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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1973) 3 CLR 227
1973 April 14
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
NICOLAOS AYIOMAMITIS,
Applicant
and
THE REPUBLIC OF CYPRUS, THROUGH
THE COUNCIL OF MINISTERS AND ANOTHER,
Respondents.
(Case No. 125/68).
Army of the Republic (Constitution and Enlistment) Law, 1961 (Law 8/61)-Appointments (or promotions) of second lieutenants-Validity-Seniority in the Army- How established-The quality of the performance of the participants in a course held in 1961 for the enlistment of non-commissioned officers established their seniority- On such criterion the interested parties are senior to the applicant-Interested parties also recommended for promotion-Whereas the applicant was not so recommended -Discretionary powers of Ike respondents in appointing the interested parties, were exercised in a proper manner which was, in the circumstances, open to them-Recourse dismissed.
The facts sufficiently appear in the Judgment of the learned President of the Supreme Court, dismissing this recourse whereby the applicant was challenging the validity of the appointments of the interested parties to the grade of second lieutenants in the Army.
Recourse.
Recourse against the decision of the respondents to appoint the interested parties to the rank of 2nd Lieutenant in the Cyprus Army in preference and instead of the applicant.
L. Papaphilippou, for the applicant.
L Loucaides, Senior Counsel of the Republic, for the respondents.
Cur. adv. vult.
The following judgment was delivered by:-
TRIANTAFYLLIDES, P.: The applicant, who is a Sergeant in the Cyprus Army, challenges by this recourse the validity of the appointments as 2nd Lieutenants of Ch Phacouras and C. Pissarides (who are the "interested parties" in these proceedings).
The said appointments were published on March 21, 1968 (see exhibit 5).
Under section 5(1) of the Army of the Republic (Constitution and Enlistment) Law, 1961 (Law 8/61) the appointments of all commissioned and non-commissioned officers are made by the Council of Ministers; but by a decision (No. 4545), reached on March .18, 1965, the Council of Ministers delegated its relevant powers to the Minister of Defence, subject to his decision, on each particular occasion, being approved by the Council.
On February 15, 1968, the Council of Ministers considered proposals (see exhibit 8) made the Minister of Defence (who was the Minister of Interior acting, also, as 'Minister of Defence) for appointments to, inter alia, the rank of 2nd Lieutenant. These proposals were the same as those made in this respect to the Minister by the Commander of the Cyprus Army, after consulting his senior military advisers.
It should be pointed out, at this stage, by way of a parenthesis, that in the said proposals there appears the name of "C. Pissarides" who was recommended for appointment as a Sergeant; it is common ground that: he is, actually, a different person from interested party C. Pissarides.
As it appears from official records which were produced before me (see exhibit 6) the applicant protested against the appointments of the interested parties on the ground that he was senior, as regards length of service, to both of them, and that when all three of them participated in a special training course he completed it 9th in order of merit, whereas the interested parties were 31st and 17th, respectively.
His present recourse to this Court has been based on substantially the same grounds.
The applicant and the two interested parties went originailly, on enlistment, in 1961, through a course or non- commissioned officers, and on completing it they were given the rank of Corporal. Later on, in 1965, all three of them-having become by then Sergeants-followed the aforementioned special training course.
As was stated in evidence by Lieutenant-Colonel A. Myrianthopoulos, of the Cyprus Army, the 1961 course was of such a nature that, in accordance with established military practice, the quality of the performance of the participants in that course established their seniority in the Army; on the other hand, the 1965 course was only a refresher course; but, of course, performance during that later course was, also, taken into account for purposes of selection for promotion to higher rank.
It is not in dispute that in the 1961 course the applicant was rated as 18th, whereas the interested parties were rated as 14th and 10th, respectively.
It has, also, been stated in the Opposition-and it has not been disputed-that on three occasions when the applicant and the interested parties appeared before Selection Committees the interested parties were rated as better than the applicant; the last such occasion was in April, 1967.
Interested party Phacouras was recommended to the Council of Ministers, for appointment as 2nd Lieutenant, both by the Commander and by the Minister. Interested party Pissarides was not recommended for such appointment by the Commander or the Minister on this occasion, but he had been so recommended by the Commander to the Minister, on a previous occasion, about a year earlier (see exhibit 10). The applicant was not recommended at all on either occasion.
From all the relevant material, which has been placed before me, including what has been already specifically referred to in this judgment, it appears that the appointments of the interested parties were made as, a result of the exercise by the respondents of. their discretionary powers in a manner which was, in the circumstances, reasonably open to them; and that being so I have to uphold the said appointments as having been made validly; therefore, this recourse fails and is dismissed accordingly; but there shall be made no order as to costs against the applicant.
Application dismissed.
No order as to costs.