3 C.L.R. 1987Januarv7 1STYL1ANIDES J ] IN THE MATTER OF ARTICLE 146 OF T H E C O N S T I T U T I O N ANDREAS D KALAFATIS Applicant ν ELECTRICITY A U T H O R I T Y OF CYPRUS Respondent (Case No 521/35) Legitimate interest—Principles applicable—Public Corporations—PromotionsApplicant challenging promotion toapost two gradeshigher than theone ht holds and not possessing required qualifications for sub judice posi— Applicant doesnot possess alegitimate interest 5 Public Corporations—Promotions—EleUncity Authority of Cyprus—Joint Ad\ ι sorySelection Committee setupinaccordance with regulation* insidein pin suance to a Collective Agreement made between the respondent Authonn and the Union of itsemployees participating in thepioces·· of promotionRegulations neither approved by the Council ofMinisteis noi published in tin *U 15 Official Gazette—Regulations invalid—Sub ludice decision annulled Public Corporations—Personnel matters—Electricity Authority of Cyprus—Tht Electricity Development Law Cap 171—Constitution stnpped off Authonn. of all its powers thereunder as regards personnel matters—The Publn Corporations (Regulation of Personnel Matters) Law 61/70—Section 3Absence of rules or regulations governing the exercise of the powei thereunder—Authority lackscompetence to exercisesuch powers Collective agreements—Do not createrightsor obligations in public law 20 The applicant whojsaClerk 1stGrade in the sen/ice of the respondents challenges by means of this recourse the promotion of interested part' Kourouniades to the post of section Head m the department of commercia services and the promotion of interested party Kassardjian to the post ο Deputy Section Head in the department of legal Services 25 The post of section Head is two grades higher than the post held by th applicant and moreover the applicant didnot possess the requiredquahficn tions for promotiun to such post under the relevant scheme of service Tht applicant, however possessed the necessary qualifications for promotiontthe post of Deputy Section Head 97 KalafatU v. E A . C
(1987)Itshould be noted thatintheprocess of taking of thesub judice decisions lointAdvisorySelection Committee,formed inaccordancewith regulations ide underclause 24
(1)(c) of theCollective Agreement 1974-75, made bet 'en theAuthority andthe Unionof itsemployees, participated,butcounsel the respondents, who admitted that such regulations were neither )proved by the Council of Ministers nor published in the Official Gazette, gued thattheparttaken by theCommitteewas notsuch as totaintthe final ts with illegality Held,dismissing the recourse asregardsthe sub judice promotion to the idpost of Section Head and annullingthe subjudice promotion to thesaid ystofDeputy Section Head
(1)Theissueofanapplicant'slegitimate interest ^y be examined by the Court ex propno motu Itis well settled thatinthe >ence of an express provision tothe contrary noofficer maybe promoted morethanonegrade atatime,moreover, theapplicantinthiscasedidnot ssessattherelevant timeι e , thelast day for thesubmission of theapplicans for promotions - in this case 13 10 84, the required by the relevant ieme of service qualifications for promotion to the said post of Section ad Itfollows thattheapplicantlackslegitimate interesttochallenge the sub lice promotion tothepost of Section Head 2) A collective agreement does not create nghts or obligations in public ι The regulations setting up the Joint Advisory Committee are plainly -alid (Kofteros ν ΕAC
(1985)3 C LR 394 and Antomades ν Ε AC >85)3 C LR 458) The Court is unable to say towhat extent the recom•ndationof thesaid Committeeinfluenced thefinal actof promotion Itfolvsthatthe sub judice promotiontothepost of DeputySection Headhasto annulled Furthermore thereis anotherground of annulment TheConstitutionstnpd theAuthonty of all powers underthe Electricity Development Law, Cap 1 with regard topersonnel matters(appointments,promotionsetc) Dueto »emergency situation and the vacuum created by the non functioning of * Public Service Commission envisaged by the Constitution, there was acted the Public Corporations (Regulation of Personnel Matters)Law 61/ but the powers under s 3 thereof cannotbe validly exercised, unless the ^requisites provided by law are complied with As no rules or regulations remade governing theexercise of such power, therespondents could not lidly exercise competence inthematter Recourse againstsub judice promotion to the post ofSecbon Head tn the Department of commercialservices dismissed Sub judice promotion to the post of Deputy Head in the Department of legalserviceannulled No orderas to costs 98 10 15 ^ 25 *30 35 40 3 C.L.R. Kalafatis v. E.A.C. Casesreferredto: Constantinou v.TheRepublic
(1974)3C.L.R. 416; Kritiotisv.TheMunicipalityofPaphos and others
(1986)3 C.L.R. 322; Paraskevopoutou v. TheRepublic
(1980)3C.L.R. 647; 5 MeletisandOthersv.CyprusPortsAuthority{\986) 3 C.L.R. 418; Arkatitisv.TheRepublic
(1967)3C.L.R. 429; Tryfonv.TheRepublic
(1968)3C.L.R.28; TheRepublicandAnother v. Ahstotelous
(1982)3 C.L.R. 497; TheRepublic v.Pencleous and Others
(1984)3C.L.R. 577; ^ Mavrommatisand Others v. Land Consolidation Authority
(1984)3 C.L.F 1006; Kofterosv.E.A.C.
(1985)3C.L.R. 394; Antoniades v.E.A.C
(1985)3C.L.R.
- Recourse. jc Recourse against the decision of the respondents to promote the interested parties to the posts of Section Head and Deputy Section Head in the Departments of Legal Services and Commercial Services inpreference and instead of the applicant. P.Angelides, for the applicant. 20 E- Liatsou (Mrs.)forG. Cacoyiannis for the respondent. Cur.adv. vuh STYLIANIDESJ. read the followingjudgment. Theapplicanti: Clerk, 1stGrade, intheservice ofthe respondents. On 28.9.84 the respondents advertised the posts of Depuft 25 Section Head in the department of legal services and Sectioi Head inthe department of commercial services.Theyare promo tion posts.Applications should have reached the Director of Per sonnel not later than 13.10.
- The applicant submitted applica tionsforboth posts. 30 The respondents on 19.2.85 promoted to the post of Sectioi Head Marios Kourouniades and to the post of Deputy Sectioi Head GarbisKassardjian whowereholdersofthepostsof Deput; Section Head and Clerk, 1stGrade, respectively. 99 >tylianidesJ . Katofatis v.E.A.C.
(1987)The applicant,being aggrieved,by meansof thisrecourse seeks he annulmentof the aforesaid promotions The revisional jurisdiction of this Courtstems from Article 146 )fthe Constitution Aperson cannotcontest before this Courtthe alidity of any decision, act or omission of any executive or 5 tdministrative authority unless he possesses the quality of legitinate interest Paragraph 2 of Article 146 provides thata recourse nay be made by a person whose any existing legitimate interest, vhich he has either as a person or by virtue of being amember of ι Community,is adversely and directly affected by such decision 10 >r act or omission A recourse for annulment requires in respect of an applicant a egitimatio ad causum -(See Fleinei,AdministrativeLaw, 8thEdiιοη, pp 212 and 243, Odent - Contentieux Admimstratif -FasiculeIV, pp 1280 -1281 Tsatsos TheRecourse for Annulment 3efore the Council of State, 3rd Edition,ρ 30) 15 A recourse is not an actio populans The interest of a person nust be directly affected by the legal situation he seeks to be •nnulled An applicant does nothave the requisite locus standi to inng a recourse for annulment unless he is possessed of a legitinate interest atthe time of thefiling of the recourse untilitsdeter- 20 iination Lack of legitimate interest depnves the Court of the ower and jurisdiction to deal with a recourse As the matter is one of public law, the presence of an existing 'gitimate interest has to be inquired into by an administrative ourt even ex propno motu - (Constantinou ν The Republic, 25 1974)3 C L R 416, Knttotis ν The Municipality of Paphos and others ( 1 9 8 6 ) 3 C L R 322) Applicants for promotion not possessing the qualifications squired under the relevant scheme of service have no legitimate iterest which was adversely affected by thepromotionimpugned 30 nd they are not entitled to contest thevalidity of such promotion (See inter alia Constantinou ν The Republic, (supra), Parasevopoulou ν The Republic,
(1980)3 C L R 647, Meletis and Hhersν Cyprus PortsAuthonty,
(1986)3 C LR 418) The applicant held and continues tohold the post of Clerk, 1st •rade which carnes a salary of Scale 7 The post of Deputy Seeon Head is hierarchically superior and the salary of such post is 100 3 C.L.R. Kalafatlsv. E.A.C. StylianldesJ. the combinedScales of 8-
- Thepost of Section Headisoverthat of DeputySection Headand thesalary provided is Scale
- Itisobvious from theabove thatthepost of Section Headistwo grades higher than the post of Clerk. 1st Grade. 5 10 Itis a well settled principle of administrative law that no oftice: maybe promotedformorethanonegradeatatimeintheabsence of express provision tothecontrary.Thisprinciplewas expounded inthecase oMr/tar/i/sv.TheRepublic.
(1967)3C.L.R.429.which was ever sincefollowed andapplied· (See.interalia.AndreasTiyfon v. The Republic of Cyprus,through the PublicService Com mission,
(1968)3 C.L.R. 28: TheRepublic and Another v. Aristotelous,
(1982)3 C.L.R.497). Theapplicantinviewof theabsence of express legislativeprovi sion - the scheme of service is part of delegated legislation 15 authorising his promotionby two grades at a time,could notand did nothave a legitimate interest. Another reason for which the applicant has no locus standi ir. respect of the promotionof interested parry Kourouniades tothr post of Section Head is that he did notpossess the qualification? 20 prescribed inthescheme of service. All paragraphs of theschem. of service (Exhibit«C»)torthepost of Section Head(«Τμημπιαρ χής») require satisfactory service in the post of Deputy Section Head or in a post of the same scale with analogous duties of<i durationof3-7 years, dependingontheacademicqualificationso» 25 acandidate- (Seeparagraphs2(b) (ii).2(c)(iii) andNotes1 and2; The applicant is the holder of a degree of the University oi Salonica,qualification (a)inparagraph 2of theschemeof service This, however, by itself is not sufficient: it must be coupled with satisfactory service of notlessthan threeyears, as aforesaid, in the 30 postof DeputySectionHeadorinapostwith thesame salary scale and analogous duties. According tothejurisprudence of this Court -(TheRepublic r. KaterinaPericleousand Others
(1984)SC.L.R. 557) - a candidate for apostadvertised mustpossessthequaliiuations atthelast date 35 for thesubmission of theapplications in ihis ca-,· 13.10 S4. The applicant lacked the qualification -J *i!iiiactory service ti thepost of DeputySectionHeadorinapo^tof thesame scale e.n.i analogous duties Hewas a Cfe* 1st Grade receiving the salary 10 i StyUanldes J. Kalafatis v. E.A.C.
(1987)Scale 7. For the reasons aforesaid he has no legitimate interest in the decision of the promotion to the post of Section Headof Marios Kourouniades;he has nolocus standi and the Courthas no juris diction to entertain the recourse in respect ot thispromotionand to thatextent the recourse willbe dismissed. 5 Theapplicant was fully qualified for thepost of DeputySection Head. Itwas submitted by theapplicant and later by the advocate on 10 his behalf thatthe sub-judice decision isvoid and of noeffect asit was madeunderinvalid rules orregulations asintheprocess ofthe taking of such decision a Joint Advisory Selection Committee, consisting of members of the Authority and of the TradeUnion, formed and acting in accordance with regulations made under Clause 24
(1)(γ)of theCollective Agreement, 1974 - 75,between 15 the respondent Authority and the Union, participated,and inthe alternative that the promotion was effected without rules or regulations made, as provided by the Public Corporations (Regulation of Personnel Matters)Law, 1970 (No.61 of 1970). Counsel for therespondentAuthority admittedthatregulations 20 for theJoint Advisory Selection Committeewere made pursuant to the Collective Agreement, which were neither aproved by the Council of Ministers nor published in the Official Gazettebut he argued thattheparttaken by theSelection Committeeissuchthat didnottaintwith illegalitythesub-judice decision as thatCommit- 25 teesimply made recommendationsandlateraSub-Committeeon mattersofpersonnel of theAuthority dealtwiththematterandulti mately the Board of the Authority took thesub-judice decision. A collective agreement does not create rights or obligations in publiclaw -(GeorghiosMavrommatisand Othersv. LandConsoii- 30 dationAuthority,
(1984)3 C.L.R. 1006). The respondents inarriving atthesub-judice decision tookinto consideration,interalia,the«commonsuggestions»and«thecom mon document» of the Selection Committee established under the aforesaid regulations. Iam unable to say to what extent this *> recommendation influenced the Authority in reaching the sub judice decision.Theregulations setting upthesaid Committeeare plainly invalid -(Kofterosv.ElectricityAuthority of Cyprus
(1985)102 3 C.L.R. Kalafati· v.E.A.C. StytUnlde*J. 3 C . L R 394; Pantehs Antomades ν ElectricityAuthonty of Cyp rus
(1985)3 CL.R.458). Forthese reasons the sub-judice decision for the promotionof interested party Garbis Kassardjian to the post of DeputySection 5 Headwillbe annulled There is a further reason for annulment The respondent Authority withthecomingintooperationof theConstitutionofthe Republic was stripped off of all power vested in itwith regard to personnel matters, appointment, promotion, etc , of officers or 10 servants of the Authonty which vested in itby the ElectncityDe velopment Law, Cap 171 Duetothe emergency and the vacu um that resulted from the non-functioning of the Public Service Commission envisaged by theConstitutionandthe establishment by Law No 33/67 of a Public Service Commission with junsdic15 hon limited to the civil service proper, the Public Corporations (Regulation of PersonnelMatters)Law, 1970 (No 61 of 1970) was enacted Section 3 thereof conferred on the Authonty power to appoint, confirm appointment, emplace personnel, promote, transfer, etc This power cannot be validly exercised unless the 20 prerequisites provided by the Law are complied with Non conformity with the empowenng provisions of the Law renders any decision taken invalid As norules orregulations were madegoverning theexercise of such power, the Authonty could notvalidly exercise competence 25 andthesub-judice decision isnulland void It is with satisfaction thatthe Courtnoted that the respondents issued the Electncity Authonty of Cyprus (Conditionsof Service) Regulations, 1986, which, after approval by the Councilof Minis ters andtheHouseof Representatives, were published intheOff» 30 cial Gazetteof 27 12 86 Supplement No 3, page 897 Fortheaforesaid reasons therecourse against thepromotionof MariosKourouniadestothepostofSectionHeadishereby dismis sed and the decision of the promotion of interested party Garbis Kassardjian to the post of Deputy Section Head is declared null 35 andvoid andof no effect whatsoever 103 Stylianldes J. Kalafatlsv.E.A.C.
(1987)Lettherebenoorderastocosts. Promotion ofinterested party Kassardjianannulled. Recourse againstinterested party Kourouniades dismissed. 5 No order astocosts. 104