(1965) 3 CLR 177
1964 November 24
[*177]
[ZEKIA, P., VASSILIADES, TRIANTAFYLLIDES, MUNIR,
JOSEPHIDES, JJ.]
IN THE MATTER OF ARTICLE 146 OF THE
CONSTITUTION
TATIANOS GEORHIOU,
Applicant,
and
1. THE ELECTRICITY AUTHORITY OF CYPRUS
2. THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION (AN
INDEPENDENT BODY),
Respondents.
(Case No. 73/62).
Administrative Law-Electricity Authority of Cyprus-Filling of post of Internal Auditor of the Authority-Abolition of post by the Authority to prevent Applicant from being appointed to it after his selection for such purpose by the Public Service Commission-Abolition though not a function within Article 125.1 of the constitution, an act designed to frustrate a decision by the Public Service Commission taken thereunder in relation to such post and, therefore, subject to the competence of this Court under Article 146-Abuse of powers of Authority.
Constitution of Cyprus-Existing legitimate interest, Article 146.2-Abolition of post by Electricity Authority to prevent Applicant from being appointed to it, an act or decision affecting an existing legitimate interest of Applicant in the sense of Article 146.2.
The claim in this recourse is for:
(a) A declaration annulling the decision of Respondent the Electricity Authority of Cyprus, to abolish the post of Internal Auditor of such Authority, and (b) a declaration that the omission of Respondent 2, the Public Service Commission, to implement the appointment of the Applicant to the said post ought not to have been made.
On the 25th September, 1961, the Board of the Authority considered the vacant post of Internal Auditor of the Authority and it was decided that the person to be appointed [*178] should be “a Chartered Accountant or a Certified Accountant, preference to be given to a Chartered Accountant”.
Consequently a letter was written on the 27th September 1961, by the Secretary of the Authority to the Commission, conveying its effect and stating that as none of the existing staff possessed the necessary qualifications it was necessary to advertise the post. In a document, however, attached to the said letter and setting out the qualifications, duties and remuneration of the post in question the aforesaid decision of the Board of the Authority was not reproduced fully, and it was only stated therein that the person to be appointed should be either a Chartered or a Certified Accountant, no mention being made about preference to be given to a Chartered Accountant.
The post of Internal Auditor was advertised by the Commission and Applicant applied and became one of the candidates.
On the 23rd January, 1962, after the ivterviews, it was decided by the Commission that Applicant should be appointed to the post of Internal Auditor and a letter was written to the Authority accordingly, on the 25th January, 1962, requesting the preparation by the Authority of the usual offer of appointment; such offer was to be forwarded to the Commission for the purpose of implementing the appointment which had already been decided upon.
On the 2nd February, 1962, the Board of the Authority informed the Commission that the decision of the Board to the effect that preference should be given to a Chartered Accountant had not been clearly conveyed to the Commission and that the Commission was requested not to proceed to fill the post of Internal Auditor unless a candidate possessing the qualification of Chartered Accountant was available; the Commission, therefore, was requested not to take action in relation to implementing the appointment of Applicant to such post.
It has been submitted in this Case that Applicant cannot allege that any existing legitimate interest of his has been adversely and directly affected in the sense of Article 146(2) because the abolition of the post of Internal Auditor was not an administrative act directed at him, and, moreover, [*179] he had not any acquired right in the matter of hi appointment, as such appointment had not been finally implemented by the Commission.
Held, I. On the question of legitimate interest:
(a) Irrespective of whether in other circumstances the abolition of a post in the establishment of the Authority or of any other independent body might not be taken as directed against anybody aspiring for appointment or promotion to such post, in the present case it is abundantly clear that the abolition of the post of Internal Auditor was purposely aimed at preventing Applicant from being appointed to a post for which he had been selected by the competent organ, the Commission, and, thus, it is an act which has adversely and directly affected, in the sense of Article 146(2), an existing legitimate interest of Applicant.
(b) Likewise, the relevant legitimate interest of Applicant has been directly and adversely affected by the fact that the Commission did not, in the circumstances, proceed to the formalities necessary for the implementation of his appointment, as already decided upon by it.
II. On whether the matters complained of are proper subjects of recourse under Article 146.
(a) Whenever an act is done by an organ, other than the Commission, for the very purpose of frustrating the implementation of an individual administrative decision taken by the Commission in the exercise of its exclusive competence, that act is by its nature so closely linked with such competence and the individual administrative decision taken by the Commission under it, that it is itself subject to recourse under Article 146, in the same way as the relevant decision of the Commission would, have been subject to such recourse.
(b) The abolition of the post of Internal Auditor, as made, constitutes an act or decision subject to the competence of this Court under Article 146.
III. On the decision of the Authority to abolish the post of Internal Auditor:
(a) Such abolition constitutes an abuse of the relevant [*180] powers vested in the Authority in relation to its establishment. It cannot be reasonably disputed that it was a post which was essential for the proper functioning of the Authority. Its filling had been requested as a matter of great urgency by the Authority itself; such post has now been again re-established after the appointment of Applicant thereto had been averted.
IV. As regards the non-implementation of the appointment of Applicant:
(a) There was no other course open to the Commission at the time. The post having been abolished the Commission could not appoint Applicant to a non-existing post. The Commission can appoint somebody only to a vacant post, which, of course, has also to be an existing post. Applicant can, therefore, not claim that the Commission ought to have acted beyond its powers in implementing his appointment.
V. As regards costs:
Applicant is entitled to his costs against Respondent I, the Authority, ‘which are assessed at £80.
The Order: (a) The decision to abolish the post of Internal Auditor has to be annulled.
(b) Recourse fails in so far as it concerns the Commission.
Orders in terms.
Cases referred to:
Papapetrou and The Repiblic (z R.S.C.C. p. 6 at p. 64);
Neophytou and The Republic (1964, C.L.R. 280);
Syndicat national autonome du cadre de L’ administration generale des colonies, on the 20th May, 1955 (Recueil des arrets du Conseil d’Etat, 1955, p. 273);
Rossides and the Republic, (3 R.S.C.C. p. 95);
Stamatiou and The Electricity Authority of Cyprus (3 R.S.C.C. p. 44);
Ozturk and The Republic (2 R.S.C.C. p. 35) [*181]
Recourse.
Recourse against the decision of Respondent 1, the Electricity Authority of Cyprus, to abolish the post of Internal Auditor of such Authority and against the omission of Respondent 2 the Public Service Commission, to implement the appointment of the applicant to the said post.
L. Clerides for the applicant.
G. Cacoyiannis for respondent No. 1.
K.C. Talarides, Counsel of the Republic, for respondent No. 2.
Cur. adv. vult.
The facts sufficiently appear in the judgment of the Court.
ZEKIA, P.: The judgment of the Court will be delivered by Mr. Justice Triantafyllides.
TRIANTAFYLLIDES, J.: In this Case the Applicant claims: (a) a declaration annulling the decision of Respondent 1, the Electricity Authority of Cyprus, (hereinafter referred to as the Authority) to abolish the post of Internal Auditor of such Authority, and (b) a declaration that the omission of Respondent 2, the Public Service Commission, (hereinafter referred to as the Commission) to implement the appointment of the Applicant to the said post ought not to have been made.
Applicant is a Certified Accountant and at the material time he was a member of the public service posted at the Treasury, Nicosia. After the filing of this recourse he has gone abroad on scholarship and, as his counsel has stated at the hearing of this Case, he is under an obligation to serve, after completion of his studies, with the central administration of the Republic. He is, therefore, no longer interested in being appointed to the post of Internal Auditor of the Authority but he has instructed his counsel to continue these proceedings, in vindication of whatever rights may have accrued to him in the meantime.
The events leading up to the institution of these proceedings are as follows:-
On the 25th September, 1961, the Board of the Authority [*182] considered the vacant post of Internal Auditor of the Authority and it was decided that the person to be appointed should be “a Chartered Accountant or a Certified Accountant, preference to be given to a Chartered Accountant”.
In consequence of such decision a letter was written on the 27th September, 1961, by the Secretary of the Authority to the Commission, conveying its effect and stating that as none of the existing staff possessed the necessary qualifications it was necessary to advertise the post. In a document, however, attached to the said letter and setting out the qualifications, duties and remuneration of the post in question the aforesaid decision of the Board of the Authority was not reproduced fully, and it was only stated therein that the person to be appointed should be either a Chartered or a Certified Accountant, no mention being made about preference to be given to a Chartered Accountant. A request was made, in the letter of the 27th September, 1961, that the Commission should “proceed with the filling of the vacancy as a matter of great urgency”.
The post of Internal Auditor was advertised by the Commission, in the official Gazette, on the 10th November, 1961, and the required academic qualifications were stated to be those of a Chartered Accountant or a Certified Accountant, without any mention being made about the preference for a Chartered Accountant.
Applicant applied and became one of the candidates for the post. On the 11th January, 1962, the Commission decided to call for interview three candidates, including the Applicant, and to request also the attendance at the interviews of the Chief Accountant of the Authority for the purpose of assisting the Commission at the interviews, fixed for the 23rd January, 1962.
On the 22nd January, 1962, the Board of the Authority met and discussed the fact that the request of the Commission for the Chief Accountant to attend had been made directly to him, and not through the Board of the Authority and after some discussion it was decided that the said Accountant should be allowed to attend; he was called in at the meeting of the Board and “briefed on the course to follow”.
On the 23rd January, 1962, after the interviews, it was decided by the Commission, by majority of 7 to 2 with 1 [*183] abstention, that Applicant should be appointed to the post of Internal Auditor and a letter was written to the Authority accordingly, on the 25th January, 1962, requesting also the preparation by the Authority of the usual offer of appointment; such offer was to be forwarded to the Commission for the purpose of implementing the appointment which had already been decided upon.
On the 25th January, 1962, the Accountant-General informed Applicant, who was his subordinate, that he had been selected for appointment to the said post and that arrangements had yeen made for him to hand over his old duties on the 14th February, 1962, so that he could assume his new duties on the 15th February, 1962.
On the 1st February, 1962, the Board of the Authority decided, by majority of 3 to 2, to inform the Commission-and this was done by letter of the 2nd February 1962-that it appeared that the decision of the Board to the effect that preference should be given to a Chartered Accountant had not been clearly conveyed to the Commission and that the Commission was requested not to proceed to fill the post of Internal Auditor unless a candidate possessing the qualification of Chartered Accountant was available; the Commission, therefore, was requested not to take action in relation to implementing the appointment of Applicant to such post.
The Commission considered this letter on the 5th February, 1962, and it decided, with two abstentions, “not to alter the appointment already made having in mind the scheme of service for this post”. This decision was conveyed to the Authority by letter dated the 6th February and it was added that if the Authority would not prepare the necessary offer of appointment by the 10th February, then the Commission would proceed to prepare such offer itself.
This letter was considered by the Board of the Authority on the 6th February, at an extraordinary meeting held by telephone, and it was decided, by majority of 3 to I with 2 abstentions, that “the office of Internal Auditor of the Authority be abolished and that the Public Service Commission be asked to make no arrangements for the filling of the said post”. This was conveyed to the Commission by letter dated the 7th February, 1962.
On the 12th February, 1962, Applicant addressed a letter [*184] to the Commission complaining that he had not received yet the offer of appointment. He received a reply dated the 20th February, 1962, in which the Commission informed him of the exact position as it had developed in the meantime.
The Commission did not proceed to implement the appointment of Applicant in view of the abolition of the post.
On the 10th September, 1964, while this Case was still pending the post of Internal Auditor, having been re-established by the Authority, was again advertised; this time the qualifications were such that, according to counsel for Applicant, Applicant would not be entitled to apply for appointment and he has in fact not applied. The said post had not yet been filled when this judgment was reserved.
The first question that has to be examined in determining this Case is the question of legitimate interest, both from the Point of view of its existence when the recourse was filed as well as from the point of view of its existence when the recourse is being determined.
The question of legitimate interest of a candidate who has applied for appointment to a vacant post, has been examined in the case of Papapetrou and The Republic (2 R.S.C.C. p. 61 at p. 64) as well as in the later case of Neophytou and The Republic (1964, C.L.R. p. 280).
Those were cases, however, in which there was being challenged the validity of the appointment of another, whereas in the present Case the Applicant is complaining against his own non-appointment, without anybody else having been appointed.
It has been submitted in this Case that Applicant cannot allege that any existing legitimate interest of his has been adversely and directly affected in the sense of Article 146(2), because the abolition of the post of Internal Auditor was not an administrative act directed at him, and, moreover, he had not an acquired right in the matter of his appointment, as such appointment had not been finally implemented by the Commission.
The Applicant complains that his appointment has been, in effect, frustrated through the abolition of the post of Internal Auditor.
There can he no doubt whatsoever that the abolition of [*185] the post of Internal Auditor was decided upon by the Board of the Authority in order to prevent the final implementation, by the Commission, of the appointment of Applicant to such post. The said post was abolished by way of an ultimate measure taken by the Authority in an effort to prevent Applicant, a person who was only a Certified Accountant, and not also a Chartered Accountant, from being appointed to such post. This measure was taken after the Board came to know that Applicant had been finally selected for appointment.
To all intents and purposes the Commission had completed the discharge of its relevant function under its competence under Article 125 and there was nothing further to be done by it under such competence in order to complete Applicant’s appointment. it must not be lost sight of in this respect, that the implementation of the said appointment had commenced and proceeded as far as informing Applicant of it, through his Head of Department, the Accountant-General, and the fixing of a date when he would hand over his old duties in order to assume his new duties.
Irrespective, therefore, of whether in other circumstances the abolition of a post in the establishment of the Authority or of any other independent body might not be taken as directed against anybody aspiring for appointment or promotion to such post, in the present Case it is abundantly clear that the abolition of the post of internal Auditor was purposely aimed at preventing Applicant from being appointed to a post for which he had been selected by the competent organ, the Commission, and, thus, it is an act which has adversely and directly affected, in the sense of Article 146(2), an existing legitimate interest of Applicant.
During argument reference was made to a decision of the French Council of State, in the case of Syndical national autonome du cadre de l’administration generale des colonies, on the 20th May, 1955 (Recueil des arrets du Conseil d’Etat, 1955, p. 273). In that case it was held that the cancellation of a competition for filling vacancies in the French overseas administration did not affect acquired rights of candidates in the competition. The difference with the present Case is that the present Applicant was not just a candidate in a corn-petition which was cancelled but he had been actually finally selected for appointment.
Likewise, the relevant legitimate interest of Applicant has [*186] been directly and adversely affected by the fact that the Commission did not, in the circumstances, proceed to the formalities necessary for the implementation of his appointment, as already decided upon by it.
The fact that since the filing of this recourse Applicant has ceased to be interested in appointment to the post in question does not deprive him of the right to have his recourse duly determined, because Applicant has already suffered the detriment involved in the frustration of his appointment. In this respect Applicant continued to have still a legitimate interest at the time when this recourse came up for hearing and, therefore, he is entitled to have this Case determined.
It is next convenient to examine whether the matters complained of are proper subjects of recourse under Article 146.
It has been submitted by counsel for the Authority at the hearing that the abolition of the office of Internal Auditor is an organic act of the Authority and not an exercise of administrative or executive authority in the sense of Article 146. It has been stressed by counsel that such abolition is a matter beyond the scope of Article 125, which lays down the competence of the Public Service Commission and, it should follow, that it is a matter in which a public officer can have no right of recourse.
It is not necessary in this Case to go into the whole question of whether or not abolition of a post in the establishment of an independent undertaking, such as the Electricity Authority, is an act or decision subject to the jurisdiction of this Court under Article 146.
In the present Case the Court is not, in reality, faced with a decision of the Board of the Authority to abolish a post in its establishment, which was taken in the interests of the efficiency of such establishment, as viewed apart from personalities involved (see Rossides and the Republic, 3 R.S.C.C. p. 95). Only in such a case could there have been a possibility of genuinely describing such decision as an organic one. In the present Case we are concerned with the abolition of a post for the purpose of preventing the appointment thereto, by the Commission, of a particular person. It was an ac made by the Authority, which had no competence to decide upon the selection of the person to occupy the post in question, in order to frustrate the outcome of the exercise [*187] of the competence of the body which was entrusted with such selection under Article 125, namely the Commission.
In other words what could have been an organic decision of the Authority has in effect been used as a means of frustrating an individual administrative act of the Commission.
The Court is of the opinion that whenever an act is done by an organ, other than the Commission, for the very purpose of frustrating the implementation of an individual administrative decision taken by the Commission in the exercise of its exclusive competence, that act is by its nature so closely inked with such competence and the individual administrative decision taken by the Commission under it, that it is itself subject to recourse under Article 146, in the same way as the relevant decision of the Commission would have been subject to such recourse.
The position, as above expounded, is not exactly the same but closely analogous to that which arose in the case of Stamatiou and The Electricity Authority of Cyprus (3 R.S.C.C. p. 44). There the subject-matter of the recourse was the suspension of an employee of the Authority, made by the Authority, and it was found to have been made unlawfully because it was a matter within the exclusive competence of the Public Service Commission under Article 125. At page 46 of the judgment the Court stated:-
“Inasmuch as employees of the Respondent, such as the Applicant, come within the competence and control of the Public Service Commission in respect of the several matters enumerated in paragraph 1 of Article 125 of the Constitution, as decided by this Court in Case 33/61”,-(Marcoullides and The Republic, 3 R.S.C.C. p.30)-“and as these matters relating to the employees of the Respondent have been brought within the realm of public law, it follows that any function by the Respondent relating to its employees and which comes within the ambit of paragraph I of Article 125. amounts to ‘exercising any executive or administrative authority’ in the sense of paragraph 1 of Article 146 and in this respect the Respondent is acting as an ‘authority’ in the sense of the said Article”.
The Court is of the opinion that the principle contained in the above passage should apply equally well to a case, such [*188] as the present one, where the act done by an independent undertaking, though not a function coming within the ambit of paragraph I of Article 125, nevertheless is an act designed to frustrate a decision within the exclusive competence of the Commission, taken under Article 125(1), in relation to a post of such independent undertaking.
In this Case, therefore, the abolition of the post of Internal Auditor, as made, constitutes an act or decision subject to the competence of this Court under Article 146.
Further, the non-implementation of the decision of the Commission, to appoint Applicant is clearly a matter subject to the aforesaid competence. It need hardly be pointed out that Applicant is not challenging a decision of the Commission concerning selection of a candidate for appointment-in which case, before its communication, such decision might have constituted an internum of the Commission and not been subject to a recourse-but he is complaining against the failure to proceed to implement a decision concerning his own appointment, in view of the abolition of the post in question; and, in any case, both the decision to appoint him and the non-implementation of his appointment were communicated to Applicant, the former through his Head of Department, the latter by letter of the Commission dated the 20th February, 1962.
Coming now to the merits of the. decision of the Authority to abolish the post of Internal Auditor the’ Court is satisfied, in the light of all relevant circumstances, that such abolition constitutes an abuse of the relevant powers vested in the Authority in relation to its establishment. It cannot be reasonably disputed that it was a post which was essential for I he proper functioning of the Authority. Its filling had been requested as a matter of great urgency by the Authority itself (in its letter of the 27th September, 1961, and earlier by a letter of the 16th December, 1960), such post has now been again re-established, after the appointment of Applicant thereto had been averted.
The relevant powers of the Authority to determine its own establishment have to be exercised with a view to the needs of the Authority regarding the number, nature of posts and schemes of service for such post, as such, and not with a view to determining who shall be the individual persons to be appointed to such posts. The use of such powers to frustrate [*189] the appointment of the particular individual constitutes clearly an abuse of powers, whether one examines it from the subjective point of view of the motive behind it or from the objective point of view of its results.
One might ask what could the Board of the Authority have done if, in the light of the best interests of its service, it felt that the person to be selected ought to be a person who possessed the qualification of Chartered Accountant, whilst Applicant was only a Certified Accountant. There is no doubt that the preference of the Board for a Chartered Accountant was not given due effect in the scheme of service as published when the post was advertised-and also that this has happened through the fault of the Authority itself. Such preference, however, was duly brought from the, beginning, to the notice of the Commission and, also, the Commission had this preference before it when on the 5th February, 1962 it decided to adhere to the decision, already taken, for the appointment of Applicant; and there is nothing to show that the Commission has not paid due regard to it. That was all that could be expected of the Commission even if such preference had been published as part of the scheme of service, when the post was advertised. The Commission was not bound by such preference except to the extent of paying due regard to it. if the Board felt that only a Chartered Accountant was suitable for its purposes there was no need to mention the alternative qualification of a Certified Accountant in the scheme of service.
Moreover, the Authority must be presumed to have had notice of the advertisement as made in respect of such post on the 10th November, 1961. It had, therefore, sufficient time, up to the 23rd January, 1962, to request the Commission not to proceed with the selection of the person to be appointed because the scheme of service, as advertised, needed to be amended. Yet no step was taken in that respect until after Applicant had been selected for appointment. By then it was too late for the Authority to do anything in the matter and its only remedy would lie, if the Authority felt that the Commission has exercised its discretion improperly, through a recourse under Article 146, as such Article has been interpreted in Ozturk and The Republic (2 R.S.C.C. p. 35) (applying also for a provisional order of the Court preventing the implementation of the appointment of Applicant pending the decision of the Court). Under no circumstances was the [*190] Authority entitled to take the law in its own hands in the manner in which it has done.
For these reasons the Court has no difficulty in declaring that the decision to abolish the post of Internal Auditor has to be annulled.
Regarding the non-implementation of the appointment of Applicant, the Court is of the opinion that there was no other course open to the Commission at the time. The post having been abolished the Commission could not appoint Applicant to a non-existing post. The Commission can appoint somebody only to a vacant post, which, of course, has also to be an existing post. Applicant can, therefore, not claim that the Commission ought to have acted beyond its powers in implementing his appointment.
Therefore, this recourse fails in so far as it concerns the Commission.
The Court in deciding this Case is not really concerned with the subsequent re-creation by the Authority of the post of Internal Auditor, with a different scheme of service. The appropriate authorities have to act now in the light of this Judgment and to take all steps necessary to regularize the position.
Regarding costs this Court is of the opinion that Applicant is entitled to his costs against Respondent 1, the Authority, which are assessed at £80.
Recourse fails in so far as it
concerns the Commission: order
for costs as aforesaid.
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