Most recourses against an appointment or a promotion do not fail because the applicant was wrong. They fail because the deadline passed.

Article 146(3) of the Constitution allows seventy-five days, running either from publication of the act or from the date it came to the knowledge of the person concerned, depending on the case. That period is strict. Once it expires, the Court will not look at the merits at all.

What the Court does not do

A common assumption is that the Administrative Court decides which candidate was the better one.

It does not.

Its jurisdiction is one of annulment, not of merits. The Court does not substitute its own assessment for that of the Public Service Commission or any other administrative body. What it examines is whether the administration acted lawfully and whether its decision was reached in accordance with the principles of administrative law.

Within that framework it will consider, among other things, whether all material facts were taken into account, whether irrelevant considerations were allowed to intrude, whether the reasoning is adequate, whether the prescribed procedure was followed, and whether the confidential reports and the head of department’s recommendations are supported by what is actually in the administrative file.

If the recourse succeeds, the administrative act is annulled and the matter returns to the administration for fresh consideration, in accordance with Article 146(5) of the Constitution and the directions contained in the annulling judgment. That does not mean the applicant will be appointed or promoted. It means the administration must reconsider the matter without the legal defect the Court identified.

Why the administrative file matters

In promotion cases, applicants very often argue that they were superior to the person selected. In practice, however, a recourse more frequently succeeds or fails on whether a legal defect can be identified in the way the decision was reached.

That is why the administrative file is usually the single most important piece of evidence. It is there that one finds inconsistencies, inadequate reasoning, a failure to consider material evidence, misapplication of the schemes of service, defects in the confidential reports, or irregularities in the way the competent body was constituted or conducted itself.

These defects rarely appear on the face of the decision as communicated. They emerge only from close examination of the file.

What is worth doing straight away

  • Record the date of publication, or the date on which you learned of the decision.
  • Do not assume that an objection or a protest suspends the deadline, unless a statutory provision expressly says so.
  • Keep every relevant document: applications, correspondence, evaluations, announcements.
  • Obtain a legal assessment early. The decisive question is not only whether the decision was unfair, but whether it carries a legal defect capable of leading to its annulment.

Finally, it is worth being realistic. Some recourses simply do not have a sufficient legal basis, and it is better to establish that at the outset. Others turn out to be considerably stronger than they first appear, because the defect only becomes visible once the administrative file has been read.

Need an assessment?

Every case turns on its own facts and on the documents behind them. For an initial assessment of your position, you are welcome to contact the Firm at info@topouzislegal.com.

This article is provided for general information only and does not constitute legal advice on any specific matter.