(1988)1988January28 [TRIANTAFYLUDES,P.,SAVVIDES,LORIS,STYLIANIDES,KOURRIS,JJ.[
- CONSTANTINOS SAVVA, 2.GEORHIOSA.GEORGHIOU, Appellants, v. THEPUBLICSERVICECOMMISSION, Respondent. (RevisionalJurisdictionAppealsNos.480and484). Collective organs—Composition—Failure bymember, whoparticipatedin first meeting, toattendfurthermeetingsonthe same subject—Principles applicable. Collective organs—Composition—Change of—Meetings onpreliminaryissuesbeforechange—Minutesplacedbefore theorgan withitsnewcompo- 5 sition—Conclusion thatallnewmembers adoptedprevious decisions— Wholeprocessregardedashavingcommencedabinitio. Public Officers—Promotions~The Public Service Law33167, section 28— Doesnotpreventpromotion toapostcarryingahigherthan the immediatelyhigherscaletothatcarriedbythepostheldbeforepromotion. \Q Public Officers—Promotions—Scheme ofservice—Service inapostfor a minimumperiodoftime—Postgraduate qualifications notconstituting a necessaryqualificationfor thepost—Can beregardedasservice ofupto twoyears—DecisionofCouncilofMinistersNo.12655asamended. PublicOfficers—Promotions—Whetherdistinction shouldbemade between 15 102 3 C.L.R. Savva and Another v. P.S.C. holding apostonapermanent basis andholding apostona temporary basis—Questiondeterminedinthenegative—ThePublicServiceLaw331 67, section2 "post", "publicpost"and"public service". 5 Wordsandphrases: "Post", "Publicpost"and"PublicService"insection2of the PublicServiceLaw33/
- Thepresentappealsaredirectedagainstthejudgmentofajudgeofthis Courtbywhichhedismissedtherecoursesoftheappellantschallengingthe promotionofanumberofcandidatestothepostofAnimalHusbandryOfficerAintheDepartmentofAgriculture. 10 15 ThePublicServiceCommissionhadanumberofmeetingsonpreliminaryissues.Itscomposition wasthenchanged.Theminutesofthepreviousmeetingswereplaced before theCommission atitsrelevantmeeting after thenewcomposition.Themeetinglookplaceon28.7.82.Thereafter, itscompositionremainedunchanged,butoneofitsmembersdidnotparticipateinfurthermeetings. Theappellantssubmittedthat: (a)Theaforesaid factsoughttohaveledtoannulmentofthedecision, 20 25 (b)Theinterestedpartiesdidnotholdtheimmediatelylowerpostcontrary tosection28ofthePublicServiceLawastheirsalary wasinScale A8,whereasthepostofAnimalHusbandry Officer AwasinSalaryScale All andtheyought,therefore,tohavepassedfrom SalaryScales A9~A}SX' beforereachingSalaryScaleAl
- (c)ThefindingthatinterestedpartyTakisAntoniousatisfied thescheme of service and, inparticular, therequirement concerning" five years continuousserviceatthepostofAnimalHusbandryOfficer/Assistant HusbandryOfficer", waswrong. (d)The conclusion that there is nodistinction between holding of a postonapermanentandholdingapostonatemporarybasis iswrong. 30 Held,dismissing theappeal:
(1)Onthequestion whetheracollective organ can validly lakea decision in case when, without a change in its composition,amember,whowaspresentat itsfirst meetingconcerning the subject, fails to attend subsequent meetings, this Court adopts the principles expounded in Vivardiv. VineProductsCouncil
(1969)3 C.L.R.486andPanayiotouandOthersv.Republic
(1972)3C.L.R.337. 103 Savva and Another v. P.S.C.
(1988)
(2)ThetrialJudgerightlycametotheconclusion that in thecircumstancesoftherecoursesunderconsideration thedeliberationsactuallycommenced on the 28th July, 1982and the meetings prior tothe28th July, 1982,dealt with preliminary issuesonlyand thatthecomposition of the respondentCommission hasremained unchanged asfrom the28thJuly, 5 1982,tillthedatewhenthesubjudicedecisionwastaken.
(3)Though an increaseof salarymayconstituteapromotion,neverthelesstheremunerationreceivedbyacandidatedoesnotconstituteaconsideration forpromotion.Also,thoughpromotionshouldbetotheimmediately higher post when thepromotion "carries with ittheemplacement 10 of theofficer ina higher division of thepublic service",yet theexpressionappearing insection 28of Law33of 1967"onasalaryscalewitha higher maximum" when itrefers toa promotion carrying an increaseof theofficer's remuneration doesnotmeantotheimmediatelyhighersalary scale. 15
(4)Invirtueofdecision 12655oftheCouncilofMinisters,asamended, post-graduatequalification,notconstitutinganecessaryqualification forthe post,canbeconsideredasserviceorexperienceofuptotwoyeras.
(5)Undersection 2of theLaw "post"isdefined asmeaningapublic postand "apublicpost"isdefined asapostinthepublicservice."Public 20 service"isdefined asfollows:"'public service'meansanyserviceunderthe Republic other than ". Appealdismissed. Noorderastocosts. Cases referred to: ^ Vivardi v. Vine Products Council
(1969)3 C.L.R. 486; Panayiotou and Others v. Republic
(1972)3 C.L.R.337; Papaleontiou v. Republic
(1987)3 C.L.R.211; Georghiades v. Republic
(1966)3 C.L.R. 827. Appeals. 30 Appeals against thejudgment of aJudge of the Supreme Court of Cyprus (A. Loizou, J.) given on the 6th April 1985 (Revisional Jurisdiction Cases Nos. 154/83 and 164/83)* whereby ap* Reported in
(1985)3 CL.R.
- 104 3 C.L.R. Savva and Another v. P.S.C. pellant'srecoursesagainst thepromotionoftheinterestedparties tothepostofAnimalHusbandryOfficer AintheDepartmentof Agricultureweredismissed. A. S.Angelides, withM.Savva(Mrs.) for appellant in R.A. 5
- A.S. Angelides, forappellant inR.A.
- E.Papadopoulou(Mrs), forrespondent. Cur. advvult. TRIANTAFYLLIDES,P.:ThejudgmentoftheCourtwillbe 10 deliveredbyMr.JusticeSavvides. SAVVIDES,J.: Thepresent appeals aredirected against the judgment of ajudgeof thisCourt in theexerciseof theoriginal jurisdiction of theCourtbywhich hedismissed therecoursesof theappellants challenging thepromotion of anumberofcandi15 datestothepostof AnimalHusbandry Officer A intheDepartmentofAgriculture. Anumberoflegalgroundswereraisedinthepresentappeals, someofwhichwereabandonedinthecourseofthehearingchallenging the conclusions of the learned trialjudge on the legal 20 groundsraisedbeforehimatthehearingoftherecourses. Counselfortheappellantssubmittedthattheconclusionofthe learnedtrialjudgeonthequestionofthechangeinthecomposition of the Respondent Commission during the process of the promotions waswrong. 25 Thelearnedtrialjudgeindealingwiththismatter,whichwas oneof the groundsof lawraised before him,concluded as follows (seeSawa andAnother v.TheRepublic
(1985)3C.L.R. 105 Savvides J. Sivva and Another v. P.S.C.
(1988)694):"Asitappears from theminutesof themeetingsof therespondent Commission its composition did in fact change at themeeting of the 28thJuly 1982,andthereafter, bytheparticipation of thetwonewmembers.Before thismeetingofthe 5 28thJuly,1982,allthemeetingsdealtwiththepreliminaryissuesinordertopreparethematerialrequiredfortheconsideration of thepromotions as abovesetout. It is also clear from theminutesofthisfirst meetingoftherespondentCommission underitsnewcomposition (appendix6),thattheminutesofall 10 thepreliminarymeetingswerebeforetherespondentCommission and its new membersand therefore Icannot acceptthat thesenewmemberswerenotfully informed ofwhattranspired before. Alsosincenothingappearsfrom theminutebeforeme that they were notinagreement,Ican reach nootherconclu- 15 sion than that they adopted all previous decisions of therespondent Commission concerning the matter and in that the wholeprocesscould beregardedastakenfully abinitio. Furthermore thecomposition of the respondent Commission has remained unchanged after the meeting of the 28th 20 July, 1982, as the Chairman and the same three members, Messrs. Papaxenophontos, Hadjiprodromou and Cristodoulideswerepresentatallsubsequentmeetings,whichwerethe materialones. Thesaidmeetingswerealsoinaccordancetosection 11 of 25 Law 33of 1967,which provides that theChairman andtwo othermemberspresentatanymeetingshallformaquorum." Wefind ourselvesunabletoacceptthesubmissionofcounsel for the appellants that the trial Court erred in its finding. The question astowhether acollectiveorgan,suchastherespondent 30 in the present appeals could validly take adecision though its composition was not the sameallalong, asoneof its members who waspresent atthefirst meetingwasabsent from itssubsequent meetings,hasbeen considered by membersof thisCourt 106 3 C.L.R. Savva and Another v. P.S.C. Savvides J. in a numberof cases.Thus,in Vivardiv. VineProducts Council
(1969)3 C.L.R. 486, arecourse based on such ground was dismissed. In reaching his conclusion Triantafyllides, J. as he then was, had thistosay atpp.490-491:5 10 15 20 25 30 "Ican quite well see why in a case where there has supervened a change in the composition of a collective organ, through the presence, at a later stage, of a previously absent member, it is necessary for the whole process tobe repeated all over again, so that all members, in reaching a decision, should becognizant of allrelevant factors; and, also,wherea memberof acollectiveorgan hasnot been abletotakepartin all therelevant toamatter meetings he should not be allowed toparticipate when thedecision isbeingreached on such matter. But in a case, such as the present one,in which a member drops out after the first meeting, Ican see no useful purpose being served by expecting the remaining members, before reaching adecision, tostart abinitio,at their second meeting, thewhole process which hadcommenced atthe first meeting, atwhich allof themwereallalong present. I have been reinforced in this view by the decision of the Greek Council of State in Case 777
(58); it is clear from the reasoning of the Council in its said decision that the nonparticipation of certain members,of thecollective organ concerned, in the final vote regarding an appointment - (because they had not beenpresent atallmaterial stagesof thematter) would not haveprevented theappointment from being validly made by the remaining members, had there been secured, as from amongtheremaining memberswhowereentitled tovote, thenecessary for theoccasion majority vote." Therelevant principlesof AdministrativeLaw are expounded inthe abovecase asfollows (pp.489,490): "TherelevantprinciplesofAdministrative Law arestatedin 107 Savvides J. Saw* and Another v. P.S.C.
(1988)theConclusionsfrom theJurisprudenceoftheGreekCouncil of State(1929-1959) at p.112;theyaretotheeffect thatthe process, before any collective organ, regarding discussing about,anddecidingon,anymatter,hastotakeplacefrombeginning to end whiletherearepresent the same membersof 5 such anorgan, in order toensuretheknowledge andevaluationbyeachmemberofallfactorswhichcametolightduring such process.If thisprocessextends tomorethan onemeeting,thenthecompositionofthecollectiveorganmustremain unchangedatallitsrelevantmeetings.Ifthereisanychangein 10 the composition of the collective organ, at any meeting, . through thepresence of amember whodid not takepart ata pastmeetingonthematter,theorgancannottakeavaliddecision atitslastrelevantmeeting,exceptifatsuchmeetingthe wholeprocessisrepeated fully abinitio,sothattheconsidera- 15 tionof themattercanberegardedashavingcommencedand beenconcluded atsuchlastmeeting. Inthisrespect it isuseful torefer, also,tocases 1753
(56), 103
(57)and 1128
(58),decided bytheGreekCouncilofState, inwhich,ineachcase,adecisionofacollectiveorganwasan- 20 nulled because of alteration, during thematerial time,of the compositionoftheorgan,throughtheabsenceatasubsequent meetingonthesamematterofamemberwhohadbeenpresent at theprevious meeting andthepresencein hisplace,atthe nextmeeting,ofamemberwhohadbeenabsentattheprevi- 25 ousmeeting." The aboveexposition of theprinciples wasadopted and followed byA.Loizou,inPanayiotouandOthersv.TheRepublic
(1972)3C.L.R. 337atpp.339-340. The sub judice decision in that case was annulled on the 30 ground thatthedeliberations hadcommenced andwereextended totwomeetingsof therespondentCommission andatthesecond meetingtherewasachangeinthecompositionoftheorganbythe participation of amemberwhodidnottakepartintheprevious meeting. 108 35 3 C.L.R. Savva and Another v. P.S.C. Savvides J. Thelearnedtrialjudge,therefore,rightlycametotheconclusionthatinthecircumstancesoftherecourses underconsiderationthedeliberationsactuallycommencedonthe28thJuly,1982 andthemeetingspriortothe28thJuly, 1982,dealtwithprelimi5 naryissuesonlyandthatthecompositionoftherespondentCommissionhasremainedunchangedasfrom the28thJuly, 1982, till thedatewhenthesubjudicedecision wastaken. Ithasbeenarguedbycounselfortheappellantsthatinterested partiesTakisAntoniou andAntonisConstantinou werewrongly 10 promoted,in that they did not hold theimmediately lowerpost contrary tosection 28of thePublic ServiceLawastheir salary wasinScaleA8,whereasthepostofAnimalHusbandry Officer Awasin Salary Scales All and they ought, therefore, tohave passed from salary scalesA9-A10before reaching SalaryScale 15 AIL Thelearned trialjudgeindealing withthesemattersfound as follows atpp.703,704:- 20 25 "Both arguments must fail. Though an increase of salary mayconstituteapromotion,neverthelesstheremunerationreceivedbyacandidatedoesnotconstitute aconsideration for promotion.Also,thoughpromotion shouldbetotheimmediately higherpost when thepromotion 'carrieswithittheemplacement oftheofficer inahigherdivisionofthepublicservice,yettheexpression appearingin section 28ofLaw33 of 1967onasalaryscalewithahighermaximum'whenitrefers toapromotioncarryinganincreaseoftheofficer's remunerationdoesnotmeantotheimmediatelyhighersalaryscale." WeagreewiththeabovefindingsofthetrialCourt. Itwasalsocontendedthatthefinding ofthetrialCourtthatin3C terestedpartyTakisAntoniou satisfied theschemeofserviceand, in particular, the requirement concerning" five years continuous service at the post of Animal Husbandry Officer/ AssistantHusbandryOfficer", waswrong. 109 Savvides J. va and Another v. P.S.C.
(1988)The learned trialjudge found asfollows atpp.704,705:"However, in accordance with Decision No. 12655 of the Council of Ministers, asamended by itsdecision of the 10th, 11th and 12th February 1982,post-graduate titles, not constituting anecessary qualification for apost,can beconsidered as 5 service orexperience of uptotwoyears.And asthere isnothingin therelevant schemesof service thatactual service isrequired, it would bequiteinorder for thisofficer tobecredited with up to two years service in respect of his degree since it does noconstitute anecessary qualification. 10 (See on this the case of Economides v. The Republic
(1973)3 C.L.R. 410 at pp.412-413.)" This matter has beenrecently considered bytheFull Bench in Papaleontiou v. The Republic
(1987)3 C.L.R. 211 at p. 220 in which it was held that" ... 'service' and "satisfactory service' in 15 the scheme of service,could not belimited toactual service and exclude a person who is on scholarship abroad to enhance his knowledge in order torender better services to theeducation of the country". Wearetherefore in agreementwiththefindingsof thelearned 20 trial judge in this respect which appear at pp. 704, 705 of his judgment (vide,Savva andAnother v.TheRepublic (supra)).In theresult this ground also fails. Wealsoagreewith theconclusionsreachedbythelearnedtrial judge that under section 2of the Public ServiceLaw, nodistinc- 25 tion ismade between holding aposton atemporary or permanent basis. Under section 2 of the Law "post" is defined as meaning a public post and "apublic post" isdefined as a post in the public service. "Public service"isdefined asfollows: " public service, means service under the Republic other 110 30 3 C.L.R. 5 Savva and Another v. P.S.C. Savvides J. than the judicial service of the Republic or service in the Armed orSecurity Forcesof theRepublicor serviceinthe Office of the Attorney-General of the Republic or the AuditorGeneralortheAccountant-General ortheirDeputiesorservice in any office in respect of which other provision is made by lawor servicebypersons whoseremuneration iscalculated on adaily basis." Useful reference may be made in this respect to the case of Menelaos Georghiades v. The Republic
(1966)3 C.L.R. 827 at 10 pp. 846, 847. Therefore, the grounds of appeal based on the above finding of thetrialCourt fail. Having considered all thearguments advanced bycounsel for the appellants, we have not been satisfied that the learned trial 15 judgeerredindismissing theappellants'recourses. In theresult both these appeals fail and are hereby dismissed with noorderfor costs. Appeals dismissed withnoorderfor costs. Ill