clr/1977/1977_3_421.pdf

(1)(b) of the Educational Officers(Teaching Personnel)(Appointments, Postings,Transfers,Promotionand RelevantSubjects) Regulations, 1972—Not an executoryact which producesdirect legalconsequences but a preparatory act—It cannotbemadethe subjectof a recourse underArticle 146 of theConstitution. Public Officers—Assessment of essential qualificationsof candidatesfor promotion—Is not within the control of the Administrative Court. Theonly issuefor consideration in thisrecoursewaswhether the assessment and grading of the work of the applicant, a Secondary Education Schoolmaster, as regards the five essential qualifications under regulation 26

(1)(b) of the Educational Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Relevant Subjects) Regulations, 1972 was an executory act which could be made the subject of a recourse under Article 146of the Constitution. • Held,that executory administrative acts are acts by means of which there is expressed the will of the administration in order to produce legal consequences regarding those governed and which entail immediate administrative enforcement; that acts preceding the executory act or preparatory acts do not produce by themselves direct legal consequences and cannot 421 IACOVOS PAVLIDES v.,REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND. SECONDARY EDUCATION) 1977 Nov. 23 IACOVOS PAVLIDES v. REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND SECONDARY EDUCATION) be attacked by a recourse (see Conclusions from the caselaw of CheCouncil of State in Greece 1929-1959 at pp. 237, 239); that the assessment of the essential qualifications of candidates for promotion is within the judgment of the collective organ of the administration and consequently is not within the control of the administrative Court, provided that there is no misconception of facts or other violation of the Law or abuse of discretionary powers; that, therefore, the grading of the applicant is not an executory act which produces direct legal consequences but a preparatory act and as such it cannot be made the subject of a recourse under Article 146 of the Constitution; and that, accordingly, the application must be dismissed. Application dismissed. Recourse. 10 15 Recourse against the grading and/or the table of inspection and/or general assessment of applicants* work for the school year 1972-

1. Ph. Valiandis, for the applicant. 20 A. S. Angelides, for the respondent. Cur. adv. vult. The following judgment was delivered by:MALACHTOS, J.: The applicant in this recourse claims a declaration of the court that his grading and/or the table of inspection and/or the general assessment of his work for the school year 1972-73, as well as every subsequent adrninistrative act and/or decision, is null and void and of no legal effect whatsoever. The application is based, as stated therein, on the following legal grounds:
2. The respondents acted under a misconception of law or contrary to the Educational Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Relevant Subjects) Regulations of
4. The respondents did not base their administrative act or decision on objective criteria but acted under a misconception of fact if adverse influence or revenge as motive are not proved. 422 25 3.* The respondents at all material times included in the three-member organ of the higher inspection of the applicant, an inspector with whom the applicant was in litigation totheknowledgeof theMinistry. 5
5. Therespondents acted contrary totheexistingpractice, and
6. The procedure followed for the inspection of the applicant was neither the proper nor the lawful one. The respondents in their opposition besides the allega10 tion that they acted in a lawful manner, taking into consideration allthe circumstances andfacts of thecase,they raised a preliminary legal issue claiming the dismissal of thepresent recourse on the ground that the grading and/ or the table of inspection and/or the general assessment 15 of the work of the applicant for the school year 1972-73, thesubject matter of thepresentrecourse,aswellasevery assessment of work and/or grading, is not an executory actand socannot beattacked byarecourse. When this case came on for hearing both advocates 20 agreed that thepreliminary legal issueraised in theoppositionshouldbeheardanddetermined first. Therelevant facts of thiscase are shortly asfollows: The applicant is a school teacher of Philology SecondaryEducation and is posted at theLanition Gymnasium in 25 Limassol. By letter dated 31st October, 1973, addressed to him bythe Head of the Higher and Secondary Education, the applicant wasinformed that the general assessment of his work for the school year 1972-73 as regards the five es30 sential qualifications enumerated in regulation 26

(1)(

1. b)of the Educational Officers (Teaching Personnel) (Appointments,Postings,Transfers, Promotions and Relevant Subjects) Regulationsof 1972,were: (
2. i)very good 35 (
3. ii)goo4 (
4. in)good 423 1977 Nov. 23 IACOVOS PAVLIDES v.REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND SECONDARY EDUCATION) 1977 Nov. 23 IACOVOS PAVLIDES V. REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND SECONDARY EDUCATION) (
5. iv)very good; and (
6. v)very good. This assessment took place on the application of the applicant claiminghigher inspection. By letter dated 14th November, 1973, addressed to the Head of the Higher and Secondary Education, the applicant objected tohisabovegrading. 5 The Head of the Higher and Secondary Education replied by letter dated 18th December, 1973, as follows: "With reference to your letter dated 14thNovember, 10 1973, by which you object as regards the filing, as a result of higher inspection, of your grading for the year 1972-73, I hereby inform you that the appropriate authority having studied the whole subject is of the view that theprocedure followed as abovefor 15 your inspection is the appropriate one and the grading appearing in your service report was made with all possible objectiveness by the team of inspectors. For these reasons your objection cannot be accepted". As a result the applicant filed the present recourse. .Counsel for the respondent argued that the assessment and the grading of the applicant as regards his service cannot be the subject of a recourse under Article 146of the Constitution as they do not amount to an executory 25 actbut they are only acts of preparation and so the court cannot control apreparatory act and substitute the organ which made the assessment. No doubt the applicant has a legitimate interest to attack his grading but this grading cannot be attacked by a recourse as such, since it is a 30 preparatory act and so the legitimate interest of the applicant isnot anexistingone. On the other hand, counsel for the applicant argued that in the present case we have an administrative executory act becausethe act of grading of the applicant was 35 made by an organ which has a decisive jurisdiction. Finally hesubmitted that thegrading of the Education424 20 al Officers leads to their promotion and the inspectors who perform thegrading could be nothing else except an organ of decisivejurisdiction. *; As stated in the Conclusions from the Case-Law of the '5 Council of State in Greece 1929 to 1959 at page 237, executory administrative acts are acts by means of which there is expressed the will of the administration in order to produce legal consequences regarding those governed and which entail immediate administrative enforcement; 10 the main element of the notion of an administrative act is the production of a legal result through the creation, modification orgermination of a legal situation. Also at page 239 of the same book under the heading "Acts preceding the executory act or preparatory acts", 15 it is stated that such acts do not produce by themselves direct legal consequences and, therefore, cannot be attacked by a recourse. Such acts are thereports containing the assessment of the service abilities and the essential qualifications of acivilservant. 20 25 30 35 40 In the Systima Ipallilikou Dhikeou by Fthenakis 1967 edition, vol. C, page92,paragraph 7, it is stated that the judicial control of the administrative acts for promotions before the Council of State has always been a very serioussubject duetotheimportanceandsignificance which it exerciseson the correctness of the promotions made by the Administration. However, the volume of these cases, which were brought at times before this court, not only imposed the securing of the non control of the judgment of the service factor from the point of view of essential assessment of the servant under consideration, but also their handling in such a way safeguarding the establishment of the right order in the course of the control of the administrative acts of promotions. So,under the established Case Law of the Council of State, which has been created under thelawinforce before the coming intooperation of the serviceCode,it was accepted that theassessment of the essential qualifications of the servants under consideration for promotion is within thejudgment of the collective organ of the administration and, consequently, is not within the control of the administrative court, provided that there is no misconception of facts or otherviolation of the law or abuse of discretionary powers. 425 1977 Nov. 23 IACOVOS PAVLIDES v. REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND SECONDARY EDUCATION) 1977 Nov. 23 IACOVOS PAVLIDES v. REPUBLIC (MINISTRY OF EDUCATION AND/OR HEAD OF HIGH AND SECONDARY EDUCATION) It is clear from the above that in the present case the grading of the applicant is not an executory act which produces direct legal consequences but a preparatory act and as such it cannot be the subject of a recourse under Article 146of theConstitution. For these reasons this recourse fails and is dismissed accordingly. Onthequestionof costsI makeno order. Application dismissed. No orderas tocosts. 426