Constitutional Court voids Public Service Commission transfer decision lacking required special majority for Turkish officer.

[*35] 1961 October 24

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(May 17, June 1, September 11, 26, October 24, 1961)

Turhan

M. Ozturk of Famagusta,

And

The Republic of Cyprus, Through (a) the Public Service Commission an Independent Body of the Republic, (b) the Minister of Finance.

(Case No. 38/61)

Constitution — Interpretation — Effect must be given to the clear meaning of provisions.

Decision of Public Service Commission — Art. 125.3(3) not limited in extent by reference to Art. 125.3(2) — Applicable to all decisions relating solely to a Greek or a Turk.

Public Service Commission — Art. 125.3(3) — Non-securing of required special absolute majority — Act of Commission in the sense of Art. 146 — Recourse by Minister or Head of Department concerned — Court to examine validity of course preventing securing of required majority.

Words and phrases — “Act”, in Art.

146.1 — “Person” in Art. 146.1 and 2.

Recommendations by Ministers and Heads of Departments.

The Applicant who is a Turk and a Customs and Excise Officer, 3rd Grade, posted at Limassol, was transferred, by a majority vote of the Public Service Commission without the concurrence of its Turkish members, to Famagusta, with effect from the 15th March, 1961.

Held : (a) effect must be given to the clear meaning of the provisions of the Constitution ;

(b) the provisions of Art. 125.3(3) applied to any decision of the Public Service Commission on a question relating solely to a Greek, or a Turk, other than a decision regarding the allocation of posts under Art. 125.3(2), or “the selection of the Greek or the Turk to be appointed or promoted” under Art. 125.3(4) ;

(c) unlike Art. 125.3(3) which dealt with matters affecting public servants as individuals, Art. 125.3(2) dealt with a totally different aspect of the public service, i.e. the allocation of posts between the two Communities, and, therefore, the latter could not limit the extent of the application of the former ;

(d) if the Public Service Commission in dealing with a question under Art. 125.3(3),

(i) took a valid

decision by the special absolute majority required by the said Article, such

decision could be challenged under Art. 146, only by the officer to whom it related, but not by the Minister or the Head of Department concerned, except under Art. 139;

(ii) failed to take any valid decision for lack of the required special [*36] absolute majority, such failure, though not amounting to a valid “decision” of the Public Service Commission in the sense of Art. 125.3(3), would, nevertheless, amount to an “act” of the said Commission in the sense of Art. 146.1 which could be the subject of a recourse under the said Article by the Minister or the Head of Department concerned, as well as by the officer to whom it related ;

(e) the rights entrusted to the Public Service Commission under Art. 125.3(3), should be exercised with due sense of responsibility and ought not to be abused ;

(f) the validity of the course adopted by those members of the Public Service Commission, whose non-voting in a particular way had resulted in the non-taking of a valid

decision, would be a most vital issue to be examined ;

(g) in a case of this nature the principles regarding recommendations of Ministers, Heads of Departments, etc., expounded by the Court in Michael Theodossiou and The Republic (Public Service Commission), 2 R.S.C.C., letter G, p. 44, and Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C., letter B, p. 79, applied ;

(h) the Public Service Commission having not proceeded to act in this matter, which related solely to a Turk, under the provisions of Art. 125.3 (3), did not take a valid decision.

Act of transfer declared null and void.

Cases referred to :

Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C.

Michael Theodossiou and The Republic (Public Service Commission), 2 R.S.C.C.

R. R. Denktash for the Applicant.

P. N. Paschalis, Counsel of the Republic, for the Republic.

Cur. adv. vult.

November, 22. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares —

The act of the Respondent in transferring the Applicant from the Limassol Customs to the Famagusta Port Authority is null and void and of no effect whatsoever.

Up to the 24th February, 1961, the Applicant, a Turkish public officer, was a Customs and Excise Officer, 3rd grade, posted at the Customs House, Limassol. [*37]

On the aforesaid date the Public Service Commission voted by majority, without the concurrence of any of the three Turkish members thereof, to transfer the Applicant from the Limassol Customs to the Famagusta Port Authority with effect from the 15th March, 1961.

The Applicant was informed of such transfer by letter of the Public Service Commission dated the 4th March, 1961.

On the 7th March, 1961, the Applicant wrote back protesting against such transfer but he received no reply to this letter.

This Application was filed on the 29th April, 1961, and originally the Respondent was described as the “Republic of Cyprus (through the Public Service Commission, an independent authority)”. By the motion for relief, as amended at the hearing for Directions on the 11th September, 1961, the Applicant claims:-

(1) that his transfer dated 24th February, 1961, from the Customs Department to the Port Authorities ;

(2) that his transfer of the same date from Limassol to Famagusta ; and

(3) that the refusal of the Public Service Commission to consider his application of the 7th March, 1961. and its failure to give him a reasoned reply within thirty days therefrom,

are unconstitutional, ultra vires or otherwise void and of no effect.

This Case came up for mention on the 17th May, 1961. On the 20th May, 1961, the Attorney-General of the Republic, on being informed by the Court that on the 17th May, 1961, no member of the Law Office of the Republic had put in an appearance for Respondent, wrote to the Court stating that he had already expressed his “views to the Public Service Commission as to the proper construction of Article 125 paragraph 3(3) of the Constitution”, that he was ready to support such views before the Court and that he had instructed the Deputy Attorney-General of the Republic to appear on his behalf and inform the Court of the above position.

On the 22nd May, 1961, it was directed by the Court, having regard to the special circumstances of this Case and in particular to the fact that it involved a question of interpretation of a provision of the Constitution affecting the powers and duties of the members of the Public Service Commission inter se, that the Deputy Attorney-General might appear for the Republic, that the Greek members of the Public Service Commission could be represented by [*38] counsel of their own choice and that the Turkish members of the Public Service Commission might appear, if they so wished, either in person or through counsel of their own choice.

On the 1st June, 1961, the Applicant applied for a Provisional Order under rule 12 of the Court’s Rules to the effect that he should be posted back to Limassol pending the determination of this Case. An out-of-court arrangement was arrived at in this connection and on the 6th June, 1961, the application for a Provisional Order was accordingly withdrawn.

The Opposition of the Greek members of the Public Service Commission was filed on the 27th June, 1961. It suffices for the purposes of this Judgment to say that it is contended thereby that the

decision in question of the Public Service Commission was validly taken in accordance with Article 125 of the Constitution.

The Case came up for Directions on the 11th September, 1961.

As the aforesaid out-of-court arrangement arrived at on the 6th June, 1961, was not implemented for reasons which need not be referred to in this Judgment, the Applicant on the 12th September, 1961, applied again for a Provisional Order to the same effect as the one applied for in June, 1961. On the 26th September, 1961, a new arrangement was arrived at in this matter, which was endorsed by the Court as a proper and just one, and by virtue of which the Applicant was posted at Nicosia Customs pending the determination of these proceedings. On the same date the Court directed that the Minister of Finance, under whose Ministry the Customs Authorities of the Republic are functioning, be included in the description of Respondent, so as to enable any issue affecting his competence in this matter to be also considered, if necessary. No such issue was, however, subsequently raised.

The Case came up for hearing on the 24th October, 1961. Such hearing was devoted only to the hearing of arguments on the interpretation of sub-paragraph (3) of paragraph 3 of Article 125 (hereinafter in this Judgment referred to as “sub-paragraph (3)”) in view of the decisive nature of such an issue for the final outcome of this Case.

At such hearing the Greek members of the Public Service Commission appeared through counsel of their own choice, whose submissions are dealt with later in the Judgment, the Turkish members thereof stated that they agreed with the contentions of Applicant and the Deputy Attorney-General stated that, in accordance with the opinion of the Attorney-General already given to the Public Service Commission as [*39] aforesaid regarding the interpretation of sub-paragraph (3), he agreed with the contentions of Applicant in this respect.

The Judgment of this Court has been reserved until today.

tParagraph 3 of Article 125 makes provision regarding the majorities required for various decisions of the Public Service Commission.

Sub-paragraph (1) of paragraph 3 (hereinafter referred to as “sub-paragraph (1)”) provides that, subject to the remaining provisions of such paragraph, all decisions of the Public Service Commission shall be taken by an absolute majority vote of its members.

Sub-paragraph (2) of the same paragraph (hereinafter referred to as “sub-paragraph (2)”) makes special provision in relation to decisions concerning the allocation of posts between the two Communities and, further, provides for a procedure for resolving the situation which would arise if it were not possible to secure the necessary special absolute majority provided therein.

Sub-paragraph (4) of the same paragraph (hereinafter referred to as “sub-paragraph (4)”) specificaly deals, subject to sub-paragraph (3), with the majority necessary in selecting among qualified Greek or Turkish candidates the person to be appointed to a particular post.

Sub-paragraph (3) is a more general provision and it reads as follows:-

“(3) Where the question relates solely to a Turk any decision of the Commission shall be taken by such an absolute majority vote including the votes of at least two Turkish members. Where the question relates solely to a Greek, any decision of the Commission shall be taken by such an absolute majority vote including the votes of at least four Greek members”.

The main question to be decided in relation to the interpretation of sub-paragraph (3) is the extent of its generality.

It is the duty of this Court to interpret the Constitution as it finds it and in accordance with the undisputed principle that effect must be given to the clear meaning of its provisions.

The wording of sub-paragraph (3) makes it clearly applicable to any

decision of the Public Service Commission on a question relating solely to a Greek or a Turk, other than a decision regarding allocation of posts under sub-paragraph (2) or the selection under sub-paragraph (4) of [*40] the Greek or Turk to be appointed or promoted, subject always to sub-paragraph (3) e.g. among candidates found to be qualified under such sub-paragraph (3).

It has been submitted that sub-paragraph (3) is only applicable to the making of appointments and promotions mentioned in sub-paragraph (2) and which affect the 70:30 ratio in the public service provided for in Article 123, and that any other interpretation thereof would be inconsistent with sub-paragraph (1) and would also not be workable.

It is significant that no express provision connecting sub-paragraphs (2) and (3) exists as in the case of sub - paragraph (4) which is made subject to sub-paragraph (3).

An examination of the subject-matter of sub-paragraphs (2) and (3) shows that the former cannot limit the extent of the application

of the latter because they deal with totally different aspects of the public service. Sub-paragraph (2) deals in effect with the allocation of posts between the two Communities whereas sub-paragraph (3) deals with matters affecting public officers as individuals.

It would also lead to an absurdity if under sub-paragraph (3) a special absolute majority would be required for the making of an

appointment or promotion, but not also for a dismissal, which is not referred to in sub-paragraph (2), but which, nevertheless, would equally affect the aforesaid 70:30 ratio in the public service.

The interpretation of sub-paragraph (3) made by the Court as above is not inconsistent with sub-paragraph (1), the only purpose of which is to ensure that in each case there should exist an absolute majority without prescribing the nature of such absolute majority ; this is done in sub-paragraphs (2), (3) and (4).

The Court is satisfied that its interpretation of sub-paragraph (3) would not lead to an unworkable situation in the sense that unremediable impasses may unjustifiably arise to the detriment of the best interests of the public service and of the Republic in general. In the opinion of the Court there is ample machinery under Article 146 of the Constitution against such an eventuality.

The position regarding a recourse under Article 146 in a case governed by sub-paragraph (3) is as follows :

The Public Service Commission in dealing with a question to which the provisions of sub-paragraph (3) apply may either –

(i) take a valid decision, either in the affirmative or [*41] in the negative, with the special absolute majority required under sub-paragraph (3), or

(ii) fail to take any valid

decision at all, as in case (i) above, because the aforesaid special absolute majority has not been secured by reason of the fact that certain members of the Public Service Commission did not vote in a particular way.

In case (i) above, there is obviously no impasse and a decision has validly been taken. Such decision may be challenged under Article 146, like any other

decision of the Public Service Commission which is of an executive or administrative nature, only by the public officer to whom it solely relates.

In case (ii) above, an impasse would, however, arise because no valid

decision would have been taken under the provisions of sub-paragraph (3) and then the matter could again be dealt with by this Court under Article 146 in the manner hereinafter explained.

It is clear from the provisions of Article 125 itself that the Public Service Commission is charged, subject to the provisions of the Constitution and of any law, with the performance of certain duties as set out in paragraph

1 of Article 125.

If, due to the non-securing of the special absolute majority prescribed by sub-paragraph (3), a decision, in the sense of that sub-paragraph, is not taken on a particular question then the result is that the Public Service Commission has not been able to take a valid decision in the discharge of one of its aforesaid duties.

Although the aforesaid result does not amount to a valid “decision” of the Public Service Commission in the sense of sub-paragraph (3) it is, nevertheless, the outcome of action having been taken in the matter, viz. the voting of the members of the Public Service Commission in a particular way, and therefore, it does amount to an “act” of the Public Service Commission in the sense of paragraph 1 of Article 146 (hereinafter referred to as the “act” of the Public Service Commission) and is not an “omission” in the sense of the said paragraph.

The Court would observe, in this connection, that the rights given to the members of the Public Service Commission under sub-paragraph (3), and the exercise of which may in a particular case prevent the taking of a valid

decision in the sense of such sub-paragraph, should be exercised with a due sense of responsibility having regard to the consequences involved and ought not to be abused. [*42]

The non-reaching, as aforesaid, of a valid decision by the Public Service Commission might affect the proper functioning of the public service of the Republic, because a question relating thereto would thereby be left without a valid decision having been taken in the matter.

In the opinion of the Court it cannot be the intention of the Constitution that such an “act” should remain unremedied and, as already stated, such remedy is definitely to be found in Article 146. Paragraph 2 of such Article provides that a recourse thereunder may be made by a “person” as described therein. In paragraph 1 of the same Article the word “person” is used as denoting a person in his official capacity. Likewise, the word “person” in paragraph 2 of Article

146 should be interpreted as including, in a proper case, a person acting in an official capacity and there is nothing in the context of such paragraph 2 inconsistent with such an interpretation.

In a case falling under (ii) above, if the proper functioning of a branch of the public service is affected by reason of the fact that the Public Service Commission has not reached a valid decision in the sense of sub-paragraph (3) then it is open to a “person” acting in an official capacity and responsible for such branch of the public service (e.g. Minister or Head of Department concerned) to have a recourse to this Court under Article 146 in respect of the said “act” of the Public Service Commission. Such a recourse by a “person” acting in an official capacity would not prevent the exercise, by the public officer to whom such “act” solely relates, of the right to have a recourse, in a proper case, against such “act” under Article 146.

In a case, however, falling under (i) above, such a recourse under Article

146 is not open to such a “person” acting in an official capacity, as aforesaid, because once a decision has validly been taken under sub-paragraph (3) a recourse in this respect is only possible in a case of “conflict or contest of power or competence” under Article 139.

It is useful to point out in this connection that in a recourse under Article 146 in a case falling under (ii) above one of the most vital issues to be examined by this Court would be the validity of the course adopted by those members whose non-voting in a particular way has resulted in the non-taking of a valid decision by the Public Service Commission.

Furthermore, the principles expounded by this Court in its Judgments in Cases No. 9/61*[1] and No. 94/61† regarding [*43] the weight to be given to recommendations of Ministers, Heads of Departments or other superior officers concerned and the recording of the reasons for not following them, apply with equal force to a case of this nature.

Reverting now to the circumstances of the present case, it is clear that a

decision concerning the transfer of the Applicant, a Turkish public officer, was taken without the concurrence of at least two Turkish members of the Public Service Commission. It also appears, and it has not been contested, that on this occasion the transfer in question, as presented to the Public Service Commission at the time, was a matter relating solely to a Turk. The Public Service Commission did not, therefore, take a valid decision in the matter because it did not proceed to act under the provisions of sub-paragraph (3).

In view of the above it is clear that the purported decision in question of the Public Service Commission is null and void and of no effect whatsoever. It is not necessary, therefore, to examine any of the other issues in this Case. It is now for the Public Service Commission to decide on the question of this transfer in accordance with Article 125 and in particular with sub-paragraph (3) of paragraph 3 thereof.

CORRIGENDUM

The appearances in this Case, at letter F on p. 36, should be as follows :-

R. R. Denktash for the Applicant.

O. Feridun, Deputy Attorney-General of the Republic, for the Republic.

St. Pavlides with A. Triantafyllides & K. Michaelides, for the Greek members of the Public Service Commission.

The Turkish members of the Public Service Commission in person.

[1] *Michael Theodossiou and The Republic (Public Service Commission), 2 R.S.C.C. letter G p. 44.

†Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C., letter B p 79.