(1988)1988October31 [PIK1S, J.] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION ELENI COSTAANDOTHERS, Applicants, v. THEREPUBLIC OFCYPRUS,THROUGH 1.THE PUBLICSERVICE COMMISSION, 2.THECOUNCIL OF MINISTERS, Respondents. (ConsolidatedCasesNos. 859/87& 990/87). Legitimate interest—Promotions ofpublic officersintheupperpart ofa combined establishment—No limitation of thenumber ofposts insuchpart— Promotions effectedwithout anycomparisonbetweenapplicantsandinterestedparties-—Whether, inviewofthechallengemountedagainstthevalidity ofthe scheme of service, theapplicantspossess a legitimate interest to impugnthesaidpromotions—Questiondeterminedinthenegative—Meletis v. Cyprus Ports Authority and Another
(1987)3 C.L.R. 1984 distinguished. Public officers—Promotions—Combinedestablishment—Legitimate interestto impugnpromotions intheupperpart ofsuch anestablishment—See legitimateinterest,ante. Public officers—Promotions—Combined establishment—Recourse challenging, interalia,refusaltopromote theapplicantintheupperpart ofsuchestablishment—As therewasnosuchdecision,thedeclarationsoughtfalls in a vacuum. Public officers—Schemeof service—CouncilofMinisters—Theyare thearbitersofthequalificationsthataredeemednecessaryfor promotion. Public officers—Scheme of service—Vested rights—Ho officer has such a 2000 Costa.& Others v. Republic 3 C.L.R. rightin thenon-alterationoftheschemest Constitutional Law—Equality^-Constitution, Art. 28—Public Officers— Promotions—^Differentiationsonthe basis ofthe qualificationsofcandi dates—Permissible. ι .· * * ThefactsofthiscaseaswellaswhattheCourtheldsufficiently appear inthenoteshereinabove. -, ,. ,. •. , , Casesreferredto: . . ; Recoursesdismissed.. Noorderastocosts. , . Meletisv. CyprusPortsAuthorityandAnother
(1987)3,C.L.R. 1984; Georghiadesv. TheRepublic
(1982)3C.L.R. 16; Aristidou v. The Republic,(\9S4) 3 C.L.R.^03; Serafimv.TheRepublic
(1985)3C.L.R. 286; Economides v.Republic
(1972)3C.L.R. 506; Papadopoulouv. Republic.
(1984)3,CL.R.332: . Recourses. · · · · , · , . , Recoursesagainst thedecision oftherespondents topromote theinterested parties tothepostofExaminer, Second Grade in theDepartmentofOfficial ReceiverandRegistrarofCompanies inpreferenceandinsteadofthe applicants.' AS. Angelides, fortheapplicants; P. Hadjidemetriou,forthe respondents. A. Markides, fortheinterestedparties. Cur. adv. vult. 2001 Costa &Others v.Republic
(1988)PIKISJ.readthefollowingjudgment. Theapplicantsheld the position ofExaminerThirdGradeintheDepartmentoftheRegistrar of Companies and Official Receiver. Evdhokia Koulermou and Stelios Zachariou were likewise Examiners Third Grade in the samedepartment. On 28/8/87 and 16/10/87,respectively,the 5 interested parties were promoted toExaminers Second Grade, a position forming part of a combined establishment with that of Examiner Third Grade. By two separate recourses they challenged the promotion of each one of the interested parties. Notwithstanding the separateness of the two decisions, the issues ^ raised in thetworecourses areessentially similarandfor thatreason they wereconsolidated for purposesof hearing. Detailed analysisof thefacts willfacilitate dueappreciation of thecontext in which theirpromotions arechallenged.Tothatend we shall apply ourselves forthwith. The applicantsand theinterested partieswereappointedExaminers third grade on 15/1/82.At thetime,theposition did not belong to acombined establishment. This was effected some four months later,on 24/5/82,bytheintroduction of anew schemeof serviceproviding for thecombinement ofthetwopostsinonees- 2 n tablishment. The scheme defines the requisites for ascending from thelowertothehighergradeof theestablishment. Theinterested parties had the qualifications provided by the scheme for promotion to the higher grade and were thus promoted on the dates indicated above. On the other hand, the applicants did not have the necessary qualifications forpromotion toExaminerssecond grade.Consequently, the machinery for their promotion laid down in the Circulars affecting the effectuation of promotions within acombined establishment, was never set in motion.* No decision wastaken atanytime bythePublic ServiceCommission 30 refusing thepromotion of the applicants, nor for that matter was theheadofthedepartmenteverrequestedtoputinmotionthemachinery for theirpromotion. Certainly,theheadof the department *(Circulars608,dd.27/1/82,and750dd. 14/11/85). 2002 3C.L.R. . ; Costa &Others v.Republic Pikis J. wasundernoobligation tomakearecommendation for theirpro-, motion inviewofthefact thatthey didnothavethe qualifications specified bytheschemeof service. Consequently, thedeclaration sought by theapplicantsfor the invalidation of a decision of therespondents, falls in a vacuum, as there was none. Equally inconsequential is their prayer for a declaration thattherespondentsareguilty ofanomission thatthey should remedy. They did not omit tocarry out any of the duties caston themby thePublic ServiceLaworthe schemeof service in force. Notwithstanding theabsenceof anoticeabledecision oromission the applicants asserted that they had a legitimate interest to pursue therecoursebecauseof thechallenge theymounted tothe validityof theschemeof service.Intheircontention theschemeis ultra-vires the law and unconstitutional for breach of the provisionsof article 28.1of trieConstitution, specifically thatpart that safeguards equality before thelaw and the Administration. Applicants did not articulate their plea of ultra-vires nor did theyrefer toany lawor regulation, theprovisions of which were infringed by theintroduction of the schemeof serviceunderconsideration. The submission of unconstitutionality is founded on thethesisthat theprovisionsof article28.1werebreached by the distinction made between holdersof adegree"and non holders in' ordertobepromoted toExaminer third grade.Atthetimeof their appointment to the position of Examiner second grade, no such differentiation wasin force; though it mustbestressed that atthe timeof theirappointment theposition ofExaminer thirdgradearid Examiner second grade werenotcombined inone establishment., Therecoursesareillfounded for anumberof different andindependentreasons: Applicants hadnolegitimateinterest toimpugn thepromotion of the interested parties. Their promotion in no way prejudiced theirrightspresent orfuture. Itneitherprevented theirpromotion 2003 Pikis J. Costa & Others v. Republic
(1988)norexcluded themfromconsideration.What rendered themineli gible was the lack on the part of the applicants of the necessary qualifications for promotion.Thescheme of servicemade nolim itation to the posts in the upper part of the combined establish ment thatcould be filled at any onetime.Norwas anyelement of comparison involved in the promotion of the interested parties. ** Lack of legitimate interest toquestion thepromotionof theinter ested parties is, in myjudgment, a logical corollary of dueappre ciation of the realities of promotions within the context of the combined establishment. Furthermore,it is supported by a num- IQ ber of decisions of the SupremeCourt.*. Counsel of theapplicants submitted that a legitimate interest vests tochallenge promotions within a combined establishment if the scheme by reference to which they were promoted is chal lenged asinvalid. Insupport of thisproposition theycited there- 15 cent decision of the Full Bench in Meletis v. Cyprus Ports Au thority and Another * Counsel for the Republic ultimately expressed the same view and suggested that applicants have a right topursue therecourse up tothepointof deciding thevalidity υ of the scheme of service. If the scheme is declared valid their interest willautomatically lapse. InMeletis, supra, it was decided thatpromotion may be chal lenged notwithstanding theeligibility of thepursuer tobepromot ed, if thescheme of service thatrules out his candidatureis chal lenged as invalid. Theratio inMeletis cannotbe extricated from 25 the facts of the case that are different from those of the one in hand. The promotions were not made in the context of a com bined establishment. The filling of those posts left no room for thepromotionof the applicants.Hencetheirinterest tobepromot ed was directly prejudiced by thefillingof thepost towhich they 30 aspired to be promoted. Here the aspirations of theapplicants to be promoted were in no way frustrated by thefillingof the post; they wereexcluded merely because of theabsence of the requisite * (See, interalia,Georghiades v. Republic
(1982)3C.L.R. 16,26; Aristidou v. Republic
(1984)'3C.L.R.503;Serafim v.Republic
(1985)3C.L.R. 286). **
(1987)3C.L.R. 1984. 2004 3 C.L.R. 10 Costa & Others v. Republic Pikis J. qualificationsontheirpart.Aschemeofservice,beingalegislativeinstrument,cannotbedirectlychallenged byrecourseunder article 146,but only indirectly, asacknowledged in thecaseof Meletisbythechallengeofanadministrativeactfoundedthereon. Astheyhadnolegitimate interesttochallenge thepromotionof theinterestedparties,thevalidityoftheschemecannotbemade thesubjectofadjudication. However,intheinterestofcompletenessof thisjudgment, it maybeadded thatevenif Ifelt free to examine the validity of the scheme, the fate of the recourses wouldhavebeenno different: First,it istheprovinceof theCouncilof Ministers tolaydown in schemes of service those qualifications that are deemed necessary forpromotion.They arethearbiters oftheneedsoftheCivilServiceinthisarea. 15 Second,nopublicofficer hasavestedrightinthenonalteration oftheframeworkoftheschemesofserviceapplicableat thetimeofappointmentorpromotion.* » 20 Third, asoften acknowledged, therecan benoconceivableimpedimenttodifferentiations madebetweentheeligibility ofcandidatesdependingontheirqualifications. In the result, both recourses are dismissed. No order as to costs. Recoursesdismissed. Noorderasto costs. * (GeorghiosEconomiesv.Republic
(1972)3C.L.R.506;Papadopoubuv. Republic
(1984)3C.L.R. 332). 2005