clr/1989/1989_3A_645.pdf

(3)of the Electricity Authority Regulations, providing that if there is no candidateto filla promotion post, thereshouldbe a supernumeraryappointment to the immediately lowerpost — Sincetherewereno candidatespossessingthe required qualifications for the promotion post, suchpost shouldhave remained vacant— Thefillingof such post by promotion unavoidably willeventuallyaffectapplicants'interest. By means of recourses505/87,506/87 and 509/87,the applicants challengethe decision topromoteorpost theinterestedparty tothe post 645 Ioannou &Others v. E.A.C.

(1989)ofGeneration Engineer (Testand Efficiency) inthe Electricity Authority of Cyprus. By recourse 511/87 the applicant, who is also applicant in recourse509/S7,challengesthedecision topromoteorpost theinterested party to the post of Generation Engineer (Operations). 5 Notwithstanding that theauthorityinfillingthesaidpostsfollowed the procedure relating to promotions and selected the appointees after comparison, counsel for the respondent authority raised a preliminary objection to the effect that thesubjudice acts were internal measuresof administration, because they were transfers of officers from one branch 10 of the work to the other without achange in the salary scale of the post. The Court dismissed the preliminary objection for the reasons indicated in the first ofthe hereinabove Headnotes. When the Joint Consultative Selection Committee met for the first 15 time, in order to deal with thequestion of thefillingof the said posts,its members reached the conclusion that no candidate with the required qualifications had applied for promotion to such post. Reguiation 13 of the respondent authority provides that if a 20 promotion post cannot befilleddueto the non-existence of a candidate possessing therequired qualifications, theimmediately lowerpost willbe proclaimed for filling as supernumerary, provided that such post is a promotion post or a Firstentry andpromotion post. 25 Notwithstanding the said Regulation the respondent authority proceeded andfilledthe aforesaid posts. TheCourt annulledthesubjudicedecisionson theground indicatedin the second of the aforesaid Headnotes. Moreover, the Court did not 3 0 accept that applicant inrecourses509/87and510/87.whodidnot possess the qualifications for promotion to the posts in question, had no legitimateinterest,on thegroundsindicatedin thelastofthe hereinabove Headnotes. 35 Subjudice decisionsannulled. No order astocosts. Casesreferredto: 40 Yiallouwu v.Republic

(1976)3CLR. 214, 646 3 C.L.R. Ioannou & Others v.E.A.C. Thrasyvoulou v. LandConsolidationAuthority

(1986)3C.L.R. 1422. Partellides v. Republic

(1969)3C.L.R. 4S0. 5 Trimikliniotis v. Republic

(1971)3C.L.R. 293. losifv. CY.TA.

(1977)3C.L.R. 261. tHlinos v. Republic

(1975)3C.L.R.248. 10 Elcftheriou v.Central Dank

(1980)3C.L.R. 85. SoannidesandAnotherv. CyprusGrain Commission

(1988)3C.L.R. 1250. 15 Christodoulides andAnother v.Education Senicc Commission

(1986)3 C.L.R. 1637. Antoniou v.ElectricityAuthorityofCyprus

(1989)3C.L.R.597. 20 ChristoR v. ElectricityAuthorityofCyprus(No.1)

(1989)3C.L.R. 603. Christofidcs v. CY.T.A.

(1979)3C.L.R.

1. Recourses. 25 30 Recourses against the decisions to promote or post A. Kellas to the post of Generation Engineer (Test and Efficiency) and A. Loizides to the post of Generation Engineer (Operations) in the Electricity Authority of Cyprus in preference and instead of the applicants. E. Efstathiou, lor Applicants in Cases Nos. 505/87 and 506/
2. 35 N. Clerides, for Applicants in Cases Nos. 509/S7 and 510/
3. G. Cacoyannis, for Respondents. Cur. adv. vult. 40 A. LOIZOU, P. read the following judgment. The applicants in Recourses 505/87, 506/87 and 509/87 challenge the decision 647 A. Loizou, P. Ioannou & Others v.E.A.C.

(1989)of the respondent Authorityto promote or post Adonis Kellas, hereinafter to be referred to as the interested party to the post of Generation Engineer (Test and Efficiency), inthe Electricity Authority ofCyprus,andtheapplicant inRecourse510/87,who is also applicant in Recourse 509/87,challenges the decision of 5 therespondent Authorityto promote or post A.Loizidestothe post of Generation Engineer, (Operations). Onthe21st March 1987,therespondent Authority circulated a Notification No. 3/87, in respect of vacant posts which 10 included. (

1. a)apost of Generation Engineer(TestandEfficiency), and (
2. b)apost of Generation Engineer (Operations). 15 To both above posts the applicants in Recourses 505/87 and 506/87 applied for transfer and applicant in Recourses 509/87 and 510/87 applied for promotion, in response to such advertisement. 20 The Joint Consultative Selection Committee, for promotion of Scientific Personnel at its meetings of the 7th and 8th April 1987, did not deal with the question of the filling of the above post because no candidate with the required qualifications 25 applied for promotion to such post. The respondent Authority dealt with the matter at its meeting of the 30th April 1987. Therelevant minute reads: ~~~~"Consideration of the reports of the Joint Consultative Selection Committee for Promotion of Scientific Personnel, dated the 9th April 1987,for the filling of a number of posts (Notification of vacant posts 1/87 and3/87). 30 35 The members considered the proposal of the Joint Consultative Selection Committee for promotion of Scientific Personnel, dated the 9th April 1987,for the filling of anumber of vacant posts. 40 The Authority actinginaccordancewith Regulation 23of the Electricity Authority of Cyprus (Terms of Service), 648 3 C.L.R. 5 10 15 20 Ioannou & Others v. E.A.C. A. Loizou, P. Regulations 1986, dealt with the applications for promotion as appearing in thelists coloured white of the candidates for promotion whosatisfied theSchemes of Service andwho did not apply for thecorresponding post,as appearing inthelists colouredgreen,of theinstancesofofficers holding equivalent posts who did apply for transfer as appearing in the lists coloured yellow,andhaving evaluated all thematerial before it, that is to say, the service record of each one of the applicants, his experience, merit, ability, seniority in the Authority, qualifications in relation totheSchemeof Service applicable tothepost from timetotime andhis performance in his service as same appear in more detail in paragraph 23

(2)of theRegulations andhaving taken intoconsideration the recommendations and views of the Scientific Personnel Selection Committee, of the manager and whenever in its discretion it deemed necessary, the views of the heads of Services of the Authority and the recommendations and views of the Consultative Sub-Committee of the Authority on Personnel Matters and the confidential reports on the candidates on the proposal of thepresiding member andthe support of Mr. Xenophontos, there was unanimously decidedthepromotion of the following tothe corresponding posts with effect from thedateappearing next tothenameof each one of the promotees: 25 NOTIFICATION OFVACANT POSTSNo. 3/

1. 30 One post of Generation Engineer (Test and Efficiency) Generation DepartmentΚ.Γ. (Scale A13): 8270A Kellas (posting) 1st May,
2. One post of Generation Engineer (Operations)Generation Department Κ.Γ. (Scale A13): 8603 A. Ch.Loizides, (posting) 1st May 1987." 35 Learned counsel for the respondent Authority raised a preliminary objection to theeffect that thesub judice act is not an executory one and cannot therefore be made the subject matter of a recourse because in this instance the sub judice act 40 consists of thetransfer of theinterested parties from onebranch of thework to theotherwithout a change in thesalary scale of the post. Furthermoreinviewof theabove thetransfer consists 649 A. Loizou,P. Ioannou&Others v. E.A.C.

(1989)of an internal measureandcannotbe challenged by arecourse for annulment. (See Yiallourou v. The Republic

(1976)3 C.L.R. 214 and Thrasyvoulou v. The LandConsolidation Authority

(1986)3C.L.R.1422). 5 I have quoted infull therelevant minutesof therespondent Authority. In such minutes the sub judice act is described as "promotion" and the interested parties are described as "promotees" (προαχθέντες). Next to their name we find the word "posting" (τοποθέτηση). Oncethe respondent Authority 10 by itsvery minutethatiteffected thesubjudiceact,it describes it as promotion, itcannotat thisstage describe it as a transfer. It is clear from thematerial before methatirrespective of any change or not of thesalary scale of the interested party by his posting to thepost inquestion,certain posts intherespondent 15 Authority are more attractive than others of equal scale, because in view of the duties andresponsibilities envisaged by theSchemeof Service theyenhancethechancesof theirholders for promotion.Sofor this reason toothesubjudice act cannot be described as a mere posting or transfer with no beneficial 20 effects totheholderof the post. Haditbeen amere posting or transfer within the Authority there was no need to take the views andrecommendations of somanybodies andpersons. Itmustalso bepointedoutthattheyarenotconcernedhere 25 with thecase of an applicantcomplaining about his transfer or non transfer, but it is an instance where a selection after a comparison was made between several officers, after their applications for transfer were invited and where the officers consideredthemostsuitable were preferred. 30 Inviewof theabove I holdthatthesubjudiceactconstitutes an executory act because it affects the legal rights of the applicants. The preliminary objection therefore fails. On the merits of the recourse Iturn totheminutes of the respondent 35 Authority and we have it that in arriving at the sub judice decision it considered the proposal of the Joint Consultative Selection Committee,datedthe9thApril 1987.Italsotookinto consideration (a)therecommendationsandviews of the above Committee, (b) the recommendations and views of the 40 Manager, and the views of the Heads of Services of the Authority whenever it deemedit necessary. 650 3 C.L.R. 5 10 15 20 loannou &Others v. E.A.C. A. Loizou, P. Whilst consideringjudgment Ithought ituseful toreopen the case sothat Iwould ascertain if there existed any record of the viewsexpressedunder(a)and(b)above.Indeedlearnedcounsel for the respondent Authority produced a minute of the Joint Consultative Selection Committee dated the 9th April 1987, (Exhibit 7),which contains a proposal regarding the prevailing candidates for promotion after stating that it considered all relevant material and concluded by saying that it decided to recommend the "following" in alphabetical order as suitable or prevailing for promotion to the corresponding higher posts. However,therefollows an observation thatnoone whohadthe required qualifications had applied but that for the post in question there werecandidates whoappliedfor transfer thereto whose names appear on the attached list marked yellow. (See lists appended to the opposition). There is, however, no recommendation for that post but only an enumeration of the candidates in order of seniority (in order of their dates of appointment to the post they held). In any event and irrespective of the absence of any recommendation by the Selection Committee there does not appear any record for the views ofthe others,i.e.the Manager and Head of Sections. Therefore the case has to be examined in the light of this omission. 25 Learned counsel for the applicants in Recourses 505/87 and 506/87,submitted that such a situation renders judicial control of the sub judice act impossible. In the case of Partellides v. The Republic

(1969)3 C.L.R. 480, it was held that oral 30 recommendations regardingcandidatesforpromotion shouldbe adequately recorded in the minutes of the collective organ concerned. (See also Thmikliniotis v.TheRepublic (191\) 3 C.L.R.293; losif v.CYTA

(1977)3C.L.R. 261; Ellinas v.The Republic

(1975)3 C.L.R. 248; Eleftheriou v. Central Bank 35

(1980)3C.L.R. 85). In the case of Ellinas (supra) it was held that inadequate recording of the recommendation of the appropriate Authority bytherespondent Educational ServiceCommission inthat case 40 ledtotheannulment ofthesubjudiceactbecausetheCourt was deprived of the ability to control its legality judicially. In Ioannides and Koufopavlou v. Cyprus Grain Commission 651 A. Loizou, P. Ioannou & Others v.E.A.C.

(1988)3 C.L.R. 1250, Stylianides J., dealing with the same situation saidthefollowingatp. 1255ofhisjudgment: "Therecommendationswerenotrecorded.Itwastheduty oftheCommissiontoputonrecordtherecommendationsof 5 their Manager which influenced them in reaching the challenged decision. This is sufficient for the sub judice decisiontobeannulled." Furthermore reference may be made to the case of 10 Chhstodoulides and Another v. The Education Service Commission

(1986)3C.L.R. 1637,whereitwasheldbytheFull Bench that the failure to record the views of the head of the Department not only has offended basic principles of proper administration but hasalso deprived thesubjudice decision of 15 an essential part of its reasoning thus making judicial control impossible. The case of Chhstodoulides (supra) was followed in the case of Antoniou v. The Electricity Authority of Cyprus 20

(1989)3 C.L.R. 597, and Christofi v. The Electricity Authority of Cyprus (ISo.l)

(1989)3C.L.R.603. In view ofthe above Recourses505/87,506/87,succeedand the sub judice decision in so far as the applicants in these 25 recoursesareconcernedmustbeannulled. Dealing now with Recourses 509/87 and 510/87, learned counsel for the respondent Authority submitted that the applicant in these recourses is not vested with a legitimate 30 interestinthesenseofArticle 146.2oftheConstitution,because hedoesnotpossessthequalifications requiredbytheSchemeof Service. Learned counsel for the applicant in reply to the above 35 submission referred to the case of Christofides v. CYTA

(1979)3C.L.R. 99,whichestablishesthat therequirement that the legitimate interest must existboth at the time of the filing and of the hearing of a recourse is satisfied also, where such interest "thoughnotyetactuallyadverselyanddirectlyaffected, 40 isunavoidablyboundtobesoaffected eventually." 652 3C.L.R. loannou & Others v.E.A.C. A.Loizou,P. The submission of learned counsel was based on a further ground to the effect that hadthe respondent Authority acted in accordance withRegulation 13

(3),asitwasboundto do.thesub judice post would have remained vacant and so the applicant 5 would have eventually the opportunity to be promoted thereto at afuture time.Regulation 13

(3)provides: 10 15 "3. Whenever a promotion post cannot be filled due to the nonexistence ofacandidate,from amongst theofficers inthe service, possessing the required qualifications, the immediately lower post will be proclaimed for filling as supernumerary, provided that such post is apromotion post or a first entry and promotion, which will remain supernumerary until the filling of the above vacant promotion post." From the material before me it is clear that the factual situation in this case was such that rendered applicable Regulation 13

(3).Infactthesubjudicepostwas(a)apromotion 20 post, (

1. b)none of the candidates in the service possessed the required qualifications, (
2. c)the immediately lower post was a promotion or a first entry and promotion post. Therefore though the requirements envisaged by Regulation 13

(3)were satisfied, yet the respondent did not adopt the procedure 25 envisaged by Regulation 13

(3)but the one envisaged by Regulation 13

(2). Learned counsel for the applicant submitted that Regulation 13

(3)aims at safeguarding the service evolvement and the 30 interests of the officers of the respondent Authority, and specifies in what manner their service evolvement will materialise, therefore the respondent Authority could not infringe the right of the officers to evolve in the service in the manner provided byRegulation 13

(3). 35 Finally he submitted that by acting as it did the respondent Authority acted in breach of Regulation 13

(3)and thus in a manner contrary to Law in the sense of Article 146 of the Constitution. 40 Having considered the submission of learned counsel, I find that there ismerit in it asindeedRegulation 13

(3)isapplicable. 653 A. Loizou, P. Ioannou & Others v.E.A.C.

(1989)Therefore for thereasons indicated inthesubmission of learned counsel the legitimate interest of applicant in Recourse 509/87 and 510/

1. is affected because by the sub judice act he is deprived of the opportunity tobeacandidate to the post inthe future, and thushislegitimate interest is"unavoidably bound to 5 be affected eventually". (See Chhstofides case (supra)). Astheapplicant inRecourseNo.509/87and510/87,isvested with alegitimate interest hisrecourse must alsosucceed for the reasons indicated in Recourses Nos.505/87and506/
2. 10 For all the above reasons all recourses succeed and the sub judice decisions are annulled but inthe circumstances therewill be no order as tocosts. 15 Subjudice decisions annulled. No orderastocosts. 654