PSARA - KRONIDOU & ANOTHER ν. REPUBLIC
(1988)3 CLR 1771 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
(1988)3 CLR 1771 1988 September 19 [CHRYSOSTOMIS, AG.J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NELLIPSARA-KRONIDOU, Applicant, v. THE REPUBLIC OF CYRPUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, THE COUNCIL OF MINISTERS, Respondents. (Case No. 918/85). REA SYMEONIDOU ELIA, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, THE COUNCIL OF MINISTERS, THE MINISTRY OF EDUCATION, Respondents. (Case No. 963/85). General principles of administrative law-Whether administration entitled to disregard legislation enacted by competent organ on the ground that it is ultra vires enabling enactment-Question determined in the negative- Administration bound to apply it, unless declared ultra vires by a judicial decision or repealed. Discretion of administration-Competent organ rubber stamping decision of Council of Ministers, which did not have competency in the matter- Ground of annulment. Notwithstanding that applicants had priority in accordance with the list of priorities made in virtue of Reg. 5 of the Educational Officers (Teaching Personnel) (Appointments, Emplacements, Transfers, Promotions and Related Matters) Regulations 1972, as amended by R.A.A.250/74, the respondent Commission appointed on contract for the period 1.9.85 to 30.11.85 the interested parties in accordance with a decision of the Council of Ministers that only those educationalists, who had served on contract for 1984/85, should be appointed. One of the issues that arose for determination was whether the Commission could disregard the list of priorities, which was compiled under Reg.5, which was, subsequently to the sub judice decision, declared ultra vires the enabling law (vide Savvav. The Republic
(1986)3 C.L.R. 445). Held, annulling the sub judice decision:
(1)The administration is bound to apply legislation, once it is enacted by the competent organ, unless it is either repealed or declared invalid by a judicial decision. It follows that the Commission should have complied with the list of priorities.
(2)The material before the Court showed that in this case the Commission rubber stamped the decision of the Council of Ministers, the directives of the Ministry of Education and of the Minister of Education, having failed to exercise any discretion or to follow the table of priorities as it was their statutory duty to do so, pursuant to the law and regulation 10 of the Regulations of 1972. Sub judice decision annulled. No order as to costs. Cases referred to: Savvav.TheRepublic
(1986)3 C.L.R. 445; Kapsou v. The Republic
(1983)3 C.L.R. 1336; Psara-Kronidouv.TheRepublic
(1983)3 C.L.R. 1900; Kyriakidouv.TheRepublic
(1986)3 C.L.R. 913; Psara-Kronidouv.TheRepublic
(1987)3 C.L.R. 710; Papakyriakouv.TheRepublic
(1983)3 C.L.R.
- Recourses. Recourses against the decision of the respondents to appoint, on a contractual basis, as Teachers of Domestic Science the interested parties from 1.9.85 - 30.11.85 in preference and instead of the applicants. A.S. Angelides, for the applicants. Chr. Ioannides, for the respondents. Cur.adv. vult. CHRYSOSTOMIS Ag. J. read the following judgment. The applicants by means of the present recourses, which were heard together as they present common questions of law and they attack the same administrative act, seek the annulment of the decision of the Respondent Commission of 30th August, 1985, to appoint on a contractual basis the interested parties from 1st September, 1985 to 30th November, 1985, as Teachers of Domestic Science, in preference and instead of the applicants. The interested parties are eight in number and their names appear in the opposition. The applicant NelliPsara - Kronidou graduated "HarocopiosSchool" of Athens in
- In July of the same year, she was appointed a Teacher of Domestic Science and served at the Commercial Lyceum of Famagusta until 1965 when she resigned. In April, 1980, she applied for re-appointment, and in July, 1983, following an objection on her part, she was re-listed fourth in the table of priorities prepared by the Ministry of Education, pursuant to regulation 5 of the Educational Officers (Teaching Personnel) (Appointments, Placements, Transfers, Promotions and Ancillary Matters) Regulations, 1972 as amended (K.D.P. 250/74). The applicant Rea Symeonidou Elia graduated the same school in
- In 1957 she was appointed a Teacher of Domestic Science and served at a secondary school in Famagusta until 1959 when she resigned. On 12th August, 1979, she applied for reappointment. As from 24th May, 1982, she is listed first in the table of priorities. Following the renewal of the contracts of service of the interested parties in September, 1983, and in July, 1984, the applicant NelliPsara - Kronidou filed Recourses Nos 442/83 and 502/84 and the relevant decisions were annulled. Be that as it may, the two applicants were not re-appointed on 30th August, 1985, in spite of the fact that all interested parties were listed in subsequent order than the applicants. The applicants challenge the sub judice decision mainly on the following grounds:
(1)That the interested parties were re-appointed in breach of the right of the applicants to prior appointment, emanating from the said Regulations and table of priorities.
(2)That the decision of the Respondent Commission was hot taken in the exercise of its own discretion, but it merely followed a decision of the Council of Ministers and a directive of the Ministry of Education and of the Minister of Education. Counsel for the respondents argued to the contrary and he submitted that in view of the subsequent decision of Savva v. The Republic
(1986)3 C.L.R. 445, the respondents had no duty to observe the said Regulations and the table of priorities, as same were declared ultra vires the enabling law. He further argued that in view of this development, the applicants have no legitimate interest to challenge the appointments. I shall deal with the last mentioned submission of counsel for the respondents. In the case of Savvav.TheRepublic(supra) the validity of the Regulations came up for consideration and it is a fact that they were declared ultra vires the enabling law. But can it be said that the Respondent Commission was entitled to treat the Regulations ultra vires the relevant legislation, prior to their annulment by the Court, even if they shared the view that was expressed in the subsequent decision of Savvav. The Republic (supra)? My answer is in the negative and my view is based on Kapsouv. The Republic
(1983)3 C.L.R. 1336 where Triantafyllides, P., had this to say at pp. 1340 and 1341: "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("Τσούτσου, Διοίκησις και Δίκαιον"),
(1979), pp. 41, 88, 89, 99, 116, Manual of Administrative Law by Spiliotopqulos("Σπηλιωτοπούλου, Εγχειρίδιον Διοικητικού Δικαίου"),
(1977), p. 79 et seq., and Delikostopoulos on Administrative Law("Δεληκωστοπούλου, Διοικητικόν Δίκαιον"), vol. A,
(1972), p. 47 et seq.)". In view of the above, the submission of counsel for the respondents fails, as the Respondent Commission was bound at the material time to follow and apply the provisions of the said Regulations, that were m force when the sub judice decision was taken having not been repealed or declared ultra vires by the Court prior to the taking of the decision. (Vide also NelliPsara-Kronidouv. The Republic
(1985)3 C.L.R. 1900, Kyriakidouv.The Republic
(1986)3 C.L.R. 913, and NelliPsqra - Kronidou
(1987)3 C.L.R. 710). Therefore, the complaint of the petitioners as above described is sufficient to create for them the necessary legitimate interest. The two main grounds on which the applicants rely can be dealt with together. As I have already stated, the two applicants had priority over all interested parties in the table of priorities that was prepared by virtue of Regulation 5. On 26th August, 1985, the Ministry of Education, following a decision of the Council of Ministers No. 26.102/2.8.85 by letter (Appendix A to the opposition), requested the respondents to appoint on contract from 1st September, 1985 to 30th November, 1985, those educationalists who were serving on a contractual basis during the school year 1984-85, excluding replacements and wives of Greek Officers for which a separate decision was taken by the Council of Ministers. On 29th August, 1985, the Respondent Commission wrote a letter to the Minister of Education (Appendix B to the written reply of counsel for the applicants) which reads as follows: "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 την 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 έχομε απάντηση σας όσο το δυνατό πιο γρήγορα ενόψει του γεγονότος ότι τα σχολεία Μέσης εκπαίδευσης αρχίζουν τις εργασίες τους στις 2/9/1985." And in English: "Subject: Appointments of Educationalists on contract for the needs of schools of Secondary-Technical and Elementary Education. I refer to the documents of the Ministry of Education dated 26/8/85 and 29.8.85 (photocopies attached) in connection with the above subject and we convey to you the views of the Commission. If the intention of the Ministry of Education is the appointment of those Educationalists who served on contract during the school year 1984/85, we request that there should be a clear written suggestion on this matter. Otherwise the Educational Service Commission is bound in accordance with the existing legislation, and bearing in mind a recent relevant decision of the Supreme Court, to proceed to the appointment on contract of those entitled on the basis of the list of those eligible for appointment. We request to have your reply as soon as possible, in view of the fact that the Secondary Education schools commence their work on 2/9/1985." On the same day the Minister of Education by a letter in reply (Appendix B to the opposition) referred to the decision of the Council of Ministers and suggested, inter alia, the appointment of the aforementioned educationalists for the said period of three months. On 30th August, 1985, the Respondent Commission took the sub judice decision and they appointed the interested parties, in preference and instead of the applicants. In the case of Papakyriakouv. The Republic (19S3) 3 G.L.R. 870, the facts of which bear direct relevance to the facts of this case, in that the Respondent Commission disregarded the table of priorities and gave effect to a decision of the Council of Ministers, the Full Bench of this Court arrived at the conclusion that the Council of Ministers in deciding who should be appointed exceeded their powers, whereas the Respondent Commission by merely rubber stamping the decision of the Council of Ministers, acted contrary to the provisions of s. 5
(1)of Law 10/69, which empowers them to make appointments of educational officers. Furthermore in Kyriakides v. The Republic (supra) Pikis, J., in annulling the same decision of the Respondent Commission had this to say at p. 916: "Observance of the priority safeguarded by the Table was not, in accordance with the Regulations, a matter of discretion; a mandatory duty to implement it was cast on the respondents. Supposing they had a discretion, their decision could not again stand the test of judicial scrutiny in the absence of indication of any reasons for departure therefrom." Considering the material in the file and in particular the aforementioned correspondence exchanged between the Ministry of Education and the Respondent Commission, I have arrived at the conclusion that the Respondent Commission in appointing the interested parties rubber stamped the decision of the Council of Ministers, the directives of the Ministry of Education and of the Minsiter of Education, having failed to exercise any discretion or to follow the table of priorities as it was their statutory duty to do so, pursuant to the law and regulation 10 of the Regulations of 1972. For all the above reasons the sub judice decision concerning all interested parties is annulled. There will be no order as to costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο