(1989)19S9January 14 [Λ. LOIZOU.P.] INTHE MATTER OF .ARTICLE 346OF THE CONSTITUTION .ANDREAS S.PAPASAWAS. Applicant. v. THE REPUBLIC OF CYPRUS.THROUGH THE DIRECTOR OF MEDICAL SERVICES. Respondent. (CaseSo. 317/S7) Administrative Act — Appointment onhourlybasisofanambulance dnver in Paphos— In the circumstancesit is in the domainof PublicLaw — Principles appliedto determine thatquestion. Collective organs — Composition — Participation ot a non-qualified $ person — Vitiates thedecision. Collective organs — Circular by the competent organ determining composition of Committee lor appointment onhourlybasis— Director Generalol Ministryparticipating m Committee m viriucof clarification \Q of circularmade by himself — As he was not entitled to amend the circularundertheguise of clarification, hisparticipation vitiatedthesub judice appointment. Having assumedjurisdiction to tr> thepresent recourse, the Coun 15 annulled thesub iudice act onthe grounds that appear in thelasttwoof the above Headnotes. Subjudice decision annulled. No order asto costs. Casesreferred to: Papakynakou v.HealthSemccs of Cyprusetc.
(1970)3C.L.R. 351. 56 20 3 C.L.R. Papasavvas v. Republic Hadjigeorghiouv.Republic
(1965)3C.L.R. 12i. Androklis v.Republic (19S5) 3C.L.R. 11, Zavros v.District OfficerPaphos(19S6) 3 C.L.R. 44, Loizou v.Cyprus InlandTelecommunications Authority 4 R.S.C.C 48, Syghariotis v.Republic
(1965)3 C.L.R. 317, 10 Gavrielv.Republic
(1967)3 C.L.R. 63S, Recourse. 15 20 Recourse against the decision of the respondent to appoint and/or employ the interested party to the post of .Ambulance Driver paid by the hour in preference and instead of the applicant. A- S-Angelides,for the Applicant. L. Koursoumba (Mrs),Counsel of the Republic B. for the Respondent. 25 Cur. adv. vult. A. LOIZOU P.read the following judgment. By the present recoursethe applicant seeksa declaration of the Coun: 30 I. That the decision of the respondent to appoint and/or employ Christakis Nicolaou to the post of Ambulance Driver paid by the hour, at the Paphos Hospital as from 1stApril 1987, insteadandintheplaceoftheapplicant,is null andvoid andwithno legal effect whatsoever. 35 2. Declaration of the Coun that therefusal and/or omission of the respondent to appoint the applicant to the post of Ambulance driver is null and void and with no effect whatsoever. 40 Before proceeding, however, anyfurther Iwouldliketo say a few words touching the issue of my assuming jurisdiction in 57 Λ. Loizou. P. Papasaii>as \. Republic
(1989)this case, although both sides donot question same in Mew of thefacts andcircumstances of thecase,andIhave noreasonto disagree with tins consensus, to theeffect that in thepanicular circumstancesthecasefallswithinthedomainofPublicLawand the sub judice decision as such being an executor} 5 administrative act is amenable to the junsdiction of .Article 146
(1)of the Constitution Supponfor theabo"\eproposition istobe found inthecases of Papakvnakou i. The Health Senices of Cyprus etc. 10 O970)3CL.R 351 Xitsa Hadjigeorghiouτ. TheRepublic
(1965)3 CL.R 121. Androklis v. The Republic
(1985)3 CLR. 11 Zavros \. The District Officer Paphos(19S6) 3 C.LR 44 and Doloros Loizou ». The Cyprus Inland Telecommunications Authority 4 R.SCC 4S where the 15 Supreme Constitutional Coun held that the issue whether a particular uoikman was regular!) emplo\ed within the definition of "'publicservice" in Article 122.was oneof fact "to be determined in each case on the basis of all rele\ant circumstances Thepenodofhisservice, thesecuntx oftenure 20 the nature of the duties the view taken of the status of such workmanbyhisemploying authority, areallrelevant mattersto be weighed, together with other penment factors, in order to arrive at aproperconclusion 25 Theposition being so.Iturnnow tothefacts of thecase. Theapplicant was emploved on the ISthJul\ 19S3 asnight watchman of the Paphos Hospital on an hour!} basis Onthe 11thFebruary. 19S6.bv adecision oftheappropriateservicesof 30 the Ministry of Finance,that is the Public Administration and Personnel Service there was approved the employment of a person as an ambulance dn\eronanhourl\ basisfor theneeds of thePaphosHospital 35 Theduties andqualifications andotherterms of suchadmei emplo\ed onremunerationcalculatedonanhourlybasisareset out in the relevant Scheme of Senice (Appendix I) The qualifications m question werethatthe"candidateshouldbe the holder of a driving licence for all types of vehicles andhave at 40 least threeyears expenence asdnver Graduateof Elementary School" 5S 3 C.L.R. Papasa^ \ a s i . Republic Α.. Loizou. P. The Selection Committee which was composed of Dr A Markides. the Director of Medical Senices and Public Health Senices. Dr Ph Theofanous. the District Medical Officer. Mr. Andreas PohTiou. representing the Director of Public 5 Administration and Personnel Serace and Mi Vassihou. as representative of the District Labour Officer. Paphos. considered the matter and detailed the Distnct Medical Officer to ask from all interested labourers of Paphos Hospital,whose remuneration was calculated on an hourly basis and who were 10 interested to perform the duties of ambulance dnver. to repon to him Among those who responded tothis invitation werethe applicant andthe interested part\ 15 20 25 The Selection Committeeat its meeting of the ISthFebruan 19S
- considered the matter and after exchange of views and examination of all factors relating to the candidates, namely qualihcations. senionn. and suitability, came to the conclusion and recommended the engagement of the interested pan\ Chnstakis Nicolaou.whowas untilthenemployed atthePaphos Hospital as a Poner/Messenger. as from the 30th Jul\
- as the most suitable for employment as ambulance dnver The relevant minute is attached to the opposition as Appendix II TheappropnateAuthonn of the Mimstn of Healthnameh the Medical Senices and Public Health Senices ultimateK decided to post the said Chnstakis Nicolaou as an ambulance dnver at the Paphos Hospital as from the 6th Apnl 1987 The first question for determination in the present recourse is whether the said Selection Committee being a collective 30 organ was properh constituted at tne time it reached the sub judice decision On this point reference has to be made first to the Circular letter of the Director of Public Administration and Personnel Semces. dated the 12th January 19S
- Exhibit V. addressed to the DirectorGeneral of the Ministry of Health In 35 it he states that he was acting on instructions, and refers to the reorganization which took place in the field of government labourers employed on an hourly basis, and deals with the collective agreement reached on the reorganization, the schemes of sen tee.the classification of workers, the number of 40 the establishment and finally with the procedure of filling of vacant or new posts It is with this latter matter that we are concerned heie Itis provided that the filling of such posts will 59 Λ. Loizou, P. Papasavvas v. Republic
(1989)be made by a Selection Committee which will be composed of the Officer in charge of the Institution or Hospital,the District Labour Officer or his representative and arepresentative of the PublicAdministration andPersonnelSenices.ThisCircular was sent by the Directorof the Ministry of Healthtothe Directorof 5 Medical Senices andall otherOfficers concernedby letterdated the21st January 19S2 (Exhibit Y). for compliance. Infact inits last paragraph he stresses that "there should be absolutely no deviation from the procedure set out in the Circular for the filling of organic posts and nonewill be permitted." 10 As already seen the composition of the Selection Committee included Dr.Markides. Director of Medical Senices and Public Health Senices. appearing infact first on thelist of panicipants in the minutes of the ISth February 19S7 (Appendix II).His 15 presence and participation in the deliberations of the said Committee, as there is nothing to suggest the contrary, was justified by counsel for therespondent by referring to aCircular Letter of thesaid Director datedthe 3rd February 1982. Exhibit "Y.l", entitled "The reorganisation of Organic Posts of labour 20 Employees of the Ministry of Health" and to the "Duties and Responsibilities" as set out in the Scheme of Senice for his post" (Exhibits Y.3). In the said letter (Exhibit Y.l) addressed to all Principal 25 District MedicalOfficers, includingtheActingPrincipal Medical Officer. Paphos.andthe Officers in charge of otherInstitutions, he refers to theletter of the DirectorGeneral of the Ministry of Health, dated the 21st January 1982 and the said Director of Medical Senices gives his own instmctions. Undertheheading 30 "Procedure for thefilling of Vacant or New Post" heconcludes as follows: "It is clarified that in the Committee which will propose the filling of the post I shall panicipate in person or through a 35 representative of mine. For that reason you are asked to inform me on every occasion in time so that Ishall proceed to make the appropriate arrangements. Also in cases of creation of new posts, the same procedure will be followed. 40 Incases, when in your opinion,immediatefilling of apost is imperative, then you may refer this to my office by 60 3 C.L.R. P a p a s a ^ a s \. Republic \. Loizou. P. telephone (tel No 403165), so that \our request will be pursued without delay " 5 It was argued on behalf of the applicant that the Directorof Medical Services was not competent to participate in the composition of the Selection Committee,which for that reason had a defecme composition, which constitutes a ground of annulment of the Sub judice decision reached by it 10 On behalf of the respondents η was argued that the letter of the Director of Medical Senices. (Exhibit "Y 1") does not change the Circular of the Public Administration andPersonnel Sen'ice, but merely clarifies something and it clanfies m that matter that the said Director has the right to be present 15 personally at these meetings It was iunher argued that the Circular of the Public Administration and Personnel Sen ices does not exhausmeh enumerate the persons to compose the said Selection Committee, and that the Director of Medical Senices hastheauthoritytobe piesent in\lew of the provisions 20 of his Scheme of Sen ice which proudes among the Duties and Responsibilities of his office that he is "responsible for the administration and organization of the Medical Depanmentin both the curame and pre\enme fields" (Exhibit' Υ 3'1) 25 I am afraid I cannot agree with this submission of learned counsel for the respondents The duties and responsibilities oi the post oi the Director of Medical Services are not in issue befoieme not arethe\ questioned b\ thecirculai of the Public Administration and Personnel Senices which appears to ha\e 30 intended to keep this matter, a selection of such categon of employees, on a local basis and within the institutions or hospitals concerned Hadthe said Director thought that, being head of the Medical Sen ices, he should have been participating in such committees, either personalis or through a 35 representatneof his otherthanhissubordinate officer in charge of such an institution or sen'ice he should then ha\e taken up thematterwithhighei organs ratherthanhimself' clanh ".ashe put it. the said circular, which clarification was in effect an amendment ot such circular issued by another organ which for 40 all intents and purposes appears tobe the duly authorised organ to deal with such matters Theiefore the participation of the Directoi of Medical Senices at the delibeiations of the 61 A. Loizou, P. Papasavvas v. Republic
(1989)Selection Committee inquestion wasnot adulyauthorised one. The question of the composition of an administrative collective organ came up for consideration by this Court in a number of cases. For the purposes ofthis case itissufficient to 5 refer to the case of Syghariotis v. The Republic
(1965)3 C.L.R. 317, in which it was held that the participation at the material time of members whoweredisqualified from doingso, ledto theannulment of theadministrative act reached bysucha body.Reference maybemade alsotothecaseof Gavriei v.The 10 Republic
(1967)3 C.L.R. 638.in which it was held that bad or defective composition leadsto itsincompetence and renders its decisions void. The concept of lawful composition of a collective organ is 15 repugnant to the participation in its deliberations of persons who are not members or are no longer members of such collective organ according to law. This ground therefore succeeds. 20 Having reached this conclusion I consider it unnecessary to deal with the remaining grounds of Law relied upon by the applicant, namely that the interested party did not have the required qualifications and that the inteniews of the candidates took place eleven months before the date of the selection and 25 appointment, matters on which Idonot pronounce, asthey are connected with the facts of the case which will inevitably come up for consideration at the re-examination of the case. In the result, therefore, the recourse succeeds and subjudice 30 decision isdeclarednull andvoidandwith noeffect whatsoever. Inthecircumstances,however,therewillbenoorderastocosts. Subjudice decisionannulled.No orderasto costs. 35 62