clr/1987/1987_3_469.pdf

(1)(a)The regulations governing «tabliihment, procedure, criteria etc. of the Joint AdvisorySelection Committee erevoid, because theywereneitherapproved bythe Councilof Ministersnorpublished intheOfficial Gazette. (b)Itl>noteasytosaytowhatextenttherecommendation ofthesaidJoint Committee influenced the Board oftheAuthorityortheSub-Committeeof Personnel, but asitdefinitely influenced tosome degree theirselection, the 469 Kyrlacou v. E.A.C.

(1987)sub judice act is tainted with the aforesaid illegality of the Regulations (Antomades ν ΕA C

(1985)3 C LR 2458adopted)

(2)When a law confers power on anyperson orbody andmakes provision how and in what circumstances or places any conditions for the exercise of such power, such power cannot be validly exercised unless there is strict adherence tothestatutory prerequisites Onexamination of theprovisions of section 3 of Law 61/70, the Authonty cannot exercise competence on appointment, promotion etc of personnel in the absence of rules or regulations specifically made (Prodromihs ν ΕAC

(1986)3 CLR 2010 adopted) 5 1 0 Subjudice decisionannulled No orderas tocosts Casesreferredto Arsahdes ν CYTA

(1983)3 CLR 510, 15 Kofteros ν ΕAC

(1985)3 C LR 344, Lefkatisv TheRepublic (\985)3 CLR 472, Antomades ν ΕAC

(1985)3 CLR 2458, Prodromibsν ΕAC

(1986)3 CLR 2010 Recourse. Recourse against the decision of the respondents to promote 20 the interested party to the post of Inspector of Installations, 2nd Grade, inpreference and instead of theapplicant P.Angehdes, for theapplicant. Ε Liatsou (Mrs) for C. Cacoyianms,for the respondents, Cur. adv. vult. 25 STYLIANIDES J. read the following judgment. The applicant by this recourse seeks the annulment of the promotion of interested party Michael Kynakides to the post of Inspector of Installations,2nd Grade, inpreference tohim. The applicant since 10.5.73 is the holder of the post of 30 Examiner of Installations. The same post was held by the interested party though the applicant was senior tothe interested party. 470 3 C.L.R. Kyriacou v. E.A.C. Styllanlde· J. On 29.5.85 the respondents, by notification circulated among the staff, advertised the promotion post of Inspector of Installations,2ndGrade,intheregionofLamaca-Famagusta. The applicantandtheinterestedpartysubmittedrelevantapplications. 5 The Joint Advisory Selection Committee for promotions at its meeting of 22.7.85 considered the applications and by «a commonsuggestion»recommended forpromotion the applicant, the interested partyand another employee ofthe Authority. The Sub-committee oftheAuthority onpersonnel mattersatits 10 meeting of 27.8.85,takingintoconsideration the relevant criteria and the recommendation of the aforesaid Selection Committee, recommended the promotion of the interested party, in spiteof the seniority of the applicant as the interested party "was superior in intiative, administrative, organisational and 15 supervisory abilities. TheBoard oftheAuthorityon 29.8.85decided topromote the interested party using the exact wording and reasoning of the Personnel Sub-committee. The Sub-committee on personnel matters and the Board took into consideration, inter alia, the 20 common recommendation of the Joint Advisory Selection Committee. The first ground of law on which the validity of the sub-judice decision ischallengedisthatitwasmadeunderinvalidregulations and/or under non-existing regulations, contrary tothe provisions 25 ofthelaw. TheJointAdvisorySelection Committeewasestablished under regulations made in pursuance of Clause 24(l)(c) of a Collective Agreement between therespondentsand thetrade union. These regulations govern the establishment, procedure, criteria, etc.,of 30 the Joint Advisory Selection Committee. They were neither approved bythe CouncilofMinistersnorpublished inthe Official GazetteoftheRepublicandtheyare,therefore, void—(Arsalides v. CY.TA.,

(1983)3 C.L.R.510; Kofteros v.ElectricityAuthority of Cyprus,

(1985)3 C.L.R.344;Lefkatis v.the Republic

(1985)3 35 C.L.R.472;PantelisAntoniades v. ElectricityAuthority of Cyprus,

(1985)3 C.L.R.2458). Counsel for the respondents frankly admitted the invalidityof theseregulationsandthefunctioning andrecommendation ofthis Selection Committee but he argued that its function was only 40 advisory;itsrecommendation wasapreparatorystepandthat the 471 Styllanldes J. Kyriacou v. E.A.C.

(1987)finaldecision rested andwastaken bytheAuthority.Hesubmitted further thatthesub-judice decision wasnottaken undervoidrules orregulationsbutitwasmadewithoutanyrulesorregulationsbut simply on the power vested in the Authority by the Law. The Public Corporations (Regulation of Personnel Matters)Law, 1970 5 (No. 61 of 1970) and s.44 of the Electricity Development Law, Cap. 171, onlyenabletheAuthoritytomakerulesand regulations and their provisions are not obligatory in the sense that the Authority is not bound to make regulations and exercise its competence onpersonnel mattersinconformity withsuchrulesor 10 regulations. With regard to the Selection Committee it suffices to repeat what Ihave said in Antoniades v. ElectricityAuthority of Cyprus (supra):«Therespondentsinarrivingatthesub-judice decisiontook into consideration, inter alia, the recommendation of the 15 Selection Committee. It is not easy to say what weight was attached tothisrecommendation eitherbytheAuthorityorby the Sub-Committee of Personnel ofthe Authority. Definitely itinfluenced tosome degree theirselection .... Thesub-judice decision forthepromotion oftheinterested 20 partyistainted withtheillegalityofthe Regulationsgoverning theSelection Committeeand,therefore, itisnullandvoidand of nolegal effect». InSocrates Prodromitisv.TheElectricityAuthority of Cyprus— judgment delivered on 8th December, 1986,still unreported* — 25 commenting on the provisionsofs.3ofLawNo.61/70, whereby power was conferred on the Authority for the first time after the establishment of the Republic to appoint, confirm appointment, emplace personnel, promote,transfer, etc.,Isaidthatwhen aLaw confers a poweronanypersonorbodyand makesprovision how 30 and in what circumstances or places any conditions for the exercise ofsuchpower, itcannotbevalidlyexercised unlessthere isstrict adherence to the statutory prerequisites. On examination of the provisions of s.3 of Law 61/70, the Authority cannot exercise competence on appointment, promotion, etc., of 35 personnelintheabsenceofrulesorregulationsspecifically made. •Reportedin

(1986)3C.L.R.

1. 472 3 C.L.R. Kyriacou v. E.A.C. Styllanldes J. This recourse succeeds as the sub-judice decision was tainted with the invalidity of the regulations governing the Selection Committee that took somepartintheprocessofthe promotionof the interested party and on the second ground that the Authority 5 did not exercise the power vested in itbyLaw 61/70 under rules or regulations made in conformity with the express provisionsof the law. Itmaybe noted thattheAuthorityafter anumberofdecisionsof the Courtonthematter,startingfrom Kofteroscase(supra),issued 10 regulations governing personnel matters. Such regulations were published, after theirapproval bythe CouncilofMinistersand the House of Representatives, in the Official Gazette of the Republic of27th December, 1986,SupplementNo.3,page897,underNo. 291/
2. 15 In the result the sub-judice decision is declared null and void and ofno effect. Inallthecircumstancesofthecasenoorderastocostsismade. Subjudice decision annulled. No order astocosts. 20 473