clr/1987/1987_3_306.pdf

(1)(a) PublicOfficers—Promotions—ThePublicServiceLaw33/67— Theprovisoto s31, asamendedbys2 of Law 10/83—Promotion onthebasis ofsaid proviso—Applicantnotentitledtochallengeit Legitimate interest —Promotions ofpublic officer—Applicant notpossessing requiredundertheschemeofservicequalifications—Assumingschemeof serviceisvalid,applicantdidnotpossessalegitimateinteresttofilearecourse againstsuchpromotions Bymeansofthisrecoursetheapplicantchallengesthedecisiontopromote 2 0 theinterestedpartiestothepostofAssistantOperationsOfficer, 1stGrade, in theDepartmentofCivilAviationaswellastherefusal topromotehimtosuch apost Theapplicantdidnotsatisfy therequirementsoftheschemeofservicefor 306 15 3 C.L.R. EHa v. RepabHc the said post He is, however, challenging the validity of such scheme Moreover, it must be noted that the post in question is on a comb.f "d establishment with the immediately lower post and that one of the four interested parties,namely interestedparty Makndes,was promotedas being theonlyofficer eligibleforpromotionundertheproviso tos 31ofLaw 33/67, as amendedby s 2 of Law 10/83 5 Held, dismissing the recourse

(1)Assuming that the scheme of service is valid, theapplicantdidnotpossess alegitimateinterestentitlinghimtofilethe presentrecourse 10 15 20 25 {2) In any event the promotion to higher office or grade in a combined establishment is governed by s 44

(1)(a)of Law 33/67, which provides that such a promotionmay be madeirrespective of theexistence of avacancyin the higher office or grade Itis,also,wellsettled thatsuch a promotionisnot effected onthebasis of comparisonbetween thecandidates,butonly onthe strength of possession by theofficer concernedof the required qualifications for promotion Itfollows thatitcannotbe saidthatthethreeinterestedparties Hamalis,Sawa andPapanicolaouwere promotedinsteadof theapplicant It follows thattheapplicantisnotentitledtochallenge theirpromotions Noris he entitledtochallenge thepromotionof the InterestedpartyMakrides,who was promotedinvirtue of theproviso tos 31 of Law33/67, as amended by s 2 of Law 10/83

(3)Ascheme of service made by theCouncilof MinistersunderArticle 54 of the Constitutionis an actof a legislative natureand,as such,itcannotbe challenged directly by a recourse To the extent to which it can be challenged indirectlyasanissue relevant toapplicant'scomplaintagainst the refusal or failure to promote him, the applicant cannot succeed, as his allegation that the adoption of the scheme resulted in unequal treatment against himwas notsubstantiated Resoursedismissed 30 Casesreferredto Georghadesv 77ie/?epuWic

(1982)3CLR 16, Anstidouv TheRepublic

(1984)3 C L R 503, Seraphim ν TheRepublic

(1985)3 C LR 286, 35 Pankypnos Syntechnia Dimosion Ypalhhn ν TheRepublic

(1978)3C LR 27, harmouv The ElectricityAuthorityof Cyprus

(1981)3 C LR. 280; Vlotomasv TheRepublic

(1984)3 C.LR 423 307 Ell»v.Republic

(1987)Recourse. Recourse against the decision of the respondents to promote the interested parties to the post of Assistant Operations Officer, 1st Grade in the Departmentof Civil Aviation in preference and instead of theapplicantand against the refusal to promotehim to 5 the above post A S Angehdes, for theapplicant M. Clendou — Tsiappa(Mrs ), for the respondents Cur adv vult TRIANTAFYLLIDES Ρ read the following judgment By 10 means of the present recourse the applicant challenges the decision of the respondent Public Service Commission to promote I Hamalis, S Sawa, Ν Papanicolaou and A Makndes (hereinafter to be referred as «interested parties») to the post of Assistant Operations Officer, 1stGrade, intheDepartmentof Civil 15 Aviation He, also, complains against the refusal of the respondents to promote himtosuch post The Director of the Department of Civil Aviation recommended, by means of aletterdated the 15th May 1984, the promotion of interested parties Hamalis,Sawa andPapanicolaou 20 to the aforesaid post The promotion of the applicant was not recommended as he could notbe treated as satisfying the requirements of the relevant scheme of service' At its meeting on the 8th June 1984 the respondent 25 Commission decided that the aforementioned interested parties were suitable and promotedthem tothe post concerned On the 15th May 1984 the Director-Generalof the Ministry of Communications and Works had requested the filling of the vacancy in a permanentpost of Assistant Operations Officer, 1st 30 and 2nd Grade At thattimeinterested party Makndeswas serving as Assistant Operations Officer, 1st Grade,on a monthtomonth basis At its meeting of the 22nd June 1984 the Commission found 308 3 C.L.R. · EHav.Republic Triantafyllldes P. that interested partyMakrides, who was, byoperation of law, the solecandidate,ashewasalreadyservingonamonthlybasisinthe post inquestion, wassuitable and proceeded topromote him. The promotions of the interested parties were published in the 5 Official Gazette ofthe Republic on the 24th August

1. From thematerialbefore theCourtitappearsthatthe applicant was first appointed in the Civil Aviation Department on the 16th March 1970,asanOperationsAssistant,andthatheresigned from such post on the 1stJuly
2. 10 On the 1st February 1979 he was re-appointed to the post of Operations Assistant. On the 1st January 1981 the title of this post was changed to OperationsOfficer. 2ndGrade,andonthe 1stJanuary 1983itwas changed toAssistantOperations Officer, 2nd Grade. 15 From relevant documents it appears that the service of the applicant before hisresignation and after hisre-appointment was eventually recognised as being continuous; and inaletterdated 2nd March 1982 it is officially stated that the applicant would receive the same treatment ashiscolleagues inthe same post. 20 The relevant scheme of service for the post of Assistant Operations Officer, 1st Grade, which is on a combined establishment with the post of Assistant Operations Officer, 2nd Grade, was approved by the Council of Ministers on the 4th February
3. 25 Counselfortheapplicanthasconceded thatastheapplicantdid notpossessatthematerialtimethequalifications requiredbysuch scheme of service for the post ofAssistant Operations Officer, 1st Grade, the applicant could not be considered for promotion thereto;butcounselfortheapplicanthaschallengedthevalitidyof 30 the saidscheme ofservice. Asthe applicant did not possess the qualifications required by the relevant scheme of service for promotion to the post in question, and assuming that such scheme is valid, it is plainly obvious that he did not possess a legitimate interest, in the sense 35 of Article 146

(2)of the Constitution, entitling him to file the present recourse. 309 Triantafyllldes P. ο EHa v. R*p«bBc

(1987)In any event, the promotion to higher office or grade in a combined establishment is governed by the proviso to section 44(l)(a) of the Public Service Law, 1967 (Law 33/67), which provides that- such promotion may be made irrespective of whether ornotthereisavacancy inthehigheroffice orgrade;and 5 it is well settled that such a promotion is not effected after a comparison of the merits, qualifications and seniority of the candidatesholding thelower postinthecombined establishment, but only on the strength of the possession by the officer to be promotedof the required qualifications for promotion. 10 Itis quite clear, therefore, inthe circumstances of thiscase,that it cannot be said that interested parties Hamalis, Sawa and Papanicolaou were promoted instead of the applicant who, consequently, is not entitled to challenge the valitidy of the decision of the respondent Commission to promote the said 15 interested parties (see, in this respect, inter alia, Georghiades v. The Republic,

(1982)3 C.L.R. 16, Aristidou v. The Republic,

(1984)3 C.L.R. 503 and Seraphim v. The Republic,

(1985)3 C.LR.286). Moreover, the promotion of interested party Makndes was 20 made pursuant to the proviso to section 31 of Law 33/67, as amended by means of section 2 of the Public Service (Amendment) Law, 1983 (Law 10/83), as a result of which such interested party was at the time the sole eligible candidate. Consequently, hispromotioncould notbe challenged 25 by theapplicantby meansof thisrecourse since itwas effected on the basis of the aforesaid legislative provision which was not applicable tothe applicant aswell. As regards thecomplaintof the applicant against the validity of the relevant scheme of service itmustbe pointedoutthatitiswell 30 settled thata scheme of service, made by theCouncilof Ministers underthe provisions of Article 54 of theConstitution,isan act of legislativenatureand as such itcannotbe challenged directly by a recourse of annulmentunderArticle 146 of theConstitution (see, in this respect, inter alia, Pankyprios Syntechnia Dlmoslon 35 Ypallihn v. The Republic,

(1978)3 C.L.R. 27, loannou v. The ElectricityAuthority of Cyprus,

(1981)3 C.L.R.280 and Vlotomas v. The Republic,

(1984)3 C.L.R. 423); and tothe extenttowhich the applicant could raise indirectly thevalidity of thesaid scheme 310 3CUR. Ella v. Republic Triantafylllde· P.' ofservice,asanissuewhichisrelevanttohiscomplaintagainst the refusal, or failure to promote him, too. to the post in question, since he was not qualified under such scheme of service for promotion, the applicant cannot succeed in this respect in the 5 presentrecoursebecause,inmyopinioninthelightofthematerial before me,ithasnotbeen shown thatthe adoption ofthe scheme of service resulted in unequal treatment or discrimination against the applicant, contrary toArticle28oftheConstitution,asalleged by him. 10 Inthelightofalltheforegoing thisrecoursefailsandisdismissed accordingly; but with no orderastoits'costs. Recourse dismissed. No orderasto costs. 311