof theinterestedpartiesdidnotsatisfy the requirements of thescheme of service As a result the respondents reconsidered tnematterand tookanew decision The question that arose for determinationiswhether the above recourses 1 0 have been abated asaresult of the said revocations Held, dismissing the recourses
(1)When dunng the existence of the revoked actandbefore itsrevocastionadverse consequenceshave resultedto an applicant ina recourse, such applicant is entitled to have hisrecourse determined so as toenable himtoseek compensationunderArticle 146 6of 1 5 theConstitution
(2)Inthepresentcase nosuchadverse consequenceshave been proved to have resulted orwere likely toresult Thefact thatinreconsidenngthematter the respondents relied onthe same recommendationsof the Head ofthe Department isanargument that can bemade in any subsequent recourse challenging thevalidity ofthenew decision (3| Moreover, the annulmentofthe sub jucc8, promotions,will notgive any nght totheapplicants underArticle 146 6because thereisnovested right to promotion as such andthe annulment would not automatically have 176 3 C.L.R Phylactides and Others v. Republic entailed thepromotionof the applicants Recourse dismissed No orderas to costs Casesreferredto 5 Agrotisand others v. TheRepublic
(1983)3 C LR 1397. Chnstodoulides ν TheRepublic
(1978)3 CLR 189. Hapeshisν TheRepublic
(1979)3 C LR. 550, Kittouv TheRepublic
(1983)3 CLR 605, Irrigation Division «Katztlos» ν The Republic
(1983)3 CLR 1068, 10 Payiatasv TheRepublic
(1984)3 CLR 1239 Recourses. Recourses against the decision of the respondents to promote the interested parties tothepost of instructoron Scale A.10 inthe Technical Education inpreference and instead of the applicants. 15 AS. Angelides, for the applicants in Case No. 67/
- D.Zavallis, for theapplicants in Case No. 147/
- R. Vrahimi-Petridou (Mrs.), for the respondents. Cur. adv.vult. 20 25 30 SAWIDES J. read the following judgment. These two recourses wereheardtogetherastheypresentcommonquestions of law and fact. Case No. 67/83 is directed against the decision of the respondent dated 11.12.82, to promote to the post of Instructor on Scale A 10 intheTechnicalEducation,theinterested partiesin preference totheapplicants. The recourse was originally filed by six applicants, but later on, one ofthern,namely,V.Themtstocleous,withdrew hisrecoursein view of the fact thathe was, in the meantime,promoted.The five remaining applicants are: St. Phylactides, A. Komodromos, Ch. Maimaris, A. Vlachos and A. Georghiades. The interested parties as appearing intherecourse are: 1)·Α. Marangos, 2)A. Pyliotis, 3) J. Paphitis, 4) An. Demosthenous, 5) G. Strouthos, 6) A. 177 SawtdesJ. Phylactide*andOthersv.Republic
(1987)Miltiadousand7)V. Kourouzides. After the filing of the recourse, it transpired that interested parties4,5,6 and7didnotsatisfytherequirementsofthescheme ofserviceandtheirpromotion wasrevoked. The respondent met again on 26.2.1983 and promoted four 5 v-itier candidates (amongst whom applicant Themistocleous in Case No. 67/83, who withdrew his recourse). As a result, Recourse No. 147/83 was filed, by three of the applicants in RecourseNo.67/83, namely, 1)Ch.Maimaris,2)A.Vlachosand 3) A. Komodromos, challenging the above promotions. The 10 interested parties in Recourse No.147/83 are: 1) A. Ieromonachou,2)M. Paraskevopoulos,3)V.Themistocleousand 4)V.Vassiliou. After the inspection of the files by counsel ittranspired once again that certain of the interested parties in both cases did not 15 satisfy the requirements ofthescheme ofservice.Asaresult,the respondent on 29.10.1984 revoked both decisions the subject matteroftheabovetworecourses. The question'which arises after the revocation of the two decisions forming the subject matter of the above recourses is 20 whether the two recourses have been deprived of their subject matter and thus abated as a result: Or whether the court can proceed togivejudgmentthereon. Counsel· for the respondent stated that the respondent reconsidered the matter on 20.11.84 and took a new decision. 25 She argued that the subject matter of the recourses has been extinguished as a result of the revocation since no legitimate interests of the applicants were adversely affected. Counsel'also stated that two of the applicants were already promoted by the subsequent decision of the respondent, retrospectively,. 30 (applicants Komodromos and Vlachos) whilst applicants Phylactides,andGeorghiadeshadalreadybeenpromoted,before therevocation ofthesubjudicedecisionstoahigherscale.Thus the sub judice decisions, after their revocation, left no adverse consequencesontheapplicants. 35 Counselfortheapplicantscontendedthattherevocationinthis casedid notextinguish thesubjudicedecisionsabinitioandthat the respondent, when reconsidering the matter, did notstartthe 178 3 C.L.H Phylactides and Others v. Republic S a w i d e s J. procedure from the beginning, but instead, took into consideration and relied upon the recommendations of the DirectorofTechnical Education which had alreadybeen proved asinvalid,sincethereweretherebyrecommended forpromotion 5 candidateswhodidnotsatisfy therequirementsoftheschemeof service. Counsel argued that as a result of this revocation and reconsideration, applicants Phylactides and Georghiades, who werenotrecommended bytheDirector, werenotconsidered for promotionandtheirinterestswerethusadversely affected. 10 Ithasbeen established byourcase lawthat the annulmentby this court, exercising jurisdiction under Article 146, of an administrative act or decision which has caused damage to an applicant,isaprerequisite,inviewofpara.
(6)ofArticle146ofthe Constitution, for a claim by him for compensation in respectof 15 such damage (see Agrotis andOthers v. TheRepublic
(1983)3 C.L.R.1397,atp.1400). It has similarly been established, that irrespective of the revocation ofan administrative actordecision, when duringthe existence of such act and before its revocation adverse 20 consequences have resulted to an applicant in a recourse, such applicant is entitled to have his recourse determined so as to enable him to seek compensation under Article 146 of the Constitution. (See Christodoulides v. The Republic
(1978)3 C.L.R.189,atp.190;Hapeshis v. Republic
(1979)3C.L.R.550, 25 atp.560;Kittou v.Republic
(1983)3C.L.R.605atpp.609-610; Irrigation Division *Katzilos» v. The Republic
(1983)3 C.L.R. 1068, at p.1081; and the Full Bench decision in Payiatas v. Republic
(1984)3C.L.R.1239atp.1246). Inthepresentcase,fromthematerialbeforeme,ithasnotbeen 30 .proved that any adverse consequences have resulted or were likely to result to the applicants during the existence of the sub judicedecisions,andbeforetheirrevocation,whichhavenotbeen extinguished by such revocation. The fact that (as was the argument of counsel for the applicants), the respondent, at a 35 subsequentstagewhenreconsideringthepromotionstothepost in question again relied on the same recommendations of the HeadoftheDepartment,isanargumentwhichcouldbeproperly raised in any subsequent recourse for annulment of the new decisionreachedbytherespondentbutinnowayaroseduringthe 40 existence of the sub judice decisions before their revocation. 179 Sawidea J. Phylactidea andOther*v.Republic
(1987)Besides,theannulmentofthesubjudicedecisionswouldnotgive any right to the applicants for any redress under Article 146.6 because there is no vestedrightto promotion as such, and the annulment of thepromotions ofthe interested partieswouldnot automaticallyhaveledtothepromotionoftheapplicantsinstead. 5 In the result, Ifind thatthese recourseshavebeen abated and areherebystruckoutbutinthecircumstancesImakenoorderfor costs. Recoursesdismissed. Noorderastocosts. 10 180