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clr/1988/1988_3_1506.pdf

(1988)1988July20 [DEMETRIADES,J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION ANDREAS lOANNIDES ANDOTHERS, Applicants, v. THE CYPRUS GRAIN COMMISSION, Respondents. (CasesNos. 69184, 70184 and 71/84). Administrative act—Validityof—Shouldbejudged asatthetimeitwasactually taken—Subsequent acts, even retrospectivefrom apoint oftimepreceding thesubjudice act,cannotaffectthelatter's validity. General principles ofadministrative law—Promotions—in theabsence of an expressprovision tothecontrary,noofficercanbepromotedfor morethan * onegradeatatime. Bymeansof thesubjudicedecision taken inDecember, 1983, theinterested party, who,atthe time, washolding thepostof Accounting Officer, 3rd Grade,in theGrain Commission, waspromoted tothepostof AccountingOfficer, 1stGrade.In April, 1984he waspromoted with retrospective J Q effect asfrom 1982tothepostofAccounting Officer, 2ndGrade. In the light of theprinciples summarized in thehereinabove headnote, theCourtannulled thesubjudicepromotions. Subjudice decisionannulled. Costsagainstrespondents. Casesreferredto: Arkatitis and Others (No2) v.TheRepublic
(1967)3C.L.R,.429. 1506 15 3 C.L.R. Ioannidesv. GrainCommission' Recourses. ".' ' Recourses against the decision of the respondents toappoint theinterestedparty tothepostof Accounting Officer 1stGradein preference andinsteadof,theapplicant. 5 E.Efstathiou, for theapplicants. ' C. Velaris, for the respondents. >• < • Cur. adv. vult. DEMETRIADES J. read the following'judgment. The'three applicants by thisrecourse challenge thedecision of therespo'n0 dentsdated the8thDecember, 1983; by which theinterestedpar­ ty Kyriacos Triftarides was promoted to thepost of Accounting ' Officer 1st Grade instead of andinpreference tothem.' Theapplicantsandtheinterested party areall intheservice of therespondents. c Applicant in Case No. 69/84, Andreas Ioannides, was first ap­ pointed in 1970 as a Store-keeper 3rd Grade. Hewas promoted tothe2ndGrade in 1973, aposition which he still held atthetime of the subjudice'decision. By adecision of the'respondents dated the28th June, 1984, hewas promotedtothepost of Store-keeper 1st Graderetrospectively as from the 1st October, 1983 (red94 in his file, which is anexhibit before.the Court). ., 1 - ι Applicant' in Case No. 70/84, Frixos Kongorozis, was ap­ pointed in 1965 as aStore-keeper 3rdGrade.Hewas promotedto Accounting Officer 3rd Graclein 1972 andto2ndGradein 1979, a post which he stillheld atthetimeof the subjudice decision. Applicant in Case No.71/84, Costas Koufopavlou, was first appointedin 1965 as aStore-keeper 3rdGradeandwas promoted to Accounting Officer 3rd Crade in 1969, a post which he still held at the time of the sub judice decision. Hewas promoted to 1507 Demetriades J. Ioannides v. Grain Commission
(1988)thepostof Accounting Officer 2ndGradeby adecision of the re­ spondentsdatedthe 30thApril, 1984, subsequent tothe subju­ dicedecision,retrospectively, asfromthe 15thMarch,1982(red 126inhisfile before the Court). Theinterested party was appointedin 1972 as aStore-keeper 5 3rd Gradeandwas promotedinthe2ndGradein
  1. In 1977 he became an Accounting Officer 3rd Grade, aposition hestill heldatthetimeof thesubjudice decision. At their meeting dated the8th December, 1983, therespon­ dents decided topromotetheinterested party tothepost of Ac- 10 countingOfficer 1st Grade,asfrom the 1stJanuary, 1984(red88 in his personal file,which is exhibit No.3before theCourt, and, also,exhibit No.5).Subsequently, therespondents, attheirmeet­ ing datedthe30thApril, 1984,decidedtopromotethe interested party tothepostof AccountingOfficer 2ndGraderetrospectively, j ^ asfrom the 15thMarch, 1982,(red94inexhibit No.3). Theapplicants,whowereall candidatesfor promotion to the post of Accounting Officer 1stGrade,filedthepresent recourse challenging thepromotionof theinterestedparty tothe aforesaid post. Counselfor theapplicants argued thattheinterestedpartydid notpossess therequired qualifications atthetimeof thesubju­ dicedecision inthathedidnotholdthepostof Accounting Offi­ cer 2ndGrade,but thatof 3rdGradeand was thuspromotedby morethanoneGrade atthetimewhich is contrarytothegeneral 25 principles of administrative law. Healsoargued thatthe respon­ dentsfailed toselect thebestcandidatefor promotion;thatundue weightwas placed totheperformanceof thecandidatesatthe in­ terviewsbefore themandthatthereis lackof dueinquiry. Counsel for therespondents argued thattheinterested party 3Q was holding,atthematerialtime,thepostof Accounting Officer 2nd Grade,towhich he was promotedon the30th April, 1984, : r retrospectively a.. from the oth March,
  2. andas? ^$ιύτ posi SO? 20 3 C.L.R. Ioannides v. Grain Commission \ c . - .•••.a. 5 - • "' . ) . : · · Demetriades J. · .· . • sessed therequired qualifications for the promotion in question. In any event, it is counsel's argument, that the interested party was qualified for the promotion in.question under the express provisions of the schemes of service for the.said post, which allow theprprnotionof any officer who possessesthe qualifications prescribed'therein. Counsel further argued thattheinterested par­ ty is superior totheapplicants bothin merit and qualifications. Having examined thefiles of theparties Ifindthatthe conten­ tion of counsel for therespondents thatatthematerial timeof the ΙΟ sub judice promotions.the interested party held the post of Ac­ counting Officer 2nd Gradecannotbe supported by what is con­ tained therein.Itis clear from thepersonal file of the interested party (exhibit No. 3reds 93 and 94) thatthedecision topromote the interested party to the post of the Accounting Officer 2nd ,,- Gradewas taken at themeeting of therespondents dated the30th April, 1984, whilst the subjudice decision was taken on the 8th December, 1983, that is to say it was taken more than four months prior to the decision for his promotion. Thus, although the said promotion was made with retrospective effect, as from . the 15th March, 1982, at the time of the sub judice decision the decision topromotetheinterested party tothe2nd Gradehad not actually been reached with theresult thathewas then,atthetime of the sub judice decision, still holding the post of Accounting Officer 3rdGrade. •" 3 0 Itis acardinal principle of administrative law thatthevalidity of an actor decision mustbejudgedas atthetimeitwas actually taken andthatsubsequent acts cannotbe taken intoconsideration. Itis also a general principle of administrative law thatJIO offi­ cer will be promoted by more thanone grade at atime,in theab­ sence of anexpress legislative provision tothateffect (seeArkatitis & others (No. 2) The Republic,
(1967)3 C.L.R. 429, at pp. 434-435,whereotherauthorities are mentioned). Considering all the facts before me there is no doubt in my mind thai the interested party vva·;.promoted by more than one Demetriades J. Ioannides v. Grain Commission
(1988)grade. Thequalifications required for appointmenttothepost of Ac­ counting Officer 1st Grade, relevant totheapplicants andthe in­ terested party, areparagraphs 1(
  1. b)(i)and Note2of the schemes of serviceof thepost,which readasfollows: 5 "(Ό(α) (β)(ι)Απολυτήριο αναγνωρισμένηςΣχολής Μέσης Εκπαιδεύσεως και δεκαετήςυπηρεσίαστην Επιτροπή Σιτηρών από την οποία τριετής στηνκλίμακαΑ7 και 10 (
  2. u)Σημειώσεις:
(1)
(2)Μηνιαίοι υπάλληλοι της ΕπιτροπήςΣιτηρώνυπη­ ρετούντες την 31η Μαρτίου1982 εξαιρούνταιαπό την υπηρεσίαπου αναφέρειηπαράγραφος
(1)(β) (ι)ανωτέρω,νοουμένουότι θαέχουν7ετή συνολοκή υπηρεσίαστην Επιτροπή." 15 ("
(1)(
  1. a)(
  2. b)(
  3. i)Leavingcertificate of arecognized school of 20 Secondary Education andtenyearsservicein theGrainCommission threeof which atscale A7." (
  4. ii)Notes: 25
(1)1510 3 G.L.R. Ioannides v. Grain Commission DemetriadesJ.
(2)Monthly paid officers of the Grain Commission serving on the 31st March, 1982, areexempted from the service mentioned in paragraph
(1)(
  1. b)(
  2. i)above, provided they have 7years ' service as awhole in theCommission.") v. r-..-' ; -j•*·• ..\ ·" .- ": Inmy view, thewording of Note
(2)above does notamount to an express .statutory,provision aUowing,promotion,by more than oneGradeat a time. The exemption provided by thisNote refers totheten years' service in thecommission threeof which on scale A7 (which is presumably thescale of Accounting Officer 2nd Grade), and means,in my view,thatanofficer may bepro­ moted,if he holds thepost of Accounting Officer 2ndGrade for less thanthreeyears.provided hehas an overall service of seven years in theCommission. 5 1Q As aresult,Ifindthatthesubjudice decision mustbeannulled onvthisground. 15 -V iln view of my finding as above,"Ifindiifunnecessary toem-bark ontheothergroundsregarding themeritsof the 'parties'.'-In theresult, theserecourses succeed andthe siibJjudice'deci­ sion is hereby annulled with costs against therespondents.x 20 r c\;.- ι· •« .' *' ,. *'* ',',-' • i. .·f *.WW"»*?* decision..annulled iZ . '·' -. withcosts'against therespondents. ' ... vv„:• ...,•*.••:'•·' *; -r.' -' .• - '-'. * -- ..** • '.'.' Λ - ' " . . . '• . ι ·,.,*.* " > .1511

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