Kuwait Court of Cassation principle number 531

Summary: - Promotion to a financial grade or supervisory position, or assignment thereto. It must be from the grade or position immediately preceding the grade or position to which promotion or assignment is made. The reason for this. So that the more recent occupant of the position does not become the superior of those more senior in occupying it. - Knowledge of general regulatory decisions. It is presumed only from the date of their publication. They do not apply to the persons concerned, nor may their provisions be invoked against them, except from that date. - General regulatory decisions concerning employee affairs. Lower authorities are bound by them, and they are considered effective within administrative bodies from the date of their issuance. - Issuance of an administrative decision by the authority empowered to issue it, satisfying its constituent requirements and elements. Its effect. Its immediate effectiveness in respect of the administrative body, without this depending on individuals’ knowledge of it, even if unpublished. The reason for this. Publication is not necessary for the validity or effectiveness of administrative decisions and is intended only to notify third parties so that the decision may be invoked against them and the period for seeking its annulment begins for them. - The Civil Service Council 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 wording of its final article; 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 was more highly qualified than the person whose assignment was challenged, despite its being established that the respondent had not occupied the immediately preceding position before issuance of the challenged decision, 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 cassation. Rule: It is 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 more recent occupant of the position does not become the superior of those more senior in occupying it. It is also established that, although the general rule for general regulatory decisions is that knowledge of them is presumed only from the date of their publication, so that they do not apply to the persons concerned, nor may their provisions be invoked against them, except from that date, nevertheless, where these decisions establish general regulatory rules concerning employee affairs, lower authorities are bound by them, and these decisions are considered effective within administrative bodies from the date of their issuance. Where an administrative decision is issued by the authority empowered to issue it, satisfying its constituent requirements and elements, it takes effect immediately in respect of the administrative body, without its effectiveness depending on 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 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 and is intended only to notify third parties so that the decision may be invoked against them and the period for seeking its annulment begins for them. It is also established, according to this Court’s case law, 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 application of 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 interpretation where the text is clear. Accordingly, the challenged judgment concluded by setting aside the appealed judgment and annulling challenged Decision No. 1169, issued on 21/9/2011, with the consequential effects. It based that ruling on the respondent’s satisfaction of the conditions for occupying the position of Deputy Director of the Experts Department for Accounting Affairs, and applied the comparison provided for in Civil Service Council Decision No. 37 of 2006 between him and the person whose assignment was challenged (Ahmad Muhammad Jassim Al-Najim). It consequently held that the respondent was entitled to occupy the said position because he was more highly qualified than the person whose assignment was challenged. This was despite the papers establishing that the respondent had not occupied the position of Controller before issuance of the challenged decision—which is the position immediately preceding the disputed position under Decree-Law No. 40 of 1980 promulgating the Experts 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 occupied the position of Controller of Cases, Companies and Bankruptcy under Decision No. 167 of 2010, issued on 26/4/2010. Moreover, 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, the application of which was repealed from 21/9/2011. Under the first criterion in the said Civil Service Council Decision No. 18 of 2011, namely seniority in the current financial grade, the person whose assignment was challenged was more entitled than the respondent to assignment to the aforesaid position, since the former has occupied the grade of Senior Accounting Expert since 12/7/2005, whereas the latter has occupied 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 issued with a defect requiring its cassation.