clr/1988/1988_3_2241.pdf

(1984)3C.LJi. 1195didnot'affect the'said principles. 1" Legitimateinterest—Theredoes notexist, if thesubjudice actor decision, had not been communicated, because,insucha case theact is aninternumof theadministration whichcanbefreelyrevoked. Revocationofanadministrativeact—Itshouldbe dulyreasoned—Impliedrev­ ocationofadecision toappointapplicanttopost—Suchrevocation effected *·* by a decision to advertise afresh the vacancyfor thepost in question— Notwithstandingthat'therevokedacthadnotbeencommunicatedtotheap• - • plicant,thelatterpossessedlegitimate interesttoimpugntherevocatoryde­ cision. . 2" TheBoardof therespondentcorporation decided toappointapplicantto thepost of Civil Engineer, 2nd Grade. Thedecision, however,wasnot _,v 2241 Anastassiou v. Kyp. Organ. Anaptyxis,Gis

(1988)communicatedtotheapplicant.SometimelatertheBoardproceededtoadvertisethesaidpostafresh. Hencethisrecourse,wherebytheapplicantimpugned:(a)Thefailure toproceed withimplementation of thedecisionto appointhim,and(b)Thedecisiontoadvertiseafresh thevacancy. Inthelightoftheprinciplessummarizedinthehereinaboveheadnotethe Courtdismissed therecourseinsofarasitwasdirectedagainstthesaid failure, butannulled,for lackofduereasoning,thedecision toadvertise, whichamountedtoarevocationofthedecisiontoappointtheapplicant 5 Orderaccordingly Casesreferredto: IQ Republic v. MD.M. Estate

(1982)3 C.L.R. 642; WestparkLtd. v.Republic

(1987)3C.L.R. 1473; Zachariades v.TheRepublic

(1984)3C.L.R. 1195; Republic v.Geodelekian

(1970)3 C.L.R. 64; Republic v. Panaghides

(1973)3 C.L.R. 378; Panaghidesv. Republic

(1972)3C.L.R.467; Vakis v.TheRepublic

(1985)3C.L.R. 534; Moschovakis v.CM.C.

(1988)3C.L.R.750; Kazan CartonIndustryv. CyprusPortsAuthority

(1988)3 C.L.R.1559. Recourse. 20 Recourse against the decision of the respondents to revoke the decision of the Board of Directors dated 4.3.1988 whereby applicant was selected for appointment to the vacant post of Civil Engineer, 2nd Grade and to advertise again the filling of the said post. 25 2242 3 C.L.R. Anasta'ssiou v. Kypr. Org. Anaptyxis Gis Λ. S.Angelides, for the applicant. R. Michaelides,for therespondent. • Cur. adv. vult. 5 10 KOURRIS J. read the following judgment.·Applicant by the presentrecourse claims thefollowing reliefs: * •"c\ *. . . . (A)Declarationof the Courtthatthedecision of therespondent authority nottoproceedwith thefilling of thevacantpostof Civil Engineer, 2nd Grade, with the implementation of his appoint­ ment,having selected him for such appointment, is null and void andwhatever omitted todo itmustdoit. -* * (Β)Declarationof theCourtthatthedecision of therespondent authority toadvertise again thepost intheOfficial Gazetteof the Republic on 1/7/1978for thesubmission of new petitions is null andvoid andwithout any legal effect. . • ' . 15 20 25 30 The Cyprus Land Development Corporation was established under Section 4 of the Cyprus Land Development Corporation Law, 1980 (Law 42 of 1980). Respondent authority on 9/10/ 1987 advertised in theofficial gazette of theRepublic for the fil­ ling of the vacant post of Civil Engineer, 2nd Grade,and invited applications by candidates. Among the candidates was acertain Anastassios Anastassiou, the applicant in this recourse. The ap­ plicant was interviewed repeatedly by the Board of Directors of therespondent authority and theBoard of Directorsattheirmeet­ ing of 4/3/1988 selected the applicant as the best candidate and they decided to appoint him in the post of Civil Engineer, 2nd Grade.The board of directors also decided not tocommunicate theirdecision totheapplicant before theapproval of the budget of therespondent authority by theHouseof Representatives. On 1/5/1988theCouncil of Ministers appointed new members of the board of directors who on 22/6/1988revoked the decision of theprevious board of directors of 4/3/1988anddecided toad2243 ' Kourris J. Anastassiou v. Kyp. Org. Anaptyxis Gis

(1988)vertise again for the filling of the said post which theydid in the official gazetteof theRepublicof 1/7/1988. The applicant feeling aggrieved filed the present recourse whereby hepraysfor theaforesaid reliefs. With regard tothe first relief claimed, counsel for therespon- 5 dent authority submitted that theapplicant hasnolegitimate interest in the present proceedings as the decision of the respondent authority of4/3/1987 wasnotcommunicated tohimanditdid not cease tobeinternumofthe administration. Regarding the second relief claimed, counsel for the respondent authority submitted thattherevocationofthedecision of 4/3/ 1987 waslawfully made. 10 Before proceeding toexaminethesaidissuesIproposetodeal with another point raised bycounsel for therespondent authority which isthefollowing: that therespondent authority isnotapub- 15 liecorporate body andthat itsdecisionsdonotfall within thedomain ofpublic law. Counsel for the respondent authority argued that the Cyprus LandDevelopment Organization isinsubstanceanestateandland developing company -Section 17ofLaw42/80-anditcannotbe 20 regarded in law as the agent of the State for the performance of functions belonging totheState. I have nodoubt in my mind that therespondent authority isa public corporate body because it was established by law, the boardofdirectorsareappointed by theCouncil ofMinistersand it 25 functions by regulations made by the Council of Ministers, it is under the supervision of theMinister of Interior (seeArticle 9of the Law), the initial capital was paid by the Republic and that such capital may be increased by a decision of the Council of Ministers (see Section 19). Ihave nodoubt in my mind that therespondent authority has 2244 30 3 C.L.R. ' y 5 1 0 15 20 25 OQ "Anastassiou v.KypJ- Org. Anaptyxis Gis Kourris'Jl been established to serve thepublic interests under the supervi­ sion o fthe'State. '' , : ~ " '·" - - *· '• , Λ ? Λ " T · - ' ' T •" , , ; With^regard1to the decision'under'consideration it is ah ap­ pointment governed by Section 16 of Law 42/80and regulations madeby trieCouncilof Ministers (Κ.ΔίΠί 183/82)within'theam­ bitof public law. Inparticular a numberof regulations refer tq'the Public Service Law 1967 (Law 33/67): Consequeritly'th'e respon­ dent authority is an "organ"JwitHintheambit o fArticle 146 of the Constitution'(see also Republic v.' M.D:M. Estate

(1982)' 3 C.L.R. 642 and Westpart Limited ν/Republic

(1987)3 C.L.R'. 1473). '' I tum'now to'thefirst issue'before me which'is the legitimate interest of the applicant. Counsel for the respondent authority argued that the applicant has no legitimate interest'to file a recourse because thedecision of therespondent authority of 4/3/ 1987 has notbeen communicated tb'tfim anditwas atthetimean internum of theadministration'. Counsel for theapplicant argued thattheprinciples of the case of'Za'chariades v. The Republic

(1984)3 C.L.R.1195 apply 'in the'present case and consequently the applicant has a'legitimate interest. Hewent on tosay thatthedecision of Zachariades case (supra)reversed thedecisions Republic v. Geodelekian (197,0) 3 C.L.R. 64 andRepublic v. Panaghides

(1973)3 C.L.R. 378. In accordance with the principles of the-administrative law only when the will of the administration is declared, i.e. when outward direction is given to it towards one or more persons, with thepurpose thatby its will their position will be affected, it is thatthiswill has social significance and the law is interested in it andits consequences. Until so declared, the administrative act constitutes internumof the administration and can be freely re­ voked. After however of its communicationit becomes binding on theadministration andit is thenthattheactcameinto existence (see Kyriacopoulos - Greek Administrative Law, 4th Edition, .pages 396, 397 and'Stassinopoulos, the Law of Administrative 2245 Kourris J. Anastassiou v. Kyp. Org. Anaptyxis Gis

(1988)Acts 1951,p. 366. See also PetrakisPanaghides v. The Repu­ blic

(1972)3C.L.R.467 atpage482). Relevantarealso thepro­ visionsof Section 37

(1)of thePublicService Law

(1967)(Law 33/67)aridtheprovisions of Section44

(5)of thesame law. At thisstageitshouldbenotedthattheregulationsof there- 5 spondentauthoritypublished inΚ.Δ.Π.183/82 refer totheLaw 33/67 for appointmenton probation (Regulation 11), seniority (Regulation 14),actingappointment(Regulation 15), costofliv­ ing allowance and 13th salary (Regulation 24),the disciplinary proceedings (Regulation56

(6)). Thedecision intheZachariadescase (supra) contrarytothe ar­ gumentoflearnedcounselfor theapplicantdoesnot seemtohave reversed theprinciples of theadministrativelaw thatan appoint­ ment is implemented with its communcationto thecandidate; also,itdidnotreversetheadministrativeprinciplesthatbefore the 15 communication of thedecision tothecandidateitis an internum of theadministration.IntheZachariadescaseitwasdecidedthat the unlawful interference by theMinisterof Interiorwhichpre­ vented theapplicantfrombeing appointedtoapostfor whichhe hadbeenselected by thePublicService Commissionand,asare- 2 n suit of which theCommissiondid notinthecircumstances pro­ ceedtotheformalities necessary for theimplementationof his ap­ pointment as already decided by it, it was an act which has adversely anddirectly affected inthesense of Article 146

(2)an existinglegitimateinterestof theappellant:i.e. intheZachariades case (supra)theCourt decidedthatthenon-implementationof the appointmentof the appellant by thePublic Service Commission was duetothe unlawful intervention by anincompetent organ, theMinisterof Interior. In thepresent case thefacts aredifferent andthedecision of ™ theZachariades case is distinguished. Inthepresentcase the ap­ pointmentof theapplicanthasnotbeencommunicatedtohim i.e. no outward direction was £iven toit towards oneor moreper­ sons. Itwas still an internumof the administration and there­ spondentauthoritycouldrevokeitandIholdtheopinionthat the 35 2246 IQ •: , 3 C.L.R. . . -t ., . ' • •.· ! ..π Anastassiou v. Kyp. Org. Anaptyxis Gis .. Ρ - . . ι , ; Kourris J. non-communication of thedecision of.therespondentauthorityto thecandidatedeprives himof,legitimate interesttofilea,recourse. Therefore, thispointcannotstand. 5 10 . 15 Turning now to.the second issue, it appears that the new ad,vertisement inviting applications by candidates for the post of Civil Engineer,2nd Grade,amountstoarevocation of the previ­ ous decision of 4/3/1988of theboardof directors.Indeed, coun­ sel for therespondentin his written address, concedes thatthere hasbeen arevocationof thedecision of 4/3/1988. , The applicant was a candidate for the post in question and . thereis nodoubtatall thathehadalegitimateinterestfor thecon­ tinuation of theprocess for thepurpose pf.filling thevacant post inquestion. Counsel for theapplicantargued thattherevocation of thedecision is notreasoned andas such is liable tobe annulled. The principles of administrative law examining revocations have been expounded in a series of cases by ourSupremeCourt. Suffice it torefer to thecase of Voids v. The Republic

(1985)3 C.L.R. 534 where theCourtatpage 538 said as follows: 20 "A revocatory decision constitutesof itself an executory act liable to review at the instance of a party prejudiced thereby...." Also relevant is the case of Aristos Moschovakis v. C.B.C.

(1988)3 C.LR! 750 and Kazan Carton Industry v. Cyprus Port 25. Authority

(1988)3 C.L.R. 1559 where Pikis, J., said as follows at p.1563:- 30 "A revocatory decision must,likeevery otherexecutory'de­ cision,bereasoned. Itcanbeargued thatthereasoningof are­ vocatory decision must be as explicit as it could be.Forby a process of arevocatory decision therights of those affected re­ garded as settled are, in essence, upset. The Administration 2247 Kourris J. Anastassiou v. Kyp. Org. Anaptyxis Gis

(1988)mustaddressitself specifically tothereasonswarranting revo­ cationof an earlierdecision,thejustification for themeasure andtheeffect ontherightsof those affected." In thepresent case thereis nothingby way of reasoning ex­ plaining thenecessity for therevocation of the decision of 4/3/ 5 1988 (seeappendix Έ " tothewrittenaddress of counselforthe applicant). Itappearsthattheboardof directorsof therespondent authority treated theadvertising of thepost inquestion on 1/7/ 1988 as the first publication for thepost in question andthey wereobliviousof thedecision of4/3/1988. 10 For thesereasons theapplicant succeeds onthis pointand in thecircumstancesthedecision for theadvertisement of thepost in question on 1.7.1988is declared tobe null andvoid.Therefore, therecoursesucceeds, butwith noorderfor costs. Subjudicedecisionpartlyannulled. 15 Noorderasto costs. 2248