(1983)1983 April 19 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146OFTHE CONSTITUTION SAVVAS M1AMILIOTIS AND ANOTHER, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (CaseNo. 40/80). Administrative Law—Administrativeacts or decisions—Validity— Tested by referenceto thefacts whichwerein existenceat the time they are taken. Public Officers—Schemes of service—Officer not possessing qualificationsrequired by relevant schemeof service ofparticular post, 5 has no legitimateinterestto contestvalidity of decision rejecting his application for emplacementon salary scale of such post. Publicofficers—Promotions—There cannot beavestedrighttopromotion—Ora right that therequired qualificationsfor a particular promotion post cannot be changed. 10 Constitutional Law—Equality—Article 28oftheConstitution—Allegationofunequal treatmenthastobeestablishedby evidence—Onus on applicantsto adducesuch evidence. The applicants, who were serving as Instructors on scale B.3 intheTechnical Education applied to the respondent Com- IS mittee for their emplacement on scale B.
- The respondent Committee rejected their application and hence this recourse. Under the schemes of servicewhich following theiramendment came into force on the 5th January, 1979 a University degree or title was required for emplacement on scale BIOwhich the 20 applicants didnot possess. Inthe course of the hearing of the recoursecounselfortheapplicantsoughttorelyonanagreement 322 3 C.L.R. 5 10 15 20 25 Miamiliotis and Another v. Republic between the Government and applicants' trade Union, which was reached after the sub judice decision and on the basis of which applicants were entitled to be emplaced on scale B.
- Counsel, further, contended that the applicants by being in the service before the amendment of the schemes of service, had a vested right for emplacement on scale BIOwith the qualifications they had at the time, of which they could not be deprived; and, also, that there was a violation of Article 28 of the Constitution in that there was a discrimination and unequalityoftreatment betweentheapplicantsandothereducational officers in similar situations. Held,(0 that this case has to be considered on the relevant facts which were in existence at the time when the sub judice decision wastaken; that sincetheagreement between applicants1 trade Union and the Government was concluded subsequent to the subjudice decision it cannot be taken into consideration in testing the validity of the sub judice decision.
(2)That once the applicants did not satisfy the requirements of the schemes of service, it was open to the respondent Committee to reject their applications and in the circumstances the applicants did not possess a legitimate interest to contest the validity of such decision.
(3)That there cannot be a vested right to promotion or that the required qualification for a particular promotion post cannot be changed before any promotion is effected.
(4)That the allegation of unequal treatment has not been established by evidence and the onus was on the applicants to adduce such evidence. Application dismissed. 30 35 Cases referred to: Economides v. Republic
(1972)3 C.L.R. 506 at p.
- Recourse. Recourse against the refusal of the respondent to emplace applicants on salary scale B.
- C. Clerides, for the applicants. R. Gavrielides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 323 Miamiliotis and Another v. Republic
(1983)SAVVIDES J. read the following judgment. The applicants inthese cases areholders ofa diploma inAutomobileEngineering of the Chelsea College of Aeronautical and Automobile Engineering of London and serve as Instructors on Scale B3 in the Technical Education. The first applicant, Sawas Mia- 5 miliotis, wasfirstlyappointed to the post on contract (on Scale B3), on 20.9.1977 which was subsequently renewed annually till 31.8.
- The second applicant, Michael Markides was firstly appointed on a monthly basis (on Scale B3)on 7.10.1978 andservedassuchtill 1.6.1979,whenhewasoffered apermanent 10 appointment on probation. The applicants by letters dated 27.10.1978 and 7.2.1979 applied to the respondent Committee for their emplacement on Scale B
- The respondent Committee after referring the case to the Evaluation Committee for advice concerning the 15 qualifications of the applicants, and having received the views of such Committee, considered the applications in the light of all material before it, and decided to reject same on the ground, as it appears from the minutes, that the applicants did not possess the qualifications prescribed by the schemes of service' 20 applicable for emplacements on Scale BIO, and, in particular, that they did not possess a degree or title of a University or other equivalent qualification. Such decision was communicated to the applicants by letters dated 22.12.1979 (exhibits 1 and 1A annexed to the written address of counsel for them). 25 In respect of thefirstapplicant, it ismentioned in the said letter (exhibit 1), that he did not possess such qualifications on the date of his last appointment on contract, which was the 14th June, 1979 and in the case of the second applicant that he did not possess such qualifications on the 1stJune, 1979whichwas the date of his appointment on probation (see exhibit 1A). 30 As a result, the applicants filed the present recourse by which they claim "a declaration of the Court that the act and/or decision of the respondent Committee communicated to the applicants on the 22nd December, 1979 to the effect that applicants do not possess the required qualifications in order 35 to beentitled tobeemplacedinScaleB10ofthescalesfor educational services, should be declared null and void and of no effect whatsoever". Three grounds of law wereadvanced in support of the appli324 3 C.L.R. Miamiliotis and Another v. Republic Savvides J. cation. Infact, theallegedgrounds 1 and2arenotinsubstance grounds of law, but merely a statement of facts which led to the filing of the petition. The only ground of law is ground 3 which reads as follows: 5 10 "Applicants contend that they both possess the required qualifications for emplacement in scale BIO and that respondents above decision should be declared null and void and of no effect whatsoever in that; (a) It iscontrary to the true interpretation of the relevant scheme of service. (b) It conflicts with Article 28of the Constitution as other candidates with same or similar qualification have in the past been emplaced in the same scale. (c) It is not duly reasoned". 15 As to ground 3(a) which refers to the interpretation of the schemesof service,I wishto observethat the schemesof service have not been produced by either side and are not before the Court. From what, however, can be deduced from the facts as set out in the application and the opposition and from the 20 addresses of both counsel, and about which there is nodispute, itwasone oftherequirements oftherelevant schemesof service for emplacement onScaleBIO, after suchschemeswereamended on 5.1.1979, that a "University degree or title or an equivalent qualification" was required. According to thesame material, 25 the schemes of service which were in force before the 5th of January, 1979, required only "a diploma or certificate in the relevant subject of the standard of the Higher National Certificate or an equivalent qualification". It was the contention of counsel for the applicants that once 30 the applicants had been appointed in the Public Service long before the amendment of the schemes of service and that at thetimeoftheirappointment theypossessed thenecessaryqualifications required bythe schemes of service inforce at thetime, the subsequent modification of the schemes of service could 35 not affect their position and, therefore, they were entitled to be emplaced on Scale BIO, having regard to the qualifications they already possessed. Furthermore, counsel contended that after an agreement reached between representatives of the 325 Savvides J. Miamiliotis and Another v. Republic
(1983)Government on the one side and representatives of theTrade Unions of Civil Servants and Educationalists on the other side, dated 5.1.1981, which relates to the re-organisation of certain posts of the Educational Serviceapplicants andpersons holding similar qualifications who were in the service before the 5th 5 January 1979, were eligible for emplacement on scale BIO. Such agreement has been attached to the written address in reply of counsel for applicants (exhibit 4). In such memorandum of agreement, reference is made to another memorandum ofagreementcopyofwhichwasattachedto thewritten 10 address of counsel for applicants (as exhibit 5). The effect of both these exhibits isthat those officers already in the service and holding posts which were subject to re-organisation, are treated differently from those who were tojoin the service after such date. The relevant part of exhibit 5 reads as follows: 15 "(e) Instructors{scales B3-B6). It has been agreed that all instructors who were in the service prior to the 5th January, 1979 on Scales B3-B6, possessing the qualifications of H.N.C., H.N.D., H.T.I. or equivalent qualifications whocouldhavebeen appointed 20 on the basis of the schemes of service in force before the above date to the post of Instructor on Scales B10-B12, be so appointed to the post of Instructor on Scales B10-B12". Counsel for applicants sought to rely on the above part of 25 the agreement and contended that on the strength of it the applicants should have been emplaced on Scale BIO. I find myself unable to agree with the contention of counsel for applicants that reliance may be placed on the said agreements. Such agreements were concluded subsequent to the sub judice 30 decision and therefore they can have no bearing in the case, since they were not in existence at the timewhen the subjudice decision was taken. Therefore, any facts contained therein or related thereto, and any arguments based on such facts, should be disregarded. The same also applies to exhibit 6 35 annexed to the address of counsel for applicants which is a letter dated 29th June, 1981, to another instructor, informing him that hisapplication for emplacementonScaleBIOhadbeen approved. Thedecisioninrespectofsuchpersonwasadecision taken after the signing of the memorandum embodying the 40 326 3 CUR. Miamiliotis and Another v. Republic Sawides J. ' agreements reached between the Trade Unions and theGovernment. Any material which has been produced in relation to events which took place after the subjudice decision wastaken and which presumably took place in conformity with agree5 ments reached at a later date, is material which 1cannot take into consideration in testing the validity of the subjudice decision. Therefore, this casehas to beconsidered on the relevant . facts which were in existence at the time when the sub judice decision was taken and the evidence related thereto. 10 Exhibits 1and 1A,as already mentioned, are the letters sent separately to the applicants containing the subjudice decision. Exhibits2,2A and3relatetotherecognition ofseveraldiplomas including those of the applicants as equivalent to H.N.C., H.N.D. and H.T.I. The fact that the qualifications of the 15 applicants were considered as equivalent to the H.N.C. or H.N.D. or H.T.I, diplomas, has not been disputed by counsel for the respondent. The only point in issue is whether the applicants, having regard to their qualifications, had any right at the time when the sub judice decision was taken, to be 20 emplaced on Scale BIO. Theschemesofserviceinforce atthetimewhentheapplicants submitted their applications to the respondent Committee for emplacement on Scale BIO, were the ones which came in force onthe5thJanuary, 1979andwherebythepreviousschemes 25 ofservicewereamendedtotheextentthatunderthenewschemes in force at the time of their applications a University degree or title was required for emplacement on Scale BIO, a qualification whichadmittedly the applicants did notpossess. Therefore, once the applicants did not satisfy the requirements of 30 theschemesofservice,itwasopento the respondentCommittee to reject their applications and in the circumstances the applicantsdid not possess a legitimateinterest tocontest thevalidity -of such decision. Counsel for applicants submitted that the applicants bybeing 35 in,the service before the amendment of the schemes of service,. had a vestedrightfor emplacement onScaleBIOwith thequalifications they had at the time, of which they could not be deprived. As it has been held by this Court time and again, 327 Sawides J. Miamiliotis and Another v. Republic (1983 there cannot be a vested right to promotion. In Economides v. The Republic
(1972)3C.L.R. 506at p. 520,it washeld that— "It may besaid here that in my judgment there isno such vested right as a right to promotion or that the required qualification for a particular promotion post will not be 5 changed before any promotion is effected. There is an expectation for it and nothing more", (see, alsoPiperis v. TheRepublic
(1967)3 C.L.R. 295 and Andreas Leontiou v. The Republic,Case No. 398/80, not yet reported)*. As to the contention of counsel for applicants under legal 10 ground 3(b) that there is a violation of Article 28of the Constitution in that there is a discrimination and unequality of treatment between the applicants and other educational officers in similar situations, counsel for applicants has mentioned the case of three other educational officers holding the same qualifi- 15 cations as the applicants who were emplaced on Scale BIO. This allegation has not been established by evidence and the onus was on the applicants to adduce such evidence to prove their allegation of unequal treatment. Theonly material before me is exhibit 6 which is a letter of the 29th June, 1981,sent by 20 the respondent to one Michael Constantinides, communicating to him their decision to emplace him on Scale B10. As I have already mentioned, this letter refers to a decision taken a long time after the date of the sub judice decision and presumably was based on the memorandums of agreement, exhibits 4 and 25 5 mentioned earlier in this judgment. With regard to the other person named by counsel for applicant, one Alkiviades Michael, this was a case where a settlement wasreached after arecoursewasfiledandthecircumstances in which such settlement was reached are not before 30 the Court and they might have been different from the circumstancesofthepresentcase. Counselfor respondents contended, with regard to this person, that he has been so emplaced after the evaluation of his qualifications, but there is no evidence before the Court as to what the quaUfications of such person 35 were. Therefore, the applicants have failed to discharge the onus which was cast on them to make out a case of unequal treatment to enable them to succeed on this ground. * Now reported in
(1983)3 C.L.R. 221. 328 3 C.L.R. 5 Miamiliotis and Another v. Republic Savvtdes J. As to the last legal ground that the sub judice decision is not duly reasoned, Ifindthe contention of counsel for applicants untenable, in that the reasoning of the decision is very clearly stated both in the decision itself and also in the letters addressed to the applicants (exhibits 1 and 1A) to the contents of which reference has already been made. In the result, this recourse fails but in the circumstances I make no order for costs. Before concluding, I wish to add that in the light of new facts 10 which came into existence and in fact the agreements concluded between the Trade Unions of the Civil Servantsand Educationallists and the Government, there is nothing to prevent the applicants from applying for a reconsideration of iheir case by the respondent. 15 Recourse dismissed, (VQorder as to costs. 329