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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 377
1989 March 27
[DEMETRIADES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
GLAFKOS APEITOS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
INTERIOR AND ANOTHER,
Respondents.
(Cases Nos. 630/85, 631/85, 632/85, 633/85, 634/85, 643/85, 657/85, 719/85, 720/85, 731/85, 737/85, 738/85 and 748/85)
Annulment of an administrative act - Reconsideration of subject matter - Principles applicable - Regulations which, following the annulled act, have been declared by the Supreme Court to be void as being ultra vires - Whether could be applied in reconsidering matter - Question determined in the negative.
Police - Promotions - The Police Promotions Regulations, 1958, Reg. 6(3)(b) - Marked ability or exceptional aptitude for special work - Meaning of- Includes persons who by deeds have proved their loyalty and devotion to the lawful State and have put up resistance against the Coup D'Etat and illegality in general.
Following annulment of promotions to the rank of Sergeant, there arose the question of reconsideration, because in the meantime, all Police Regulations enacted after Law 29/66 were declared by the Supreme Court in Lefkatis and Others v. The Republic (1985) 3 C.L.R. 1372 as ultra vires the Law. As a result the respondents applied the old Police Promotions Regulations, 1958, which had been purportedly amended and repealed by regulations enacted after 1966. The interested parties were promoted under Regulation 6(3)(b).In the light of the principle sufficiently enunciated in the hereinabove Headnotes, the Court dismissed the recourses
Recourses dismissed No order as to
costs.
Cases referred to:
Eracleous and Others v. Republic (1985) 3 C.L.R. 740,
Lefkatis and Others v. Republic (1985) 3 C.L.R. 1372,
Yiallouros v. Republic (1986) 3 C.L.R. 677,
Joannides and Others v. Republic (1986) 3 C.L.R. 1946.
Recources.
Recourses against the decision of the respondents to promote the interested parties to the rank of Sergeant in the Police Force in preference and instead of the applicants.
A Papacharalambous, for Applicants in Cases Nos. 630/85- 634/85, 643/85, 657/85, 719/85, 72.0/85 and 738/85.
E. Efthymiou, for the Applicant in Case No. 731/85.
C. Clerides, for the Applicant in Case No. 737/85.
A. S. Angelides, for Applicants in Case No. 748/85.
M. Florentzos, Senior Counsel of the Republic, for Respondents.
G. Triantafyllides with M. Kyprianou, for Interested parties E. K. Loizou, D. Napoleontos, Chr. Pericleous, A. Papageorghiou, P. Louka, S. Paphitis, S. Kolios, Tr. Nearchou, Chr. Pavlou, St. Michael, A. Lazarou, Che. Voutonos, Chr. Lazarou, E. papasavvas, L. Paphitis.
E. Odysseos, for Interested parties G. Theodotou and. Chr. Theodotou.
Chr.Vassiliades, for Interested parties A. Anastassiou, A. Katsouras, D. Georghiades, A. Laou, E. Panayi, Chr. Charalambous, G. Rodosthenous, G. Teklos, E. Moustakas, K. Nicolaides, M. Christodoulou, K. Ioannou, K. Teidos, A. ipsarides, I. Neophvt.ou, M. Maratheftis, G. Stylianou.
Cur.adv. vult.
DEMETRIADES, J. read the following judgment. By the above recourses, which were heard together as presenting common questions of law and fact, the applicants challenge the decision of the respondents, published in the Weekly Orders on the 17th June, 1985, by which the interested parties were promoted to the rank of Sergeant in the Police Force as from the 15th February, 1978.
The applicants were originally 54 in number. However, during the course of the hearing,NicosNicolaou Applicant No.6 in Recourse No. 738/85 withdrew his recourse.
The promotion of a number of interested parties is challenged by the present recourse, most of whom are common several recourses. The total number of interested parties, after the withdrawal of the recourses against two of them, namely Th. Chrysostomou and N. Anastassiades, is 77.
The history of the proceedings started in 1978 when a decision was taken for the promotion, as from the 15th February, 1978 of 413 Police Constables to the rank of Sergeant in the Police Force. The above promotions were challenged by recourses by a number of applicants. By the judgment of the Court, which was issued on the 20th March, 1985, (see Eracleous and Others v. The Republic (1985) 3 C.L.R. 740) the promotions of the interested parties were annulled on the grounds that-
(a) the respondents, in effecting the promotions, took into consideration the reports of the Central Information Service which must have materially affected the reaching of the decision challenged;
(b) the Chief of Police, before exercising his discretion, had deliberations with the Minister which might have influenced the exercise of the discretion of the Chief of Police.
As a result of the above annulling decision of the Court, the Chief of Police sought the advice of the Attorney-General's Office which was obtained on the 16th April, 1985. Acting on the basis of the said advice, the Chief of Police, in exercising his discretion, decided to promote the same officers whose promotion was annulled by the Court, including the interested parties, and submitted the list, together with an explanatory letter dated the 2nd May, 1985, to the Minister for approval.
Before the approval of the Minister was given, the Supreme Court, by its judgment in the case of Lefkatis and Others v. The Republic (1985) 3 C.L.R. 1372. annulled the promotion of a number of Inspectors to the rank of Chief Inspector, on the ground that the Police (Promotion) (Amendment) Regulations No. 184/83, which were issued after the coming into operation of the Police Law 1966 (Law 29/66), on which the promotions in question were based, were ultra vires the Law as they did not conform with the enabling law and were not laid before the House of Representatives as the Law provided.
As a result, the Chief of Police sought a new advice from the Attorney-General's Office on the question whether those candidates who had passed, prior to 1978, the promotion examinations which were conducted on the basis of regulations which had been declared ultra vires the Law by the above judgment, were going to be considered as possessing the said qualification at the reconsideration of the annulled promotions. The Deputy Attorney-General, by his advice dated the 13th June, 1985, stated that the candidates concerned ought to be considered as possessing the said qualification but, in any event, even if they were considered as not possessing the qualification in question, they could still be promoted, under the 1958 Regulations, if they had shown marked ability or exceptional aptitude for special work as provided by Reg. 6(3)(b) of the Police (Promotion) Regulations, 1958.
Acting on the above advice, the Chief of Police sent a letterto the Minister of Interior, dated the 17th June, 1985, supplementary to the one sent by him on the 2nd May, 1985. In this letter he explained to the Minister the situation as it appeared after the judgment in the case of Lefkatis, (supra) and after referring to the new advice of the Attorney-General's office and stating the number of candidates whose qualifications might be affected by the judgment of the Court in the above case, proceeded to mention that in any event the candidates could be promoted, even if they were considered as not possessing the said qualification, on the basis of Regulation 6(3)(b) and that he was satisfied that they had shown such "marked ability or exceptional aptitude for special work" as required by the said regulation. The Chief of Police ended his letter by requesting the approval of the Minister for the proposed promotion of the interested parties, who were the same persons as those promoted in 1978.
On the same date the Minister approved the said promotions as from the 15th February, 1978, the date when the annulled promotions took effect.
As a result of the publication of the promotions in the Weekly Orders of the 17th June, 1985, the present recourses were filed.
The grounds of law on which the applicants base their recourses are the following:
(1) The sub judice promotions were based on non existing regulations, or were made at a time when no specific legal provisions governing promotions were in existence.
(2) The sub judice promotions were wrongly made with retrospective effect.
(3) The applicants are superior to the interested parties in respect of merit, qualifications and seniority.
Counsel for the applicants argued, in respect of the first ground, that it is not clear from the material submitted which regulations were applied by the respondents in reaching the subjudice decision. It is also obvious from the material before the Court, especially the letter of the Chief of Police to the Minister dated the 2nd May, 1985 (Supplement L' to the opposition), that the procedure for re-consideration of the promotions started before the annulling decision of the Court in the case of Lefkatis (supra). As a result, it is to be deduced that the Chief of Police, in reconsidering the matter, applied regulations which were ultra vires the Law.
What has to be decided is whether .the sub judice decision was based on the correct Regulations. After the annulment of the promotion of the interested parties, which took place in 1978, by the judgment in the Eracieous case (supra), the respondents, in reconsidering the matter, had to act on the basis of the factual and legal situation prevailing in 1978, the time of the annulled promotions. At that time, the Police (Promotion) Regulations of 1958, as amended by Not. 943/66 published in Supplement No. III of the Official Gazette of the Republic No.542, dated the 22nd December, 1966, and Not. 111/72, published in Supplement No. III of the Official Gazette of the Republic No. 942 dated the 9th June, 1972 were in force. However, before the reconsideration was concluded, and the promotions finalised, the judgment of the Supreme Court in the case of Lefkatis (supra) was issued, as a result of which all regulations issued after the enactment of the Police (Amendment) Law 1966 (Law 29/66), were declared ultra vires the Law. Irrespective of the fact that in 1978, when the sub judice promotions were first effected, the regulations under Notifications 943/66 and 111/72 were in force, the respondents could no longer apply them when reconsidering the matter in 1985.
The question which arises is whether the Regulations under Notification Nos. 943/66 and 111/72, which were published after the enactment of Law No. 29/66 but before 1978, were in fact applied in the sub judice promotions.
It is obvious from the material :before me, especially the legal advice from the Attorney-General's Office and .the letter of the Chief of Police to the Minister, dated the 17th June, 1985, that the respondents, in effecting the sub judice promotions, did not rely on the regulations which had been declared ultra viresthe Law by the Court but applied the 1958 Regulations, a course which was perfectly legitimate in the circumstances, in view of the fact that the 1958 Regulations have not been affected as they areSaved by the proviso, to section 13(3) of the Law as amended by Law 29/66 (see Yiailouros v. The Republic (1986) 3 C.L.R. 677).
This ground is, therefore, dismissed.
The next ground concerns the retrospectivity of the sub judice promotions. in this respect, I cite the case of Yiailouros v. The Republic (supra), where the following were stated at p. 685:
"An administrative decision taken in the course of reexamination of a matter as a result of an annulling decision of the Court, may be given retrospective effect, and this, as it was correctly put by counsel for the respondents, affords an exemption to the rule of non retrospectivity of administrative acts. Support may be found in several Greek authors, as for example, in Kyriacopoulos on Greek Administrative Law, 4th Edition, volume C. p. 400, Conclusions from the Case Law of the Greek Council of State 1929 - 1959, p. 281 and Dendias on Administrative Law, 2nd Edition, volume C. p. 359."
This passage, which I adopt, answers the question in issue and there is nothing more to be said. The next ground that remains to be considered concerns the merits of the candidates.
It is common ground that the interested parties were promoted on the basis of Regulation 6(3)(b) of the Police (Promotion) Regulations 1958, which reads as follows:-
"6.-(1) A constable to be qualified for promotion to the rank of Sergeant must:-
(3) Notwithstanding anything in this Regulation contained the Chief Constable:-
(a) may decide that members of the Force recommended by the Board for advancement should attend a short promotion course;
(b) may promote any police officer who shows marked ability or exceptional aptitude for special work, irrespective of his length of service, and whether qualified by examination or not."
It is stated, at para.5 of the letter of the Chief of Police to the Minister, dated the 17th June, 1985, that:
"Επιθυμώ να επαναλάβω ότι οι συνιστώμενοι, πέρα από τα ειδικά προσόντα που κατείχαν και την επίδοση στα καθήκοντα τους, επέδειξαν, κάτω από τις δραματικές εσωτερικές ανωμαλίες που επικράτησαν, προ των τότε προαγωγών και για μια μακρά χρονική περίοδο στην Κύπρο, έμπρακτη εκδήλωση αξιόλογου ικανότητας με την αφοσίωση τους για υποστήριξη του κράτους και της έννομης τάξης."
("I wish to repeat that those recommended, in addition to the special qualifications which they possessed and the performance of their duties, have shown, under the prevailing dramatic internal disturbances, before the time of the promotion and for a long period of time in Cyprus, actual marked ability with their devotion for the support of the state and law and order").
In the judgment of the Court, in the Eracleous case (supra), by which the promotions of the interested parties which took place in 1978 were annulled, it is stated that the term "marked ability" should be extended to include those persons who by deeds have proved their loyalty and devotion to the lawful State and have put up resistance against the Coup D'Etat and illegality in general. (See pp. 753 - 754 of the judgment in Eracleous case (supra)). This same view was adopted by the Full Bench in the case of Joannides and Others v. The Republic (1986) 3 C.L.R. 1946, at pp. 1954, 1955.
In the light of the above, I find that the sub judice decision was reasonably open to the respondents. In any event, theapplicants failed to establish striking superiority, especially in view of the fact that the interested parties were promoted on account of their marked ability or exceptional aptitude for special work.
Before concluding, I wish to deal very briefly with certain supplementary points raised by counsel for applicants in Case No. 748/85.
Counsel argued that the approval of the Minister was given without any inquiry on his part into the matter, since it was given on the same date that the matter was referred to him by the Chief of Police and that, also, the Minister was not the same person as in 1978 and he did not know the candidates.
To this, the short answer is first that the list of those to be promoted was before the Minister since the 2nd May, 1985, and so there was ample time to make any inquiries that were necessary as to the persons to be promoted and, secondly, the Minister gives his approval not in his personal capacity but as the proper organ and any change in his person does not affect the validity of any decision. The fact that he was new does not again affect the situation as he usually acts on the advice of those being in a position to know and he is entitled to receive information from those persons.
Counsel also argued that for a number of interested parties it is not mentioned in the first letter of the Chief of Police to the Minister, (Appendix L'), that they were promoted exceptionally (κατ' εξαίρεσιν) whilst this is mentioned in his second letter (exhibit 1), which was written after the judgment in Lefkatis case.
This is not, in my view, something that should affect the validity of the sub judice promotions as these officers, despite the fact that they had passed the examination required by the regulations which were later declared ultra vires, were considered by the Chief of Police as fit for promotion not because of their said qualification, but on account of their "marked ability".
In the result, these recourses fail and are hereby dismissedwith no order as to costs.
Recourses dismissed. No order as to costs.