(1987)1987April3 [SAW1DES J | INTHE MATTEROFARTICLE 146OF THE CONSTITUTION NIOVIPAPAIOANNOU Applicant, ν THE REPUBLICOF CYPRUS. THROUGH THE EDUCATIONALSERVICE COMMISSION, Respondent (Case No 495/85) Educational Officers — The Educational Officers (TeachingStaff) (Appointments, Promotions, Postings Transfers and Related Matters) Regulations 205/72— Regulations 26, 28 and 29 — Declared ultra vires The Public Educational Service Law 10/69 and tn particular section 35
(2)thereof m Michaeloudes and Another ν The Republic
(1979)3 CLR 56 — Amendment of 5 sections 26 and 35
(2)of said Law by Law 53/79 published after the decision in Michaeloudes case or made applicable — Question answered in the negative Subsidiary legislation — Judicial decision declanng it ultra viresenabling Law — Effect of such decision 10 Administrative Law — General pnnciples — Retrospectivtty of an administrative act— Thegeneral rule — Exceptions — Review of the case law Educational Officers — Promotions — Whether approval of the filling of the post by the Minister of Finance necessary— Question answered in the negative Educational Officers — Promotions — Scheme of Service — Interpretation and application of— Pnnciples applicable 15 Educational Officers — Promotions — Request for filling of post made before occurrence of vacancy — Not aground of annulment as suchfactdid not in any way prejudice applicant Educational Officers—Promotions—Merit—Regrading ofapplicant's lastgrading made after filing of recourse — Such regrading rendered applicant slightly, but not strikingly supenor to some of the interestedparties— Not enough to lead by itself to the annulment of thesubjudice promotions 474 20 3 C.L.R. Papaioannou v. Republic Educational Officers—Promotions—Retrospective effectof—Thegeneralrule againstretrospectivityofanadministrativeact—Exceptions—Section35
(4)ofthePublic EducationalService Law 10/69 5 10 15 20 25 30 By means of this recourse the applicant impugns the validity of the promotion of the six interested parties to the post of Headmaster Ain the Elementary Education instead ofand inpreference toher The facts are bnefly as follows The Minister of Education requested, by letter dated 17 12 1984 the filling of 7 posts of Headmaster A in the Elementary Education {promotion posts) which were to become vacant on 31 12 1984 The applicant and the interested parties were holding at the time, the immediately lower post of Headmaster On the 2nd January, 1985, the recommendations of the Department of Elementary Education were submittedthroughitsDirectortotherespondent, whichmetonthe following day and took the sub judice decision promoting seven candidates to the vacant posts,amongstwhom thesixinterested partes,asfrom 11 1985 Counsel for applicant raised by his written address, the following legal grounds 1 The respondent acted contrary to section 26
(3)and 35
(2)of the Educational Service Law,No 10/69,asamended byLawNo 53/79which ashe submittedprovideforaprocedure,whichincludesthepreparation and publication of listsofofficers eligible for promotion Counsel contended that Regulations 26, 28 and 29 of 1972 (No 205/72) which had been declared invalid inMichaeloudesandAnotherv TheRepublic
(1979)3C L R 56,as being ultra viresthe Lawwere revived by the amendingregulabonsof 1985 (71/85)andthatsuchamendingregulationswhichwereenactedafter thesub judicedecisionareindicativeoftheintentionofthelegislaturethatlegal force shouldbegiventoRegulations26,28and29andrenderthemintraviresthe law 2 TheapprovaloftheMinisterofFinancewhichisanessentialprerequisite forthecommencementoftheprocedureforthefillingofavacantpostwasnot obtained inthepresentcase 3 The procedure for the filling of the postshad commenced before such postsbecame vacant 35 4 Thesubjudicedecision istheresult oflackofdue inquiryinthatitisnot clearthatitdoesnotappearanywherewhowerethecandidates considered bytherespondent aseligiblefor promotion 5 The applicant was supenor to the interested parties in ment and qualifications 40 6 The respondent took into consideration only the last two confidential reportsofthecandidates insteadof theirwhole career 475 Papaioannou v. Republic
(1987)7 The additional qualifications of the applicant were disregarded without special reasons 8 There isa real probabilitythat the subjudice decision was based on a misconception of fact in that the respondent took into consideration a disciplinaryconvictionoftheapplicant,whichappeared inherfile,whilstsuch conviction waslaterdelared nulland void bytheSupreme Court 5 9 The subjudice promotions were made with retrospective effect, thatIs witheffect from 1185contrarytothe pnnciples ofadministrativelaw Held, annullinginpartthesubjudice decision
(1)Regulations26,28and 29 of the Educational Officers (Teaching Staff) (Appointments, Poshngs, Transfers, Promotions and Related Matters) Requlations 1972(205/72)were foundtobeinMic/iae/oudesi/ 7Tie/?epuWjc
(1979)3C LR 56ultraviresthe Law(Law10/69)andmorespecificallysection35
(2)thereof Sections26and 35
(2)were amended byLaw53/79 When a specific regulation isdeclared by the Courts to be ultra viresthe Law, itisnot actually repealed ordeleted, but itbecomes a dead letter and cannotbeapplied thereafter 10 15 ThisCourt cannot share the viewthat by the enactment ofthe amending Law 53/79 the Regulations, which had been declared ultra vires, became automatically applicable Intheopinion of thisCourt, besidestheenactment 2 0 oftheamending Law,another positiveactionwasneeded, thatisthemaking of regulations incorporating the previous regulations or the making of new regulations Such action was in fact taken by the enactment of Regulations 71/85, but thiswasdone after thesubjudice decision
(2)There isnoprovision intheLawaboutpriorapprovaloftheMinisterof Financebefore a certainpostisfilledbywayof promotion 25
(3)Therequestforthefillingofthepostswasmade14daysbeforetheposts became vacant This,however, didnotprejudicially affect theapplicant, who wasinfactoneofthecandidatesconsidered aseligibleforpromotion
(4)Ground 4 has no ment Both the applicant and the interested parties 3 0 were considered for promotion It is immatenal whether any other of the unsuccessful candidateswasconsidered for promotion or not
(5)Theapplicantandtheinterestedpartiesweremoreorlessequalinmerit The correction of applicant's lastgrading from 37 to38made after the filing of thisrecourse makes her slightly but not stnkinglysupenor tosome ofthe 3 5 interested parties This isnot enough on itsown to lead totheannulmentof thesubjudice decision
(6)Ground6isnotsupported bythe facts 476 3 C.L.R. 5 Papaioannou v. Republic
(7)Theinterpretationandapplication oftheschemes ofserviceiswithinthe discretionary power of the appointing organ and this Courtwill not interfere and give a different interpretation once such interpretation was reasonably open to the appointing organ In this case it was reasonably open to the respondents not to treat applicant as possessing an additional qualification under thescheme of service
(8)It does not seem that applicant's disciplinary conviction affected the judgment of therespondents inreaching thesub judice decision 10 15
(9)Thegeneral rule of administrative Law isthatadministrative actscannot have retrospective effect, unlessitissoprovided by Law orwhere thedecision was taken by theadministration eitherincompliancetoanannulling decision of the Courtor in the course of re-examination of a case as a result of such annulling decision when retrospective effect may be given as from the date when such decision was annulled Theonly instance where theLaw provides for retrospective promotionsof educational officers is governed by section 35
(4)of The Public Educational Service Law 10/69 Inthelightoftheabove thesubjudice decision,insofar asits retrospechvity is concerned,hastobe annulled A* Orderaccordingly Noorder as to costs Casesreferredto MichaeloudesandAnother ν TheRepublic
(1979)3 C L R 56, Repubhcv Pencleous
(1984)3 CLR 577, 25 Kypnamdesv TheRepublic
(1965)3 C LR 519, Markouv TheRepublic
(1968)3 C L R 267, Micha/a ν TheRepublic
(1968)3C LR 465, Panayidesv TheRepublic
(1972)3 C L R 467, and on appeal
(1973)3 C L R 378, Afxentiouv TheRepublic
(1973)3 C LR 309 30 Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interestedpartiestothepostof HeadmasterA intheElementary Educationinpreference andinsteadoftheapplicant. AS. Angelides, fortheapplicant. 477 Papaioannou v. Republic
(1987)M. Florentzos, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAWIDES J read the following judgment. The applicant challenges thedecision oftherespondent published intheofficial 5 Gazette of the Republic on 22.2.1985. whereby the interested parties, namely, 1)Klitos Leonidou, 2) Panayis M. Panayides, 3) loannis N. Stylianou, 4) Fryne Charalambous, 5) Andreas Poyiadjis and 6) Marios Nicolaides, were promoted, as from 1.1.1985, to the post of Headmaster A' in the Elementary 10 Education instead of and inpreference to her. The applicant and the interested parties were holding, at the matenal time before the sub judice decision, the post of Headmaster in the Elementary Education. On the 17th December, 1984, the Minister of Education 15 addressed a letter to the Chairman of the respondent requesting thefillingof7postsofHeadmasterA intheElementaryEducation which were to become vacant on 31.12.1984, due to the retirement of an equal number of educationalists holding such posts as well as the consequential vacancies in the posts of 20 Headmaster. Such postswere promotion posts. The respondent held a meeting on the 2nd January, 1985, at which the Director of Elementary Education submitted the recommendations of his department. At its next meeting, which took place on thefollowingday,the respondent after considering 25 the recommendations proceeded to promote seven candidates, sixof whom are the interested parties inthe present case. Counsel for applicant raised by his written address, the following legal grounds: 1.The respondent acted contrary tosection 26
(3)and 35
(2)of 30 the EducationalServiceLaw,No. 10/69, asamended byLawI^Jo. 53/
- The approval of theMinister of Finance which isan essential prerequisiteforthecommencement oftheprocedureforthefilling of a vacantpost wasnot obtained in the present case. 35
- The procedure for the filling of the posts had commenced before such posts became vacant. 478 3 C.L.R. Papaioannou v. Republic S a w i d e s J.
- Thesubjudice decision isthe result of lackof due inquiryin that itisnot clear that itdoesnot appear anywhere who were the candidates considered by the respondent as eligible for promotion. 5 5.The applicant was superior to the interested parties in merit and qualifications.
- The respondent took into consideration only the last two confidential reports of the candidates instead of their whole career. 10
- The additional qualifications of the applicant were disregarded without special reasons.
- There is a real probability that the sub judice decision was based on a misconception of fact inthat the respondent took into consideration a disciplinary conviction of the applicant, which 15 appeared inher file,whilstsuchconviction waslaterdeclared null and voidby the Supreme Court.
- The sub judice promotions were made with retrospective effect, contrary totheprinciplesof administrative law. With regard to his first ground counsel contended that in 20 accordancewiththeprovisionsofsections26{3)and35
(2)ofLaw 10/69, asamended byLaw53/79,promotions must be made on the basis of a procedure which includes the preparation and publicationoflistsofofficerseligibleforpromotion.Theamending lawof 1979 wasconsidered necessary inview of thejudgmentof 25 the Court in the case of Michaeloudes and Another v. Republic
(1979)3 C.L.R. 56,bywhich Regulations 26, 28and 29of 1972 (No. 205/72) were declared ultra viresthe Law. Counsel argued that the aforesaid Regulations were revived by the amending Regulations of 1985 (No. 71/85) by which the said Regulations 30 werere-numberedthussignifyingtheintentionofthelegislatureto keeptheminforce.Hefurther submittedthateventhoughthesaid Regulationshad been declared ultravirestheLaw,they couldstill be taken into consideration by the respondent as a guidance in adherence to the principle of good and proper administration. 35 Lastly counsel argued that the amending Regulations of 1985 which were enacted after thesubjudice decision'are indicativeof the intention of the legislaturethat legal force shouldbe given to Regulations26,28and29and renderthemintraviresthelaw,and therefore enforceable. 479 S a w i d e s J. Papaioannou v. Republic
(1987)Section 26 of Law 10/69 read, before its amendment by Law 53/79, as follows: «26
(1)
(2)Κενή θέσις π ρ ο α γ ω γ ή ς πληρούται άνευ δημοσιεύσεως, διό π ρ ο α γ ω γ ή ς εκπαιδευτικού $ λειτουργού υπηρετούντος εις την αμέσως κατωτέραν τάξιν, θέσιν ήθαθμόν.» («26
(1)
(2)A vacancy in a promotion post shall be filled, without advertisement, by the promotion of an educational officer serving inthe immediately lower class, post or grade.) 10 Alsosection 35
(2)provided thatpromotionsshould be decided on thebasisofmerit,qualifications andseniority of thecandidates. Regulation 26 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related 15 Matters) Regulations of 1972, (No. 205/72) provided thatfor the purposes of promotion to non-combined posts, the educationalists satisfying the requirements of the schemes of service for the relevant posts are evaluated as promotees TV or promotees Έ ' in accordance with certain criteria set out in that 20 Regulation. Regulation 28 of the same Regulations provided for the preparation oflistsof promoteesΆ ' andl B'.Lastly, Regulation 29 provided thatpromotionsshouldbe madefrom thesaidlists,inthe proportionsspecified in theRegulations. 25 Thevalidity of Regulations26,28and29 was questioned inthe case of Michaeloudes v. TheRepublic
(1979)3 C.L.R.56, where, it was decided that the said Regulations were ultra vires the Law (Law 10/69) and more specifically section 35
(2)thereof. The judgment in the above case was delivered on 27.1.
- On 30 29.6.1979 Law 53/79 was published, amending inter alia, sections 26 and35 of Law 10/
- Thus,section 26 was amended by theadditionof a new sub-section
(3)which reads as follows: «
(3)Η διαδικασία π ρ ο ς πλήρωσιν κενής θέσεως δυνάμει τ ο υ π α ρ ό ν τ ο ς ά ρ θ ρ ο υ , περιλαμβάνουσα και 35 πρόνοιαν περί καταρτισμού, περιεχομένου και δημοσιεύσεως πινάκων διοριοτέων ή προαξίμων, ω ς 480 3 C.L.R. Papaioannou v. Republic S a w i d e s J· θα ήτο η περίπτωσις, οίτινες έχουσι τα π ρ ο ς τούτο καθωρισμένα προαπαιτούμενα, καθορίζεται.» 5 («The procedure for the filling of a vacant post in accordance with thissection including also a provision for the preparation,contentsand publication of listsof appointees or promotees, as the case may be, who possess the qualifications, prescribed for the purpose, is defined».) Section 35
(2)has been repealed and replaced by the following: 10 «
(2)Κατά την εξέταοιν των διεκδικήσεων των εκπαιδευτικών λειτουργών προς προαγωγήν λαμβάνονται δεόντως υ π ' ό ψ ι ν η αξία, ταπροσόντακαι η αρχαιότης συμφώνως π ρ ο ς διαδικασίαν ήτις καθορίζεται.» 15 («{2) In considering the claims of educational officers for promotion, the merit, qualifications and seniority are duly taken into consideration in accordance with a prescribed procedure»). When a specific regulation is declared by the courtsas ultra vires 20 its enabling law, it is not actually deleted or repealed, but it becomes a dead letter and cannot be applied thereafter. In the present case the effect of Michaeloudes case (supra) was that Regulations 26, 28 and 29 could no longer be applied by the respondent in effecting promotions. Although by the amending 25 law of 1979 (Law53/79)provision was made for theenactmentof regulations containing provisions for the preparation and publication of lists of appointees such regulations had not been enacted by the time of the sub judice decision. I cannot share the view that by the enactment of the above amending law theold regulations which weredeclared ultravires, were automatically revived and became applicable. In my opinion, there must be, besides the enactment of the amending law, another positive action giving effect to the intention of the legislature by either making regulations incorporating the 35 previous ones orby enacting new ones. Such action,giving effect to the intention of the legislature was in fact taken by the enactment of the amending regulations of 1985 (No. 71/85) whereby regulations 26, 28 and 29 were re-introduced in the 30 481 ο S a w i d e e J. Papaioannou v. Republic
(1987)amended regulations. This,however, took place subsequently to the sub judice decision. As to the effect of regulation 27 of the same regulations, if this regulation is read alone and notin conjunction with Regulations 26, 28 and 29, its meaning is that educationalofficers should be 5 evaluated, at least once a year, as to their fitness forpromotion. and nothingmore. 1 have, therefore, reached theconclusionthat the first ground relied upon by counsel for applicant fails. In connection with the second ground, counsel for applicant argued that the prior approval of the Minister of Finance is 10 necessary for the filling of anyvacantpostbecause ofthe possible abolition of a certain post. Thereisnoprovision intheLaw aboutthepriorapproval of the Minister of Finance before a certain post is filled by way of promotion,but,as I understand,such approval isusually obtained 15 inpractice. Since,however, noquestion arises herethatthe posts inquestion hadbeen abolished, andsinceapproval doesnotform part of the process for theselection of the best candidatesin case of promotions, I consider this question as not affecting the outcome of thepresentrecourse but I leavethequestion openas 20 to whether such mattermay be of any relevance incase of newly created posts or posts which in the meantime have been abolished. Itshouldbe notedthatinanycase,theletterrequesting the filling of the posts was communicated to the Minister of Finance,who did notraise any objection totheirfilling. 25 In support of the third ground, counsel relying on the case of Republic v. Pericleous
(1984)3 C.L.R. 577, argued that since it was decided, in that case, that a candidate must possess the required qualifications atthetimethattherequestfor thefillingof thepost ismade by theappropriateauthoritytotherespondent,it 30 follows that the procedure for the filling of a post cannot commence and the request for the filling of the post cannot be made, unless thepost becomes vacant. Itis a fact in the present case thatalthoughtherespondentdid notactually meettoconsiderthesub judicepromotionsuntilafter 35 thepostsbecamevacant,therequestforthefillingoftheposts was made,by theMinisterof Education,onthe 17thDecember, 1984, that is, 14 days before the posts became vacant. This, however, didnotinanyway affect theinterestsof theapplicant,who was m 482 3 C.L.R. Papaioannou v. Republic Sawides J. factconsidered amongstthecandidateseligibleforpromotion and thereisnoallegationthatshewasinanywayprejudicially affected or that she was excluded from consideration as not possessing certain qualifications by the 17th December, 1984, which she 5 would have otherwise possessed by the 31st December, 1984.1 therefore find no merit inthisargument. Withregard tothe fourth ground raised, again I find no meritin it either. Both the applicant and the interested parties were considered aseligible forpromotion and theapplicant wasin fact 10 amongst those recommended for promotion. It is therefore immaterial whether any other of the unsuccessful candidates was considered forpromotion or not. Iwillnow consider grounds5, 6and
- It has been repeatedly stressed by this court that mere 15 superiority of one candidate over another isnot sufficient for the annulment ofa promotion and that whathastobe established by an applicant is striking superiority over those who had been promoted. Itistheallegation ofcounselforapplicantthattheapplicantwas 20 better in merit and qualifications than the interested parties. The meritsofthepartiesarereflected intheirconfidential reports.Itis apparent from suchreports,aswellasfrom acomparativetableof thegradingsofthepartieswhichwasprepared forthepurposesof the recourse that all parties are more or less equal in merit. 25 Counsel for applicant argued that the applicant's grading in her lastreport isnotcorrectly stated inthecomparative tableand that hercorrectgradingshouldhavebeen38inthatyearinsteadof
- Asitappearsfrom herfile hergradingwaschanged from 37to 38 after anobjectiononherpart.Thiscorrectionwas,however, m?de 30 on 26.1.85, a date subsequent to the recourse. Even if the corrected grading istaken into consideration, she would only be slightly better as compared to interested parties Stylianou and Poyiadjisandthisisnotenough,onitsown,torenderherstrikingly superior tothose,or anyof the interested parties. 35 40 Itisalsothecontention ofcounselthatonlythelastreportsofthe partiesweretakenintoconsideration.Itisclear,however,fromthe minutes of the respondent thatalltheirconfidential reportswere takenintoconsideration withaspecial emphasisonthelastones, which in any event was legitimate. Therefore, the contention of counselinthisrespectfails. 483 Savvides J. Papaioannou v. Republic
(1987)With regard to qualifications, it is the case for counsel for applicant that the applicant possessed additional qualifications whichareconsideredanadvantage undertheschemesofservice and which were disregarded by the respondent without giving properreasons for disregarding them. 5 Paragraph 3 of the qualifications required by the scheme of servicefor therelevant post,readsinthisrespect: «Μετεκπαίδευση στο εξωτερικό ή επιπρόσθετος τίτλος σπουδών σε εκπαιδευτικά θέματα ή πιστοποιητικό επιτυχούς παρακολούθησης ειδικής 1Q σειράς επιμορφωτικών μαθημάτων που οργανώνειτ ο Υπουργείο Παιδείας, θεωρούνται ως επιπρόσθετο προσόν.» {«Post-graduate trainingabroadoradditionaltitleofstudies ineducationalmattersoracertificate ofsuccessful attendance 15 of aspecial seriesof lessonsinvocationaltraining organised by the Ministry of Education will be considered as an additional qualification»). Asitseemsfrom acertificateappearinginblue88ofExhibit1C, theapplicant,attendedfrom 1961-1963evening classesindress- 20 making, cookery and cake decoration atthe Stobswell Evening EducationalInstitute. Interested party No.5 has attended, during the years 19811982 and 1982-1983, a course and obtained a Diploma in Applied Educational Studies in the Hatfield Polytechnic in 25 England (blues 81,88, 111, 116 in Exhibit 2D). Interestedparty No.6 had attended a course in Maraslios Teaching College in Athens. There is no evidence that any other interested party possessedanyadditional qualifications. The interpretationandapplicationof theschemes of service is 30 within the discretionary power of the appointingorgan andthis courtwillnotinterfereandgiveadifferent interpretationoncesuch interpretation was reasonably opentotheappointingorgan. Therespondentfound(seeminutesofmeetingof3.1.1985)that interestedpartiesNos5 and6have post-graduatetraining. 35 The certificate of attendance of the applicant,was before the respondent and it canbe inferred from the contentsof the sub 484 3 C.L.R. Papaioannou v. Republic Sawides J. judice decision that it was not treated by itas amounting toan additional qualification under the schemes of service. Such interpretationwas,inmyview,reasonably opentotherespondent, inviewof therequirementthatpost-graduate trainingetc.hadto 5 beineducationalmatters.Inviewofthis,theapplicantcannotbe treated for comparison purposes as possessing the additional qualification of post-graduate training in educational matters whichwouldhaverequiredtherespondenttogivespecial reasons for ignoring it and preferring those of the interested parties not 10 possessingsuchqualifications toher.Thisgroundalsofails. The next ground to be considered is ground 8 regarding the probability that the respondent took into consideration a disciplinary conviction of theapplicant,which was subsequently tothesubjudice decision annulledby theSupremeCourton the 15 application of the applicant and which might, according tothe contentionofapplicant'scounsel,haveledtoamisconceptionof fact. Ifind nomeritinthiscontentionof counsel.The fact ofthe disciplinary conviction of the applicant does not seem to have affected thejudgmentoftherespondentinreachingthesubjudice 20 decision.Theapplicantwas infactconsidered for promotion,she was recommended for it, amongst other persons, and thesole reasonfor notbeingpreferred was, asitseems from thecontents ofthesubjudicedecisionthattherewereothercandidates,equally good butseniortoherwhomtherespondentconsideredasmore 25 suitableforpromotion,amatterwhichwasreasonably opentothe respondenttodointhecircumstancesofthecase. Thefinalpoint raised is that of the retrospectivity of the sub Judice decision. The general rule of administrative law is that administrative actscannothaveretrospective effect, unlessitisso 30 provided by law or where the decision was taken by the administrationeitherincompliancetoanannullingdecisionofthe Court or inthe course of re-examination of a caseas a resultof suchannullingdecision whenretrospectiveeffect maybegivenas fromthedatewhensuchdecisionwasannulled.(SeeConclusions 35 fromtheCaseLawoftheCouncilofStateinGreece(1929-1959) pp. 197 and358; Kyriacopoulos on Greek Administrative Law, 4thEdition, Vol. B.,p.400). The relevant law in this respect is section 35
(4)of thePublic EducationalServiceLaw(LawNo.10/69)whichreadsasfollows: 40 «('Οτανεκπαιδευτικόςλειτουργόςπροσχθήειςθέσιν 485 S a w i d e s J. Papaioannou v. Republic
(1987)εν τ η οποία ενήργει αναπληρωτικώς, η προαγωγή α υ τ ο ύ δυνατόν ναγίνη από τηςημερομηνίας κατά την οποίαν εκενώθη η θέσις ή από της ημερομηνίας από τ η ς οποίας διωρίσθη όπως υπηρέτη αναπληρωτικώς, οιαδήποτε των ημερομηνιών τούτων είναι η μεταγενέστερα.» 5 («
(4)When an educational officer is promoted toa postin which he was acting,his promotionmay take effect from the date on which thevacancy occurred orthedate of his acting appointment, whichever isthe latest»). 10 Itseems from theabove thattheonly instancefor retrospective promotions expressly provided for by the law is in the case of acting appointments. If it was the intention of the legislature to cover any otherinstances, itshould have beenexpressly stated so inthesame law. 15 The question of the retrospectivity of promotions has been raised before thiscourtinthepast.Thus,inthecaseofKyprianides v.Republic {1965)3C.L.R.519,itwas heldthatthedecisionof the respondentnottogiveretrospective effect tothepromotionofthe applicant was wrong inview of the fact thathewas acting inthat 20 post for several years. Inthecase of Markou v.Republic
(1968)3 C.L.R. 267, it was found that the decision of the respondent to refuse to give retrospective effect to the promotion of the applicant, who was not acting in the post in question before his promotion,was correctlytaken. 25 In the case of Michala v. Republic
(1986)3 C.L.R. 465, it was decided that retrospective appointmentcould be offered to the applicant, inthecircumstancesof thecase,inviewof thefact that a decision had previously been takentothateffect by the Review Committee and the respondent Commission, as a successor to 30 thatorgan,was merelycalledupontogiveeffect tosuchdecision. Inthecaseof Panayides v.Republic
(1972)3 C.L.R.467,it was held by A. Loizou, J. that the promotion in that particular case could have been made with retrospective effect in view of the provisions tothateffect intheSupplementaryBudget Law (No.9) 35 of 1970 (Law No. 34/70). That case was affirmed on appeal, reportedin
(1973)3C.L.R.atp.378,wherethefollowing was said atpp. 384,385:486 3 C.L.R. 5 10 Papaioannou v. Republic Sawidoa J. «Thequestion whicharisesforexamination, inthisrespect, is whether there existed legislative authorization for the retrospectivity ofthepromotion oftheinterestedparty.Inour view, Law 34/70, by means of which there was created, in May, 1970,the post in question and provision wasmade for the payment of the salary of such post as from 1st January, 1970, authorized, by implication, the respondent Commission to make the promotion retrospective (and see further in this connection Revue du Droit Pubtique et de la Science Politique, 1953,p.45).» Lastly,inthecaseoiAhcentiou v.Republic
(1973)3C.L.R.309, itwas decided byA.Loizou, J. that retrospective promotion was notjustified inthe circumstances of the case where there was no expressstatutoryprovisiontothateffect. Atp.319ofthejudgment 15 the following wasstated: «Therefore, the creation of thisnewpost could notbyitself beconsidered asamountingtoanexpressstatutoryprovision authorizing the Commission tofillitretrospectively. 20 25~ 30- 35 Furthermore,thereisnootherindication inthesaidBudget Law from which one might infer an implied authorization to makethepromotion inquestion retrospectively. Thefact that the applicant was asked inter-departmentally to perform the duties of the post which was to be created, and before his selection for the post by the Commission - the appropriate organ entrusted by the Constitution with the task of promotions - is not sufficient to constitute the authorization that the law requires to exist before retrospective effect is giventoapromotion, nor,inmyview,thecombined effectof the creation of the post bythe Budget Lawasfrom 1stof the yearcoupledwiththecircumstancesofthecasewas sufficient justification for the Commission to give to the promotion retrospective effect, norwasitsuch astocallfordoingequity totheofficer concerned.Thedutiesassigned,astheywere,to himbyhisDepartment,hadgivenhimanopportunitytoshow hisabilitieswhichmighthavebeentohisadvantagehadthere been othercandidatesforthesamepost.» The above case was decided only a few days before the judgment ofthe Full Bench of thisCourtinthecaseof Panayides (supra). The learned trial Judge, however, distinguished in the 40 above case, his own decision in the Panayides case which was 487 Sawtdes J. Papaioannou v. Republic
(1987)reached in the first instance. His decision in this respect reads as follows (p.318): «One of such promotions came before me and isreported asPanayidesv.TheRepublic
(1972)3C.L.R.467.Inthesaid case it was held that the Supplementary Budget Law was 5 enacted and used asthe legislative media for the purpose of the reorganization of the service and the creation of new posts. The provisions therein for funds for such posts retrospectively from the beginning of the year, that isto say five months priortothe promulgation of the said law,wasa 10 clear provision thatpromotions to these posts which werein effect reorganization of already existingposts,were intended tobe made with retrospective effect. That case has to be distinguished from the present one.-' There, the re-organization of a number of Government 15 Departments had been the subject of negotiations between// the Government and the civil service and it had been promised thatanagreedsettlementwould have retrospective effect asfrom thebeginningoftheyearinquestion.Asaresult, the Council of Ministers approved the necessary bill which 20 was laidbefore the Houseof Representatives inAprilorMay for .the appropriation of the required funds as from the. beginningofthatyear,thatistosay,before evenlayingthebill before the House, a further ground for distinguishing Panayides's case (supra)from the one underconsideration.» 25 / i IsharetheviewofmylearnedbrotherA.Loizouinthatthecase of Panayidesisdistinguishablefrom thecaseofAfxentiou and also from the present one. I also share the view that there can be no retrospective promotion unless the case falls within certain exceptions enumerated in the Greek authorities cited earlier 30 which is not the case here. In view of this, I find that the retrospectivity given tothe promotions in question with effect as from the 1stJanuary, 1985 is null and void and the sub judice decision, in so far as its retrospectivity is concerned, has to be annulled. 35 488 3 C.L.R. Papaioannou v. Republic Sawide· J. In the result the recourse succeeds only to the extent hereinabove mentioned and an order ismade accordingly. Inthe circumstances I make no orderforcosts. Subjudice decision partly annulled. No 5 orderastocosts. 489