(1983)1983 October 14 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PHOTOULLA A. LOIZIDOU, Applicant, v. THE REPUBLIC OF CYPRUS AND/OR THE DIRECTOR OF THE PAEDAGOGICAL ACADEMY AND/OR THE SCHOOLMASTERS OF THE PAEDAGOGICAL ACADEMY OF CYPRUS AND/OR THE MINISTER OF EDUCATION, Respondents. {Case No. 286/83). Paedagogival Academy of Cyprus—Enrolment of students in—Number of, fixed by decision of the Council of Ministers—Without specifying the number of students from each sex—Board of teachers of the Academy deciding to accept for enrolment students on sex criteria and not on the basis of the order of success in the 5 examinations—In the absenceof any Law or Regulation empowering the Board to decide as it did or conferring upon it any discretionary power the Board had to abide by the results of the examinations—Its decision unwarranted in , law—Annulled. Administrative Law—Administrative practice—Effect. The applicant, who graduated the Acropolis Gymnasium in 1983,took part in the prescribed examinations for enrolment asa student inthe Teachers'SectionofthePaedagogical Academy ("PAC"), which were held on the 17th and 18th June, 1983. According to the results of the above examinations, she took 15 the 90th place in line of success (282 marks). The number of students to be enrolled in the Teachers* Section of the PAC for the year 1983was fixed by the Council of Ministers to 90, adopting in that respect the proposal made by the Ministry of Education in which the reasons for recommending such number 20 1084 10 3 C.I .R. Loizidon v. Republic wereexplained. Neither inthe saidproposal nor inthedecision of the Council of,Ministers any specification as to the number of students from each sex was made bui they both mentioned male/female students. 5 10 15 20 25 30 TheTeachers Board of the PAChaving met on the 29thJune, 1983 to consider the results, decided to accept for enrolment in the Academy 35 male candidates instead of 21 who would have been entitled on the basis of the order of success in the examinations, thus leaving room for only 55instead of 69female candidates. The applicant who was 90th in the general order of success and 69th in the order of success of females, would have been entitled to be admitted if the last candidates in the order of success were chosen without the element of sex having been taken into consideration; but as aresult oftheprocedure followed she was excluded and hence this recourse. Held, that since there is no special law regulating the enrolment of studentsinthePACand noother lawwhatsoe\er conferring any discretionary power on the Board of PAC; and that since the relevant decision of the Council of Ministers did not purport to confer such a power, there was no discretionary power on the part of the Board of PACtodecide upon percentageonsexcriteria of studentstobeenrolled; andthat, therefore, inthe absence of any law or regulation empoweringthe respondent to decide as it did or conferring upon it any discretionary power on the point, the respondent had to abide by the results . of the examination; accordingly its decision is unwarranted by law and has to be annulled. Held,furtheronthequestion whetherthereexistedanyestablishedpracticegivingtlte PAC the right to keep a percentage of up to a maximumof 50per cent male and 50per cent female students: {Afterdealing with theeffect ofestablishedadministrativepractice or administrativecustom—vide pp. 1092-1095 post). 35 That the respondent has not followed an established administrative practice and it cannot, therefore, rely on it in order to justify its decision. Subjudice decision annulled. 1085 Loizidou v. Republic (t983) Recourse. Recourse against the decision of the respondents whereby they selected for enrolment in the Paedagogical Academy of Cyprus (Teachers' Section) male candidates to the exclusion of applicant who had higher marks. 5 A. S. Angelides, for the applicant. R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. By the present recourse the applicant prays for a declaration of the Court that - 10
(1)The decision of the respondents published in the daily presson 2.7.1983,whereby therespondents selectedfor enrolment in the Paedagogical Academy of Cyprus (Teachers* Section)male candidates to the exclusion of the applicant who had higher marks than them, be declared null and void as being unlawful 15 and unconstitutional.
(2)The decision of the respondents dated 2.7.1983 not to select the applicant and/or not to secure a place for her to study in the PAC (Teachers* Section) in spite of her grading, be declared void, unlawful and unconstitutional. 20
(3)The decision of the respondents to be annulled because its only criterion was sex, in contravention of the provisions of the Constitution. The facts of the case are as follows; The applicant, who graduated the Acropolis Gymnasium in 25 1983, took part in the prescribed examinations for enrolment as a student in the Teachers' Section of thePaedagogical Academy, which were held on the 17th and 18th June, 1983. According to the results of the above examinations, she took the 90th place in line of success (282 marks). The number of students to be 30 enrolled in the Teachers* Section of the PAC for the year 1983 was fixed by the Council of Ministers to 90, adopting in that respect the proposal made by the Ministry of Education in which the reasons for recommending such number were explained (see Appendix 1 to the address of counsel for the re- 35 spondents). Neither in the said proposal nor in the decision of the Council of Ministers any specification as to the number of 1086 3 C.L.R. Loizidou v. Republic Savvides J. students from each sex is made but they both mention male/ female students (see decision of the Council of Ministers No. 23/061, dated 21.4.1983 attached to the reply of counsel for the applicant as Appendix 'B'). 5 ' The Teachers Board of the PAC met on the 29th June 1983 to consider the results of the examinations and to decide, on The basis of the results and the above-mentioned decision of the Council of Ministers, as to the successful candidates who were to be enrolled in the Teachers' Section. The minutes of such 10 meeting appear as Appendix 3 to the oppostion. According to such minutes the Board considered the results of the examinations and decided that they could not apply an analogy of 50 per cent for male and 50per cent for female students because the results of the examinations did not justify such course. It 15 appears also in the minutes that the Headmaster had not suggested the definition of the percentage analogy in the proposal of the Ministry of Education to the Council of Ministers, in order to give the Board more flexibility in choosing the best candidates. It also appears from page 2 of the same minutes 20 that the Board decided that the enrolment of a number of male students in theAcademy was necessary for certain reasons, these beingthat:(a)thenormal developmentof boys in the elementary schools will be assisted by the presence of male teaching staff; (b) the educational needs in small rural schools will be served 25 in a better way; and (c) it helps the creation of a more constructive climate within the Academy itself. The Board also took into consideration, with regard to male candidates, that certain of them may not finally enrol in the PAC if they are accepted by some other institution of higher education, such as 30 the Higher Technical Institute, thus making room for runners up; and in view of the fact that all male candidates not offered an enrolment in the PAC will have to enlist in the National Guard before the final enrolments in the PAC are made, no other male runners-up will be left, with the result that only fe35 male runners-up will take the place of successful candidates, male and female, who will not finally enrol. In view of the above considerations the Board decided to accept for enrolment in the Academy 35 male candidates inssead of 21 who would have been entitled on the basis of the 1087 Savvidcs J. Loizidou v. Republic
(1983)order of successin theexaminations, thus leaving room for only 55 instead of 69 female candidates. The applicant was 90th in the general order of success and 69th in the order of success of females, which would have entitled her to be admitted if the last candidates in the order of 5 success were chosen without the element of sex having been taken into consideration. It was as a result of the procedure followed, whereby the applicant was excluded, that she filed the present recourse, whichisbased onthefollowing groundsof law; "A. The decision contravenes, inter alia, the provisions of Articles 20, 6 and 28 of the' Constitution. B. Thedecisionwastaken inexcessor abuseofpower and is bad for misconception. C. The decision is the result of an extraneous object, of 15 dicriminatory treatment against the applicant and contravenes the notion of proper administration and meritoriousness. D. Thedecision wastaken under a procedure whichisbad and in violation of the law and the vested rights of the 20 applicant. E. It lacks reasoning." Counsel for applicant has argued in the course of his address that oncetheBoardhaddecided toholdanexamination between the candidates it wasbound to abide by the results of the exa- 25 initiation and not take into consideration other factors, not provided by law. That the Board of PAC based itsdecision on the misconception that the maintenance of percentages between male and female candidates isnecessary, irrespective of the fact that by following such policy the standard of education will be 30 lowered. That theassumption bytheBoard that enrolment for studies in the PAC should not serve the purpose of individual education but only the needs in teaching staff of schools of Elementary Education is wrong and contrary to the provisions of Article 20of our Constitution whichpreservestheright of an 35 individual to offer and receive education. Counsel further argued that the combination of Articles 1088 10 3 C.L.R. Loizidou \. Republic Savvides .1. 28.1 and 2 and 20 of the Constitution do not permit any discrimination to the right of education on the basis of sex. Conditions and restrictions to such right may be imposed only bylawand for the purposes setout inArticle 20whichdoesnot 5 cover thecaseinhand. It isthecasefor the applicant that any differentiation against her was arbitrary and was based on sex and is, therefore, unconstitutional. Counsel also maintained that thefixing of apercentage bytheCouncil of Ministersisnot provided byany lawand that in anyevent theact of the PACin 10 so doing, is unlawful as having been taken by an incompetent organ. Learned counsel argued lastly that there is no established practice fixing a percentage of 50 per cent male and female students since no such percentage was ever applied for any 15 number of years. In any case established practice is accepted onlyifitdoesnotcontravenethelawandtheConstitution,which isnotthecasehere, inanyevent,counselarguednopercentage has been provided in the decision of the Council of Ministers which merelyfixed thenumber of students to beenrolled in the 20 PAC. Thedecision therefore of PAC is unlawful as it was not taken in accordance with the provisions of any law and iscontrary to the contents of the decision of the Council of Ministers and the provisions of Article 28 of the Constitution. Counsel for therespondent inher addressmaintained that the 25 PAC isa serviceof the Ministry of Education and the Minister, therefore, on the basis of sections 3
(3)(a), 5and 6 of the CompetenceoftheGreek Communal Chamber (Transfer ofExercise) andMinistryofEducationLaw, 1965,(Law12/65),isempowered to "define the general educational policy within thelimitsof the 30 laws in force for submission to the Council of Ministers." This,incombination with regulation 13(a)(i) of theRegulations as to educational officers, gives the Ministry and the Minister thepower to decide and define thepercentage of students from each sex who are going to be enrolled in the PAC every year, 35 having regard to the speculated future educational needs of schools. Thatthispercentagehasbeenfixed, sincetheacademic year 1975 - 1976 to 50 per cent male and 50 per cent female studentsatthemostanditiswithinthediscretionoftheBoardof TeachersofthePACtomaintainthemaxima ofthepercentage, 40 givingreasonsfor itsdecision, whicharegiven infull inthe sub 1089 Sawides J. Loizidou v. Republic
(1983)judice decision. That this percentage has been made an establi shed practice, the discretion being on the PAC to decide the exact number of male and female students having regard to the results of the examinations. Furthermore, she contended that the distinction between males and females was reasonable under the circumstances and, therefore, not unconstitutional. 5 I find myself unable to agree with the contention of counsel for the respondents regarding the discretion of the Board of Teachers of PAC to decide on the exact number of male and female students to bs enrolled or upon any percentage. There \Q is no special law regulating the enrolment of students in this institution and no other law whatsoever conferring any discre tionary power on the Board of PAC. Nor does the decision of the Council of Ministers which is attached to thewritten reply of counsel for the applicant as Appendix 'B' purports to confer 15 such a power, although even if it did, I would have doubted its correctness. The decision of the Council of Ministers referred to, reads as follows: tl To Συμβούλιο αποφάσισε για το ακαδημαϊκό έτος 1983-84 20 νά γίνουν δεκτοί στην Παιδαγωγική 'Ακαδημία Κύπρου 90 νέοι σπουδαστές/στριες στον κλάδο Δασκάλων και 30 νέοι <ητουδαστέ$/στριες στον κλάδο Νηπιαγωγών". The English translation of which is as follows: ("The Council decided that for the academic year 1983 - 25 1984 90 new male/female students be enrolled in the Pae dagogical Academy of Cyprus in the Teachers' Section and 30 new male/female students in the Nursery Teachers' Section"). The contents of the above decision are very clear and need not 30 be commented upon. It only decides the number of students, male or female, to be enrolled in the PAC for the academic year 1983 -
- There is no mentionof any percentage on thebasis of sex whatsoever. I, therefore, need not examine, at this stage, whether thefixing of a percentage based on sex by the Council of 35 Ministers might be unlawful or unconstitutional. In Greece, the matter is regulated by law and is based on the existence of organic posts for males and females and differentiation between 1090 3 C.L.R. Loizidou v. Republic Sawides J. sexeshas beentreated asnot violatingtheprovisions of thelaw, sincesuchdifferentiation wasnecessaryinthelightoftheorganic posts for different sexes (see, in this respect Decision 1447/58). In the light of the above decision of the Council of Ministers, 5 there was nodiscretionary power on the part of PACto decide upon percentage based onsexcriteria of students to beenrolled. If such differentiation would have been deemed necessary, it should have been defined by a competent organ vested with suchpowerand not byan organ like PACwhichwasnotvested 10 with such power. I am coming now to examine the proposition whether any established practice exists, giving the PAC the right to keep a percentage of up to a mxamum of 50per cent male and 50per cent female students. According to the contention of counsel 15 for the respondents the fact that this percentage has been kept since the academic year 1975 - 1976 establishes such practice, 20 25 30 35 The number of students from each sex who were enrolled everyyear intheTeachers' Section of PAC,since 1959,theyear of its establishment, appear in Appendices 1and 2 attached to the opposition. Appendix 1shows the number of students enrolled between 1959- 1968and Appendix 2thoseenrolled from 1969 till
- From a mere glance at these lists it transpires that the analogy of 50per cent wasfirst introduced for theacademic year 1975 - 1976, with 12male and 12 female students. Thesenumbers werefixed by the relevant decision of the Councilof Ministers whichisattached to the reply of counsel for the applicant as Appendix 'D3'. The same analogy was kept for theacademicyears 1976- 1977and 1977-
- In 1978-1979 there were 8male and 7female students, which is a proximate analogy. In 1979 - 1980 no students were enrolled in the Teachers' Section. In 1980 - 1981, 8 male students and 17 female ones wereenrolled which shows that the analogy of 50 per cent wasfar from being kept in that year. In 1982- 1983, 15 male and 15 female students were enrolled which again amounts to the same analogy of 50 per cent. Thenumberof students to beenrolled inthePAChas always been a matter whichhad to bedecided every particular year by the Council of Ministers which isthe only appropriate organ to take suchdecision. The Council of Ministers, for a number of 1091 Saviides J. Loizidou v. Republic
(1983)years used also to define thepercentage analogy of students from each sex. In 1983 no such percentage was defined. A matter which has to be decided upon in every particular year does not, in my opinion, give rise to an established practice if, for any reason, the decision on the matter happened to be the same for a 5 number of years. Another thing that shows that there was no established practice is that in the years 1970 - 1971 and 1971 1972, the decision of the Council of Ministers was in the same terms as the present one fixing no percentages of sexes and the students were selected on the basis of a general list of successful 10 candidates, in the order of their success,irrespectiveas to whether they were male or female students. On the effect of established administrative practice or admi nistrative custom followed for a number of years, the view expressed by the leading authors in Greece, is as follows: 15 "Πράγματι ή διοικητική πρακτική είναι δυνατόν νά Ιχη cbs περιεχόμενον είτε α) τήν έρμηνείαν τοΰ νόμου είτε β) τήν άσκησιν διακριτικής εξουσίας. Είς τήν πρώτην περί πτωσιν, ή ή δοθείσα δια της διοικητικής πρακτικής ερμηνεία τοΰ νόμου είναι ορθή, οπότε δέον νά εξακολούθηση άκολου- 20 θουμένη, ουχί δυνάμει εθίμου, άλλα δυνάμει αύτοΰ τοΰ έρμηνευομένου και εφαρμοζομένουορθώςΟπότης Διοικήσεως νόμου, ή αντιθέτως ή ερμηνεία είναι εσφαλμένη, οπότε δέον νά μεταβληθή έστω και μετά μακρόνχρόνον, ίναδοθηήορθή ερμηνεία, αδύνατον δέ είναι νά έπιβληθη ή εσφαλμένη ερμηνεία καί 25 νά καταστη μόνιμος, επειδή ήκολούθησεν αυτήν ή Διοίκησις έπϊ μακρόν χρόνον. Είς τήν δεύτερον περίπτωσιν, καθ' ην ή διοικητική πρα κτική έχει ώς περιεχόμενον τήν άσκησιν διακριτικής εξουσίας καθ* ώρισμένον τρόπον έφ' ώρισμένου θέματος, ή έπϊ μακρόν 30 χρόνον διάρκεια μιας τοιαύτης διοικητικής πρακτικής είναι δυνατόν νά Ιχη ώρισμένας συνεπείας έν τω δικαίω των διοι κητικών πράξεων. Οΰτω π.χ. έάν ή Διοίκησις έπϊ μακρά έτη χορηγή ώρισμένης φύσεως αδείας εις άτομα ώρισμένης κατηγορίας, δεν δύναται, έγκαταλείπουσα τήν τακτικήυ 35 τοιαύτηυ αίφνιδίως, νά άρνηθή όμοίας φύσεως άδειαν είς πρόσωπον άνηκον είς τήν αυτήν κατηγορίαν, χωρίς νά αίτιολογήση τήν άρνησιν ταύτην. Έάν άναιτιολογήτως άρνη θή ή άρνησις αύτη Θάήτο άκυρωτέα δι'Ιλλειψιν της αΐτιολο1092 3 C.L.R. 5 10 )5 20 25 30 35 40 Loizidou ν. Republic Savvides J. γίας. "Οθεν ή διοικητική πρακτική δύναται νά άποτελέση * την προϋπόθεσιν διά τήν έφαρμογήν γενικών τίνων άρχων τοΰ δικαίου ιών διοικητικών πράξεων, αΐ όποΐαι τείνουν Ιδίως νά εξασφαλίσουν τήν όρθήν άσκησιν της διακριτικής . εξουσίας των διοικητικών οργάνων. Ουδέποτε δμως ή διοικητική πρακτική δύναται ν' άποτελέση πηγήυ τοιούτων γενικών άρχων. "Αλλωστε, ή διοικητική πρακτική δέν δύναται νά δεσμεύη τήν Διοίκησιν, ειμή μόνον από της ανωτέρω εκτεθείσης άπόψεως της υποχρεώσεως αυτής όπως αϊτιολογη τήν μεταστροφήν τής τηρηθείσης τακτικής αυτής. Τηρούσα τήν ΰποχρέωσιν ταύτην, ή Διοίκησις δύναται νά έγκαταλείπη τήν έστω και έπϊ μακρόν χρόνον τηρηθεϊσαν τακτικήν. Τού το επιβάλλεταικαι έκτής ανάγκης, όπως ή διακριτική εξουσία άσκήται εκάστοτε ελευθέρως και άδεσμευτως εν όψει τών συ γκεκριμένων περιπτώσεων". ("Indeed the administrative practice is possible to have as contents either a) the intrepretation of the law or b) the exercise of discretion. In the first case either the interpretation given by, the administrative practice to the law is correct, in which case it should continue to be followed, not by virtue of custom, but by virtue of the said interpreted and correctly applied by the administration law, or on the contrary the interpretation is wrong, in which case it should be changed even after a long time, so as to have the correct interpretation given, but it is impossible for the wrong interpretation to be imposed and become permanent because the administration has followed it for a long time. In the second case, in which the administrative practice has as its contents the exercise of discretion in a certain manner on a specified subject, the duration for a long time of such an administrative practice is possible to have some effects onthelaw of administrative acts. Thus, for example, if the administration for many years grants permits of a certain type to persons of a certain category, it cannot, by abandoning suddenly this practice, refuse a permit of the same type to a person belonging to the same category, without giving reasons for such refusal. If it refuses with out due reasons, this refusal is subject to annulment for lack of due reasoning. Therefore the administrative 1093 Savvidcs J. Loizidou v. Republic
(1983)practice can constitute the prerequisite for the application of certain general rules of the law of administrative acts, which tend especially to secure the correct exercise of discretion by the administrative organs. But the admini strative practice can never constitute a source for such general rules, 5 On the other hand, administrative practice cannot bind the administration, except only from the above stated view of its obligation to reason the change of the said adopted practice. By observing this obligation, the administration may abandon even the practice followed for a long time. This is also imposed by the requirement that discretion is exercised each time freely and without any unfetterly in view of the special circumstances"). 10 (See, Stassinopoulos "Law of Administrative Acts", 1951 Edition, pp. 19, 20). 15 (See, also Tsatsos "Recourse for Annulment" 3rd Ed. pp. 296, 297). In the present case, as 1 have already explained, no such pra ctice has been established. But even if I had reached the con clusion that the adoption of the same percentage by the PAC for a certain number of years did create an established practice such practice was interrupted in the academic year 1980 - 1981 and thus ceased to exist as such eversince. In Tsatsos "Application for Annulment" (supra), p. 296, we read: 20 25 "Τουναντίον ή διοικητική συνήθεια δύναται νά δηλωθή παρά της αρμοδίας αρχής, ότι έφ' έξης καΐ γενικώς 6έν Θέλει τηρηθή καΐ ή τοιαύτη προηγουμένη δήλωσίς άρκεΐ 6ιά νά απαλλαγή τής διά τής συνηθείας ταύτης επελθούσης δεσμεύ- 30 σεως".. The English translation of which is: ("On the contrary, the administrative practice may be declared by the appropriate authority that from now on and in general it will not be kept and the aforesaid declaration is 35 sufficient to release it from the obligation created by such practice"). 1094 3 C.L.R. Loizidou v. Republic Sawides J. In any event,therespondent did not evenfollow that percentage in the subjudicedecision and it cannot therefore rely on it in order to justify its decision. I, therefore, find that in the absence of any law or regulation empowering the respondent to decide as it did or conferring upon it any discretionary power on the point, the respondent had to abide by the results of the examination. Its.decision is unwarranted bylawandhastobeannulled. Havingconcluded that the sub judice decision has to be annulled on the above grounds, I find it unnecessary to consider any other points raised. In theresult, therecoursesucceedsand thesubjudicedecision is annulled, with no order for costs. Subjudice decision annulled. Noorder asto costs. 1095