ELIA ν. REPUBLIC
(1987)3 CLR 696 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 696 1987 May 19 (KOURRIS. J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION STAVROULLA ELIA, Applicant, V. THE REPUBLIC OF CYPRUS, THROUGH
- THE EDUCATIONAL SERVICE COMMISSION,
- THE COUNCIL OF MINISTERS,' Respondents. (Case No. 917/85). Administrative Law - General Principles - Delegated legislation, - Once enacted by a competent organ, the administration should comply with it, until repealed or declared by the Court to be «ultra vires» the enabling law. Educational officers - The Educational Officers (Teaching Staff)(Appointments, Emplacements, Transfers, Promotions and Related Matters) Regulations 1972, Reg. 5 and 10
(2)and the Appendix thereto - Ultra vires enabling law (The Publishing Educational Service Law 10/69 and in particular, sections 28 and 76 thereof) - They are also, void for unreasonableness. Legitimate interest Educational officers - Priority of interested parties over the applicant in the list of priorities compiled in virtue of Reg. 5 of the Educational Officers (Teaching Staff) (Appointments, Emplacements, Transfers, Promotions and Related Matters) Regulations 1972 - As the sub judice decision in Savva v. The Republic
(1986)3 C.L.R. 445, whereby Regs. 5 and 10
(2)of the said Regulations, were declared ultra vires the enabling law, the respondent Commission had to apply the said regulations - Since, however, it did not apply them, the applicant has a legitimate interest to challenge the sub judice appointments. Administrative Law - Discretion of administration - In effecting sub judice appointment the respondent Commission failed to exercise its discretion, but simply acceded to a request by the Minister of Education - Ground of annulment. By means of this recourse the applicant challenges the omission to appoint her on contract as teacher of English for the school year 1985-1986 as wellthe appointment on contract of the interested parties as teachers of English for the aforesaid period. The interested parties had priority over the applicant in virtue of the respective places of each one of them in the list of priority compiled in virtue of Reg. 5 of the aforesaid Regulations. On 2.8.85 the Council of Ministers decided that with certain exceptions the same officers as those serving in 1984-1985 should be appointed on contract for a period of three months. When the said decision was communicated to the respondent Commission by the Director - General of the Ministry of Education, the Chairman of the Commission wrote to the Minister, conveying the views of the Commission and requesting that «there should be a clear written recommendation on the subject». The Minister replied that «it is my suggestion that a three months contract be offered to those educationalists who had been serving on contract during the year 1984-1985. In the meantime a relevant Bill will be placed before the House of Representatives for the regulation of the matter by law. The respondent Commission met on 30.8.85 and effected the appointments on contract in accordance with, the suggestion of the Minister. The applicant's complaints are: (a) That the respondents relied on the aforesaid Regulations, which are ultra vires Law 10/69, and (b) The Commission did not exercise its own discretion, but merely acted in compliance with the decision of the Council of Ministers and the recommendations of the Minister of Education. Held, annulling the sub judice decision:
(1)Regulations 5 and 10 and the Appendix thereto are ultra vires Law 10/69 and, particularly, sections 28 and 76 thereof and, moreover, they are void for unreasonableness (Savva v. The Republic
(1986)3 C.L.R. 445 adopted). As the respondents acted on invalid regulations the sub judice decision would be annulled.
(2)At the time when the sub judice decision was taken the Regulations in question were still in force (the decision in Savva's case, supra was delivered in March 1986) and, therefore, the Commission had to apply them in accordance with the principle that regulations enacted by a competent organ should be applied by the Administration, until repealed or until found by a judicial decision to be ultra vires the enabling law. In the light of the above and assuming that the Commission followed the priority in the list and that they exercised their own discretion, this Court would have agreed that the applicant had no legitimate interest to challenge the sub judice decision.
(3)From the material before it, this Court is satisfied that the Commission did not follow the Regulations with regard to the priority list, but they appointed those serving on the previous year in accordance with the wishes of the Minister. It follows that the sub judice decision should be annulled for the additional reason that the Commission failed to follow the list in that they acceded to the request of the Minister and made the sub judiceappointments without exercising their discretion contrary to law. Sub judice decision annulled. No order as to costs. Cases referred to Kapsou v. The Republic
(1983)3 C.L.R. 1336; Psara-Kronidou v. The Republic
(1985)3 C.L.R. 1900; Kyriakidou v. The Republic
(1986)3 C.L.R. 913; Kouls and Otheis v The Republic
(1986)3 C.L.R. 1874; Sauva v. The Reoublic
(1986)3 C.L.R.
- Recourse. Recourse against the omission of the respondents to appoint applicant on contract for the school year 1985-1986 as teacher of English and against the decision of the respondents to appoint the interested parties to the above post in preference and instead of the applicant. A. S. Angelides, for the applicant. St. Theodoulou for R. Petridou (Mrs.), for the respondent. A. Haviaras, for interested party No.
- Cur. adv. vult. KOURRIS J. read the following judgment. The applicant, by the present recourse, prays for a declaration that the omission of the. respondents to appoint her on contract for the school year 1985- 1986 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 30/8/1985 to the exclusion and/or instead of the applicant should be declared null and void. Applicant challenges the sub judice decision mainly on two grounds:- 1) The decision of the Educational Service Commission was not taken in the exercise of its own discretion but it merely acted in compliance with the decision of the Council of Ministers and the recommendations of the Minister of Education contrary to law, 2) The respondent Commission relied on the Educational Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Ancillary Matters) Regulations 1972 which is ultra vires the enabling section 76 of the Public Educational Service Law 10/
- I propose to deal first with the second ground to the effect thatthe regulations were ultra vires the enabling law. The validity of the Requlations caine up for consideration 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 vires 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).» With due respect I adopt the decision of the learned President of this Court and I have also reached the conclusion that the Regulations and in particular Regulations 5 and 10 and the Appendix thereto, especially when applied together, are ultra vires Law 10/69, and, in particular, sections 28 and .
- 1 also respectfully agree that the said Regulations are ultra vires by reason of their unreasonableness. For this reason alone the recourse succeeds because the respondent Commission acted on invalid Regulations and the sub judice decision is annulled. I propose, now, to examine the next question raised by counsel for the applicants to the effect that the respondent Commission failed to exercise their discretion in the matter and they merelyrubber stamped the recommendations of the Minister of Education. Counsel for the respondent on the other hand, raised the question that the applicant has no legitimate interest in the sense of Article 146 of the Constitution and, consequently, the sub judice decision cannot be made the subject of a recourse. The Ministry of Education prepares a table which shows the candidates due for appointment in the Public Educational Service and determine the order in which they would be appointed. The table of priorities prepared by the Ministry of Education is pursuant to the provisions of Regulation 5 of the Educational Officers (Teaching Personnel) (Appointments, Placements, Transfers, Promotions and Ancillary Matters) Regulations
- The table was compiled by reference to the criteria set out in the Regulations taking into account the academic qualifications, performance and date of graduation of candidate and it gives the candidates a serial number for appointment in the Service. Regulation 10
(2)reads as follows:- «10
(2)- Οι επί συμβάσει διορισμοί διενεργούνται εκ των σειρών πινάκων διοριστέων κατά σειράν προτεραιότητος». In English:- «10
(2)-Appointments on contract are made in order of priority from the relevant lists of persons to be appointed.» Applicant was listed 100th in the table of priorities and the 14 interested parties were listed under numbers 1,20,21,22,23,24, 25, 26, 27, 30, 31, 32, 33 and 34. It should be noted at this stage that interested party loakim is numbered 1 and that counsel for the applicant withdrew the recourse against interested party 15, Kaizer Gregoriou Iphigenia because service of the recourse was not effected upon her and the recourse was accordingly dismissed against her. In' view of these facts counsel for the respondent contended that the applicant has no legitimate interest because she had no priority over the interested parties. Assuming that the respondent Commission followed the priority on the list and assuming that they exercised their discretion in the appointments of the interested parties and the applicant,then, I would have agreed that the applicant had no legitimate interest in the sense of Article 146 of the Constitution to attack the sub judice decision because at the material time the said regulations were n force and in reaching the sub judice decision the respondent Commission would have to rely on the said Regulations and it ought to follow them because the Regulations were made 'by the Council of Ministers pursuant to the provisions of s.76 of the Public Educational' Service Law 10/69 which was a competent organ and the respondent Commission had to comply with it until it was repealed by the Council of Ministers or until it was found to be ultra vires the enabling law by a judicial decision (See Kapsou v. The Republic
(1983)3 C.L.R. 1336. Psara - Kronidou v. The Republic
(1985)3 C.L.R. 1900 at p.
- Loukia Kyriakidou v. The Republic. Case No. 785 in which jiLidgment was delivered on 4/6/
- Kouis and others v. The Republic, Case No. 34/85 in which judgment was delivered on 25/9/
- The Regulations were declared to be ultra vires the enabling Law 10/69 and also by reason of their unreasonableness in the case of Savva v. The Republic
(1986)3 C.L.R. 445 which was delivered on 8/3/
- Consequently, as the said Regulations were in force at the material time, the respondent Commission ought to have applied them. I shall now proceed and examine whether the sub judice decision was properly taken by the respondent Commission in the exercise of its own discretion according to law or whether it merely adopted the decision of the Council of Ministers and the recommendation of the Minister of Education. The Council of Ministers at its meeting of 2/8/1985, decided, that the same number of Educational Officers as those serving during 1984-85, with exception of those appointed as replacements and wives of Greek Officers for whom a s2parate decision was taken, should be appointed on contract, for a period of three months. Such decision was communicated by the Director-General of the Ministry of Education to the respondent Commission by letter dated 26th August, 1985 (Vide Appendix «A»). As a result of the said letter, the Chairman of the respondent Commission wrote a letter, dated 29/8/
- to the Minister of Education the contents of which read as follows:- (Vide Appendix(Στ) to the reply to the written address by counsel for the applicant). «Θέμα: Διορισμοί εκπαιδευτικών με σύμβαση για την επάνδρωση των σχολείων Μέσης/Τεχνικής και Δημοτικής Εκπαίδευσης. Αναφέρομαι στα έγγραφα του Υπουργείου Παιδείας με ημερομηνίες 26/8/85 και 28/8/85 (φωτοαντίγραφα επισυνάπτονται) σχετικά με το πιο πάνω θέμα και σας γνωστοποιούμε τις απόψεις της Επιτροπής. Αν σκοπός του Υπουργείου Παιδείας είναι ο διορισμός των εκπαιδευτικών εκείνων που υπηρέτησαν με σύμβαση κατά τη σχολική χρονιά 1984/85, παρακαλούμε να υπάρξει σαφής γραπτή εισήγηση πάνω στο θέμα αυτό. Διαφορετικά η Επιτροπή Εκπαιδευτικής Υπηρεσίας είναι υποχρεωμένη σύμφωνα με την υπάρχουσα νομοθεσία και έχοντας υπόψη πρόσφατη σχετική απόφαση του Ανωτάτου Δικαστηρίου να προχωρήσει στο διορισμό με σύμβαση των δικαιουμένων με βάση τον κατάλογο διοριστέων. Παρακαλούμε όπως έχουμε απάντηση σας όσο το δυνατό πιο γρήγορα ενόψει του γεγονότος ότι τα σχολεία Μέσης εκπαίδευσης αρχίζουν τις εργασίες τους στις 2/9/1985» In English:- «Subject:-Appointments of Educationalists on contract for the needs of schools of Secondary-Technical and Elementary Education. I wish to refer to the documents of the Ministry of Education dated 26/8/85 and 29/8/85 in connection with the above subject and to convey the views of the Commission. If the contention of the Ministry of Education is the appointment of the Educationalists who were serving on contract during the school year 1984-1985 we request that there should be a clear written recommendation on this matter. Otherwise the Educational Service Commission is bound in accordance with the existing legislation, bearing in mind a recent decision of the Supreme Court to proceed to the appointment on contract of those entitled on the basis of the lists of those eligible for appointment. We request to have your reply as soon as possible in view of the fact that Secondary Education schools commence their work on 2/9/1985». The Minister of Education by this letter dated 29th August, 1985, replied to the respondents as follows:- «Αναφέρομαι στην επιστολή σας υπό ημερομηνία 29/ 8/1985 και παρακαλώ σημειώσατε ότι, σχετικά με την απόφαση του Υπουργικού Συμβουλίου για το θέμα διορισμών εκπαιδευτικών με σύμβαση, είναι εισήγηση μου όπως προσφερθεί τρίμηνη σύμβαση σε όσους εκπαιδευτικούς υπηρετούσαν με σύμβαση το έτος 1984- 85 (εξαιρουμένων των αντικαταστατών). Εν τω μεταξύ θα κατατεθεί σχετικό νομοσχέδιο στη Βουλή για νομοθετική ρύθμιση του θέματος (Appendix «Β»).» In English it reads:- «l refer to your letter dated 29/8/1985 and you are requested to note that in regard with the decision of the Council of Ministers on the subject of appointments of Educationalists on contract it is my suggestion that a three months' contract be offered to those Educationalists who had been serving on contract during the year 1984-85 (with the exception of replacements). In the meantime a relevant bill will be placed before the House of Representatives for regulation of the matter by law)». The respondent Commission met on 30/8/1985 and took the sub judice decision and effected the appointment on contract of the candidates in accordance with the suggestion of the Minister of Education. Although in the minutes it is stated that they have only taken into consideration that part of the letter of the Minister which informs the Commission that within a period of three months a bill will be submitted to the House of Representatives for the regulation of the question of appointments on contract by law and they do not refer to his suggestion of those to be appointed (See Appendix I have no doubt in my mind that the respondent Commission acted in compliance with the recommendations of the Minister of Education and this is apparent from the contents of their letter 29/ 8/1985 (supra). Furthermore, I am satisfied on the material before me that therespondent Commission did not adhere to the Regulations with regard to the priority list when they proceeded to select for appointment the interested parties but they appointed those who were appointed in the, previous years in accordance with the wishes of the Minister of Education In view of the above the applicant has a legitimate interest. In these premises this is another reason why the sub judice decision ought to be annulled i.e. that the respondent Commission failed to follow the list in that they acceded to the request of the Minister of Education and they appointed all those who were serving on contract in the year 1984-1985 without exercising their discretion contrary to law. For all the above reasons the sub judice decision is annulled but without any order as to costs. Sub judice decisionannulled. No orderas to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο