Cylaw

IORDANOUS ν. P.S.C. (1985) 3 CLR 2502 THE CYPRUS LAW REPORTS

(1985) 3 CLR 2502

[*2502] 1985 November 20

[SAVVIDES J.]

IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION

IORDANIS G. IORDANOUS,

Applicant,

THE PUBLIC SERVICE COMMISSION

Respondent.

(Case No. 323/82).

Public Officers-Promotions-Promotion post-The Public Service Law 33/67, s. 30(1) (c)-Eligible for promotion to such a post are those serving on the immediately lower post of the particular section or department-A claim by an Officer for elevation by two grades is contrary to the provisions of said section-Therefore, the applicant in this case who holds the post of Agriculture Officer, 1st Grade and not the post of Senior Agricultural Officer which is the post immediately lower to the post of Head of Agriculture does not possess a legitimate interest to challenge the sub judice promotion to the post of Head of Agriculture-S. 44(1) of Law 33/67-The process of filling of a post by promotion (other than a promotion in a combined establishment from the immediately lower post) presupposes the existence of a vacancy in such post-In the present case there was a request for filling of one vacant post of Senior Agricultural Officer and one post of Senior Agricultural Officer which might become vacant, due to the requested future promotion to the post of Head of Agriculture-Second post became vacant when the promotion to the latter post took effect (1.5.85)-As on that day applicant satisfied the requirements of the scheme of service he was eligible for promotion-Notwith-[*2503]standing that he was not so eligible at the time when the request for the filling of the posts was made (27.1.82)-In the circumstances both promotions to the two posts of Senior Agricultural Officer have to be annulled.

Legitimate interest-See Public Officers above.

Scheme of Service-Public Officers-Promotions-Material date when a candidate for promotion should satisfy the requirements of the relevant scheme of service.

The Public Service Law 33/67-Sections 30(1)(c) and 44(1).

By letter dated 27.1.82 the Director-General of the Ministry of Agriculture and Natural Resources informed the respondent Commission that the approval of the Minister of Finance had been obtained for the filling in the Department of Agriculture of the vacant post of the Head of Agriculture, one vacant post of Senior Agricultural Officer and one post of Senior Agricultural Officer which might become vacant as a result of the filling of the post of Head of Agriculture. All the said posts were promotion posts.

The scheme of service for the post of Head of Agriculture provides inter alia as a qualification for promotion at least ten years’ service in the various sections of Agriculture at least three of which at the post of Senior Agricultural Officers, Agricultural Officer 1st Grade and Agricultural Officer A”.

The Scheme of Service for the post of Senior Agricultural Officer provides inter alia as a qualification for promotion at least three years’ service in the, posts of Agricultural Officer A”, Agricultural Officer 1st Grade, Soil Conservation Engineer, 1st Grade”.

The applicant, who at the time held the post of Agricultural Officer 1st Grade, was, not, included in the list of those eligible for promotion to the post of Head of Agriculture, because he was not holding the immediately lower post, i.e. that of Senior Agricultural Officer.

Though the applicant was originally included in the list of those eligible for promotion to the post of Senior[*2504]Agricultural Officer, the respondent Commission at its meeting of 7.4.82 decided to exclude him from the list because “at the material time of the expiration of 15 days from the date of the proposal of the appropriate authority was made (27.1.82)” the applicant, did not possess the necessary qualifications under the scheme of service.

On the 13.4.82 the Commission promoted I. Parissinos to the post of Head of Agriculture and on 26.4.82 I. Zyngas and P. Michaelides to the post of Senior Agricultural Officer.

Hence the present recourse by the applicant. Prayer A of the recourse is directed against the promotion of interested party Parissinos to the post of Head of Agriculture. Prayer B of the recourse is directed against the promotion of interested parties Zyngas and Michaelides, of the post of Senior Agricultural Officer and Prayer C is directed against the omission and/or refusal of the respondent Commission to examine applicants claim for elevation in the service in accordance with a previous decision of the Court.

The question of applicant’s elevation had been raised by him on a number of occasions in the past and replies were given to him which the applicant failed to challenge in time. Finally upon a request for re-examinationthe matter was re-examined and a negative reply was given to the applicant, as a result of which the applicant filed recourse 163/83.

Held, (A) As regards Prayer A of the recourse: The post of Head of Agriculture was a promotion post (and not a first entry and promotion post) and, therefore, the provisions of s. 30(1) (c) of the Public Service Law 33/67 are applicable. In accordance with such provisions the persons who are eligible for promotion are those who are serving in the immediately lower post of the particular section or department. As at the material time the applicant was not holding the immediately lower post of Senior Agricultural Officer his claim for elevation by two grades is unfounded and contrary to the provisions of the Law. Therefore, he has no legitimate interest to challenge the sub judice promotion to the post of Head of Agriculture.[*2505]

The provisions of the scheme of service are not in any way contradictory to the provisions of s. 30(1) (c) of the Law. The correct interpretation is that if any candidate now ho1ding the post of Senior Agricultural Officer has previously three years service in the three posts mentioned in the scheme is eligible for promotion. In the light of the above Prayer A has to be dismissed.

(B) As regards Prayer B: (a) The material date for possessing the qualifications required by the scheme of service is the day when a request for the filling of a vacancy under s. 17 of Law 33/67 is received by the Commission. Such request was made in the present case on 27.1.82. By such date the applicant did not satisfy the requirements of the scheme of service. (b) However, this case is complicated by the fact that the request was for the filling of one vacant post which might become vacant due to the requested promotion to the post of Head of Agriculture. In accordance with s.44(1) of Law 33/67 the process of filling of a post by promotion other than a promotion from a lower to a higher post of a combined establishment presupposes the existence of a vacancy in such a post. (c) At the time when the request for the filling of the post, of Senior Agricultural Officer was made (27.1.82) there was only one vacant post of Senior Agricultural Officer. The second vacancy came into existence on 1.5.82, i.e. on the day as from when the promotion of interested party. Parissinos to the post of Head of Agriculture was to take effect. (d) By such a date (1.5.82) the applicant satisfied all the requirements of the scheme of service. The applicant was, therefore, entitled to be considered for promotion. (e) As both posts were filled at the same time by the promotion of interested parties Zyngas and Michaelides and as it is not mentioned that one of them was promoted to the vacant as on 27.1.82 post and the other to the other post, both sub judice promotions should be annulled.

(C) As regards Prayer C: Once the applicant’s elevation is the subject-matter of a fresh recourse (163/83) it is not fair to decide whether his complaint contained in a previous request to the respondent and to which the[*2506]applicant received a reply which he failed to challenge in time by a recourse has deprived him of a legitimate interest or not.

Recourse succeeds to the above

extent. No order as to costs.

Cases referred to:

Arkatitis and Others (No. 2) v. The Republic (1967) 3 C.L.R. 429;

Tryfon v. The Republic (1968) 3 C.L.R. 28;

Geodelekian v. The Republic (1970) 3 C.L.R. 64;

Aristotelous and Others v. The Republic (1982) 3 C.L.R. 497;

Neophytou v. The Republic, 1964 C.L.R. 280;

Republic v. Pericleous (1984) 3 C.L.R. 577.

Recourse.

Recourse against the decision of the respondent to promote interested party I. Parissinos to the post of Head of Agricultural Department and interested parties I. Zyngas and P. Michaelides to the post of Senior Agricultural Officer in preference and instead of the applicant, and also against the respondent’s refusal or omission to examine applicant’s claim for elevation in the service in accordance with a previous decision of the Court.

A. S. Angelides, for the applicant.

E. Papadopoulou (Mrs.), for the respondent.

P. Petrakis, for interested party P. Michaelides.

P. Papageorghiou, for interested party I. Zyngas.

Cur. adv. vult.

SAVVIDES J. read the following judgment Applicant by this recourse challenges

(a) the promotion to the post of Head of Agriculture in[*2507] the Department of Agriculture, of interested party I. Parissinou, and

(b) the promotion of interested parties I. Zyngas and P. Michaelides to the post of Senior Agricultural Officer in the Department of Agriculture, instead of the applicant, which promotions were published in the official Gazette of the Republic of 4.6.1982.

Also, under paragraph (c) of his prayer for relief applicant prays for a declaration of the Court that the omission and/or refusal of the respondent to examine his claim for elevation in the service in accordance with a previous decision of the Court is illegal and that such illegality is a ground for the annulment of the promotions of the interested parties.

The facts of the case are briefly as follows:

The Director-General of the Ministry of Agriculture and Natural Resources,by his letter dated the 27th January, 1982, informed the respondent Commission that the approval of the Minister of Finances had been obtained for the filling in the Department of. Agriculture of the vacant post of the Head of Agriculture, one vacant post of Senior Agricultural Officer and, one post of Senior Agricultural Officer which might become vacant as a result of the filling of the post of the Head of Agriculture. In view of the fact that all such posts were promotion posts, the respondent Commission at its meeting of 1.2.1982 decided that a list of the officers eligible for promotion be prepared by its secretary and forwarded with their personal files and confidential, reports as well as the schemes of service, to the Chairman of the Departmental Committee which was set up under the provisions of section 36 of the Public Service Law, 1967 (Law 33/67). On them same day the secretary of the respondent Commission implemented the said decision. Applicant was not included in the list of eligible candidates for the, post of the Head of Agriculture on the ground that he was not holding the immediately lower post, that of Senior Agricultural Officer, but the post of Agricultural Officer 1st Grade. He was, however, included in the list of candidates for promotion to the post of Senior[*2508]Agricultural Officer, as one of the eight candidates recommended by the Departmental Committee as the most suitable candidates.

The respondent Commission met on the 7th April, 1982 and considered the report of the Departmental Committee and decided to postpone the examination’ of the promotion to the post of Senior Agricultural Officer to a future meeting at which the Director of the Department of Agriculture be invited to attend. The respondent further found that the inclusion of the applicant in the list of recommended candidates was wrong as he did not satisfy the requirements of the scheme of service. The minutes, of the respondent Commission in this respect, read as follows:

“The Commission observed that Mr. IordanisIordanous one of the recommended candidates, did not possess the necessary qualifications under the scheme of service at the material time of the expiration of the period of 15 days from the date that the proposal of the appropriate authority (27.1.82) was made and the list of candidates was, sent by the Secretary of the Public Service Commission to the Departmental Committee (20.2.82) and decided that in the light of the opinion of the Deputy Attorney-General: No 34(c/61/4) dated 27th November, 1980, such officer cannot be a candidate for the filling of two posts of Senior Agricultural Officer”.

On the 13th April, 1982, the respondent Commission met to consider the filling of the vacant posts and decided to appoint interested party I. Parissinos to the post of the Head of Agriculture in the Agricultural Department. On 26.4.1982 it met again and after interviewing the four prevailing candidates, found as most suitable at its meeting of 13.4.1982, decided to appoint interested parties I. Zyngas and P. Michaelides to the post of the Senior Agricultural Officer with effect as from 1.5.1982. in view of its previous decision of the 7th April, 1982 the respondent Commission at its meetings of the 13th April, 1982 and 26th April, 1982 in effecting the promotions did, hot include applicant in the list of candidates eligible for promotion. As a result, applicant filed the present recourse.[*2509]

In support of his prayer for relief counsel for applicant advanced the following grounds of law, contending that the sub judice decision:

(a) Is legally unfounded because it was not taken in accordance with the principle that the best candidate should be selected.

(b) It was taken without due inquiry and/or the exclusion of the applicant was illegal.

(d) It was taken in abuse and/or in excess of power.

(e) It was intended to serve extraneous objects and violates vested rights of the applicant.

(f) There is misconception of fact and law.

(g) The matters which the applicant placed before the respondent Commission in connection with previous successful recourses to the Supreme Court and his claim for his elevation in the service were ignored.

(h) It violates the principles of equal treatment and the rules of natural justice.

(i) It IS not duly reasoned.

The application was opposed both by counsel for respondent and also by counsel for interested parties Zyngas and Michaelides. By his opposition counsel for respondent raised a preliminary objection that the applicant has no legitimate interest to pursue this recourse and that what he is challenging is not an administrative act or omission within Article 146 of the Constitution. Further and in the alter native, that the recourse was prematurely filed. Finally, it is contended that the sub judice decision is lawful and correct and it was taken in accordance with the law and the proper exercise of the powers under the law, after the respondent took into consideration all facts and material circumstances of the case.

After the filing of the written address of counsel for respondent and when the case came up for directions[*2510]before the Court, counsel for respondent stated that in view of her written address in the case and the matters raised therein and the fact that such matters might prejudicially affect the position of the interested parties, it would be more just for counsel for the interested parties if they wished to oppose the application and file a written address on their own, to do so.

As in this recourse there are three different acts and/or decision which are being challenged, I find it preferable to deal with each prayer separately and I shall come first to the payer of the applicant whichis directed against the promotion of I. Parissinos to the post of Head of Agriculture in the Agricultural Department.

Counsel for applicant contended in this respect that the decision not to consider the applicant as and of the candidates eligible for promotion to such post, is wrong and was taken in violation of the scheme of service which provides that a candidate is eligible, for promotion to the post of Head of Agriculture, if he satisfies the qualifications set out therein, one of which was at least 10 years service in the various sections of Agriculture at least three of which at the post of Senior Agricultural Officer, Agricultural Officer 1st Grade and Agricultural Officer A.”

Counsel contended that the applicant possessed all the necessary qualifications under the, scheme of service for promotion to the post and, therefore, his exclusion was arbitrary and contrary to law and, in particular sections 44(1) and 28 of the Public Service Law 33/67. The post of Head of Agriculture is a post in respect of which eligible candidates could be Senior Agricultural Officers or Agricultural Officers 1st Grade, or Agricultural Officers A, provided they had three years continuous service in any one of such posts. He expounded on the principles governing composite administrative acts and contended that any irregularity in the process of promotion renders the final act null and void. In the present case, he submitted, the exclusion of the applicant from consideration as a candidate eligible for promotion to the post of Head of Agriculture being wrong, it renders the final decision wrong[*2511]Counsel for respondent on the other hand, contended that the applicant had no legitimate interest to challenge the said promotion under Article 146.2 of the Constitution, as he is not amongst the persons in the hierarchical ladder who were entitled to be promoted to such post. Under section 30(1) (c) of Law 33/67, persons entitled to be promoted to a higher post, must hold the immediately lower post in the hierarchical ladder of the service. The applicant in the present case was not holding such post, which was the post of Senior Agricultural Officer, and in consequence he could not have a lawful claim to be promoted to the post of Head of Agriculture as his promotion to such post would have amounted to elevation in a post higher by two grades at the same time. The reason, counsel submitted, that in the scheme of service a provision was made that candidates should have at least three years service in the post of Senior Agricultural Officer or Agricultural Officer 1st Grade or Agricultural Officer A, was because, due to the reorgansation of the service, the post of Senior Agricultural Officer was created on 15.12.1981 and in consequence being a new post, the service of the eligible candidates in an immediately lower post could be considered as satisfying the requirement under the scheme. The scheme of service cannot be interpreted contrary to the provisions of the law that a candidate cannot be elevated by two grades at the same time.

Section 30(1) of the Public Service Law, 1967 (Law 33/67) to which reference has been made by counsel, provides as follows:

“30. -(1) For the purposes of appointment or promotion, posts shall be divided into the following categories:

(a) ……………………………………………………………….

(b) ……………………………………………………………….

(c) Promotion posts which shall be filled by the promotion of officers serving in the immediately lower grade or post of the particular section or sub-section of the public service, as the case may be.”

The post of Head of Agriculture in respect of which the[*2512]vacancy existed, was not a first entry and promotion post for which the provisions of paragraph (b) apply, but it was a promotion post in respect of which the provisions of paragraph (c) of sub-section (1) of section 30 are applicable. It is clearly stated in section 30(1) (c) that for the filling of a higher post the persons who are eligible for promotion are those who are serving in the immediately lower post of the particular section or department.

The question of the possibility of promotion to a post by two grades higher came under consideration before this Court in the case of Arkatitis and others (No. 2) v. The Republic (1967) 3 C.L.R. p. 429 in which it was held, at p. 435, that-

“Thus, the consideration of the interested party as a candidatefor promotion to a. post two grades above his own was clearly not possible as being contrary to law; and a fortiori, his eventual promotion to such a post was contrary to law, too; and such a course constituted, also, an excess and abuse of powers of the respondent Commission.”

The above dictum was followed in Andreas Tryfon v. The Republic of Cyprus through the Public Service Commission (1968) 3 C.L.R. 28 in which, Triantafyllides J. (as he then was) had this, to say at page 42:

“Another reason for which the sub judice decision of the Commission has to be annulled, in any case, is that, contrary to the relevant Administrative Law principle governing promotions, and in the absence of express legislative provision authorizing such a course (see Arkatitis (No. 2) and The Republic (1967) 3 C.L.R. 429) the Commission promoted the interested party two grades at a time”.

The decisions in both Arkatitis and Tryfon cases were taken prior to the enactment of the Public Service Law. After the enactment of the Public Service Law, No. 33/67, the, Full Bench treated such principle as embodied in section 30(1) (c) of Law 33/67 and in the case of Vahak Geodelekian v. The Republic (1970) 3 C.L.R. 64, held at pp. 68, 69, that-[*2513]

“…. we take the view, which is shared by learned counsel for both the appellant and for the respondent that such schemes do not render eligible for direct promotion to the promotion post of Collector of Customs and Excise (or to the equivalent promotion post of Inspector in the same Department) persons not serving in the immediately lower grade of Assistant Collector, of Customs and Excise, but serving in the still lower grade of Customs and Excise Officer, 1st Grade Indeed, if the schemes had that effect, they would contravene section 30(1) (c) of the Public Service Law, 1967 (Law 33/67). …………………………………

It follows that the interested parties were not eligible for promotion to the post of Collector or to the post of Inspector.”

The matter was further considered in the recent case of Aristotelous and others v. The Republic (1982) 3 C.L.R. 497, where the Full Bench had the opportunity of considering the matter in the light of the previous decisions of the Supreme Court and held, at page 507 that:

“A distinction is drawn by the law between a first entry and promotion post on the one hand, and a promotion post on the other. The need for advertisement in the first case signifies the difference between the two. A first entry and promotion post is open to everyone who has the qualifications envisaged in the relevant scheme of service, whereas the filling of a promotion post is limited to those in the service holding a post immediately below that to be filled.”

The Court in Aristotelous case went further and drew the distinction between “promotion post” and a “first entry and promotion post.” Dealing with this subject, we read the following in the judgment at page 507:

“A promotion by more grades than one at any one time is permissible when the vacancy to be filled is a first entry and promotion office. The public service is a most important factor for the efficient functioning of the State. The interests of the citizens in a modern State, whose activities are expanding, are best served[*2514]by qualified, experienced and efficient civil servants. The object of our law is to attract candidates from outside the service and at the same time give the opportunity for promotion to suitable persons already in the service. The existence of the institution of promotion posts, restricted to members of the service, safeguards adequately the interests of those in, the service. On the other hand there are posts entailing duties that require in the public interest opening up the ranks of the service to attract the best possible from a wider Section of the public. It seems that the Public Service Commission has, for the past 12 years, rightly interpreted the law acting on advice from the learned Attorney-General.”

Useful reference in this respect may also be made to the Conclusions from the Case Law of the Greek Council of State (1929-1959) p. 346, and also Kyriacopoulos on Greek Administrative Law, 4th Edition, Vol. 3, page 315. In the case of Costas Neophytou v. The Republic, 1964 C.L.R. 280 at p. 293, this Court in dealing with the question as to whether a person has a legitimate interest to challenge, the promotion of another when he himself was not eligible to be included in the list of candidates for promotion, had this to say:

“That a person is entitled to challenge the promotion of another, if he himself was entitled to be considered for promotion, is, well settled in Cyprus. (vide Uludag and The Republic, 3 R.S.C.C. p. 13.3 and Philippou and The. Republic, 4 R.S.C.C. p. 139 at pp. 140-141). In my opinion the converse is also true viz that if he is not entitled to be considered for promotion, then he would not be entitled, to challenge, the promotion to the post in, question of another. It cannot be held that a. person, who is not, entitled, to be ‘promoted’, not being qualified under the scheme of service, has a legitimate interest himself in the outcome of the; administrative action concerning the promotion in question. Had his promotion been made without his being qualified, such promotion would have been illegal, (vide Papapetrou and The Republic, 2 R.S.C.C. p. 61). Therefore he could not have a[*2515]legitimate interest to be promoted through a contravention of the, law applicable to the matter. His said interest would: not be legitimate.”

Moreover, the schemeof service for the post of Head of Agriculture merely says that it is a promotion post and does not specify that promotions to such post may be made from persons holding one of the three posts mentioned, as counsel for applicant suggested. It merely provides, under the heading of required qualifications, that the persons eligible for promotion must have “at least three years Service in the post of Senior Agricultural Officer or Agricultural Officer 1st Grade and/or Agricultural Officer ‘A’. This, in my view, is not in any way contradictory to the provisions of section 30(1) (c) of Law 33/67. So, the correct interpretation is that if any candidate now holding the post of Senior Agricultural Officer has previously a three years’ service in the said three posts, is eligible for promotion to the post of Head of Agriculture.

In the present case bearing in mind the fact that the applicant was not holding the immediately lower post of Senior Agricultural Officer his claim for elevation by two grades is unfounded and contrary to the provisions of the Law. Therefore, he has no legitimate interest to challenge the promotion of interested party Parissinos to the post of Head of Agriculture and his prayer in this respect fails and has to be dismissed.

I come next to deal with the second prayer whereby the promotion of I. Zyngas and P. Michaelides to the post of Senior Agricultural Officer, is challenged.

Counsel for applicant contended in this respect that the decision of the respondent of the 7th April, 1982, to exclude him from the eligible candidates on the ground that he did not possess the necessary qualifications under the scheme of service and, in particular, that he had not completed three years service in the post of Agricultural Officer 1st Grade, which was a prerequisite under the scheme of service for promotion to the post of Senior Agricultural Officer, and the subsequently completed act of promoting the interested parties to such post instead of him, was wrong. Counsel contended that the material time to be[*2516]taken into consideration was the 7th of April, 1982, when the decision was taken and submitted that, by such date the applicant had the necessary period of service in his present post which was required under the scheme of service.

Counsel for respondent by her written address admitted that the procedure for the filling of the post started and was continued ina wrong way and she explained her stand in this respect a follows:

The procedure for the filling of the posts of Head of Agriculture and Senior Agricultural Officers was initiated by letter of the appropriate authority dated the 27th January, 1982, whereby inter alia, the filling of one vacant post of Senior Agricultural Officer and one which was likely to become vacant after the promotion to the post of Head of Agriculture, was requested. The preparation of the list was made at a time when in fact one vacant post of Senior Agricultural Officer was in existence and it was prepared in respect of two posts, the one which was vacant at the time and the one which was likely to become vacant. If the second post was filled aftersuchpost became vacant with the promotion of its holder to the post of Head of Agriculture, that is, the 1st May, 1982, there would have been no legal bar to the, applicant being considered as an eligible candidate as by such date the requirement of three years service in the previous post would have, been satisfied. Under the provisions of the law the existence of a vacancy is a prerequisite for a promotion to take place and at the material time when the machinery for the filling of the post was put in motion the second post was not vacant. Subject to the above contention, counsel for respondent submitted that if the Court found that the procedure was not wrong, the applicant had no legitimate interest as at the material time of the filling of the post he did not have the prerequisite service, in his present post making him an eligible candidate.

Counsel for interested parties by, their written, address objected to the admission of counsel for the, respondent that the procedure was wrong and submitted that as this matter was not one of the legal grounds on which the recourse was based and was not advanced by counsel for[*2517]applicant, counsel for respondent was excluded from raising such point. In their submission, the procedure followed for the filling of such vacancies was lawful and proper and there is no prohibition under the law for the commencement, continuation or completion of the procedure for filling consequential vacancies as long as the promotion does not take effect prior to the creation and existence of a consequential vacancy. In consequence, counsel suggested, at the time when the machinery for the filling of the post was put into motion the applicant did not possess the necessary qualifications required under the scheme of service and, therefore, he had no legitimate interest to pursue this recourse against the interested parties.

The scheme of service for the post of Senior Agricultural Officer after setting out the duties and responsibilities of the post, defines the necessary qualifications which include, inter alia, “at least three years service in the post of Agricultural Officer A, Agricultural Officer 1st Grade, Soil Conservation Engineer, 1st Grade”.

The question as to the material date which will have to be considered. concerning the possession of the necessary qualifications for the post, has been considered and finally settled by the Full Bench in the case of the Republic of Cyprus v. Katerina Pericleous (1984) 3 C.L.R. 577. In the, unanimous judgment of the Court delivered by Mr. Justice A. Loizou, the following was said at page 586:

“…… the first material date at which a candidate must possess the required qualifications in the case of a First Entry and First Entry and Promotion Post, is the last date, of the period prescribed in the advertisement for the vacancy by which applications have to be submitted and in respect of promotion Posts only where no applications are made, inevitably it is the date on which the request for the filling of a vacancy under section 17 of the Law is received by the Commission. These dates are the dates on which in sub stance the administrative process for appointments and promotions by the Commission is set in motion. They are as such impersonal in character and unrelated to the expeditious or delayed action of the appropriate[*2518]administrative organ concerned with such appointments and promotions and which are fundamental safeguards for good and proper administration. Needless to say that the candidates must continue to possess the required qualifications also on the day the decision to appoint or promote him is made.”

In the light of the above decision the material date in the case of promotions is the date on which the request for the filling of a vacancy under section 17 of the law is received by the Commission. Such request, in the present case was made on the 27th January, 1982. It is common ground that by such date the applicant did not satisfy the requirement of the scheme of service of three years service in his present post. If the procedure was for the filling of one vacant post of Senior Agricultural Officer, there would have been no problem, as the applicant would have no legitimate interest to challenge the filling of such post.

In the present case, however, what has complicated the matter is that the request was for the filling of one vacant post which existed, but alongside with it, the filling of an additional post which might become vacant due to the promotion to the post of Head of Agriculture, a vacancy which would in fact exist if an officer holding the rank of Senior Agricultural Officer was to be promoted to such post and after the material date when such promotion would take effect.

The following provisions appear in section 44(1) of the Public Service Law of 1967 (Law 33/67):

44-(1) Ουδείς δημόσιος υπάλληλος προάγεται εις άλλην θέσιν, εκτός εάν -

(α) υπάρχη κενή τοιαύτη θέσις:

Νοείται ότι εις την περίπτωσιν συνδεδυασμένων θέσεων, δυνατόν να γίνη προαγωγή από της κατωτέρας εις την άνωτέραν θέσιν ή τάξιν της τοιαύτης θέσεως ανεξαρτήτως του έάν υπάρχη ή μή κενή θεσίς είς την ανωτέραν θέσιν ή τάξιν και συμφώνως προς γενικός οδηγίας δοθείσας επί τούτω υπό του Υπουργικού Συμβουλίου

[*2519]

(β) κατέχη τα προσόντα τα οποία προβλέπονται εις το σχέδιον υπηρεσίας διά την τοιαύτην θέσιν"

(γ) εις τας τελευταίας δύο ετησίας εμπιστευτικάς εκθέσεις περί αυτού δεν ανεφέρθη ώς ακατάλληλος διά προαγωγήν

(δ) δεν ετιμωρήθη διαρκούσης της προηγουμένης διετίας διά πειθαρχικόν αδίκημα σοβαρός φύσεως».

The English translation of which reads as follows:

(“No public officer will be promoted to another post unless -

(a) a vacancy exists in such post.

Provided that in the case of combined establishment posts a promotion from the lower to the higher post or grade of such, post may be made irrespective of whether there exists a vacancy in the higher post or grade or not, and in accordance with any general directions given in this respect by the Council of Ministers.

(b) he possesses the qualifications which are provided in the schemes of service for that post.

(d) he has not been punished during the preceding two years for any disciplinary offence of a serious nature).”

It is clear from the above provision that for a promotion to a post other than a promotion from a lower to a higher post of a combined establishment, the process for the filling of a post presupposes the existence of a vacancy in such post.

It is an undisputed fact in the present case that only one vacant post was in existence at the material time when the machinery for the filling of same was put in motion. No other vacant post did exist but only a probability that a vacancy might have been created by the promotion of a[*2520]holder of the post of Senior Agricultural Officer to a higher post.

The officer who was holding the post of Senior Agricultural Officer was promoted to a higher post as from the 1st May, 1982. Therefore, the vacancy in the post which he was holding came into existence on the 1st May, 1982, and not earlier. The applicant by such date satisfied the prerequisite under the scheme of service of three years service in his post and, therefore, he was entitled to be considered as an eligible candidate for promotion. The failure of the respondent to consider him as such, renders, the whole process for the filling of the, two posts wrong as both posts were filled at the same time and there is no mention that one of the candidates was promoted to the vacant post which already existed and the second candidate was promoted to the post which might become vacant. The promotion of both candidates should be annulled on this ground.

I come now to the last prayer of the applicant concerning the claim for his elevation. The question of his elevation was a matter which had been raised by him on a number of occasions in the past and replies were given to him which had not been challenged in time. There was a request on his part for a re-examination of the matter and from what appears from the material before me, the matter was re-examine and as a result of a negative reply, given to him he filed Recourse No. 163/83 against the refusal of the respondent contained in a letter sent to him on the 5th February for his retrospective elevation. Once the question of his elevation is the subject matter of a fresh recourse I. do not consider it just and fair to decide whether his complaint tamed in his previous request to the respondent to which a reply had already been given and against which he did not file a recourse in time has deprived him of a legitimate interest or not.

In the result, the recourse succeeds to the extent mentioned above. The prayers under paras. 1 and 3 are dismissed, and the prayer under para. 2 is granted. As a result, the promotion of interested parties I. Zyngas and P. Mi-[*2521]chaelides to the post of Senior Agricultural Officer in the Department of Agriculture which was published in the official Gazette of the Republic on 4.6.1982 is hereby annulled.

In the circumstances of the case and bearing in mind that this recourse succeeds only in part, I make no order for costs.

Recourse succeeds in part with

no order as to costs.

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