clr/1989/1989_3A_371.pdf

(2)— Minister approving recommendations of Chief of Police without inquiry with view to satisfying himself on the propriety of the recommendations — Lack of due reasoning. Abatement ofrecourse for annulment —Revocation ofsubjudice act— Does not always lead to abatement, because annulment is always a pre-requisite of the right to damages under Art. 146.6 of the Constitution. Following annulment of promotions by this Court, the Chief of Police recommended to the Minister of Interior the temporary promotions of the interested parties to the post of inspector under Reg. 10of the aforesaid regulations'and requested the approval of the Minister in respect of thepromotion under section 13

(2)of the Police 371 Theodossiou \. Republic & Another

(1989)Law Cap 2S5 (as amended bv section 2 of Law 29/66) The Minister accepted the request and as a result the interested parties were promoted to the post ol Temporary Inspectors as from 15/11/85 However thesepromotionswere later revoked and finally, all the interested parties were promoted to the post ot Inspector retrospectivelv fiom 15/12/S4 5 The Court did not accept the submission that by reason of the revocation the recouise was abated The Coun proceeded further and JO annulled thesub judice decision ontheground that if thepromotionshad been made under Reg 10,they have to be annulled as being in abuse of power because the competent organ 1 e the Chief of Police. subordinated his power to thediscretion of anotherorgan,whereas if the promotions were made under Section 13

(2), they have to be annulled, 15 because the Minister did not hold an inquiry as to the facts, belorc exercising his competencethereunder Subjudice decisionannulled No order for costs 20 Casesreferred to Vakis ν Republic(I9S5) 3CLR 534 25 Recourse. Recourse against thedecision oftherespondents topromote theinterested parties tothepostofTemporary Inspectorinthe Police Forceinpreference andinstead of theapplicant 30 J Erotokntou, for the Applicant Μ Florentzos,Senior Counsel of the Republic, for the Respondents. Cur adv. vult KOURRIS,J read the following judgment By the present recourse applicant challenges the decision of the respondents 40 dated 25 11.1985 to promote theinterested parties to the post of Temporary Inspectorinthepoliceforce inpreference toand 372 35 3 C.L.R. Theodossiou v.Republic &Another Kourris, J. instead of the applicant. The salient facts of this recourse shortly are as follows: The promotions of the interested parties to the post of Police 5 Sergeants and subsequent promotion in the post of Inspectors wereannulledbyadecision ofthisCoungivenon20.3.1985. In order to fill the gap left by the annulment of the appointments of the interested parties, the Chief of the Police made an invitation to Divisional Commanders and Section Leaders to 10 make recommendations for temporary promotions to the post of Inspector. The Chief of Police adopted their recommendations and by hisletter dated 1S.11.19S5 tothe Minister of Interior,suggested 15 that the officers in question be promoted temporarily to the post of Inspector under Reg. 10of the Police Regulations 1958 and he requested the approval of the Minister for the promotions under s. 13

(2)of the Police Law, Cap. 285 (as amended bys.2 of Law29/66). 20 The interested parties were promoted to the post of Temporary Inspectors w.e.f. 15.11.19S

1. These temporary promotions were revoked on 2.3.19S7 and on 23.3.19S7 all the interested parties were promoted to the post of Permanent 25 Inspectors retrospectively from I5.12.19S
2. The present recourse concerns the promotions of the interested parties to the post ofTemporary Inspectors effected on 25.11.1985 and not the permanent promotion of the 30 interested parties to the post of Police Inspectors effected on 23.3.1987with retrospective effect as from I5.12.19S
3. Counsel for the respondents contended that applicant has no legitimate interest to pursue the present recourse because the 35 sub judice decision was revoked on 2.3.19S7 and invited the Court to declare the proceedings as abated on account of the disappearance of the subject matter. I do not agree with this submission. In the case of Vakis v. 40 TheRepublic

(1985)3C.L.R. 534.it was held that the right to pursue a recourse to the end notwithstanding revocation of an act is implicit under paragraph 6 of Article 146 of the 373 Kourris, J. Theodossiou v.Republic &Another

(1989)Constitution requiring judicial annulment of the act as a prerequisite to proceedings for the recovery of damage; and that. therefore, the recourse can beproceeded with to theend. Also, at p.538Pikis,J.hadthis tosav:5 "A revocatory decision constitutes of itself an executory act liable to review at the instance of aparty prejudiced thereby,in thiscasethe interested partiestothepresent proceedings.Ifthat were to happen and the recalling decision was annulled, applicant would remain remediless for he could neither seek 10 reinstatement of the present proceedings, if abandoned, nor claim damages arisingfrom theact revoked. Forthisreason the Court cannot rest its decision on the assumption that the act revoked isinvalid,an issuebeyond the reviewing powers of the Coun in these proceedings, but must make an independent 15 assessment of the act." I agree and with respect I adopt the reasoning of this Judgment and Ilikewise find that thepoint raisedbycounsel for the applicant cannot stand. 20 I now propose to examine the substance of the sub judice decision. Counsel for respondents contended that the sub judice 25 decision was lawfully taken in the proper exercise of the discretion of the Chief of the Police under Reg. 10of the Police Regulations 195Safter a proper inquiry into the matter; healso contended that it is dulv reasoned. 30 Counsel for the applicant on the other hand alleged that the sub judice decision was taken by the Minister of the Interior under s. 13

(2)of thePolice LawCap.285(asamended) andthat it was taken without a proper inquiry and in abuse of powers and he submitted that the temporary promotions should be 35 annulled. It ispertinent at this stage toset out the relevant law. Regulation 10

(1)of the Police (Promotions) Regulations, 40 1958reads as follows:- 374 3 C.L.R. Theodossiou v. Republic & Another Kourris, J. "A member of the Forcewho is required to perform the duties of ahigher rank may be promotedtemporarily tothat rank by theChief Constable: 5 Providedthat(a) avacancy exists intherank; 10 (b) in thecase of Gazetted officers, such promotionsare made with theapproval of theGovernor." Section 13

(2)of the Police Law, Cap.285 repealed by Law 29/66)reads as follows:- 15 20 ' Ό Αρχηγός τη εγκρίσει του Υπουργού,διορίζει κατα­ τάσσει,προάγεικαιαπολύειπάντα ταμέλητης Δυνάμεως μέχρι και συμπεριλαμβανομένου του ΑρχιεπιΟεωρητού." ("The Chief of Police, with the approval of the Minister, appoints, enlists,promotesanddischarges all ranks uptoand including ChiefInspector."). Thus, it is apparent,that as a matter of law. power to make temporary promotions of all ranks up to and including Chief 25 Inspector,vestsexclusively intheChief of Police. The approval of the Minister (following the delegation made to him of the powers of the Council of Ministers, by virtue of Decision 768 and dated 11.5.1961). is only required in the case of Gazetted officers, that is. officers above the rank of Chief Inspector. 30 Consequently, if the Chief of thePolice had in mindtoexercise the powers given to him under Regulation 10

(1)he was bound to make the promotionshimself. Inthe present case theChief of the Police purported to act underRegulation 10,but he also asked for theapproval of the Minister of Interior. 35 I have no doubt that the Chief of Police acted under a confusion of the law. Hecould have requested approval of the Minister of Interior in the case of officers above the rank of Chief Inspector; but in the present case we are concernedwith 40 Inspectors and the Chief of Police was bound to make the promotions himself. By asking theapproval of the Ministerhe abused his powers by subordinating its exercise to the approval 375 Kourris, J. Theodossiou v. Republic &Another

(1989)of another authority, namely, the Minister of the Interior who was an incompetent authority inthe circumstances of thiscase. For this reason alone, the recourse succeeds, but I shall proceed andexaminethecontention ofcounsel for theapplicant 5 that the decision was that of the Minister of the Interior under S.13

(2)of the Police Law Cap. 285. The Minister approved therecommendations oftheChiefof Police without holding any inquiry with a view to satisfying 10 himself on the propriety of the recommendation. He merely relied on the written recommendations of the Chief of Police. Therefore, he reached hisdecision without making dueinquiries for the effective exercise of the discretion given to him under S.13

(2)of the said law and for this reason his decision fails for 15 lack of due reasoning. In the light of the above, it appears that if the Chief of the Police acted under Regulation 10 to make the temporary promotions, he abused his power by subordinating its exercise 20 to the approval ofthe Minister ofthe Interior. Again,ifthesub judice decision is the Minister's decision under S.13

(2)of the Law. then the Minister failed to make the necessary inquiries before the exercise of his discretion, i.e.the sub judice decision istainted with lack of due inquiry. 25 For all the above reasons, the recourse succeeds and the promotions of the interested parties to the post of Temporary Inspectors of the Police are annulled. Noorder for costs. 30 Subjudicedecisionsannulled. No orderastocosts. 376