Cyprus Supreme Court annuls promotion due to defective Commission constitution and invalid retrospective cure.

[*1177] 1966 November 26

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the

Constitution Georghios Theofylactou,

Applicant,

and

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Case No. 225/65).

Public Officers - Promotions - Promotion to the post of Senior Air Traffic Control Officer - Validity - Relevant decision annulled as taken in a legally invalid manner by not properly constituted organ, contrary to the relevant principle of Administrative Law.

Public Service Commission - Constitution and Quorum - Promotion to the post of Senior Air Traffic Control Officer - Relevant decision annulled as taken at a time when the constitution of the Commission was defective - Section

5 of the Public Service Commission (Temporary Provisions) Law, 1965 (No.72 of 1965) not properly applicable to cure the defect.

Administrative Law - Public Officers - Promotions - Recourse against promotion to the post of Senior Air Traffic Control Officer - Constitution and quorum of the Public Service Commission at the material time - "Constitution" as distinct from "quorum" - Recourse cannot succeed on the issue of quorum raised after section 5 of the Public Service Commission (Temporary Provisions) Law 1965 (No.72 of 1965) had cured the relevant defect.

L. Clerides, for the Applicant.

L. G. Loucaides, Counsel of the Republic, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J.: In this Case the Applicant challenges the validity of the promotion of the Interested Party, Mr. Michael Herodotou, to the post of Senior Air Traffic Control Officer. [*1178]

The said promotion was decided upon by the Public Service Commission at its meeting of the 27th October, 1965. It is common ground that only five members of the Public Service Commission were present at such meeting; one of such five members being the Chairman of the Commission.

At the commencement of these proceedings, counsel for Applicant has submitted that the sub judice decision is invalid in that the Commission at the time was not properly constituted and that, in any case, the then present members of the Commission could not form a proper quorum.

Counsel for Respondent, in meeting the case of Applicant, has relied on The Public Service Commission (Temporary Provisions) law 1965 (law 72/65) and particularly section 5 thereof, which was enacted on the 16th December, 1965, after the filing of this recourse on the 26th November, 1965.

In view of the vital importance, for the outcome of the present Case, of the issues regarding the proper constitution and quorum, at the material time, of the Commission, the decision on such issues has been reserved and proceedings have, in the meantime, been stayed.

Regarding the question of the proper quorum of the Commission, it has already been held in Maratheftis and The Republic (1965, 11 J.S.C., p. 1214, at p. 1217) that five members of the Commission cannot constitute a proper quorum. [*1179]

Counsel for Respondent has submitted that, as the question of the quorum of the Commission had not been raised in the Application in this recourse, but only at the stage of the hearing - on the 17th June, 1966 - and as, in the meantime, section 5 of Law 72/65 had been enacted, validating any decision of the Commission taken, during the period between the 21st December, 1963 and the date of the enactment of such Law, with a quorum of three members of the Commission, including its Chairman, (the sub judice decision having been taken on the 27th October, 1965), the Applicant is not entitled to succeed on a ground of invalidity which was not raised by way of recourse before the enactment of legislation curing the defect in question. Counsel for Respondent has referred me, in this respect, to the Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959, at p. 224.

Counsel for Applicant has, on the other hand, submitted, in reply, that the ground of law in the Application, referring to the constitution, at the material time, of the Commission, is generic enough to include, also, the question of the quorum of the Commission; so such issue was sub judice, already, when Law 72/65 was enacted.

In my opinion the contention of Respondent is well founded, in the sense that it appears to be an established principle of Administrative Law that if a ground of invalidity of a decision, the subject-matter of a recourse, has not been raised in due course, but was raised at a later stage in the proceedings, after, in the meantime, legislation had been enacted curing the relevant [*1180] defect, then the Court dealing with the matter has to apply the legislation in question in favour of the validity of the decision concerned: (vide, inter alia, Decisions of the Greek Council of State 737/1954, 758/1954, 783/1954, 785/1954 1670/1954 and 98/1956).

The relevant ground of law in the Application does not state that the Public Service Commission, at the material time, was not properly constituted from the point of view of quorum; and "constitution", as such, is not the same thing as "quorum". So when it is stated in the said ground of law that the Commission was not properly "constituted", without connecting this to the aspect of quorum, we have to read such ground of law as limited to "constitution", as distinct from "quorum". It follows, as a result, con the basis of the aforesaid principle, that the Applicant cannot succeed on the issue of quorum which he raised, for the first time, after section 5 of Law 72/65 had cured the relevant defect, through being enacted before Judgment had been reserved in these proceedings.

We pass next to the question of the constitution of the Public Service Commission at the material time:

It is common ground - and it appears, also, to be recognized by the preamble to Law 72/65 - that, at the material time, the Public Service Commission was not fully constituted due to the existence of two vacancies; one having occurred through the death and the other through the resignation of Greek members of the Commission.

The question of the possibility of the Commission functioning validly notwithstanding the said two vacancies [*1181] has come up before this Court in the past but it has not been found necessary, to resolve it. It was left open in Mozoras and The Republic, (1965 9 J.S.C, p. 957) and when that case was dealt with on appeal (1966, 4 J.S.C. p. 504) the problem was not resolved at that stage, either. It appears, now necessary to deal with it:-

It is a well settled rule of Administrative Law that a collective organ cannot function validly if there exist vacancies in its strength due to death or resignation, because it is a requirement of legality that a collective organ should be fully constituted. (See Stasinopoulos "Discourses on Administrative Law" (1957) p. 234, Kyriakopoulos on Greek Administrative Law, 4th edition, volume 2, p.20-21 and also, inter alia, Decision of the Greek Council of State 681/36).

The functioning of the Public Service Commission, as a collective organ, cannot be held to be exempt from the application of this general rule of Administrative Law; and no "necessity", the existence of which might have overriden the requirements of such rule, has been alleged in the present proceedings. It follows that at the material time the Commission could not function validly, due to the existence of the two aforementioned vacancies.

There remains, now, to examine whether section 5 of Law 72/65, which was enacted on the 16th December, 1965, while this recourse was pending, and which validates, also, decisions of the Commission, taken before such date, with its then - defective - constitution, can be held to save the validity of the decision which is the subject-matter of this recourse. [*1182.]

In Cl. Georghiades and The Republic, (1966, 3 J.S.C., p. 398 at p. 414) it has been held that section 5 could not be construed as being, and was not validly, applicable to a sub judice recourse in which Judgment had been reserved.

I am of the opinion that no different result can be reached with regard to the application of section 5 of Law 72/65 to a recourse, such as the present, where Judgment had not yet been reserved, when section 5 was enacted, but which has been filed before its enactment and at the time of the filing of which the_defect in the constitution of the Commission, which section

5 purports to remedy, had been expressly raised as a ground of invalidity of the sub judice decision. To apply the said section 5 for the purpose of bringing about, ex post facto, the validity of the said decision, would lead to unconstitutionality, because it would amount, in effect, to interfering with the constitutionally safeguarded right of recourse under Article 146, (see, also, the aforementioned Decisions of the Greek Council of State 737/1954,758/1954, 783/1954, 785/1954, 1670/1954 and 98/1956).

In the result, there being no dispute that at the material time there existed two vacancies for Greek members of the Commission, and there being no doubt in my mind, for the foregoing reasons, that this rendered the constitution of the Commission defective and that section 5 of Law 72/65 is not properly applicable to cure the defect in question, it follows that the sub judice decision to promote the Interested Party was taken in a legally invalid manner, contrary to the relevant principle of Administrative [*1183] Law and has, thus, to be annulled; and it is so declared accordingly. It is up to the Commission to reconsider the matter, afresh, in the proper manner.

Regarding costs I have decided that Applicant is entitled to costs which I assess at £15.-

Sub judice decision

annulled.

Order for costs as

aforesaid.