Cyprus Supreme Court dismisses appeal regarding Public Service Commission appointment validity and quorum defects.

[*641] 1967 May 30

(VASSILIADES, P., JOSEPHIDES, LOIZOU

HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

A. Christodoulides,

Appellant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent,

(Revisional Jurisdiction Appeal No.25).

Public Officers - CYTA posts - Appointments and Promotions - Pilling the post of Telegraph Supervisor - Appeal - Trial Court’s dismissal of Appellant’s recourse against Respondent’s relative decision - On the ground that the Respondent Commission was properly constituted at the material time - That the Interested Party fulfilled the requirements of the schemes of service of the post - And that the Respondent Commission did not act in excess or abuse of powers - Upheld by Court of Appeal,

Public Service Commission - Constitution and Quorum - The Public Service Commission (Temporary Provisions) Law, 1965 (No. 72 of 1965), section 5

- Pilling the post of Telegraph Supervisor, CYTA - Appeal - Validity of relative decision - Public Service Commission properly constituted at the material time - No excess or abuse of powers by Commission,

E. Vrahimi (Mrs.) for the Appellant.

M. Spanos, Counsel of the Republic, for the Respondent.

JUDGMENT

VASSILIADES, P.: The judgment of the Court will be delivered by Mr. Justice Josephides. [*642]

JOSEPHIDSS. J.; The appellant in this case filed originally a recourse under the provisions of Article 146 of the Constitution, complaiing that the Public Service Commission, acting in abuse of powers, promoted the interested party Cacomanolis in preference to him. The recourse was heard and dismissed by a Single Judge of this Court,* and the appellant filed the present appeal which was argued before us on three grounds.

The first ground was that the trial Judge erroneously came to the conslusion that the Public Service Commission was properly constituted and/or that there was a proper quorum at the time when the appointments and/or promotions of the interested parties took place by the respondent.

In fact, three recourses were heard together and originally, there were two interested parties, but at the hearing of the appeal the appellant pressed his appeal only as regards the interested party Cacamanolis.

The recourse was filed on the 5th April, 1965, and Law 72 of 1965, which validated decisions taken by the Commission with a defective constitution, was enacted on the 16th December, 1965. Some five-and-a-half months later, on the 31st May, 1966, after the hearing of the recourse had begun, the point with regard to the defective constitution of the Commission was taken for the first time by the appellant. It was by way of an additional point of law to the effect that "at the time of the administrative act complained of, i.e. on the 11th February, 1965, the Public Service Commission was not [* 643] properly constituted and the reexisted no quorum in accordance with. Article 123 of the Constitution". It was, therefore, argued that the subsequent enactment of Law 72 of 1965 could not affect the position inasmuch as the original administrative act was void ah initio and also sub judice. The same point was argued before us today. The learned trial Judge in considering this point had this to say:-

"In the circumstances, and for the reasons given in the Judgment of this Court in Theofylactou and The Republic - now reported in (1966) 11J.S.C. 1177 -- in relation, there, to a belated objection regarding the quorum of the Public Service Commission - I hold that the objection regarding the constitution of the Commission cannot succeed, as and when taken in the present proceedings".*

What was decided in Theofylactou's case was that a point with regard to the quorum of the Public Service Commission, which was taken after the enactment of Law 72 of 1965, was not valid and the applicant could not rely on it.

The learned trial Judge (at pages 1181-2 of the same Report) decided also the question with regard to the defect in the constitution of the Commission at the time of the making of the act. He said (at page 1182 B):-

"I am of the opinion that no different result can be reached with regard to the [*644] 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".

The reasons given for that decision by the learned Judge were that if the effect of section 5 was to validate ex post facto a defective decision that would lead to an unconstitutionality because it would amount, in effect, to interfering with the constitutionally safeguarded right of recourse under Article 146 of the Constitution: The following decisions of the Creek Council of State were relied upon: Nos. 737/1954, 758/1954, 783/1954, 785/1954, 1670/1954 and 98/1956. We may say that we are in full agreement with that reasoning and the conclusion reached.

In the present case, as already stated, the recourse was filed on the 5th April, 1965, Law 72 of 1965 was enacted on the 16th December, 1965, and the point with regard to the constitution of the Public Service Commission was taken, for the first time, fiveand-a-half months later, namely, on the 31st May, 1966.

For these reasons we are of the view that the first ground of the appeal cannot succeed.

We shall deal briefly with the remaining two [*645] grounds. The second, ground was that the trial Judge erroneously came to the conclusion that the interested, party Cacomanolis fulfilled the qualifications laid down in the schemes of service for appointment to the post of telegraph supervisor, with regard to "being a graduate of a recognized secondary school.

The appellant's complaint was that the Public Service Commission relied on a certificate from the Samuel School which stated that the interested party had attended the classes of the school and had passed successfully the examinations. In fact, the interested party was away during the last two years at Haifa, but there was evidence from the headmaster of the school to the effect that he used to send to the appellant the lessons and papers and, relying on the answers given to the examination papers, the school eventually issued to him the certificate which was produced as an exhibit in this case.

The learned trial Judge was of the view that it was not within the province of the Court to examine the essential validity of that certificate and that, once the certificate had been issued (in 1947) long before the question of its validity was put in issue in connection with these proceedings, it was not within the province of the Court to re-open and determine such matter. For these reasons we are of the view that the second ground of appeal should also fail.

The final ground was that the Court erroneously came to the conclusion that, having regard to the totality [*646] of the evidence adduced in the case and the matters which were before the respondent at the material time, it was reasonably open to the Commission to promote interested parties Cacomanolis and Andoniou in preference to, and instead of, the appellant. The learned trial Judge gave his reasons in reaching his conclusion that it was reasonably open to the Commission to make the aforesaid promotions, and that the Commission did not act in excess or abuse of powers and, agreeing, as we do, with his reasoning, we are of the view that this ground of appeal should also fail.

For these reasons the appeal is dismissed with costs.

Appeal dismissed

with costs.

* Vide Constantinou and Others and the Republic, (1966) 12 J.S.C. 1245.

* Vide Constantinou and Others and the Republic. (1966) 12 J.S.C. at pp. 1250-51.