(1986) 3 CLR 1481
[*1481] 1986 September 20
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION
EVGENIOS CHARALAMBOUS AND OTHERS.
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1. THE MINISTER OF AGRICULTURE AND NATURAL RESOURCES,
2. THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No. 428/85).
Legitimate interest—Constitution, Article 146.2—Public Service —Appointments—Withdrawal by the appropriate Authority of relevant proposal for the filling of the post—Whether and in what circumstances such withdrawal affects the legitimate interest of the applicant.
The applicants were among the candidates for appointment to the post of Technician, 2nd Grade in the Water Development Department. The relevant advertisement of the vacancies in question was published on 14.5.82. The appropriate Authority, that is respondent 1 withdrew by letter dated 18.12.84 his proposal for the filling of the vacancies in question and consequently respondents 2 decided that they could not proceed further with the procedure for the filling of the said posts. As a result the applicants filed the present recourse challenging both the said withdrawal and the omission of respondents 2 to proceed with the filling of the posts.
Held, dismissing the recourse: (1) An act or decision of the appropriate Authority to withdraw a proposal to fill a vacancy in the Public Service does not affect the legitimate interest of a candidate, unless the procedure of [*1482] selection has gone so far—and possibly for other reasons that do not arise in the present case—that such withdrawal can be safely considered to have been intended to prevent such candidate's appointment.
(2) As in the present case there cannot be ascribed to the appropriate Authority the intention to frustrate the appointment of anyone of the candidates and as there had been no selection whatsoever out of the numerous candidates, the applicant has no existing legitimate interest.
Recourse dismissed.
No order as to costs.
Cases referred to:
Matsoukariv.The Republic, (1986) 3 C.L.R. 1469;
Contopoullosv.The Republic, 1964 C.L.R. 347;
TatianosGeorghiouv. Electricity Authority of Cyprus (1965) 3 C.L.R. 177;
Zachariadesv.The Republic, (1984) 3 C.L.R. 1193.
Recourse.
Recourse against the decision of the respondents not to proceed with the filling of the vacant posts of Technician 2nd Grade in the Water Development Department.
C. Loizou, for the applicants.
M. Tsiappa (Mrs.), for the respondents.
Cur.adv. vult.
A. LOIZOU J. read the following judgment. The applicants by their present recourse claim a declaration of the Court that the decision and/or omission of the respondents not to proceed with the filling of the vacant posts of Technicians, 2nd Grade in the Water Development Department which were advertised in the Official Gazette of the Republic, dated 14th May, 1982, and for which post the applicants were candidates, is null and void and with no legal effect and/or the omission ought not to have [*1483] occurred as per the relevant decision communicated to them by letter dated 11th February 1985 (Appendix B) by respondents 2.
The facts of this case are briefly these. By letter dated the 4th November 1984, (Appendix I), respondent 1, sent a written proposal to respondents 2 for the filling of, inter alia, a number of vacant posts of Technician 2nd Grade in the Water Development Department, having first secured, as stated therein, the approval of the Ministry of Finance for that purpose, as per their letter of the 2nd November 1981.
The aforesaid post is a first entry post and applications were invited by advertisement in the Official Gazette of the Republic under Notification No. 934 of the 14th May, 1982, (Appendix II).
The present applicants were among those who submitted applications for the post in question. Respondents 2 set the machinery, prescribed by the Public Service Law and the relevant Regulatory Orders in motion and after interviewing separately the various applicants who had been recommended by the Departmental Board, which recommendation included the present applicants to this recourse, respondent 1, by his letter dated 18th December 1984, withdrew his proposal for the filling of the vacancies in question.
As stated in the relevant minute of respondents 2, (Appendix IV), "The appropriate Authority came to the said decision having taken seriously into consideration the consequences and reactions which could probably be created in view of the warning and demand of the Branch Committee of the Officers of the Water Development Department for the cancellation of the procedure of filling the vacancies for Technician 2nd Grade for the reason that there was unresolved the question of the absorption in organic posts of the (εκτάκτων) temporary Technicians serving in the Department.
After the withdrawal of the proposal of the appropriate Authority there cannot proceed further with the procedure for the filling of the aforesaid posts." [*1484]
The applicants were notified about it by the letter of the 11th February 1985, (Appendix B).
Further to the documents referred to already there were produced the minutes of respondents 2, of the 17th December 1984 (exhibit 1), at which the Director of the Water Development Department referred to the performance of the various candidates both at the interviews by respondent 2 and the performance at work, of those candidates who were serving as temporary officers in the Department. There were also produced the minutes of a meeting of the Director-General of the Ministry of Agriculture and Natural Resources and the Branch Committee of the Department of Water Development which took place on the 17th December, 1984, (exhibit 2), in which the Director-General is recorded to have pointed out a number of reasons why the procedure for the filling of the post should not be interrupted. The Branch Committee on the other hand gave the following three reasons why that should be done:
"(a) At a secret ballot the overwhelming majority of the temporary employees decided to ask the cancellation of the procedure for the filling of the fourteen vacant posts of Technician II Grade.
(b) There was possibility as it happened with other posts in other departments for persons who are not employed in the Department to be appointed to those posts and in such a case there would be created negative repercussions to the temporary staff which serves and which will react dynamically, and
(c) The Cyprus Civil Servants Trade Union tries within the framework of the procedure of the Joint Personnel Committee (MEP), the question of the absorption of the temporary employees of the vacant posts which exist, or which will be created, as it happened on previous occasions by the enactment of a relevant law."
A letter was addressed to respondent 1, also dated the 3rd December 1984, in which the position of the Branch [*1485] Committee as expressed at the extraordinary general meeting of its members was put to him in strong terms, (exhibit 3). There is also a minute of the Director-General addressed to respondent 1, summing up the position and explaining why the request for the filling of the post should be withdrawn, saying, inter alia, that in case that even if one person from outside the service is appointed, then possibly the interested officers will react dynamically. The Minister approved the proposal to withdraw the request for the filling of the post.
Counsel for the applicant has made it clear that he challenges both the decision of respondent 1, to withdraw the proposal for the filling of the posts and also the omission of respondents 2 to proceed with the filling of the posts.
The grounds of law relied upon in the recourse are the following:
(a) That respondent 1 acted having taken into consideration facts and interventions of persons that had no right to intervene to the whole procedure on the basis of any law or the Constitution. More concretely the Branch Committee and the members of the Branch in acting as they did were not duly authorised to do so. The threat of dynamic measures in no case should be a criterion for the taking of any administrative decision or act.
(b) That the reasoning for the sub judice decision is unlawful in view of what was said as to ground 1.
Counsel for the applicants argued that though the facts in Zachariadesv. The Republic (1984) 3 C.L.R. 1193, were different in the sense that the procedure of appointment by the Public Service Commission had reached a more advanced stage when the revocation of the proposal to fill the post took place, yet it could be discerned from it the principle that the request for the filling of a post cannot be withdrawn without a reasonable cause. As regards the omission of the respondents 2, not to fill the post the stand of counsel for the applicant has been that that was contrary to Law as they accepted the withdrawal of the proposal for the filling of the post without examining [*1486] the legality or the correctness of such request by respondent 1. It was urged that respondent 2 had the competence and a duty to examine and inquire into the grounds of such revocation.
It was argued on behalf of the respondents that the applicants had no existing legitimate interest adversely and directly affected by the challenged decision or omission, within the ambit of Article 146 of the Constitution in view of the fact that the withdrawal of the request for the filling of the post took place before any decision was taken by respondent 2 to appoint any of the applicants or any of the other candidates. They had not acquired any rights in the matter of their appointment and no appointment of theirs has been frustrated and the act of withdrawal of the request was not directed against any of the applicants. It was argued that the present case is distinguishable from that of TatianosGeorghiouv. Electricity Authority of Cyprus (1965) 3 C.L.R. 177 in which the respondent Authority abolished the relevant post after the Public Service Commission had already taken a decision to appoint the applicant and that it was on the facts of that case that the Court found that the post had been abolished in order to prevent and frustrate the applicant's appointment to the post. I was also referred to the case of Zachariadesv. The Republic (supra) in which the Court likewise decided that, that applicant had a legitimate interest, but again the Public Service Commission had already made its decision to appoint the applicant and was about to communicate its decision to him when the respondent Ministry of Interior withdrew its proposal for the filling of the post.
In my judgment in AnastassiaMatsoukariv.The Republic (Case No. 729/85), just delivered, I had the occasion to review the authorities in relation to the same preliminary point also raised therein. In addition to the aforementioned cases I referred to that of Contopoullosv. The Republic, 1964 C.L.R. 347, and quoted from the judgment of Triantafyllides, J., as he then was, on the same issue. I need not therefore reproduce here all that and unnecessarily lengthen this judgment. It is sufficient to say that the position in the present case is the same as [*1487] the position was in the Contopoulloscase in which there was likewise a withdrawal by the appropriate Authority of the proposal for the filling of the post in view of the impending reorganization of the Department in which the vacancy existed.
I further distinguished the cases of TatianosGeorghiou. and Zachariades(supra), and I concluded that the principle that may be discerned from the authorities is that the act or decision of an appropriate Authority to withdraw a proposal to fill a vacancy cannot be the subject of a recourse under Article 146 of the Constitution as it does not as such affect a legitimate interest of a candidate unless the procedure of selection has gone so far—and possibly for other reasons that do not arise in the present case,— that such withdrawal can be safely considered in the circumstances to have been intended to prevent such a person's appointment.
This principle applies with equal force to the facts of the present case in which there cannot be ascribed to the appropriate Authority the intention to frustrate the appointment of anyone of the candidates more so of the present applicant, as there had been no selection whatsoever out of the numerous candidates. This recourse therefore should fail on the ground that the applicant has no existing legitimate interest, having had or acquired no vested right in the matter.
As this disposes of the recourse, I find it unnecessary to deal with the rest of the grounds.
In the result the recourse is dismissed but in the circumstances there will be no order as to costs.
Recourse dismissed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο