Kuwait Court of Cassation principle number 420

Summary: - Promotion to a financial grade or 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. Reason therefor. So that the person more junior in holding the position does not become the superior of those more senior than him in holding it. - The Civil Service Council’s decision concerning the rules for comparison between candidates for promotion by selection. Effective 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 interpretative discretion where the text is clear. - The challenged judgment’s conclusion that the respondent was entitled to hold the position because he possessed a higher qualification than the person whose assignment was challenged, notwithstanding that it was established that the respondent had not held the immediately preceding position before the issuance of the challenged decision, and contrary to the rules for comparison 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, whenever a text is clear, plain in meaning, and conclusive as to its intended purport, it is impermissible to depart from it or interpret it otherwise. It is also established that promotion to a financial grade or supervisory position, or assignment thereto, may only be from the grade or position immediately preceding the grade or position to which promotion or assignment is made, so that the person more junior in holding the position does not become the superior of those more senior than him in holding it. It is also established that, although the general rule for general regulatory decisions is that knowledge thereof is presumed only from the date of their publication, and thus their provisions neither apply against interested persons nor may be invoked against them except from that date, where those decisions lay down general regulatory rules concerning employees, lower authorities are bound by them, and those decisions are considered effective within administrative bodies from the date of their issuance. If an administrative decision is issued by the authority empowered to issue it, satisfying its constituent requirements and elements, it takes effect immediately against the administrative body, without its effectiveness depending on individuals’ knowledge thereof. Decisions issued by the executive authority within its administrative regulatory sphere are, in principle, completed and produce their legal effects from the day they are signed by the person empowered to issue them and the order is directed to administrative bodies to act upon and implement them. Administrative bodies must then observe them and not contravene 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 they may be invoked against them and so that the period for seeking their annulment begins to run. It is also established in the jurisprudence of this Court that Civil Service Council Decision No. 18 of 2011 concerning the rules for comparison between candidates for promotion by selection, issued on 21/9/2011, which repealed the provisions of Civil Service Council Decision No. 37 of 2006, is effective from 21/9/2011, even though it was published on 2/10/2011, pursuant to the express wording of its final article; there is no room for interpretative discretion where the text is clear. That being so, the challenged judgment concluded that the appealed judgment should be set aside and challenged Decision No. 1169, issued on 21/9/2011, annulled, with the consequences arising therefrom. It based this ruling on the respondent satisfying the conditions for holding the position of Deputy Director of the Experts Department for Accounting Affairs, and on applying the comparison prescribed in Civil Service Council Decision No. 37 of 2006 between him and the person whose assignment was challenged (..........). It consequently held that the respondent was entitled to hold the said position because he possessed a higher qualification than the person whose assignment was challenged. This was notwithstanding that the documents establish that the respondent had not held the position of Controller before the challenged decision was issued—which is the position immediately preceding the position in dispute pursuant to Decree-Law No. 40 of 1980 promulgating the Expertise Law 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 held the position of Controller of Cases, Companies and Bankruptcy under Decision No. 167 of 2010, issued on 26/4/2010. Furthermore, the applicable comparison rules are those contained in Civil Service Council Decision No. 18 of 2011, not those contained in Civil Service Council Decision No. 37 of 2006, which was repealed with effect from 21/9/2011. Under the first criterion contained 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 held the grade of Chief Accounting Expert since 12/7/2005, whereas the latter has held 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 rendered defective in a manner requiring its cassation.