KANARIS ν. REPUBLIC
(1985)3 CLR 483 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1985)3 CLR 483 1985 March 2 [MALACHTOS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ADONIS KANARIS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF COMMUNICATIONS AND WORKS, Respondents. (Case No 156/79). Administrative Law-Administrative acts or decisions-Reasoning. Electricity (Amendment) Regulations, 1976-Senior Electrical Technician-Qualifications required-Regulation 53
(5)(a)(i)-Once applicant did not possess the qualifications thereunder his practical experience, however long, could not come into ploy. Collective organ-Constitution and functioning-Quorum-Principles applicable-Section 35 of the Interpretation Law, Cap. 1. The applicant applied to the respondents for a licence to carry out electrical installations. His application was considered by a Special Committee which decided that his qualifications-the Full Techonological Certificate Electrical Engineering Practice of the City and Guilds of London Institute-could not be approved as being within the provisions of regulation 53
(5)(a)(
- i)of the Electricity(Amendment) Regulations of 1976, because its syllabus could not be considered as equivalent to that of the Higher Technical Institute. As a result of this decision applicant was informed "that his application for the issue of a certificate of competence of a senior electrical technician, after careful consideration of the particulars furnished by him, was rejected". Hence this recourse which was based on the following grounds: (
- a)That the sub judice decision was not duly reasoned. (
- b)That the respondents acted under a misconception of fact because the applicant possessed all the necessary qualifications and respondents ignored his nine year practical experience. (
- c)That the Special Committee was improper1y constituted, contrary to regulation 53
(1)(a)(i) in that one of its members was absent. Held,
(1)that the decision complained of is duly reasoned, such reasoning appearing in the decision itself, where it is clearly stated that the certificate of the City and Guilds Institute is not considered as equivalent to that of the Higher Technical Institute of Cyprus; that the respondent authority took this decision on the advice of the Special Committee which obviously, relied on the documentary evidence and correspondence contained in the file of the case, which file was before the respondent authority at the time of taking the decision complained of.
(2)That the respondents did not act. under a misconception of fact because applicant did not possess all the necessary qualifications which are required by regulation 53
(5)(
- a)(
- i)and (ii); that since the Special Committee set up to evaluate qualifications, decided that his qualifications were not equivalent to those required, his contention that his nine year practical experience was ignored, must fail too, as the question of practice, however long, could not come into play since 'he did not have the basic qualifications.
(3)That the general principles of Law concerning collective organs is that not all members need be present provided there is a quorum; that the minimum number of persons constituting a quorum may be specified by Law for a particular organ and whenever there are no special provisions, a quorum is formed by one half the number of its members plus one; that since the Chairman and three of the four members of the Committee were present at the meeting, the representative of the Ministry of Education being absent the Special Committee was not improperly constituted (see also, section 35 of the Interpretation Law, cap. 1). Recourse dismissed. Recourse. Recourse against the refusal of the respondents to issue to applicant a certificate of a Senior Electrical Technician. E. Efstathiou, for the applicant. D. Papadopoulou (Mrs.), for the respondents. Cur. adv: vult. MALACHTOS J. read the following judgment. The applicant in this recourse claims a declaration of the Court that the decision of the respondents of the 20th January, 1979, by which they rejected his application for the issue to him of a certificate of a Senior Electrical Technician, is null and void and of no legal effect whatsoever. The relevant facts of the case are the following: On 30th July, 1973, the applicant wrote to the Department of Electrical and Mechanical Service applying for a licence to carry out electrical installations. His letter was accompanied by a certificate of the City and Guilds of London Institute with the results of the Preliminary Examination in Electrical Engineering practice which he passed with Distinction in May-June
- On 2nd August, 1973, they replied to him that he was not sufficiently qualified for the certificate applied for and advised him for this purpose, to take the examinations held by them each year. On 28th May, 1976, the applicant applied again for the issue of a certificate of competency of a Senior Electrical Technician. He attached to his application a photocopy of the Full Technological Certificate of the City and Guilds of London Institute, in Electrical-Engineering Practice, which he held. On 1st September, 1976, they informed him by letter that his application would be examined by the Special Committee which would meet in order to examine applications for recognition of various academic qualifications. On 13th October, 1976, the Department of Electrical and Mechanical Service wrote to the applicant requesting details of his theoretical education, together with particulars of the syllabus of the City and Guilds Institute, in order to be able to consider his application, which the applicant for warded on 18th October,
- On 29th March, 1977, the Department of Electrical and Mechanical Service informed the applicant that they had requested additional information from the City and Guilds Institute and that they would inform him, of the outcome of his application in due course. On 25th July, 1977, the City and Guilds Institute wrote, inter alia, to the Director of the Department of Electrical and Mechanical Service, as follows: "The Full Technological Certificate in Electrical Engineering Practice and Communication Technicians are generally regarded as being approximately equivalent in level to Higher National Certificate or Diploma". On the 16th August, 1977, the Director of the Electrical and Mechanical Service wrote to the Minister of Communications and Works informing him of the decision of the Special Committee as regards the institutions which were recognized. He wrote, inter alia:- "The below mentioned institutions were recognised as institutions falling within the provisions of section 53
(5)(a)(i) of the Electricity (Amendment) Regulations of 1976. 'Higher National Certificate' and 'Higher National Diploma' (old and new Scheme) in Electrical and Electronic Engineering awarded by the Institution of Electrical Engineers, the Institution of Electronic and Radio Engineers and the Department of Education and Science, U.K." On 21st September, 1978, the Special Committee met to consider various applications and decided that the Full Technological Certificate in Electrical Engineering Practice of the City and Guilds of London Institute could not be approved as being within the provisions of regulation 53
(5)(
- a)(
- i)of the Electricity (Amendment) Regulations of 1976, because its syllabus could not be considered as equivalent to that of the Higher Technical institute. By letter dated 20th January, 1979, the Director of the Electrical and Mechanical Service informed the applicant that his application for the issue of a certificate of competence of a senior electrical technician, after careful consideration of the particulars furnished by him, was rejected. The present recourse, as stated therein, is based on the following grounds of Law: 1. The sub judice decision was taken in abuse and/or excess of power. 2. The sub judice decision was based on a misconceived basis and/or misconceived criteria. 3. The sub judice decision was taken under a misconception of Law. 4. The sub judice decision is in breach of the constitutional right of every person to practice any profession. 5. The applicant was subjected to unequal treatment. 6. The decision lacks due reasoning. 7. The sub judice decision is the product of wrong evaluation of the applicant's academic qualifications. Counsel for the applicant has argued in his written address that the sub judice decision is not duly reasoned. Moreover, he argued that administrative decisions which are unfavourable to the applicant must state fully and clearly the reasons upon which the decision was based. Citing Stassinopoulos, Law of Administrative Disputes, (4th Edition)
(1964), at pp. 224 and 226-7, he stated that the decision must not merely repeat the provisions of the Law but must be clear and unambiguous so that its judicial control may be possible. He next argued that the respondents were wrong in refusing the applicant the certificate of competency since he possessed all the qualifications as required by regulation 53
(5)of the Electricity (Amendment) Regulations of 1976. He contended that his qualifications are equivalent to those of the Higher Technical Institute in accordance with regulation 53
(5)(i), also that not only did he possess the 1 year's practical training as specified by regulation 53
(5)(ii), but that he actually had 9 (nine) years' practice, a fact which was disregarded by the respondents who have thus exercised their discretion wrongly and contrary to Law. Finally, he argued that the Special Committee was wrongly constituted in that the representative of the Ministry of Education was not present as it was required by regulation53
(1)(
- a)(
- i)and that the Electrical Engineer if the Electrical, and Mechanical Service, a Mr. G. Christodoulides, was present in his place. As regards the first ground, I hold the view that the decision complained of is duly reasoned, such reasoning appearing in the decision itself, where it is clearly stated that the certificate of the City and Guilds Institute is not considered as equivalent to that of the Higher Technical Institute of Cyprus. The respondent authority took this decision on the advice of the Special Committee. Obviously, the said Committee relied on the documentary evidence and correspondence contained in the file of the case, which file was before the respondent authority at the time of taking the decision complained of. As regards the second argument that the respondents acted under a misconception of fact and that the applicant did possess all the necessary qualifications, this ground must also fail, as the applicant did not possess all the necessary qualifications which are required by regulation 53
(5)(
- a)(
- i)and (ii). The Special Committee set up to evaluate qualifications, decided that his qualifications were not equivalent to those required, therefore, his contention that his nine year practical experience was ignored, must fail too, as the question of practice, however long, could not come into play since he did not have the basic qualifications. As regards the final argument of counsel for applicant, that the Special Committee was improperly constituted, contrary to regulation 53
(1)(a) (i), should also be dismissed. The Chairman and three of the four members of the Committee were present at the meeting, the representative of the Ministry of Education being absent. The general principles of Law concerning collective organs is that not all members need be present provided there is a, quorum. The minimum number of persons constituting a quorum may be specified by Law for a particular organ and whenever there are no special provisions, a quorum is formed by one half the number of its members plus one (See Conclusions from Case Law of the Greek Council of State 1929-59 at p. 109). Also in the Interpretation Law, Cap. 1, section 35, it is provided: "Save as is otherwise expressly provided by any Law, whenever any act or thing is required to be done by more than two persons, a majority of them may do it." As regards the presence of Mr. Christodoulides, the Electrica1 Engineer of the Electrical and Mechanical Service, there is no evidence to suggest that he was present at the meeting in the place of the representative of the Ministry of Education, a alleged; on the contrary, it is clear in the minutes of the meeting of the Special Committee that he was not present as a member. For all the above reasons, this recourse fails and is hereby dismissed, with no order as to costs. Recourse dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο