Kuwait Court of Cassation principle number 261

Summary: - The Civil Service Council's decision concerning the rules for comparison among candidates for promotion by selection. It applies from the date of its issuance, not from the date of its publication, pursuant to the express wording of its final article; there is no room for interpretive discretion where the text is clear. - The challenged judgment's conclusion that the respondent was entitled to occupy the position because he had a higher qualification than the person whose assignment was challenged, despite it being established that the respondent had not occupied the immediately preceding position before the challenged decision was issued, and contrary to the comparison rules issued by decision of the Civil Service Council. A violation of the law and an error in its application requiring its cassation. Rule: It is established in the jurisprudence of this Court that where a text is clear, plain in meaning, and conclusive as to its intended meaning, it may not be departed from or construed otherwise. It is also established that promotion to a financial grade or a supervisory position, or assignment thereto, must be from the grade or position immediately preceding the grade or position to which promotion or assignment is made, so that a person more junior in occupying the position does not become the superior of those more senior in occupying it. It is also established that, although the general rule regarding general regulatory decisions is that knowledge thereof is presumed only from the date of their publication, and they therefore neither apply to the persons concerned nor may their provisions be invoked against them except from that date, where those decisions lay down general regulatory rules on personnel matters, the subordinate authorities are bound by them. Such decisions are considered effective within administrative bodies from the date of issuance. Where an administrative decision is issued by the authority empowered to issue it, complete in its constituent requirements and elements, it takes immediate effect against the administrative body without its effectiveness depending on individuals' knowledge thereof. Decisions issued by the executive authority in its administrative regulatory sphere are, as a general rule, completed and produce their legal effects on the day they are signed by the person empowered to issue them and the order is directed to administrative bodies to apply and implement them. Administrative bodies must then observe them and refrain from contravening them even if they have not been published, since publication is not necessary for the validity or effectiveness of administrative decisions. Its sole purpose is to notify third parties so that the decision may be invoked against them and the time limit for seeking its annulment begins to run for them. It is also established, according to the jurisprudence of this Court, that Civil Service Council Decision No. 18 of 2011 concerning the rules for comparison among candidates for promotion by selection, issued on 21/9/2011, which repealed the provisions of Civil Service Council Decision No. 37 of 2006, applies from 21/9/2011, although it was published on 2/10/2011, pursuant to the express wording of its final article; there is no room for interpretive discretion where the text is clear. That being so, the challenged judgment concluded by setting aside the judgment under appeal and annulling challenged Decision No. 1169 issued on 21/9/2011, with the effects consequent thereon. It based that ruling on the respondent's fulfilment of the conditions for occupying the position of Deputy Director of the Experts Department for Accounting Affairs, and on applying the comparison provided in Civil Service Council Decision No. 37 of 2006 between him and the person whose assignment was challenged (Ahmad Muhammad Jassim Al-Najem). It consequently held that the respondent was entitled to occupy that position because he had a higher qualification than the person whose assignment was challenged. This was despite the papers establishing that the respondent had not occupied the position of Controller before the challenged decision was issued—which is the position immediately preceding the disputed position under Decree-Law No. 40 of 1980 promulgating the Law of Expertise and its amendments, and Minister of Justice Decision No. 300 of 2005 reorganizing the organizational structure of the Experts Department—and that the person whose assignment was challenged occupied the position of Controller of Cases, Companies and Bankruptcy pursuant to Decision No. 167 of 2010 issued on 26/4/2010. Moreover, the applicable comparison rules are those in Civil Service Council Decision No. 18 of 2011, not those in Civil Service Council Decision No. 37 of 2006, which was repealed with effect from 21/9/2011. Under the first criterion in the aforementioned Civil Service Council Decision No. 18 of 2011, namely seniority in the current financial grade, the person whose assignment was challenged is more entitled than the respondent to assignment to the aforementioned position, since the former has occupied the grade of Chief Accounting Expert since 12/7/2005, whereas the latter has occupied the grade of Second Accounting Expert since 30/6/2003. Accordingly, the challenged judgment violated the law and erred in its application and interpretation, and was therefore issued with a defect requiring its cassation.