Court dismisses appeal against refusal to grant retrospective promotion effect due to lack of statutory authorization.

[*559] 1973 May 21

(A. LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Afxentios

K. Afxentiou,

Applicant,

and

The Public Service Commission,

Respondent.

(Case No. 78/72).

Public Officers - Promotion - To the post of Chief Economic Officer - Refusal to give retrospective effect to said promotion a valid one - Because the creation of this new post, by the Budget Law, could not by itself be considered as amounting to an express statutory provision authorizing the Commission to fill it retrospectively - Nor was there any other indication in the Budget Law from which one might infer an implied authorisation to make the promotion in question retrospectively - Moreover fact that applicant was asked, inter-departmentally, to perform the duties of the post, before his selection for the post, not sufficient to constitute the authorisation that the law requires to exist before retrospective effect is given to a promotion - Nor was the combined effect of the creation of the post by the Budget Law. as from the first of the year coupled with the circumstances of the case sufficient justification for the Commission to give to the promotion retrospective effect - Section 44(4) of the Public Service Law., 1967 (Law 33 of 1967) not applicable - Panayides v. The Republic (1972) 9 J.S.C. 1129 distinguished.

Administrative Law - Administrative Acts - Rule against retrospectivity of.

K. Talarides, for the Applicant.

A, Triantafyllides, for the Respondent.

JUDGMENT

The following judgment was delivered by: -

A, LOIZOU, J.: The applicant by the present [*560] recourse prays for a declaration that the decision of the Public Service Commission (hereinafter to be called “The Commission") dated the l4th. December, 1971 not to make his appointment as Chief Economic Officer in the Ministry of Finance retrospectively as from the 1st January, 1971, was null and void and of no effect whatsoever.

The facts of the case are briefly as follows: -

The applicant was holding the post of Senior Economic Officer in the said Ministry, By the Budget for 1971 which was laid before the House of Representatives on the 3rd December, 1970 and enacted into a law (Law No. 6. of 1971) on the 27th February, 1971, the post of Chief Economic Officer, together with a number of other new posts, was created. The scheme of service for the said new post was approved by the Council of Ministers on the 6th May, 1971 and thereupon the Director-General of the Ministry of Finance (hereinafter to be referred to as the "Director- General") informed the Commission that the Minister of Finance had approved the filling of the vacancy in the post of Chief Economic Officer and requested the Commission to proceed accordingly. As the said post was a first entry and promotion post, the Commission decided that the vacancy in question should be advertised in the official Gazette. This was done on the 21st May, 1971, under Notification No.

837 allowing for the submission of applications until the 5th June, 1971.

In response to the said publication only one application was received by the Commission, namely, that [*561] of the applicant who possessed all the qualifications required for appointment to the said post and had long administrative experience in the Public Service together with experience on matters of economic studies and research, particularly on matters of public finance.

The Director-General strongly recommended him for appointment to this post by his letter of the 29th May, 1971 (exhibit 1, blue 10) which accompanied the applicant's application. In addition to the praise of the applicant's ability, it was mentioned therein that in actual fact the applicant had been performing the duties of chief economic officer since the 1st January, 1971 in addition to his own duties, a fact that he was described "to have done cheerfully and without grumble, although it meant for him the sacrifice of his leisure and that of his family”.

The Commission at its meeting of the 16th June, 1971 decided that as the applicant was known to the Commission from a previous interview, there was no need for him to be invited for an interview and he was promoted to the post of Chief Economic Officer with, effect from the 1st July, 1971. An offer was made to the applicant on the 18th June, 1971 (exhibit 1, blue l4). On the 29th June, 1971 the Director-General wrote to the Chairman of the Commission; he referred to the said offer and requested that the promotion be made retrospectively as from the 1st January, 1971, the date on which the said post was created, because Mr. Afxentiou had performed the duties specified for the said post as from the 1st January, 1971. On the same day the applicant himself [*562] wrote to the Chairman of the Commission a letter, accepting the offer for his promotion and requesting them that his appointment be made retrospectively again as from the 1st January, 1971- The Commission considered this request at its meeting of the 11th September, 1971. The relevant passage of the minute of the Commission for that meeting (exhibit 1 blue 17), reads as follows: -

"In accordance with Kyriacopoulos’ Greek Administrative law (Part II, pages 385-386) and the legal advice given by the Attorney-General of the Republic in his letter No. 34(c) 1961/2 of 15.3.1971, an administrative act cannot in principle be made retrospectively. This principle has already been accepted by the Supreme Court. There are, however, certain exceptions to this principle which were enumerated in the above referred documents and the case of Mr. Afxentiou does not fall within these exceptions. The Attorney-General, Mr. Tornaritis, has made it clear to the Chairman at a recent meeting that the performance of the duties of a post by an officer does not fall within these exceptions and does not give rise to any right to the officer concerned for retrospective appointment.

Bearing in mind all the above, the Commission decided that Mr. Afxentiou's request for the back-dating of his promotion to the post of Chief Economic Officer be turned down". [*563]

On the 29th September, 1971 the applicant and the Director-General were informed of the aforesaid decision of the Commission (exhibit 1, blues 19 & 20).

The legal advice referred to in the aforesaid passage, was given by the office of the Attorney-General in respect of the reorganization of the Department of Civil Aviation and not in respect of the particular case under consideration, but it summed up the position regarding the exceptions to the rule against retrospectivity.

On the 21st October, 1971 the Director-General wrote a lengthy letter to the Attorney-General setting out the facts relevant to the present case - copy of the legal advice hereinabove referred to was also attached thereto - and asked his legal advice as to whether the facts of the present case did not justify it to be treated as falling within the exceptions to the rule against retrospectivity.

On the 20th November, 1971 the Attorney-General of the Republic replied by letter to the Director-General with a copy to the Commission. He reiterated therein that an administrative act, subject to certain exceptions, could not in principle be made with retrospective effect and added that in case of appointments their retrospectivity had been accepted when such intention resulted from the law. (See Decisions of the Greek Council of State 29/50, 1787/52 referred to in Kyriacopoulos Greek Administrative Law, 4th edition, 25 vol. 2, page 400, Notes 27 and 28, C.E. 28.7.1971, sieur de Saivre, Rec 462) or whenever such retrospectivity to the [*564] post could be Implied from the circumstances (Odent Contentieux Administratif 1965-1966, p. 1218) or whenever the non-retrospectivity to the post would result in the creation of a legal vacuum (c.f. C.E. Lesueur 11.1.1952 R.ec p. 29) or would obstruct the function of the Public Service (Letournour: Le principle de la non-retroactivite des actes administratifs) or would cause inequity to a public officer (Auby: Incompetence "ratione temporis” Revue du droit public et de la science politi que 59 (1953) pp. 49 52).

The Attorney -General concluded that from the fact that the post was created by the Budget law of 1971 as from the 1st January, 1971, the intention of the legislator was that this post could be filled retrospectively and that the administrative act in execution of this, could be given retrospective effect. Furthermore, he stated that as the officer in question had been performing the duties of the post with effect from the 1st January, 1971, it could be supported that this case fell under the aforesaid exceptions to the rule. He finally said that the principle established by the provisions of section 44(4) of the Public Service Law (No. 33 of 1967) supported fully the retrospective appointment in this case.

On the 22nd November, 1971 the Director-General wrote to the Chairman of the Respondent Commission referring to the aforesaid legal advice and asked them that in the light thereof, the promotion to the post of Chief Economic Officer might then be made retrospectively from the 1st January, 1971. The Commission met on the 14th December, 1971 [*565] and considered the said request. Their decision is to be found in the minutes of this meetings exhibit 1, blues 26 and 27. In so far as material, it reads as follows

"The Commission reconsidered thoroughly all the facts of this case in the light of the Attorney-General’s recent legal advice and decided by majority of 3 votes to 2 (the Chairman and Mr. T. Louca dissenting) that the case of Mr. Afxentiou does not fall within any of the exceptions enumerated above and, therefore, the request for the back-dating of Mr. Afxentiou’s promotion to the post of Chief Economic Officer be turned down.

Although the Chairman and Mr, Y. Louoa has some doubts as to whether this case may be covered by the legal advice given by the Attorney-General in his letter No. 34(c) 1961/2 (I.T.) of 20.11.71, yet they decided to follow it, as it was given specifically on the facts of the case of Mr. Afxentiou. In any case the Chairman and Mr. Y. Louca want to make it clear that a mere performance of the duties of a post alone, does not give any right to an officer to be appointed to that post retrospectively".

This decision of the Commission was communicated to the Director-General on the 4th February, 1972 and it is on the basis of this communication that the present recourse was filed on the 31st March, 1972. [*566]

A number of preliminary legal objections Mas been raised on behalf of the Respondents, in addition to the grounds of their Opposition to the merits of the recourse.

The application is based on three grounds of law which are briefly to the effect that the decision of the Commission amounted to -

(a) violation of the intention and authorization of the legislator to the appropriate Authority that the filling of the said post be made retrospectively as it appears from the Budget 10 Law, 1971 and the relevant circumstances;

(b) violation of the rule for giving to promotions retrospective effect when this is justified by the nature of existing circumstances and for the purpose of avoiding injustice to the interested party; and

(c) discrimination between the applicant and the officers in the Department of Civil Aviation who were promoted with retrospective effect as from the 1st of the year, the positions of which were created by subsequently enacted Supplementary Budget Laws.

I find it convenient to deal first with the merits of the case.

The contention of the Respondents has been that the Budget Law by which this post was created could not [*567] be considered as either expressly or by implication authorizing the Commission to give retrospective effect to the promotion in question, nor that such authorization could be inferred from the circumstances of the case, or that any injustice would be caused to the applicant if he was not so promoted, with regard to the promotions in the Department of Civil Aviation, it has been claimed that it was an entirely different and irrelevant matter. In fact, it may be stated here that promotions with retrospective effect were made in respect of the Department of Ports as well on the same principle as they were done in the case of the Department of Civil Aviation. One of such promotions came before me and is reported as Panayides v. The Republic (1972) 9 J.S.C. p. 1129. In the said case it was held that the Supplementary Budget Law was enacted and used as the legislative media for the purpose of the reorganization of the service and the creation of new posts. The provisions therein for funds for such posts retrospectively from the beginning of the year, that Is to say five months prior to the promulgation of the said law, was a clear provision that promotions to these posts which were in effect reorganization of already existing posts, were intended to be made with retrospective effect.

That case has to be distinguished from the present one. There, the re-organization of a number of Government Departments had been the subject of negotiations between the Government and the civil service and it had been promised that an agreed settlement would have retrospective [*568] effect as from the beginning of the year in question. As a result, the Council of Ministers approved the necessary bill which was laid before the House of Representatives in April or May for the appropriation of the required funds as from the beginning of that year, that is to say, before even laying the bill before the House, a further ground for distinguishing Panayides' s case (supra) from the one under consideration. I find therefore that no question of discrimination arises.

A Budget Law, as such, is prospective in character. It is expected to be adopted by the House of Representatives from the first day of the financial year to which it relates. On account of this, the provisions made therein, including the creation of new posts and the money required to meet such purposes, normally cover the whole of the year. If it is not so adopted, the House of Representatives may, under Article 168(3) of the Constitution, by a resolution, authorize the meeting of any expenditure required for a period not exceeding one month at any one time, but in any event not exceeding two months in the aggregate, from the consolidated fund or other public funds, as they may consider essential for the continuance of the public services shown in the budget, until the expiration of such period. Therefore, the creation of this new post could not by itself be considered as amounting to an express statutory provision authorizing the Commission to fill it retrospectively.

Furthermore, there is no other indication in the said Budget Law from which one might infer an implied [*569] authorization to make the promotion in question retrospectively. The fact that the applicant was asked inter-departmentally to perform the duties, of the post which was to he created, and before his selection for the post by the Commission - the appropriate organ entrusted by the Constitution with the task of promotions - is not sufficient to constitute the authorization that the law requires to exist before retrospective effect is given to a promotion, nor, in my view, the combined effect of the creation of the post by the Budget Law as from 1st of the year coupled with the circumstances of the case was sufficient justification for the Commission to give to the promotion retrospective effect, nor was it such as to call for doing equity to the officer concerned. The duties assigned, as they were, to him by his Department, had given him an opportunity to show his abilities which might have been to his advantage had there been other candidates for the same post.

Regarding the question whether there has been such a delay in the filling of the post as it should not be left to operate against the officer, it may be observed that in the light of what has been hereinabove set out, the prescribed procedure was followed at a reasonable pace. Needless to say that this principle regarding delays normally arises in cases where a candidate has successfully competed in the examinations for a post and there has been a delay in finalizing his appointment, which is not our case.

In all the circumstances, the sub judice decision of the Commission is correct. [*570]

Before concluding, I would like to refer to section 44(4) of the Public Service Law, 1967 (No. 33. of 1967) which is the only statutory provision that might, on the face of it, appear to have some bearing in the case. In my view, it is not applicable, because by its provisions the only instance where a permanent promotion may be made retrospectively, is when an officer is promoted to the office in which he has been acting and such appointment will be made as from the date on which he was appointed to act, or the date on which the vacancy occurred, whichever is the latter. This is not the case under consideration. The applicant was not the holder of an acting appointment.

For the aforesaid reasons, this application should fail. This outcome, however on the merits, renders, in my view, unnecessary the determination of the preliminary points raised by the applicant.

In the result the recourse is dismissed, but in the circumstances I make no order as to costs.

Application dismissed;

no order as to costs.