Kuwait Court of Cassation principle number 473

Summary: - The Civil Service Council’s decision concerning the rules for comparison between candidates for promotion by selection. It takes effect from the date of its issuance, not the date of its publication, pursuant to the express provision of its final article, and there is no room for interpretation where the text is clear. - The challenged judgment’s conclusion that the respondent was entitled to occupy the position because he possessed higher qualifications than the person whose secondment was challenged, despite its being established that the respondent had not occupied the immediately preceding position before issuance of the challenged decision, and in contravention of 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 provision is clear, plain in meaning and conclusive as to its intended import, it is impermissible to depart from it or construe it otherwise. It is also established that promotion to a financial grade or supervisory position, or secondment thereto, must be from the grade or position immediately preceding the grade or position to which the promotion or secondment is made, so that the person more junior in occupying the position does not become the superior of those more senior than him in occupying it. It is also established that, although the general rule regarding general regulatory decisions is that knowledge of them is presumed only from the date of their publication, and therefore they do not apply to those concerned, nor may the provisions they contain be invoked against them, until that date, nevertheless, where those decisions are issued to lay down general regulatory rules concerning employees’ affairs, lower authorities are bound by them, and those decisions are considered effective within administrative authorities from the date of their issuance. Where an administrative decision is issued by the authority empowered to issue it and satisfies its constituent requirements and elements, it takes effect immediately in respect of the administrative authority, without its effectiveness being dependent upon individuals’ knowledge of it. Decisions issued by the executive authority in its administrative regulatory sphere are, in principle, completed and produce their legal effects from the day on which the person empowered to issue them signs them and directs administrative authorities to act upon and implement them. Administrative authorities 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 and is intended only to notify third parties so that the decisions may be invoked against them and the period for seeking their annulment begins to run. 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 between candidates for promotion by selection, issued on 21/9/2011, which repealed the provisions of Civil Service Council Decision No. 37 of 2006, takes effect from 21/9/2011, although it was published on 2/10/2011, pursuant to the express provision of its final article, and there is no room for interpretation where the text is clear. Accordingly, the challenged judgment concluded by setting aside the judgment under appeal and annulling challenged Decision No. 1169 issued on 21/9/2011, with the consequences arising therefrom. It based this ruling on the respondent’s satisfaction of the requirements for occupying 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 secondment was challenged (Ahmad Muhammad Jassim Al-Najem). On that basis, it held that the respondent was entitled to occupy the aforementioned position because he possessed higher qualifications than the person whose secondment was challenged. This was despite the fact that the documents establish that the respondent had not occupied the position of controller before issuance of the challenged decision—which is the position immediately preceding the position in dispute under 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 secondment was challenged held the position of Controller of Cases, Companies and Bankruptcy pursuant to 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 ceased to apply as of 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 secondment was challenged is more entitled than the respondent to secondment 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. Consequently, the challenged judgment violated the law and erred in its application and interpretation, and was therefore rendered defective in a manner requiring its cassation.