clr/1979/1979_3_371.pdf

(1979)1 and 2 of the relevant schemes of service*. Hence these recourses. Three of the applicants admitted that they have not attended the courses provided by paragraph 2 of the schemes of service; and though applicant in Recourse No. 101/78 asserted that she 5 successfully attended such courses she adduced no evidence in support of her assertion when faced with the denial of the respondent and when it was pointed out to her by the Court, in the course of the hearing, that for the factual issues for which there was no express admission evidence should be adduced in 10 order to substantiate same. Counsel for the applicants contended that the requirement of attending approved educational courses in paragraph 2 of the scheme of service wasnot insisted upon in thecaseof teachersof English, Art and Gymnastics who were placed on higher scales 15 after completion of seven years' satisfactory service and consequently this differentiation by the Committee, being arbitrary, constituted discrimination and unequal treatment of the applicants vis-a-vis those other teachers. Held,

(1)that on the material before this Court there is no 20 difficulty in holding that no courses, as provided by paragraph 2 ofthe schemesof service,weieattended byany oftheapplicants; and that, therefore, the conclusion of the respondent Committee that none ofthe applicants satisfied this provision of theschemes of service was duly warranted by the facts before the Committee 25 and there was no misconception of fact in the circumstances.

(2)That there exists not entitlement to equal treatment on an illegal basis; that, no doubt, if emplacement of other teachers on Scale " B.6." in disregard of the said paragraph 2 has been made,sameisillegal;that thefact that theadministration did not 30 The schemes of service read as follows: " 1 . At least 7 years satisfactory service to the post of school master on scale B.3 or a total of satisfactory educational service of at least 7 years, out of which at least the last one year to the post of school master on scale B.3, provided that the candidate possesses the qualifications required for first appointment to the post of school master on Scale B.

2. Successful attendance of courses in further education organized or approved in that behalf by the Ministry, when and as it will be decided". 372 3 C.L.R. 5 10 15 Kurayianni &Others τ. Ed/elServiceCommittee conform with the law and did not comply with its requirements in other instances,does notconstitutea ground for annullingan administrative decision because compliance with the law was insisted upon in the latter instances; that this principle applies with equal force in the case where conformity with the require­ ments of a scheme of service is in issue; that, therefore, the applicants cannot succeed on the ground of discrimination and unequal treatment; and, that, accordingly, the recourses must fail. Recourses dismissed. Cases referred to: Vrakas andAnother v. TheRepublic

(1977)4 J.S.C.457 at p. 477 (to be reported in

(1977)1C.L.R.); Voyiazianos v. The Republic

(1967)3 C.L.R. 239; loannides v. Republic

(1973)3 C.L.R.

1. Recourses. Recourses against the decision of the respondent not to emplace the applicants, teachers of Domestic Science, on salary scale B.
2. 20 25 30 35 Ph. Valiandis for L. Papaphilippou, for applicant in case No. 101/
3. " K. Michaelides,for applicants in cases Nos. 213/78, 214/78 and 215/
4. A. S. Angelides, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. By these four recourses which have been heard together as they involve common questions of law, the applicants seek a declaration that the decision of the respondent Committee dated the 18th February, 1978 not to emplace the applicants, teachers of Domestic Science, on the salary scale B.6 of the Secondary Education Service, is null and void and of no effect whatsoever. All four applicants are graduates of the Harocopios School of Domestic Science. Ecaterini Karayianni, applicant in Recourse No. 101/78, has been a school-mistress for Domestic Science at a Gymnasium, since
5. Kalomira Kyprianidou, applicant in Recourse No. 213/78, has been such, since 1960, Antigoni 373 A. Loizou J. Karayiann! & Others τ. Ed/al Service Committee

(1979)Nikita, applicant in Recourse No. 214/78 and Kleri Serghi, applicant in Recourse No. 215/78have been also serving as such, since

1. In 1969 they were all emplaced on salary scale B.
2. In November, 1976 they applied to the respondent Committee for emplacement to salary scale B.6 for which the required qualifications under the relevant scheme of service (exhibit 'Z'), are as follows:- 5 " 'Απαιτούμενα Προσόντα:
3. 'Επταετής τουλάχιστον Ικανοποιητική υπηρεσία είς τήν θέσιυ Καθηγητού έπί κλίμακος Β.3, ή 10 Συνολική ικανοποιητική εκπαιδευτική υπηρεσία τουλά­ χιστον επτά ετών, έκ των οποίων το τελευταίου ευ τουλά­ χιστον έτος είς τήν Θέσιυ Καθηγητούέπϊ της Κλίμακος Β. 3, νοουμένου δτι ό υποψήφιος κατέχει τά απαιτούμενα Θέματα διά πρώτου διορισμού είς τήν Θέσιυ Καθηγητού έπί της 15 Κλίμακος Β.
4. Σημ.: ΟΙ ευ τη υπηρεσία κατά τήν Ιηυ Ιουλίου, 1969 Καθηγηταΐ έπί της κλίμακος Β.3 οί έχοντες ή συμπληροϋντες ύπηρεσίαν ως ανωτέρω προάγονται, τηρουμένων των λοιπών όρων, είς τήν Θέσιυ Καθηγητού έπί της κλίμακος 20 Β6 έστω καί έάυ6έυ κατέχουν τά απαιτούμεναπροσόντα διά πρώτου διορισμού είς τήν θέσιυ Καθηγητού έπί της κλίμακος Β.
6. Επιτυχής παρακολούθηση επιμορφωτικών μαθημάτωυ δργαυουμέυωυ ή έπί τούτω έγκριυομέυωυ ύπό τού Ύπουρ- 25 γείου, όταν και ώς ήθελεν άποφασισθη. ('Ενεκρίθη ύπό του Υπουργικού Συμβουλίου.—Απο­ φάσεις ύττ* άρ. 8974 καί 10.368 ήμερ. 7.8.1969 καί 5 καί 6.4.1971)." (" At least 7 years satisfactory service to the post of school master on Scale B.3, or A total of satisfactory educational service of at least 7 years, out of which at least the last one year to the post of school master on Scale B.3, provided that the candidate possesses the qualifications required for first appointment to the post of school master on Scale B.
7. Note: School masters who on the 1st July, 1969, were in the 374 30 35 3 C.L.R. service on Scale B.3, who have or have completed service as above arc promoted, subject to the remaining conditions, to the post of school master on Scale B.6 even if they do not possess the qualifications required for the first appointment, to the post of school master on Scale B.
8. 5
9. 10 Karayiannl &Others τ. Ed/al Serrice Committee A. LobooJ. Successful attendance of courses in further education organized or approved in that behalf by the Ministry, when and as it will be decided. (Approved by the Council of Ministers—Decision No. 8974 and 10.368 dated 7.8.1969 and 5 and 6.4.1971"). The respondent Committee considered the applications of the applicants at its meeting of the 18th February,
10. After referring to the qualifications required for the post (see the 15 minutes, exhibit 5), the Committee stated the following :- 20 25 30 35 " Ή 'Επιτροπή 'Εκπαιδευτικής Υπηρεσίας, άφοΰ έμελέτησε τάς ώς άνω περιπτώσεις κατέλη£εν είς το συμπέρασμα ότι το αίτημα των καθηγητριών δέυ δύναται υά ίκανοποιηθη καθ' Οτι αύται δέυ πληροΰυ τάς ώς άυω προνοίας (1 καί 2) τώυ Σχεδίων Υπηρεσίας. Είδικώτερου ώς προς τήυ πρόυοιαυ της παραγράφου 1 ή 'Επιτροπή 'Εκπαιδευτικής Υπηρεσίας εΐναι της γνώμης ότι απαραίτητος προϋπόθεσις διά τήν προαγωγήν καθηγη­ τού εύρισκομέυου έπί της κλίμακος Β.3 είς τήν κλίμακα Β.6 είναι όπως ούτος ευρίσκεται είς τήν έυ λογού κλίμακα (Β.3) είτε κατά πρώτον διορισμού εΐτε διότι ούτος κατέχη τά απαι­ τούμενα προσόντα διά τόν διορισμού εϊς τήν κλίμακα (Β.3). Τούτο προκύπτει τόσου από τό δεύτερον έδάφιου καί τήυ σημείωσιυ της παραγράφου 1, τώυ ώς άυω Σχεδίωυ Ύπηρεσίας όσον και από τάς προνοίας τώυ Σχεδίωυ Υπηρεσίας εϊς άλλας περιπτώσεις προαγωγώυ από κλίμακος είς κλίμακα διαφόρωυ θέσεωυ της Δημοσίας 'Εκπαιδευτικής Υπηρεσίας (Καθηγηταϊ και Έκπαιδευταϊ έκ της κλίμακος Β. 10 εις τήυ κλίμακα Β.
11. Έκπαιδευταϊ έκ της κλίμακος Β.
12. είς τήυ κλίμακα Β.
13. Καθηγηταϊ κα'ι Έκπαιδευταϊ έκ της κλίμακος Β.2 εις τήν κλίμακα Β.3) οπού εις έκάστην περίπτωσιν δίδεται ευκαιρία μόνον μιαςπροαγωγής (άνευαποκτήσεως προσθέτων προσόντων) π.χ. Εκπαιδευτής έπϊ κλίμακος Β.2 προάγεται είς Β.3 καί δέν δύναται νά προαχθή εις ύψηλότερην κλίμακα 375 A. Loizou J. Karayianoi & Others v. Ed/al Service Committee

(1979)άνευ αποκτήσεως υψηλότερων προσόντων, ώς επίσης και πτυχιούχος της Χαροκοπείου Σχολής Οίκιακής Οίκονομίας— ώς αϊ αίτήτριαι—διοριζόμενη είς τήν θέσιν διδασκαλίσσης δύναται υά προαχθη έκ της κλίμακος Β.2 εις κλίμακα Β.4 (αντίστοιχου προς τήυ Β.3) 5 Έυ πάση περιπτώσει ή 'Επιτροπή Εκπαιδευτικής Υπη­ ρεσίας είναι έτοιμη υά επανεξέταση το όλου θέμα, ευθύς ώς τό Υπουργείου πράς τό όποιον παρεπέμφθη ήδη τούτο ήθελε δώση διάφορουέρμηυείαυέφ' όσου τούτο εΐυαιαρμόδιου διά τήν προετοιμασίαυ τώυ Σχεδίωυ Υπηρεσίας." 10 (" The Educational Service Committee having considered the above instances came to the conclusion that the appli­ cation of the school mistresses cannot be acceded to because they do not satisfy the above provisions

(1)and

(2)of the schemes of service. In particular with regard to the provision of para. I the Educational Service Committee is of opinion that a necessary prerequisite for the promotion of a school master on Scale B.3 to Scale B.6 is that he should be on the said scale (B.3) either on first appointment or because he 20 possesses the qualifications required for appointment to Scale B.3. This emanates both from the second part and the note to paragraph 1 of the above schemes of service, as well as from the provisions of the schemes of service in other instances of promotion from a scale to a scale of 25 various posts of the Public Educational Service (School masters and instructors on Scale B.10 to Scale B.12, instru­ ctors on Scale B.3 to Scale B.6, school masters and instru­ ctors on Scale B.2 to Scale B.3), where in each case there is given the chance of only one promotion (without acquiring 30 additional qualifications), e.g. instructor on Scale B.2 is promoted to B.3 and he cannot be promoted to higher scale without acquiring higher qualifications, as well as a graduate of the Harocopios School of Domestic Science— as the applicants—appointed to the post of teacher can be 35 promoted from Scale B.2 to Scale B.4 (corresponding to B.3). In any case, however, the Educational Service Committee is prepared to reconsider the whole matter as soon as the Ministry, to which it had already been referred has given 40 376 15 3 C.L.R. Karayiaoni & Others v. Ed/al Service Committee A. Loizou J. different interpretation since it iscompetent for the preparation of the schemes of service.). It is clear from the aforesaid decision of the respondent Committee that all four applicants were found not to satisfy 5 both provisions 1and 2 of the schemes of service. 1 find it more convenient to take first provision 2 of the schemes of service which was also invoked by the respondent Committee in dismissing the applicants' applications. In this respect I was faced with the situation whereby the applicant in 10 Recourse No. 101/78 asserted that she attended successfully courses in further education organized or approved by the Ministry of Education, whereas the three other applicants admitted in para. 9 of the facts of their applications that the respondents did not organize any educational courses for 15 teachers of domestic science. Moreover, Mr. Michaelides in his reply, on seeing the assertion in the address of Mr. Papaphilippou that the applicant in Recourse No. 101/78 attended some kind of lessons or lectures organized by the Ministry of Education, pointed out that the same lectures were followed by 20 his clients also which were not actually in a continuous series of lessons and thai was \vhy he did not refer to them. The respondents denied that the applicants or any of them attended such courses. . With regard to this factual issue as to whether the applicants 25 did attend successfully courses in further education organized or approved in that behalf bythe Ministry, as required by provision 2 of the schemes of service, no evidence was adduced, although it was pointed out by me in the course of the hearing that for the factual issues for which there was no express admission, evidence 30 should be adduced in order to substantiate same. Moreover and independently of this, there is nothing in the personal file of any of the applicants from which the respondent Committee could infer that they did attend such courses, and I have no difficulty in holding, on the material before me, that no such 35 courses wereattended by any of theapplicants. The conclusion, therefore, of the respondent Committee that none of the applicants satisfied this second provision of the schemes of service, was duly warranted by the facts before the respondent Committee and there was no misconception of fact in the circum40 stances. 377 A.Lofzou J. Karayianoi &Others v.Ed/al ServiceCommittee

(1979)It was argued on this point that this requirement of attending approved educational courses etc., was not insisted upon in the case of teachers of English, Music, Art and Gymnastics, who were being placed on higher scales after completion of seven years of satisfactory service and consequently this differentiation by the respondent Committee, being arbitrary, constituted discrimination and unequal treatment of the applicants vix-a-vis those other teachers. 5 It is well established that there exists no entitlement to equal treatment on an illegal basis (see: In Re Pantelis Vrakas and 10 Another

(1977)4 J.S.C., p. 457, at p. 477*; Voyiazianos v. The Republic

(1967)3 C.L.R., p. 239; loannides v. The Republic

(1973)3 C.L.R., p. 117). No doubt if emplacement of other teachers, as alleged, on Scale 'B.6' in disregard of para. 2 of the corresponding relevant schemes of service has been made, same 15 is illegal. The fact that the administration did not conform with the law and did not comply with its requirements in other instances, it does not constitute a ground for annulling an administrative decision because compliance with the law was insisted upon in the latter instances. This principle applies with equal 20 force in the case where conformity with the requirements of a scheme of service is in issue. For all the above reasons these recourses fail as the applicants cannot succeed on the ground of discrimination and unequal treatment. Once, therefore, I have come to this conclusion, I 25 need not examine the approach of the respondent Committee with regard to the first provision of the scheme on which extensive argument was heard, as everything which I may say on the matter will be obiter and I leave the matter entirely open. Before concluding, however, I would like to say that the applicant 30 in Recourse No. 101/78 had no vested rights which have been defeated or ignored by the scheme of service in question nor does the principle of non retrospectivity of laws comes in issue nor there exists any misconception of fact or lack of due inquiry in these cases. 35 In the result these recourses are dismissed as all applicants do not satisfy, as yet, provision 2of thescheme of service,but in the circumstances I make no order as to costs. Recourses dismissed. No order as to costs, • To bereported in

(1977)1C.L.R. 378 40