Elia Stavroulla ν. The Republic of Cyprus through the Educational Service Commission
(1987)3 CLR 253 THE CYPRUS LAW REPORTS 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
(1987)3 CLR 253 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION STAVROULLA ELIA, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, Respondent. (Case No. 499/83). Administrative Law - Powers of administration - Delegated legislation - Once enacted by the competent organ it has to be complied with, until it is repealed or declared ultra vires by a judicial decision. Legitimate interest - Educational Officers - Appointments on contract - Sub judice decision taken in reliance, though not absolutely, on the priority list compiled under the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations, 1972- If priority list strictly complied with, applicant would not have been appointed - As, however, she seeks the annulment 61 sub judice decision on the ground, also, that the Regulations are invalid, she possesses a legitimate interest. Educational Officers - Appointments on contract - The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations-Regs. 5 and 10 and the appendix thereto- Ultra vires enabling law. The applicant was first appointed on contract as a teacher of English on 23.9.
- Her contract was renewed every year until the 31.8.
- On 12.9.83 the respondent decided to appoint, again, on contract for the period 1.9.83 - 31.8.84, those educationalists who were serving so during the previous year on the basis of their priority in the list compiled in virtue of the aforesaid regulations. The applicant's contract, however, was not renewed on the ground that there was no material proving that her first appointment on contract in 1976 was properly effected on the basis of her priority on the list of appointees. Hence the present recourse. It must be noted that in effecting the sub judice decision the respondent did not strictly adhere to the priority of the list compiled in virtue of the aforesaid regulation, but only followed it to a certain extent. If the respondent had strictly complied with the list, the applicant would not have been appointed. Held, annulling the sub judice decision:
(1)Once legislation of a delegated nature was made by the competent organ, it has to be complied with until it is repealed or until it is found to be ultra vires by a judicial decision. Regulations 5 arid 10 of the said Regulations and the Appendix thereto have been found to be ultra vires the law in Savva v. The Republic
(1986)3 C.L.R. 445, that is after the sub judice decision was taken. It follows that, at the material time, the respondent had to apply the Regulations.
(2)Had the respondent followed the list of priority, the applicant would not have been appointed and, therefore, would not have been benefited by its strict application and would, as a result, riot possess any legitimate interest to challenge the sub judice decision on that ground. Once, however, the respondent did not strictly adhere to the priority list and proceeded to select for appointment those serving in the previous year on the basis of their priority in the list and the applicant seeks the annulment of the sub judice decision on the ground, also, that the decision was based on invalid regulations, this Court came to the conclusion that the applicant has a legitimate interest to pursue this recourse to the end.
(3)Regulations 5 and 10 and the appendix thereto of the aforesaid regulations are invalid as being ultra vires the enabling law (Savva v. The Republic, supra adopted).
(4)In taking the sub judice decision the respondent relied, though not absolutely, on the priority list compiled in virtue of the said invalid regulations and such list has in fact affected its decision. Once such decision was based on material, which is ultra vires the Law, it is defective and has to be annulled. Sub judice decision annulled. No order as to costs. Cases referred to: Savva v. The Republic
(1986)3 C.L.R. 445; Kapsou v. The Republic
(1983)3 C.L.R. 1336; Psara-Kronidou v. The Republic
(1985)3 C.L.R. 1900; Kouis and Others v. The Republic
(1986)3 C.L.R. 1874; Sarris v. The Republic
(1987)3 C,L.R.
- Recourse. Recourse against the omission of the respondent to appoint applicant on contract as a teacher of English and against the appointment of the interested parties as teachers of English to the exclusion and/or instead of the applicant. A.S. Angelides, for the applicant. M Florentzos, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant by the present recourse prays for a declaration the omission of the respondent to appoint her on contract for the school year 1983 - 1984 as a teacher of English, as well as the appointments of the interested parties whose names appear in the attached list as teachers of English, made on the 12th September, 1983 to the exclusion and/or instead of the applicant should be declared null and void. The applicant has a B.A. Honours degree in English and Latin literature and was first appointed on contract as a teacher of English on the 23rd September,
- Her contract was renewed every year until the 31st August,
- On the 12th September, 1983 the respondent decided to appoint, again, on contract, those educationalists who were serving so during the previous year. The minutes of the meeting of the respondent Commission read, in this respect, as follows: ### ### ### The Commission bearing in mind- (a) The provisions of the law, the regulations and the schemes - of service, (b) The decision of the Supreme Court in Appeal No. 293, (c) The document of the Director-General of the Ministry of Education, Na. 197/62/2 dated 9.9.83, (d) The document of the Director of Secondary Education dated 31.8.83 in respect of surpluses and shortages in schools, and (e) After having studied the files of the candidates for appointment arrived at the following conclusions:
(1)Those teachers who had served on contract during 1981/ 1982 are the only applicants who satisfy the provisions of the schemes of service in accordance with Transitory provision I of such Schemes. The subsequent suspension of the requirement for paedagogical qualification' by a decision of the Council of Ministers gives a right of appointment to the other candidates as well, (who do not possess paedagogical qualifications), but the Commission believes that the suspension does not extinguish the fact that those who were serving in 81/82 are superior, with regard to qualifications, to the others.
(2)The teachers mentioned hereunder and who were appointed on contract during the previous school years, were appointed lawfully and regularly on the basis of their priority on the list of appointees. The applicants who have now priority on the new list: (
- i)were either included for the first time in the list of July, 1983, for the reason that they did not submit an application before and obtained their priority only because of seniority, (
- ii)or obtained priority on the list of 1983 because they acquired additional qualifications and/or on the basis of other supplementary material which was submitted for the first time and/or because of previous service abroad, (iii) or were not interested for appointment during the previous years, or appointment was offered to them which they did not accept, or had accepted appointment but interrupted their contract later.
(3)The teachers who were during the previous school year on contract undoubtedly acquired educational experience in schools of Cyprus and have adapted themselves to the special conditions of our schools and as a result the Commission finds that these candidates are superior to the rest in this aspect.
(4)The Commission also finds that the possible observance of the strict order of priority of the new list of appointees contravenes the constitutionally protected principle of equality and would have been unjust for those previously appointed who would remain unappointed because on the basis of the practice established since some years, a person contractually appointed had the expectation that he would acquire a permanent post and that manner of his appointment was only a formal procedure, that is, he considered himself somehow permanent and on the basis of such fact he created responsibilities, (family, social, financial) and in many cases he has given up his previous employment.
(5)These educationalists had been appointed normally and lawfully (most of them for a number of years) and their non - appointment would be contrary to the existing labour law and policy. On the basis of the above the Commission decides to offer contractual appointment to the teachers and instructors appearing on the attached list from 1.9.83 till 31.8.84»). The applicant was not appointed by the said decision and she wrote a letter; through her counsel, to the respondent, claiming that she should have been appointed also. The respondent by letter dated 7.11.83 replied that the decision not to appoint her was due to the fact that there was no material proving that her first appointment on contract which was effected in 1976 was properly effected on the basis of her priority on the list of appointees. As a result, the applicant filed the present recourse. Counsel for applicant argued by his written address that the decision of the respondent' to appoint all those educationalists serving during the previous year except the applicant is unlawful and that the order of priority on the lists of candidates for appointment, as provided by Regulation 10
(2)of the Regulations was not strictly followed and this is obvious from paragraph
(4)of the said decision. He also argued that the criteria set down by the respondent in its decision applied also to the applicant and there is no substance in the reasons for the non appointment of the applicant contained in the letter of the respondent dated 7.11.1983, which are merely an afterthought and the result of lack of a due inquiry into the matter. Counsel for the respondent argued that according to the criteria set down by the respondent in its decision it was a basic prerequisite for the re-appointment of those serving during the previous year that their first appointment should have been properly effected in accordance with their priority on the list of appointees, and that the applicant did not satisfy this condition in 1976, when she was first appointed. Counsel also submitted that even if the order of priority on the new list was followed, the applicant would not have been appointed, since only 21 educationalists were appointed and the last one so appointed was No. 44 on the list, whilst the applicant's serial number was
- Counsel lastly submitted that the sub judice decision should not be set aside if it can be supported on any other legal reasoning and in the circumstances the applicant was not, in any case, entitled to be appointed. It is common ground that the order of priority of the applicant on the list of 1983 is
- In the facts set out in support of the opposition counsel for the respondent inaccurately stated that the last educationalist appointed on contract for the subject of English in 1983 had as serial number
- Counsel for the applicant obviously based his address on that assumption. It was, however, later stated by counsel for the respondent, in his written address that the said number was wrong and that the correct number of the last educationalist so appointed was
- As a result, I considered it necessary to re-open the case and ask for the production of the lists of appointees of 1983 and of those appointed by the sub judice decision. I also requested counsel for the applicant to clarify whether he intended to challenge the appointment of any of the 21 educationalists appointed by the sub judice decision, in which case he had to join them as interested parties and serve them with the application. In the meantime the judgment in the case of Savva v. The Republic
(1986)3 C.L.R. 445, was delivered, by which Regulations 5 and 10 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972 were declared ultra vires and void for unreasonableness and the lists of appointees prepared thereunder as invalid. In his supplementary address, counsel for the applicant argued that the respondent could not ignore the order of priority of candidates for appointment as appearing on the list of appointees. He also argued that it is obvious from para 2 of the sub judice decision that the respondent has appointed those who had been appointed in the past on the basis of their priority on the list at the time of their appointment and the decisions must, in that respect, be annulled on the ground of the invalidity of the Regulations. Counsel further added that the respondent by its letter of 7.11.83, seeks to rely on the order of priority on the list which, in the light of the decision in the Savva case (supra), must be declared ultra vires the Law. Counsel for applicant further stated that it was necessary that the interested parties should be notified, as their appointment on contract is being challenged. As a result, notices were issued and sent on 14 of the interested parties whose names appear in the list annexed to the judgment. Service on the remaining 7 was not effected and to avoid further delay in these proceedings counsel for applicant withdrew applicant's recourse against such 7 parties. Counsel for the respondent repeated, in his supplementary address, that the applicant was not in any way affected by the nonobservance of the priority on the list of appointees in view of her serial number. It is obvious from the sub judice decision that the respondent although it adopted, to a certain extent, the priority list of candidates for appointment, it did not strictly adhere to such priority on the ground that strict adherence would have led to injustice. As it emanates from our case law, the respondent Commission had to apply the Regulations which are in effect legislation of a delegated nature and follow the priority list. In Kapsou v. Republic
(1983)3 C.L.R. 1336, at pp. 1340 - 1341, we read the following in the judgment of Triantafyllides, P.: «Before proceeding any further in this judgment I would like to observe that I am Inclined to the view that the respondent Commission could not, even on advice from the Attorney-General, disregard as invalid the above referred to regulations
(4),
(7)and the proviso to regulation
(6)which are, in effect, legislation of a delegated nature enacted under section 36 of Law 33/67. Once such legislation was made by the competent organ, in this instance by the Council of Ministers, such legislation has to be complied with until it is repealed by the Council of Ministers (in view of the advice of the Attorney-General or for any other reason) or until it is found to be ultra vires by a judicial decision (see, in this respect, inter alia, Tsoutsos on The Administration and the Law ('###'),
(1979)pp. 41, 88, 89, 99, 116, Manual of Administrative Law by Spiliotopoulos ('###'),
(1977), p. 79 et seq., and Delikostopoulos on Administrative Law ('###')»), vol. A,
(1972). p. 47 et. seq.). The above opinion was adopted by Loris J. in the case of PsaraKronidou v. Republic
(1985)3 C.L.R. 1900 at 1903. I also have adopted such view in the case of Kouis and others v. Republic. (Cases Nos 34/85 etc. in which judgment was delivered on 25.9.1986), and also Sarris v. Republic (Case No. 940/85 in which judgment was delivered on the 27th January, 1987). In the light of the above, although it was the respondent's duty to apply the regulations and follow the priority on the list, had the respondent followed such list, the applicant was far away in priority to those appointed and therefore, she would not have been benefited from the application of the regulations and would, as a result, not possess any legitimate interest to have the sub judice decision annulled on that ground. Once, however, the respondent did not strictly adhere to the regulations and proceeded to select for appointment those who were appointed in the previous years on the basis of their priority on the list and the applicant seeks the annulment of the sub judice decision on the ground also that the decision of the respondent was based on regulations which were invalid, I have come to the conclusion that she has a legitimate interest to pursue this recourse to the end. The validity of the regulations came up for consideration before the court In the case of Savva v. The Republic
(1986)3 C.L.R 445 in which Triantafyllides P. in his judgment at pp.448 449, had this to say: «In the light of the submissions of the parties I have carefully considered the issue of ultra vires of the relevant provisions of the aforesaid Regulations and I have reached the conclusion that the said provisions and, in particular, regulations 5 and 10 and the Appendix thereto, especially when applied together, are ultra Ares Law 10/69, and, particularly, sections 28 and 76, thereof, because the said section 28 of Law 10/69 enumerates exhaustively the prerequisites for appointment and section 76, under which the Regulations in question were made, does not empower the addition of the further prerequisite that the educationalists to be appointed should have priority for this purpose in accordance with a list of those eligible to be appointed, which is prepared on the basis of the criteria set out in the Appendix to such Regulations ......... I am, furthermore, of the opinion that the aforementioned provisions of the Regulations in question, and, in particular, of the Appendix thereto, are void for unreasonableness, and consequently, ultra vires, because they introduce some unreasonable criteria of priority for appointment which are clearly entirely incompatible with the paramount object of appointing the most suitable candidates (see, inter alia, in this respect, Avraam v. The Municipality of Morphou,
(1970)2 C.L.R. 165, and Angelides v. The Republic,
(1982)3 C.L.R. 774.» In the present case the respondent in taking its decision for the appointment of the interested parties on contract, relied on the priority list, though not absolutely, and such list has in fact affected Its decision. In the result, once the sub judice decision was based on material which is ultra wires the Law, I find that it is defective and has to be annulled. In the result the sub judice decision is annulled with no order for costs. Sub judice decision annulled. No order as to costs. LIST OF INTERESTED PARTIES Name Serial No in the list.
- Papastylianou-Yiannaki Katina 5
- Harkas Zacharias 15
- Hadjipetrou Ioannis 16
- Paschalis Nicolaos 17
- Christodoulou Andreas 19
- Andreou Vassilios 22
- Constantinou Evangelos 25
- Stylianou Costas 26
- Tsangarides Stavros 28
- Demetriou Marigo 30
- StyliariouEleni 33
- Hadjigregoriou Marina 34
- Orologha Frideriki 35
- Kouta Maria 44 cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο