clr/1987/1987_3_840.pdf

(1987)1987 May 11 (KOURRIS,J.] INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION ANDREAS LARDOS ANDOTHERS, Applicants, v. THE REPUBLICOF*CYPRUS, THROUGH

1. THEPUBLICSERVICE COMMISSION,
2. THEDIRECTOROFPRISONS, Respondents. (CaseNo. 262/86). WordsandPhrases:«Organicpost»inascheme ofservicerelatingtoapromotion post inacombined establishment—Λisapost createdbyLaw— TheLaw pertainingtothecreationofsuchpost istheBudgetLaw. Executoryact—Informatoryact—Preparatory act. Omission—Meaning of—Intheabsenceofarecommendationforthepromotion ofapplicantstothehigherpostinacombinedestablishment, theCommission wasnot guiltyofan omissiontopromote them,because itwasnotseized of theopportunity todo so. Public Officers—Promotions—Combinedestablishments— Circular608 dated 27.1.82—Paragraph 4—Interpretation of. Timewithin whichtofilearecourse—Doubtastothe datewhenthesubjudice decision wastaken—Benefitof doubtgiventoapplicant. AD applicants, except applicants5and10,were appointedtothe organic postofPrisonWarderundersalaryscaleA3andA5asfrom 1.6.74.Applicants 5 and 10 were appointed to thesame post as from 1.5.
3. All such 1 5 appointments were madebythe PublicService Commission.Priortotheir said appointmentthe applicants were engaged on various dates between 1964 and 1972 bythe Directorof Prisons ona monthtomonth basisas Temporary Warders. InvirtueofLaw48/83therewascreatedthepostofPrisonWarder onscale 2 0 A7, which isacombined establishment office withthepostofPrison Warder scalesA3and A
4. 840 5 *" 3 C.L.R. Lardos &another v. Republic Inaccordance withtherelevantschemeofservice,whichwasapproved by theCouncil of Ministerson 12.7.84,PnsonWardersservingonscalesA3and A5 shall be promoted to the post of Prison Warder A7, if, among other prerequisites, tneyhave completed 13yearsof servicefrom thedate of their appointment tothepostof PrisonWarder{ScalesA3andA5). 5 Respondent 2refused a requestbytheTrade Unionofthe PrisonWarders to recommend the applicants forpromotion tothe newpost, because, inhis view,theydid not complete 13yearsof serviceinthe organicpostofPrison Wardersasprovided bytheschemeofservice.Hence thepresent recourse. 10 Itmust be noted that the aforesaid Trade Union addressed a letter to the Public Service Commission inquiring whether the years of service as a temporary Wardershould be taken into account incalculating the periodof 13years.The PublicServiceCommission repliedinthe negative. Held,dismissingtherecourse:Anorganicpostisapost,whichiscreatedby lawandthelawpertainingtothecreationoforganicpostsintheGovernment istheBudgetLaw.Thepostsheldbytheapplicantsbefore their appointment bythe PublicServiceCommissionwere notincluded inthepermanent posts inthe Budged lawsof the relevantyears,butthere wasa separate provision in respect of them, classifying them as Temporary Warders on a monthly basis.Itfollowsthatthe way,inwhichthe Directorof Prisonsinterpreted the schemeof service,wasreasonably open tohim. 15 20 Held further, on the assumption thatsuch a construction of theschemeof service was not reasonably open to the second respondent:

(1)The replyof the PublicService Commission to the inquiry of the Trade Union is not an executory, but an informatory act, and, consequently, cannot be impugned bya recourse. 25 y 30 35 40

(2)Therespondent Commission wasnotguiltyofacontinuingomission to promote the applicants, because, in the absence of a recommendation by respondent 2,theCommission wasnotseizedoftheapplicants' case.

(3)It follows that the recourse as against the Commission has to be dismissed.

(4)The question, now, is whether under para. 4 of Circular 608 dated 27.1.82, as regards the procedure of promotion of officers serving in combined establishments, the Director of Prisons was obliged to make recommendations irrespective of whether the applicants have in fact completed therequired period ofserviceorwhetherhewasobligedto make such recommendations incasesonlyof completion ofsuch service.

(5)Iftheformersolutionispreferred, theactoftheDirectorisapreparatory act and, assuch, cannot be impugned by arecourse. Ifthe latter solution is accepted,theactisanexecutoryone,becauseitproducesdirectlegalresults. 841 Lardoe & another v. Republic

(6)ThisCourt is of the opinion thatthesecond constructionis thecorrect one Itfollows thatthedecision of theDirectoraffected directly and adversely applicants' legitimate interest

(7)As thereisa doubt as tothedate when the Directortook thesub judice act, this Courtwillgive to theapplicant the benefit of doubt by holding that the recourse is notout oftime 5 Recoursedismissed No orderas to costs Casesreferred to Der Parthogh ν C ΒC.

(1984)3 CL.R 635, Costeav. TheRepublic

(1983)3 CLR 10 115, Cyprus Tannery v. TheRepublic

(1980)3 C LR.

1. Recourse. Recourse,against therefusal oftherespondentstorecommend applicantsfor promotiontothecombinedestablishment onsalary 15, scale A.
2. A. Eftychiou,for theapplicants. P. HadjitDemetriou, for therespondents. Cur.adv. vult. KOURRISJ. read the following judgment. The ten applicants 20 are Prison Warders in the Central Prisons, Nicosia,in the salary scaleA3andA5andtheyallegethattheyoughttobeemplacedin thescale A
3. Thetenapplicantswere engaged onvarious datesbetweenthe years 1964 and 1972 by the Director of Prisons as Temporary 25 Warders from month to month on a salary at an annual rate payable in arrear in the end of each month of service under Regulation 3 of the Prisons (Prison Service) Regulations 19481982 madeunders.6 of thePrisonDisciplineLaw Cap.
4. .Applicants 1,2, 3, 4, 6, 7and 8 were appointed by thePublic Service CommissiontotheorganicpostofPrisonWarders asfrom 1/6/74 and applicants 5 and 10 were appointed to the organic post of PnsonWarders as from 1/5/74undersalary scale A3and A5 Their appointments were effected by the Public Service Commission intheusual way thatvacantposts arefilled. 842; 30 35 Lardoa&anotherv. Republic KottrrlaJ. By virtue of the Pnson Service (Restructuring of Offices of Members)Law which was enactedin1983 (LawNo.48/83)itwas created the pos,t of Prison Warders under scale A7 which is a combined establishment office with the post of Prison Warders 5 servingunderscaleA3andA
5. The Council of Ministers acting under s. 44(l)(a) of the Public Service Law, 1967 (Law 33/67)by itsdecision No.24765dated 12/7/1984 approved the Scheme of Service for the promotion post under scale A
6. The relevant part for the purposes of the 10 presentcase readsas follows:- 15 20 25 30 «Σημείωση:- Δεσμοφύλακες στις Κλίμακες A3 και Α5 που βρίσκονταν στην Υπηρεσία κατά την 1/10/1981 προάγονται στη θέση Δεσμοφύλακα (Κλίμακα Α7) αφού συμπληρώσουν 13 χρόνια υπηρεσίας από την ημερομηνία διορισμού τους στην οργανική θέση Δεσμοφύλακα (Κλίμακες A3 και Α5) από την οποία 4 τουλάχιστονχρόνιαστην ΚλίμακαΑ5ή/και στηνπρώην Κλ. Α4, νοουμένου ότι είναι κάτοχοι των τεσσάρων σημάτων καλής διαγωγής που προβλέπονταιδυνάμει του Κανονισμού 23

(1)των Περί Φυλακών (Υπηρεσία Φυλακών) Κανονισμών του 1948-1981 (Vide Appendix «Α.).» («Note; Prison Warders onscalesA3 andA5, who were in the service as on 1.10.81, shall oe promoted to the post of PrisonWarder (ScaleA7)after completing 13yearsofservice from the date of their appointment to the organic post of PrisonWarder (ScalesA3andA5)ofwhichatleast 4yearson scale A5 and/or on former scale A4, provided that they possess the four marks of good behaviour, which are provided for by Reg. 23

(1)of The Prisons (Prison Service) Regulations 1948-1981»). Thecentral issueinthiscase concernstheinterpretation ofthe scheme ofserviceandparticularly thephrase «intheorganic post of Prison Warder». 35 Counsel fortheapplicantsubmitted thattheapplicantsholdan organic post within the meaning ot the organic post in thesaid scheme of service as from their engagement by the Directorof Prisons whereas counsel for the respondent submitted that the . applicants held anorganic post as from theirappointmentbythe 40 PublicService Commission. 843 KourrisJ. Larde*Aanotherv.Republic

(1987)Counsel for the applicants argued that since the applicants' posts were organic as from their engagement by the Director of PrisonsasTemporaryWardersand astheywereintheServiceon 1/10/1981 they were eligible for promotion because they satisfy therequirements ofthescheme of service. 5 Ihaveconsidered thismatterand Ihavereached theconclusion thatan organicpost, for whichthere isno definition inthe Public ServiceLawNo.33/67 isapostforwhichthereisprovision inthe Budget Law and it may be permanent or temporary. An organic postisapostwhich iscreated bythelawandthelawpertainingto 10 the creation of organic posts in the Government Service is the BudgetLaw;and thequestion ariseswhether therewasprovision intheBudgetLawfor organicpostsatthetimeofthe engagement oftheapplicantsbythe DirectorofPrisons. Ihave examined the Budget Laws for the years 1964 till 1983 15 marked Exh.2 1 ,and Iam satisfied thattherewasno provision for such posts. In the structure of the office of the Prisons there is provisionforpermanentpostsandtheapplicantsarenotincluded in these permanent posts.There isa separate provision for them under paragraph 1A, in the next page, under the heading 20 «Prisons» which classifies them as Temporary Warders on a monthly basis. Further, the termination of their engagement as Temporary Warders may be effected by the Director of Prisons under Regulation 7 of the Prisons (Prisons Services) Regulations without assigning any reason upon hisgivingone month's notice 25 in writing or on paying one month's salary in lieu of notice. For thesereasonsIamsatisfied thattheapplicantsdidnotholdorganic postsfromthetimeoftheirengagement bytheDirectorof Prisons as Temporary Warders. As the applicants did not hold organic postsfromthetimeoftheirengagementbytheDirectorofPrisons 30 as Temporary Warders, it follows that they did not complete 13 yearsinthe organicpostof PrisonWardersand consequently, did notsatisfy therequirementsoftheschemeofserviceinordertobe eligible to be emplaced in the promotion post under salary scale A7. Inview of the above itwasreasonably open to the Director of Prisons to construe the scheme of service and particularly the phrase «intheorganicpostofthePrisonWarder»inthewayhedid itand the Court cannot interfere withthe said interpretation (Vide Lana derParthogh v. Cyprus Broadcasting Corporation

(1984)3 C.L.R.635). 844 35 w 3 C.L.R. 5 Lardos & another v. Republic KoiwrleJ . The Directorof Prisons when requested by theTrade Union of thePrisonWarders torecommendtheapplicantsforpromotion to the combined establishment under salary scale A7, he refused to do so on the ground that they did not complete thirteen years in the organic post of Prison Warders as provided for by the scheme of service. In the circumstances the recourse is dismissed but I shall proceed and examine the other issues raised in this recourse if it were held that it was not reasonably open to the Director of 10 Prisonstoputtheaforesaid constructiontotheschemeof service. Counsel for therespondentsraised theissuethattheapplicants lacked legitimate interest in the sense of Article 146.2 of the Constitution. It is a well established* principle of administrative law that 15 legitimate interest exists where a person is directly and adversely affected by the decision complained of. I propose to examine first whether the applicants have a legitimate interest with regard to respondents

(1)viz. The Public Service Commission. 20 The facts giving rise to the recourse against the respondent Commission are these:- The Trade Union of Prison Warders addressed a letter dated 26/11/1985, which is Appendix «B», to the respondent Commission inquiring whether the years which a Prison Warder served from his appointment by the Director of 25 PrisonsasaTemporaryWarder canbe taken intoconsiderationin calculating the years for service in the organic post of Prison Warder. The respondent Commission having received legal advice from the Office of the Attorney-General, replied in the negative tothe query posed toitby a letterdated 1/2/1985(Vide 30 Appendix «Γ». The legal advice on which the respondent Commission relied ismarked Appendix «Στ»). It is apparent that the letter of the respondent Commission in reply to the letter of theTrade Union of the Prison Warders does notamounttoadecisionwhich isjusticiable underArticle 146.1 of 35 the Constitution.Itis merely an informatory act which cannotbe made the subject of a" recourse under Article 146.1 of the Constitution. The second leg of the complaint against the respondent 845 Kourria J. Lardos & another v. Republic

(1987)Commission is its omission, which is continuing,to promotethe applicants and emplace them in the scale A7. What amounts to «omissions»of theAdministration hasbeen explained inthe cases of Costea v. The Republic

(1983)3 C.L.R. 115 and Cyprus Tannery v.Republic

(1980)3 C.L.R. 405 and I need notreiterate theprinciples again. 5 Inthepresent case the Directorof Prisonsdidnotforward tothe respondent Commission his recommendations as per the form which is attached to the opposition and is marked «Form A», because he was of the opinion that theapplicants did notsatisfy 10 the requirements of the scheme of service, therefore, the respondent Commission was not seized of the opportunity to examine the case of the applicants and itis notguilty of omission within themeaning of administrative law. Inthese circumstances therecourse against therespondents

(1)15 viz. the respondent Commission cannot stand and is hereby dismissed. I shall now proceed and examine the case against theDirector of Prisons who is respondent

(2)in this recourse. The Directorof PublicAdministration and PersonnelService by circular No. 608, 20 dated27/1/1982broughttothenoticeof thevarious departments of the Government the procedure to be followed in the case of Officers serving in combined establishment posts which the Council of Ministers approved in theirdecision No. 21311 dated 21/1/1982 (VideAppendix Δ). 25 By virtue of paragraph

(4)of the said directions the Head of Department should recommend all Officers who satisfy the schemes of service, whether they are judged to be fit for promotion ornot.Forthispurpose theHeadof Departmenthasto fill inthe Form «A» which forms partof Appendix «Δ». And he has 30 to state whether or not the Officers have carried out.their duties satisfactorily or not, that they completed the period of service prescribed by the scheme of service and whether or not they satisfy theotherrequirementsof thescheme ofservice; andfinally whether he recommendsthem for promotionornot. 35 The question which poses for consideration Is whether the Head of Departmentis obliged to make recommendationsin all cases in spite of the fact whether an officer has completed the period of service prescribed by the scheme of service or notand forward ittothePublicService Commission,which intheexercise 40 846 3 C.L.R. Lardos & another v. Republic Kourrts J. of its discretion promotes ornottheOfficer, orwhether theHead of Department is obliged tomake recommendationsand forward thesaid form duly completedtothePublicService Commissionin cases only where an Officer has completed the prescribed period 5 of service provided for by thescheme of service. In my opinion, if it is the former, then,the act of the Head of Department is a preparatory act and could not as such be the subject of a recourse under Article 146.1 of the Constitution because itdoes notproduce directlegalconsequenses. But,if itis 10 the latter,then,theactof the Headof Department isan execuroty one because itproduces directlegal consequences andan Officer has a legitimate interestas he is directly and adversely affected. In the circumstances of the present case and bearing in mind paragraph

(1)of the Directionsof theCouncilof Ministers (Partof 15 Appendix «Δ») totheeffect thattheHeadof Department forwards to the Public Service Commission therecommendationsafter the completion of the period of service which the scheme of service requires and bearing also in mind paragraph

(4), which I mentioned hereinabove, Ihave reached the conclusion that the 20 Head of Department is not obliged to forward his recommendations to the Public Service Commission in all cases but, in those cases only, where he is satisfied that an Officer has completedtheperiod ofservice requiredbytheschemeof service. And his decision is an executory one and is subject to a recourse 25 underArticle 146.1. Inthe present case the Head of Departmenti.e. the Directorof Prisonsdecided thattheapplicantshave notcompletedtheperiod of service prescribed by the scheme of service which decision affected the applicants directly and adversely inthesense thatthe 30 decision rendered them not eligible for promotion and, in the circumstances, have a legitimate interesttopursue this recourse. As the decision of theDirectorof Prisonswas notinwriting and was notcommunicatedtotheTrade Union of the Prison Warders in writing, I have doubts as to the date it was taken and 35 communicatedtotheapplicants,andinthesecircumstances,Iwill give them the benefit of doubtby holding thatthey are notoutof timeinfiling the recourse. For all the above reasons the recourse is dismissed butwith no „ Λ orderfor costs. _ _,. . . Recoursedismissed. 40 Recourse dismissed. No order as to costs. 847