(1987)1987February 12 [TRIANTAFYLLIDES Ρ MALACHTOS SAWIDES I ORIS KOURRIS JJ ] A N T O N I S MELETIS A N D OTHERS, Appellants-Applicants. ν 1 T H E CYPRUS PORTS A U T H O R I T Y 2 T H E C O U N C I L O F MINISTERS, Respondents (Revisiona! Jurisdiction Appeal No 557) Legitimate interest — Promotions — Candidates not possessing qualifications required by scheme of service — Do not possessa legitimate interest to challenge promotions threreunder, unlessand to the extent they dispute the validity of thescheme,by reasonofwhich theyhadbeenexcluded from being considered for promotion 5 ActsordecisionsIn thesenseofArt 146 1 of theConstitution—Scheme of service — A n actoflegislative nature — //cannot bechallenged directly byarecourse — But itcan bechallenged indirectly by arecourseimpugning the validity of theresult of its application Thisappeal isdirected against ajudgmentofaJudgeofthisCourt,whereby 10 appellants' recourses,impugningthevalidity of thepromotionof theinterest partiesto the postof Senior PortsOfficer, were dismissed The relevantscheme ofserviceistobefoundin Reg 24oftheCyprus Ports Authority (Officers' Scheme of Service and Other Conditions of Service) Regulations, 1982 1 5 The appellants disputethe validity ofthe said Regulation The question ofappellant's legitimate interest was raised Held, on such question
(1)A person who isnot qualified for promotionto a post does not have a legitimate interest entitling htm to challenge the promotion ofanother tosuch post 1984 20 3 C.L.R. Meletls v. C.P.O. & Another
(2)A scheme of service is an actof legislative character andcannotbe challenged directly as such bya recourse under Article 146 butitcanbe challenged indirectly by means of a recourse made against the result ofits application suchasapromotionoranappointmentmadeinaccordancewith 5 n
(3)Oncetheapplicantshave challenged thepromotionsonthegroundthat the scheme ofservice isinvalid they dopossess alegitimate interestentitling them to pursue these proceedings to the extent of having a judicial determination regarding thevalidity ofthesaid schemeof service \0 Orderaccordingly Casesreferred to Phihppouν TheRepublic,4R5 CC 139, Panaytdesv TheRepublic
(1972)3C LR 135, Sofocleous (No 2)ν TheRepublic
(1972)3C LR 537 15 Paraskevopoulouν TheRepublic
(1980)3CLR647, Komodromouv TheRepublic
(1985)3CLR 2250 Nicolaouv TheRepublic[\9QS) 3C LR 2471, Maknsv TheRepublic
(1986)3CLR 10, Sawav TheCyprusElectncityAuthonty
(1986)3C L R 80 20 Appeal. Appeal against thejudgment ofaJudge oftheSupremeCourt of Cyprus {Stylianides, J ) given on the 17th January 1986 (Revisional Junsdiction Case 103/83)* whereby appellants' recourse against the decision topromotetheinterestedpartiesto 25 thepost ofSenior PortsOfficer intheCyprus PortsAuthoritywas dismissed A S Angeltdes, fortheappellants Ρ Ioannides, forrespondent1 A Vassthades, forrespondent2 30 Cur adv. wit •Reportedm
(1986)3CLR 418 1985 Meletis v. C.P.O. & Another
(1987)TRIANTAFYLLIDES P. read the following decision ot the Court. By means of this appeal the appellants have appealed against the first instance judgment of a Judge of this CouV by virtue of which there was dismissed their recourse No. 103-ΧΊ under Article 146 of the Constitution. 5 This appeal has been withdrawn, and it is dismissed accordingly, inso far as itrelates torelated case No. 104/83. By their said recourse the appellants challenge, in effect, the validity of the promotiontothe post of Senior PortsOfficer, inthe service of respondent 1,of fifteen PortsOfficers. 1st Grade,(tobe 10 referred to hereinafter as the«interested parties»). It is common ground that at the material time the appellants were also PortsOfficers, 1st Grade, intheservice of respondent 1, having been promoted to such post at the same time as the interested parties. It is not disputed that the appellants did not possess the qualifications for promotiontothe post of Senior Ports Officer. Such qualifications are setoutintherelevant scheme of service which istobe found inregulation 24 of theCyprus PortsAuthority (Officers' Schemes of Service and Other Conditions of Service) 20 Regulations, 1982 (see No. 317, ThirdSupplement, Part I,tothe Official Gazetteof 30 December 1982). Itiswellsettled thataperson who isnotqualified forpromotion to a post does not have a legitimate interest entitling him to challenge the promotion of another to such post; and in this 25 respect useful reference may be made to,interalia, Philippou v. The Republic, 4 R.S.C.C. 139, 140, Panayides v. The Republic,
(1972)3 C.L.R. 135, 141, Sofocleous (7V6. 2) v. The Republic,
(1972)3 C.L.R. 537, 539, Paraskevopoulou v. The Republic,
(1980)3 C.L.R. 647, 661,Komodromou v. TheRepublic,
(1985)30 3 C.L.R. 2250,2258,2259 andNicolaou v. TheRepublic,
(1985)3 C.L.R.2471, 2476,
- Hadtheposition been thattheappellantswere notdisputingthe validity of regulation
- as a result of which they were excluded from consideration as candidates for promotion, they certainly 35 would not have been entitled at all to maintain the present proceedings. 1986 15 3 CLR. MeletU v. C.P.O. A Another 1 riantafyUlde· P. As theappellants are however disputing thevalidity of thesaid regulation 24 ithas tobe examined whether ornot.atthisstageof the proceedings, theyshould be treatedaspossessinga legitimate interest entitling themtofile theirpresent recourse,and to pursue 5 thisappeal against itsdismissal, forthepurpose ofhaving ajudicial pronouncement regarding their contention that regulation 24 is invalid for the grounds which have been set out in their recourse and have been argued before thetonalJudge. Asceme of service is an act of legislative characterandcannot 10 be challenged directly as such by a recourse under Article 146, even if it is not contained in subsidiary legislation such as Regulations 317/82 in the present instance, but a scheme of service, irrespective of whether it has been adopted by means of a decision of the Councilof Ministers or whether ithas come into 15 force by means of subsidiary legislation, as in this case, can be challenged indirectly by means of a recourse made against the result of its application, such as a promotion or an appointment madeinaccordancewith it(see.interalia,inthisrespect, Makns ν TheRepublic,
(1986)3C LR.10,17,18andSavvav TheCyprus 20 ElectricityAuthority,
(1986)3 C LR 80.88) Once, therefore, the appellants have chosen to challenge the promotions of the interested parties on the ground that the scheme of service which is contained in the aforementioned regulation 24, and as a result of which they have been excluded 25 from consideration as candidates, is invalid, they do possess, in our opinion, a legitimate interest entitling them to pursue these proceedings to the extent of having a judicial determination regarding thevalidityof thesaidscheme of service, and,of course, if itisfound thatthescheme of service isvalid then the appellants 30 will immediately be depnved of a legitimate interest to pursue these proceedings any further, because theappellants would then have to be treated as having been properly excluded from consideration as candidates on the ground that they did not possess the necessary qualifications required by the relevant 35 scheme of service Orderaccordingly 1987