clr/1966/1966_3_887.pdf

(2)of The Teachers of Elementary Schools Law, 1963 (Greek Communal — S a i d decision not to re-appoint Communal Law No. 7 of 1963; applicant factory service, aproduct of a material Service on the provisions due to unsatis­ misconception—Because in accordance with the accepted criteria the marks awarded to applicant show that her (applicant's) service ought to lune been graded as satisfactory—Therefore, the sub judice suid decision must be annulled as being contrary to law and, also. as having been taken in excess and abuse of also, powers—See, herebelow. Administrative Law—Decision based on a material misconception — S u c h decision, as the one involved in this case (supra), is. therefore, 1, contrary to law within Article

1. paragraph of the Constitution—Because the aforesaid ception leads to the relevant legislation applied—And, material miscon­ not being properlv further, the aforesaid decision has been taken in excess and abuse of powers within the meaning of paragraph ι of Article
2. supra—See. also, under Elementary Education. above. In this recourse the applicant, w h o was a t e m p o r a r y s c h o o l ­ teacher. complains against the decision o f the Educational Service C o m m i t t e e , i n the M i n i s t r y o f Education, not t o reappoint her because, on the basis o f the provisions o f section 887 and T H E REPUBLIC OF CYPRUS, THROUGH
3. THE MIMSTLR ov EDUCATION.
4. ATTORNEYGENERAL AS SUCCESSOR TO THF GREEK COMMUNAL CHAMBER June 24, Dec. 31 lOULIANI CHRISTODOUL1DOU and T H E REPUBLIC OF CYPRUS, THROUGH . T H E MINISTER OF EDUCATION. . ATTORNEYGENERAL AS SUCCESSOR TO THE GREEK COMMUNAL CHAMBER 34

(2)o f The Teachers o f Elementary C o m m u n a l Schools Law, 1963, (Greek C o m m u n a l C h a m b e r Law N o .7 o f 1963), her service d u r i n g the school-year 1962/1963 was not satis­ factory. Section 34

(2)provides, inter alia, that temporary school-teachers serving o n the enactment o f the said Law, and w h o have served satisfactorily f o r the past three years. may be appointed on contract depending on the needs o f ι he service. It should be noted that a school-teacher's service is graded as "satisfactory" i f he o r she receives a total o f 15-17 m a r k s ; and in case the said total results in a mixed number then, though the fraction remains, it is treated f o r purposes o f grading the service, as a whole unit, as an " i n t e g e r " ( " ά κ ε ρ α ί α μ ο ν ά ς " ) . N o w ,as it appears f r o m the relevant records, the total marks awarded t o a p p l i ­ cant in respect ofher service asa school-teacher, i nthe s c h o o l year 1962/1963. was 14.15 marks. Therefore, f o r purposes o f g r a d i n g her service in the school-year as aforesaid, the applicant ought to have been regarded ashaving been awarded, in respect o f such year, a total o f 15 marks and her service ought t o have been graded as "satisfactory". It follows that thesubjudice decision based ontheground that the service o f the applicant intheschool-year 1962/1963 was unsatisfacto­ ry is the product o f a misconception and must be annulled. The Court in a n n u l l i n g the decision complained o f : Held.

(1)thesubjudice decision o f the Educational Service C o m m i t t e e (otheeffect that applicant d o u l d notbere-appoint­ ed, duet o unsatisfactory service in theschool-year 1962/1963, is the product o f a misconception, because i f the relevant criteria had been properly applied, then the applicant's relevant service would have been regarded as satisfactory.

(2)Such decision is, therefore, declared t o be null and \ o i d a n do f n o effect whatsoever as heing. inter alia, c o n t r a r y 10 l a w - (in the sense that a misconception such as theone i m o l v c d in this case leads t o the relevant legislation not being properly applied t o the particular facts o f the m a t t e r : (sec. also. Conclusions f r o m Jurisprudence o f the Greek ("ouncil o f State 1929-

1. p. 267)- a n d . further, as being a decision taken in excess and abuse o f powers. 888 Recourse. Recourse against the decision of the Respondent not to re-appoint Applicant as a school-teacher. D. Papachrysostonwu,for the Applicant. iOULlANI CHRISTODOUL1DOU and Chr. Mitsides, for Respondent. Cur. adv. vult. The following Judgment was delivered by:J.: In this recourse the Applicant complains against her non-appointment aselementary schoolteacher. The sub judice decision was communicated to the Applicant by letter of the 30th December, 1965, (see exhibit 1)and it was taken.on the 21st December, 1965,by the Educational Service Committee, in the Ministry of Education (see exhibit9). TRIANTAFYLI IDES, A further complaint of the Applicant, that she has not been appointed on an established basis, has not been pursued at all at the hearing of this Case and is deemed, thus, to have been abandoned. The history of events in this Case is shortly as follows:The Applicant has never been a permanently appointed school-teacher. She was appointed on probation, as from the 1st September, 1952, and she worked in such capacity until the 1st June, 1957, when, due to child-birth, her probationary appointment was turned into a temporary one. Her appointment was terminated on the 31st August. I960, but she was re-appointed in January.
2. (see the report on her service, dated 28th March.
3. exhibit 8). It is common ground that appointments of temporary school-teachers are made yearly, for the duration of each school-year, commencing on the 1st September. On the 1st September.
4. Applicant was addressed a letter (see exhibit 2). informing her that the Appointments Committee, in the Education Office, had decided to terminate her service as from the 31st August.
5. due to the unsatisfactory marks awarded to her as a school-teacher. By a further letter, dated 13th January.
6. (see exhibit 3) she was informed that it had been wronelv stated, in exhibit 8R9 1966 June 24, Dec. 3t THE REPUBLIC OF CYPRUS, THROUGH
7. THE MINISTER OF EDUCATION,
8. ATTORNEYGENERAL AS SUCCESSOR TO THE GREEK COMMUNAL CHAMBER 1966 June
9. Dec. 31 IOULIANI CHRISTODOULIDOU 2, that her services had been terminated, and that the true position was that she had not been re-appointed because o f unsatisfactory m a r k s ; reliance was placed, in the said letter, on section 34

(2)o f the Teachers o f Elementary Communal Schools Law, 1963 (Greek Communal Chamber Law 7/63). and THL" R E P U B L I C OF C Y P R U S . THROUGH

1. T H E M I N I S T E R OF E D U C A T I O N ,
2. A T T O H N E Y G F N F R A L AS SUCCESSOR T O THE GREEK COMMUNAL CHAMBER Against the decision communicated by the letter exhibit 2 Applicant filed recourse 27/
3. Then on the IOth M a r c h , 1965, Applicant withdrew such recourse, pending a decision in the matter by the Review Committee, which was functioning at the time under the Greek Communal Chamber, (see relevant record, exhibit 4). As no action was taken by the said Review Committee, Applicant filed a further recourse, 203/65, which was, eventually. withdrawn on the 6th November, 1965, when it was undertaken by Respondent t o reconsider the matter and give to Applicant a final reply thereon (see relevant record, exhibit 5). As stated already, the matter was considered by the Educational Service Committee on the 21st December, 1965, and, as a result, the letter exhibit I was addressed to Applicant on the 30th December,
4. Applicant filed the present recourse on the 22nd January,
5. There can be no doubt that the subject-matter o f these proceedings is. and can be, only the final decision {exhibit 9) o f the Educational Service Committee, taken, as aforesaid, on the 21s December.
6. In any case this recourse would be o u t - o f - t i m e , under Article 146

(3)o f the Constitution as regards any earlier decision in the matter o f the n o n appointment o f the Applicant. —"" The said Committee has recorded in its decision {exhibit 9) that, having examined the case, it came to the conclusion that, on the basis o f the provisions o f section 34

(2)o f Law 7/63. it could not re-appoint the Applicant'because her service, during the school-year 1962/1963, was not satisfactory. I must state, at this stage, that I find the decision in question to be duly reasoned and that, therefore, I cannot accept the submission o f counsel for Applican' that it is invalid for lack o f proper reasoning. 890 The provision relied upon by the Educational Service Committee, section 34

(2)of Law 7/63, provides, inter aha, that temporary school-teachers, serving on the enactment of the said Law, and who have served satisfactorily for the past three years, may be appointed on contract, depending on the needs of the service. As it appears from the relevant records of the Greek Education Office (see exhibit 6) the total marks awarded to Applicant in respect of her service as a schoolteacher. in the school-year 1962/1963, was 14.15 marks. Counsel for Applicant has attacked, in general, the system of inspection of the work of school-teachers as being irregular We need not, however, go into this question, because I have reached the conclusion, for the reasons that follow, that, in any case, the Educational Seivice Committee has acted under a material misconception, thus rendering it necessaiy for this Court to annul the sub judice decision of the Commit­ tee The said reasons are In the decision of the Appointments Committee, dated 9th August, 1963, by which it was decided not to re-appoint the Applicant foi the school-year 1963/1964 (see e\hibit 7) are set out, also, the criteria for grading the service of school­ teachers on the basis of marks awarded to them. A school­ teacher's service is graded as "satisfactory" if he οι she teceives a total of 15-17 marks, "good" if the total of the marks is 18-20, and so on, and in case the said total results in a mixed number then, though the fraction remains, it is treated, for purposes of grading the service, as a whole unit, as an integer, ("εις περίπτωσιν καθ' fjv το άθροισμα των έπϊ μέρους βαθμών είναι μικτός αριθμός, το κλάσμα πα­ ραμένει μέν άλλα δια σκοπούς τοποθετήσεως εις τους ώς όίνω πίνακας (χαρακτηρισμός βαθμολογίας) λογί ζεται ώς άκεραία μονάς"). There is nothing to show that the criteria in question which were at the time laid down by the competent organs of the Greek Communal Chamber, had been changed oi abandoned between the9th August. 1963 and the 21st Decem­ ber, 1965, when the sub judice decision was reached, it must. therefore, be taken that they continued to be applicable On the basis of the said criteria Applicant ought to have been regarded, for the purpose of grading her sep'"*<* m the 891 1966 June 24, Dec 31 lOULIANI CHRISTODOULIDOU and THP REPUBLIC OF CYPRUS THROUGH 1 T H E MINISTER OF EDUCATION, 2 ATTORNEYGENERAL AS SUCCESSOR TO THE GREEK. COMMUNAL CHAMBFR 1966 June 24. Dec. 31 lOULIAM CHRISTODOULIDOU and T H E REPUBLIC OF CYPRUS, THROUGH 1. T H E MINISTFR OF EDUCATION, 2 ATTORNFYGLNERAL AS SUCCESSOR TO THL GREEK COMMUNAI CHAMBI-R school-year 1962/1963, as having been awarded, in respect of such year, a total of 15 marks, and not the total of 14.15 marks which she actually received, because the fraction 0.15—or 15/100—ought to have been treated as an integer i.e. as 1 mark; thus, her service for the particular school-year would have been graded as "satisfactory". Yet. on the contrary, the Educational Service Committee, on the 21st December, 1965—as well as the Appointments Committee, in 1963—reached the conclusion that the Applicant's service was not "satisfactory", as required for the purposes of section 34

(2)of Law 7/63, through misapplying the relevant criteria; it, obviously, failed to treat the fraction, 0.15, as an integer, and. as a result, it relied only on the actual total of the marks awarded to the Applicant, which was below the minimum requirement of 15 marks, whereas. in accordance with the said criteria, the total of the marks of the Applicant, for purposes of grading her service, ought to have been regarded—as explained already—as being 15 marks. It follows that the sub judice decision, of the Educational Service Committee, that the Applicant could not be reappointed, due to unsatisfactory service in the school-year 1962/1963, is the product of a misconception, because if the relevant criteria had been properly applied then the Applicant's relevant service would have been regarded as ^atisfactory. Such decision is, therefore, declared to be null and void and of no effect whatsoever as being, interalia, contrary to law—(in the sense that a misconception such asthe one involved in thisCase leads to the relevant legislation not being properly applied tothe particular facts ofthe matter; see. also. Conclusions from the Jurisprudence of the Greek Council of State 1929-1959. p. 267)—and as being, further, a decision taken in excess and abuse of powers. The matter will now have to be reconsidered by the Educational Service Committee on its proper basis. Regarding costs I have decided to award Applicant £10 costs. Sub judice decision annulled. Order for costs as aforesaid. 302