clr/1989/1989_3A_377.pdf

(3)(b) 377 Apeitos &Others v. Republic &Another

(1989)In thelight of theprinciplesufficiently enunciated inthe hereinabove Headnotes.the Court dismissed the recourses. Recourses dismissed. i\'o order as to costs. 5 Casesreferred to: EracleousandOthers v.Republic

(1985)3 C.L.R. 740. 10 Lefkatis andOthers v.Republic

(1985)3C.L.R. 1372, Yiallouros v.Republic (I9S6) 3C.L.R.

1. Joannidesand Others v.Republic(19S6) 3 C.L.R.
2. ]5 Recources. Recourses against the decision of the respondents to promote the interested parties to the rank of Sergeant in the 20 Police Force in preference andinstead of the applicants. A. Papachcmilambous. for Applicants inCases Nos.630/S5634/85, 643/S5.657/S5.719/S5,720/S5 and73S/S
3. 25 E. Efthymiou. for the Applicant in CaseNo.731/
4. C.derides, for the Applicant in Case No.737/
5. A. S.Angelides. for Applicants in Case No. 748/
6. 30 M. Florentzos, Senior Counsel of the Republic, for Respondents. O. Triciiitafyliides withM. Kyprianou,for Interested parties 35 E. K. Loizou, D. Napoleontos, Chr. Pericleous, A. Papageorghiou, P. Louka, S. Paphitis. S. Kolios. Tr. Nearchou; Chr. Pavlou. St. Michael, A. Lazarou. Chr. Voutounos. Chr. Lazarou, E.Papasavvas, L.Paphitis. 40 E. Odysseos. for Interested parties G. Theodotou and Chr. Theodotou. 37S 3 C.L.R. 5 Apeitos &Others v. Republic & Another Chr. Vassiliades. for Interested parties A. Anastassiou, A. Katsouras, D. Georghiades, A. Laou, E. Panayi, Chr. Charalambous, G. Rodosthenous, G. Teklos, E. Moustakas, K. Nicolaides, M. Christodoulou, K. Ioannou, K. Teklos. A. Ipsarides, I. Neophytou, M. Maratheftis, G. Stylianou. Cur. adv.vult. 10 DEMETRIADES. J. read the following judgment. By the above recourses, which were heard together as presenting common questions oflaw andfact, theapplicants challenge the decision of the respondents,published inthe WeeklyOrderson the 17th June, 1985, by which the interested parties were 15 promoted to the rank of Sergeant in the Police Force as from the 15th February. 197S. The applicants were originally 54 in number. However. during the course of the hearing. Nicos Nicolaou. applicant 20 No.6 in Recourse No. 73S/85 withdrew his recourse. The promotion of a number of interested parties is challenged bythepresent recourse,most ofwhom are common in several recourses. The total number of interested parties. 25 after the withdrawal of the recourses against two of them. namely Th. Chrysostomou and N.Anastassiades.is
7. The history of the proceedings started in 1978 when a decision was taken for the promotion, as from the 15th 30 February, 197S ol 413 Police Constables to the rank of Sergeant in the Police Force. The above promotions were challenged by recourses by a number of applicants. By the judgment of the Court, which was issued on the 20th March, 1985, (see Eracleous and Others v. The Republic

(1985)3 35 C.L.R. 740) the promotions of the interested parties were annulled on thegrounds that - 40 (a) the respondents, in effecting the promotions, took into consideration the reports of the Central Information Service whichmust have materially affected the reaching of the decision challenged; 379 Demetriades. J. Apeitos & Others v. Republic &Another

(1989)(b) the Chief of Police,before exercising his discretion, had deliberations with the Minister which might have influenced the exercise of the discretion of the Chief of Police. 5 As a result of the above annulling decision of the Court, the Chief of Police sought the advice of the Attorney-General's Office which was obtained on the 16th April,

1. Acting on thebasisof thesaidadvice,the Chief ofPolice,inexercisinghis discretion, decided to promote the same officers whose 10 promotion was annulled bythe Court, including the interested parties, and submitted the list, together with an explanatory letter dated the2nd May, 19S5,to the Minister for approval. Before the approval of the Minister wasgiven,theSupreme 15 Court, by its judgment in the case of Lefkatis and Others v. TheRepublic (19S5)3C.L.R. 1372.annulledthe promotion of a number of Inspectors to the rank of Chief Inspector, on the ground that the Police (Promotion) (Amendment) Regulations No. 1S4/S3.which were issued after the coming into operation 20 of the Police Law 1966(Law 29/66),on which the promotions in question were based, wereultra viresthe Lawasthey didnot conform with the enabling law and were not laid before the House of Representatives asthe Law provided. 25 Asaresult,the Chief of Policesought anew advicefrom the Attorney-General's Office on the question whether those candidates who had passed, prior to
2. the promotion examinations which were conducted on the basis of regulations w-'hich had been declared ultra vires the Law by the above 30 judgment, were going to be considered as possessing the said qualification at thereconsideration oftheannulled promotions. The Deputy Attorney-General, by his advice dated the 13th June, 1985, stated that the candidates concerned ought to be considered aspossessing thesaidqualification but.inanyevent, 35 even ifthey were considered asnot possessingthe qualification in question, they could still be promoted, under the 1958 Regulations, if they had shown marked ability or exceptional aptitude for special work as provided by Reg. 6

(3)(b) of the Police (Promotion) Regulations,

1. 40 Acting on the above advice,the Chief of Police sent a letter 380 3C.L.R. Apeitos & Others v.Republic & Another Demetriades,J. to the Minister of Interior, dated the 17th June, 1985, supplementary to the one sent by him on the 2nd May,
2. In this letter he explained to the Minister the situation as it appeared after the judgment in the case of Lefkatis, (supra) 5 andafter referring to thenewadviceofthe Attorney-General's office andstatingthenumberofcandidates whose qualifications might be affected by the judgment of the Court in the above case, proceeded to mention that in any event the candidates could be promoted, even if they were considered as not 10 possessing the said qualification, on the basis of Regulation 6

(3)(b) and that he was satisfied that they had shown such "marked ability or exceptional aptitude for special work" as required by the said regulation. The Chief of Police ended his letter by requesting the approval of the Minister for the 15 proposed promotion of the interested parties, who were the same persons asthose promoted in 1978. On thesamedatethe Ministerapproved thesaidpromotionsas from the 15th February, 1978, the date when the annulled 20 promotions took effect. As a result of the publication of the promotions in the Weekly Orders of the 17th June, 1985, the present recourses were filed. 25 The grounds of law on which the applicants base their recourses are the following: 30 35

(1)The sub judice promotions were based on non existing regulations, or were made at a time when no specific legal provisions governing promotions were in existence.

(2)The sub judice promotions were wrongly made with retrospective effect.

(3)The applicants are superior to the interested parties in respect of merit, qualifications and seniority. 40 Counsel for the applicants argued, in respect of the first ground, that it is not clear from the material submitted which regulationswereappliedbytherespondents inreachingthesub 381 Demetriades,J. Apeitos &Others v.Republic & Another

(1989)judice decision. It is also obvious from thematerial before the Court,especially theletter ofthe Chief of PolicetotheMinister dated the 2nd May, 1985 (Supplement Γ to the opposition), that the procedure for re-consideration of the promotions started before the annulling decision of theCourt in the case of 5 Lefkatis (supra). As aresult,it is to be deducedthat theChief of Police, in reconsidering the matter, applied regulations which were ultravires the Law. What has to be decided is whether the sub judice decision 10 was based on the correct Regulations. After the annulmentof the promotion of the interested parties, which took place in 1978, by the judgment in the Eracleous case (supra), the respondents,inreconsidering thematter,hadtoactonthe basis of the factual andlegal situation prevailing in 1978,the time of 15 the annulledpromotions. At thattime,thePolice (Promotion) Regulations of 1958, as amended by Not. 943/66 published in Supplement No. Ill of the Official Gazetteof the RepublicNo. 542, dated the 22nd December. 1966, and Not. 111/

1. published in Supplement No.Ill of the Official Gazette of the 20 Republic No. 942 dated the 9th June.
2. were in force. However, before the reconsideration was concluded, and the promotions finalised, thejudgment of theSupreme Courtinthe case of Lefkatis (supra) was issued, as a result of which all regulations issued after the enactment of the Police 25 (Amendment) Law 1966 (Law 29/66),were declared ultravires the Law. Irrespective of the fact that in 197S. when the sub judice promotions were first effected, the regulations under Notifications 943/66 and 111/72 were in force, the respondents could no longer apply them when reconsidering the matter in 30
3. The question which arises is whether the Regulations under Notification Nos. 943/66 and 111/72, which were published after the enactmentof Law No.29/66 but before 1978, were in 35 fact applied in the sub judicepromotions. It is obvious from the material before me, especially the legal advice from the Attorney-General's Office and the letter oftheChief of PolicetotheMinister,datedthe 17thJune,1985, 40 that therespondents,ineffecting thesub judice promotions, did not rely on the regulations which hadbeen declared ultra vires 382 3 C.L.R. Apeitos & Others v.Republic &Another Demetriades, J. the Law by the Court but applied the 1958 Regulations, a course which was perfectly legitimate in the circumstances, in view of the fact that the 1958 Regulations have not been affected asthey aresavedbytheprovisoto section 13

(3)ofthe 5 Law as amended by Law 29/66 (see Yiallouros v. The Republic

(1986)3C.L.R. 677). Thisground is,therefore, dismissed. 10 The next ground concerns the retrospectivity of the sub judicepromotions. Inthisrespect,Icitethecaseof Yiallouros v.TheRepublic (supra),wherethe following were stated at p. 685: 15 "An administrative decision taken in the course of reexamination of amatter as a result of an annulling decision of the Court, may be given retrospective effect, and this,as it was correctly put by counsel for the respondents, affords an exemption to the rule of non retrospectivity of administrative acts. Support maybefound inseveral Greek authors, as for example, in Kyriacopoulos on Greek Administrative Law. 4th Edition, volume C. p. 400; Conclusions from the Case Law of the Greek Council of State 1929 - 1959, p. 281 and Dendias on Administrative Law,2nd Edition, volume C. p.359." 20 25 This passage, which I adopt, answers the question in issue and there is nothing more to be said. The next ground that remains to beconsidered concerns themerits ofthe candidates. 30 It is common ground that the interested parties were promoted on the basis of Regulation 6

(3)(b) of the Police (Promotion) Regulations 1958,which reads as follows:35 *'6.-

(1)Aconstabletobequalified for promotion tothe rank of Sergeant must:- 40

(3)Notwithstanding anything in this Regulation contained the Chief Constable:- 3S3 DemetriadesJ. Apeitos &Others v.Republic& Another

(1989)(a) may decidethatmembersof theForcerecommendedby the Board for advancement should attend a short promotion course; (b)may promote any police officer who shows marked 5 ability or exceptional aptitude for special work, irrespective of his length of service, and whether qualified by examinationor not." Itisstated,atpara.5oftheletteroftheChief ofPolicetothe 10 Minister,datedthe 17thJune, 1985, that: "Επιθυμώ να επαναλάβω ότι οι συνιστώμενοι,πέρα από τα ειδικάπροσόνταπουκατείχανκαιτην επίδοσηστακα­ θήκοντατους,επέδειξαν,κάτωαπότιςδραματικέςεσωτε- 15 ρικές ανωμαλίεςπου επικράτησαν, προ των τότε προα­ γωγών και για μια μακρά χρονικήπερίοδοστηνΚύπρο, έμπρακτη εκδήλωση αξιόλογου ικανότηταςμε την αφο­ σίωση τους γιαυποστήριξητουκράτους καιτηςέννομης τάξης." " 20 ("I wish to repeat that those recommended,in addition to the special qualifications which they possessed and the performance of their duties, have shown, under the prevailingdramatic internaldisturbances,before thetimeof 25 the promotion and for a long period of time in Cyprus, actual marked ability with theirdevotion for thesupportof the state andlaw and order"). In thejudgment of theCoun,intheEracleouscase (supra), 30 by which the promotions of theinterested parties which took place in 1978 wereannulled,itis statedthattheterm"marked ability" should be extended to include those persons who by deedshaveprovedtheirloyaltyanddevotion tothelawful State and have put up resistance against the Coup D' Etat and 35 illegality in general. (See pp. 753 - 754 of the judgment in Eracleous case (supra)).This same view was adopted by the Full Bench in the case of Joannides and Others v. The Republic

(1986)3C.L.R. 1946,atpp. 1954,

1. 40 In the light of the above, Ifind thatthesub judice decision was reasonably open to the respondents. In any event, the 384 3 C.L.R. Apeitos & Others v. Republic &Another Demetriades,J. applicants failed to establish striking superiority, especially in view of the fact that the interested parties were promotedon account of their marked ability or exceptional aptitude for special work. 5 Before concluding, I wish to deal very briefly with certain supplementary points raised by counsel for applicants in Case No. 748/
2. 10 Counsel argued that theapproval of the Minister was given without any inquiry on his part into the matter, since it was given on the same date that the matterwas referred to him by theChief of Policeandthat,also,theMinisterwas notthesame person as in 1978 andhe didnot know thecandidates. 15 20 25 30 35 40 To this,the short answer is first that the list of those to be promoted was before the Minister since the 2nd May, 1985, and so there was ample time to make any inquiries that were necessary as to the persons tobe promoted and,secondly, the Ministergives his approval not in his personal capacity but as the proper organ and any change in his person does not affect the validity of any decision. Thefact thathewas new does not again affect the situation as he usually acts on the advice of those being in a position to know andhe is entitled to receive information from those persons. Counsel also argued that for a number of interested parties it is notmentionedinthefirst letterof the Chief of Policetothe Minister, (Appendix Γ), that they were promoted exceptionally (κατ'εξαίρεσιν),whilst this is mentioned in his second letter (exhibit 1),which was written after the judgment in Lefkatis case. This is not, in my view, something that should affect the validity of the sub judice promotions as these officers, despite the fact that they had passed the examination required by the regulations which were later declared ultra vires, were considered by the Chief of Police as fit for promotion not because of their said qualification, but on account of their "marked ability". In the result, these recourses fail and are hereby dismissed 385 Demetriades,J. Apeitos& Others v.Republic & Another

(1989)with noorderastocosts. Recoursesdismissed. Noorderas to costs. 386