Kuwait Court of Cassation principle number 522

Summary: - Determining whether an administrative decision is nonexistent. Within the authority of the court of merits. Condition therefor. - Filling supervisory positions in ministries, government departments, public authorities and institutions. Condition therefor. - Fulfilment of the conditions for holding the supervisory position by the person whose promotion is challenged. Its implication: the decision promoting him is not tainted by any serious violations reducing it to the degree of nonexistence. Its effect: a challenge thereto must comply with the prescribed time limits for bringing an annulment action; otherwise, the action is formally inadmissible for being brought after the legally prescribed time limit. A judgment contrary thereto is defective and must be quashed. Rule: It is established in this Court’s jurisprudence that determining whether an administrative decision is nonexistent is within the discretion of the court of merits, provided that it bases its judgment on sound reasons sufficient to support it and leading to the conclusion it reached. Whereas Article 2 of Civil Service Council Decision No. 25/2006 concerning the conditions for filling supervisory positions in ministries, government departments, public authorities and institutions provides that: "The minimum conditions for filling supervisory positions in the aforementioned entities shall be as follows: a specialized university qualification + no less than (8) years of actual experience in the field of work .... provided that four actual years shall be added to the period of practical experience for holders of a specialized diploma or its equivalent...." That being so, and as the documents establish that the person whose promotion is challenged obtained a commercial secondary diploma and has actual experience in the field of work exceeding twelve years, he therefore fulfilled the academic qualification requirement necessary to hold the position of controller under Civil Service Council Decision No. 25/2006. This means, irrespective of the extent of his entitlement to hold the disputed position, that the challenged decision was not tainted by any serious violations reducing it to the degree of nonexistence—as the challenged judgment held—and consequently a challenge thereto is subject to the prescribed time limits for bringing an annulment action. As the documents show that the decision was issued on 7/2/2007, promoting the respondent’s colleague to the position of accounts controller, and that she did not submit a grievance against it until 21/1/2008, and then brought her action challenging it on 24/3/2008, despite her certain knowledge thereof at a time contemporaneous with its issuance through her presence at work and her becoming subordinate to the person whose promotion is challenged from the date he assumed the position of controller, her action seeking annulment of the aforementioned decision is therefore formally inadmissible for being brought after the legally prescribed time limit. As the challenged judgment ruled otherwise, it is defective and must be quashed in this respect.