clr/1983/1983_3_870.pdf

(1)and 27

(1)of the Public Educational Service Law, 1969 (Law 10/69). 5 The applicant was a graduate of the Faculty of Mathematics of Athens University. Having applied for appointment as a schoolmaster his name was included in the list of those eligible to be appointed. On September 19, 1979 he was given an appointment on contract to the post of master of mathematics 10 but as he wasunable for personal reasons to accept such appointment, it was revoked by the respondent. On divers dates in 1979 the interested parties were appointed on contract for the school year 1979/

1. On the 16th September 1981 the apphcant informed the Commission that he was seeking once ]5 again appointment as master of mathematics. On the 4th September, 1980, the Council of Ministers decided that there should be renewed all the contracts of schoolmasters who were serving on contract during the school-year 1979/
2. As a result the respondent Commission decided to renew, for the 20 school-year 1980/81 the appointment on contract of all those who had been serving on contract during the previous schoolyear and among them were the interested parties. As no new appointments were made for the school-year 1980/81 the applicant was not appointed and challenged his non- 25 870 3 C.L.R. 5 10 PapaKyriacou τ.Republic appointment by means of a recourse. Had it not been for the decision to renew the contracts the place of the applicant on the list of appointees, which was prepared under the relevant regulations, would have secured him an appointment. The trialJudge dismissed therecoursehaving heldthatsection27

(1)* of Law 10/69 empowered the Council of Ministers to decide to fill posts of school-masters on contract by renewing existing contracts including those of the interested parties; and that there was no need to comply once again with section 5

(1)of Law 10/69 and regulation 10 of the Regulations of 1972 when the existing contracts were renewed because such compliance had already taken place when the interested parties were appointed on contract for the previous school-year. Upon appeal by the applicant: 15 20 25 30 Held, that the Council of Ministers had no power under s.27(l) Law 10/69 to decide who should be appointed be it by renewal of contract; that their powers were confined to deciding the mode of filling a vacant post by permanent, temporary, or by appointmenton contract and not the selection of the candidate for the post thus to be filled; that, therefore, the Council of Ministers in deciding who should be appointed exceeded their powers and their suggestion for filling the post by the renewal of existing contracts ought to be disregarded by therespondents;thatfar from disregarding them,therespondents approved the recommendation of the Council of Ministers in thisrespect andappointedofficers who have served during the preceding year on a contractual basis; that they acted contrary to the provisions of the law, notably s.5(l), making them in the absence of provision to the contrary the solejudges of who should be appointed. This duty they failed to carry out completely. They failed toexercise any discretion in thematter. They merely rubber stamped the decision of the Council of Ministers; accordingly the appeal must be allowed. Appeal allowed. 35 Cases referred to: Paschalidou v. Republic

(1969)3C.L.R. 297 at p. 300; Paschali v. Republic

(1966)3 C.L.R. 593 at p. 607; Section 27

(1)is quoted at p. 876post. 871 PapaKyriflcoa v. Republic (1W3) Papakyriakou v. Republic

(1970)3C.L.R. 35.1atp.354; Joannou andAnother v.Republic

(1979)3C.L.R. 423at p.

1. Appeal. Appeal against thejudgment* ofthePresident oftheSupreme Court of Cyprus (Triantafyllides, P.)given on the 11th Septem- 5 ber, 1982 (Revisional Jurisdiction Case No. '453/80) whereby appellant's recourse against the decision of the respondent to appoint the interested parties to the post of master of mathematicsinpreference and instead oftheappellant, wasdismissed. A. S. Angelideswith Ch. Ierides,for the appellant.' 10 R. Vrahimi(Mrs.), for the respondent. Cur.adv.vult. HADJIANASTASSIOUJ. read thefollowingjudgment of theCourt. This isan appeal from thejudgment of a Judgeof the Supreme Court of Cyprus (Triantafyllides, P.) given on the 11th Septem- 15 ber, 1982 (Revisional Jurisdiction Case No.453/80) whereby appellant's recourse was dismissed. In the present appeal the appellant challenges the dismissal of his recourse complaining that the decision of the respondent Educational Service Commission to appoint instead of him the 20 7 interested partiesisnullandvoidand ofnoeffect whatsoever. The facts are these: Theapplicant isa graduate of the Faculty of Mathematics of the University of Athens. On the 2nd January, 1973,he made an application to the appropriate authority regarding the post 25 of ateacher and hisnamewasincluded inthelist of appointees (which are prepared in accordance with tb.e Regulations of the Educationalists Law 1972/
2. The applicant was one of the candidate teachers and was the 16th on the list. The other interested parties which were also included in the said list of 30 candidates of the teachers of mathematics had the following numbers:"Hadjipanayis Panayiotis: 98, Ioannides Demetrios:101; Ioannou Demetrios: 102; Charalambous Koskina Fani: 111; Peyiotou Froeo: 107; Hadjiapostolou Despina: 35 * Reported in

(1982)3 C.L.R. U51) 872 3 C.L.R. PapaKyriacoa v. Republic Hadjianastassioa J. 116; Georghiadou Ioulia: 118; Tamanis Christos: 182." Onthe17thSeptember, 1979,thecommitteehadappointedthe applicants referred to earlier to serve as from 18th September, 1979, till 31st August,

1. On 25th September, 1979, the 5 committeecancelled theappointmentof theapphcantandatthe samemeetingthecommitteehasappointedHadjipanayi Panayioti, Charalambous Fani, and Hadjiapostolou Despina on con. tract from 26th September, 1979 - 31st August,
2. On the 2nd October, 1979, thecommitteehad appointed oncontract as 10 from 2nd October, 1979 - 31st August, 1980, IoannidesDeme­ trios and loannou Demetrios. (See the minutes of the Deci­ v sion). On 31st August, 1980, Miss Georghiadou Ioulia had been appointed oncontractuntil the31st August, 1980 having regard 15 to the decision of the Committee dated 12th October,
3. (see the minutes under letter D). Mr. Damanis has been appointed by the Decision of the Committee dated 15th October,
4. (See the minutesΈ*). Miss Beyiotou was appointed by adecision of theCommittee on 20 23rd November,
5. (The minutes of the committee are attached). • Thereis nodoubt that all theinterested parties had servedon contract until the end of the school year 1979 -
6. In ad­ dition the Council of Ministers by their decision under No. 25 19.509 and dated 4th September, 1980, decided "the renewal of the contractsof the said school teachers of secondary education and of general technical education of those who were in service during the school year 1979/80". In additiontheDirector-General of theMinistry of Education 30 by a letter dated 8th September, 1980, asked for the renewal of the said contracts. On 10th September, 1980, the Educational Committee took the relevant decision and under that decision the interested parties wereappointed on contractfor the school year 1980-
7. The Committee did not offer a new ap35 pointment to a teacher for mathematics for the school year 1981 (except for the renewal of his appointment and all those who wereservingduring theschoolyear 1979 -1980), thereason 873 Hadjianastassioa J. PapaKyriacou v. Republic

(1983)being that theteachers of mathematicsservingcovered theneeds of the school for that particular specialty. Indeed, the interested parties who had been serving during the year 1981 are the following: Hadjipanayis Panayiotis; Ioannides Demetrios; loannou Demetrios; Charalambous Koskina Fani; Hadjiapostolou Despina; Georghiadou Ioulia. Furthermore, in accordance with an extract of a meeting of the Council of Ministers dated 4th September, 1980, this de­ cision, under No. 19.509was taken: "The Councilhas decided the renewal of all contracts of the teachers Mesis, General and 10 Technical Education serving during the school year 1979/80, but rejected thesuggestion of reducing theteaching periods by a week." On 8th September, 1980, the Director-GeneralMr. Adamides addressed a letter to the Chairmanof the Educational Commit- 15 tee regarding the appointments oncontractand had this to say: "After the recent decision of the Council of Ministers dated 4th September, 1980 for the renewal of all the contracts of the teachers - educationalists who have been serving on contract during the past school year 1979/80, please push forward those 20 appointments as from 1st September, 1980 in consultation with the relevant departmental heads." Before concluding thefacts inthepresentcase, Ithink Iought to add that according to a minutedated 17th October, 1980, it appears that Mr.Papakyriakou was No. 16onthetable of those 25 who have been appointed as mathematicians while the last one who has been appointed under a contract for the school year 1979/80 (and year of appointment has been renewed later on from thelast decision of the Council of Ministers) was No.

1. As we know, this year no other mathematician has been ap- 30 pointed, and on the contrary, it appears that there are two redundant school teachers of mathematics. ' Then on 27th October, 1980, the Director-General addressed to the Minister of Educationa minuteand at p. 30 appears this statement: "The applicant is a victim of the decision to renew 35 the contracts of all the school teachers who have served last year.J His place 16would secure him appointmentunder other coriditions. Γsaw him andexplained tohimthewhole position. 874 5 3 C.L.R. PapaKyriacou v. Republic Hadjianastassiou J. 1understand that hewillresort tothe Courts. (Seeminute 1 at p. 24 for your information.)" There is no doubt that if under proper conditions the appointment of the applicant was made by the Committee in the 5 first instance,theapplicant nodoubt wouldhavebeenappointed andthat wasthe real meaning oftheDirector-General, viz., that his place 16 would secure him appointment.. On 11th September, 1982,the learned President of the Court delivered his reserved judgment, and had this to say at p. 42: 10 15 20 25 30 ^ 35 "The interested parties were appointed by the said Commission for the school-year 1979/80ondiversdates ranging from 26th September, 1979 to 23rd November, 1979; they were appointed on contract. On 16th September, 1980 the applicant informed the Commission that he was seeking once again appointment as master of mathematics. On 4th September, 1980 the Council of Ministers (see its decision No. 19.509) decided that there should be renewed all the contracts of schoolmasters who were serving on contract during the school-year 1979/
2. As a result the Director-General of the Ministry of Education,·by a letter dated 8th September, 1980,requested the respondent Commission to proceed,to renew such contracts as from 1st September
3. Thus, at its meeting on 10th September 1980 the Commission decided to renew, for the school-year 1980/81, the appointments on contract of all those who had been serving on contract during the previous school-year, and among them were the interested parties. As no new appointments weremade for the school-year 1980/1981 the applicant was not appointed and he filed the present recourse. Counsel for the applicant submitted that since there is noexpressprovision either intheEducational ServiceLaw, 1969(Law 10/69) or in the Educational Officers (Teaching Staff)(Appointments,Emplacements,Transfers, Promotions and Related Matters) Regulations, 1972(seeNo.205in the 875 Hadiianastassloa J. PapaKyriacoa τ. Republic

(1983)Third Supplement to the Official Gazette of 10.11.1972 empowering the Council of Ministers to decide to renew contracts of educationalists, its aforementioned decision of 4th September, 1980, for therenewal of contractswhich had actually expired on 31st August 1980, was not validly 5 reached. Then he addressed his mind to s.27(

1. l)of Law 10/69 which reads as follows:"A permanentpost is filled either on a permanentbasis or on a temporary basis on contract for a specified period 10 or on a month-to-month basis, as the Council of Ministers may decide". Having quoted that section of the law, he went on to add: "In my opinion the above legislative provision empowered the Council of Ministers to decide to fill posts of school- 15 masters on contract by renewing existing contracts, in­ cluding those of the interested parties, and, therefore, the aforesaid submission of counsel for the applicant is not well-founded." Finally, having quoted also the provisions of s.5(
2. l)of Law 20 10/69, and regulation 10 of 1972, in dismissing the recourse he had this to say: "It is not disputed that under section 5

(1)of Law 10/69 the Commission is the organ empowered to makeappoint­ ments of educational officers; and under regulation 10 25 of the Regulations of 1972 appointments on contract are made in order of priority from among the candidates who are inscribed on the list of those eligible to be appointed; and on the relevant list the serial number of theapphcant was 16, and those of the interested parties were 98, 101, 30 102, 107, 111, 116, 118 and 182." Grounds of Law; On appeal counsel for the appellant argued very ably indeed (a) that section 27

(1)of Law 10/69 as interpreted by theappeal decision, does not correspond with the whole of the said 35 section and was wrongly considered; and that the Coun­ cil of Ministershadunderthatsection,power tofill theposts of 876 3 C.L.R. PapaKyriacou v. Republic Hadjlanastassiou J. theeducationalists oncontract and withthemethod ofreserving existing contracts. The second submission of counsel was that the appointments by contract of the interested persons, theway they were made, and as they are being attacked contravene 5 s.5(l),eas wellas s.32 of Law 10/69 and regulation 10

(2)of the Regulationsof

1. Thethirdsubmissionisthatthecontractis one of the methods of filling an empty post. Counsel went even further and argued that once a contract arises out of the law and the act has a particular time limit, it ceases after the 10 expiration of the particular period and the institution of a public servant also ceases to be in existence. Indeed, after the expiration of the timeany appointment by a contract creates a new act which could be decided by the appropriate organ in accordance with the law, the regulations and the case law. 15 . Turningnowto thepoint as towhat appointment bycontract means,thereisnodoubt that suchappointment istheactofthe appropriate organ and in the present case is that of the Educational Committee under theprovisions of s.5(l)ofLaw 10/
2. Indeed,under an appointment under a contract isthe actofthe 20 appropriate organ under thelaw,which in thiscase,isthecommittee of educational service, in accordance with s.5(l) of Law 10/
3. But I would go further and state that the act of the appointment on contract is an act by which it is created the public service. (See on this point Stassinopoullos(Lessons of 25 Administrative Law), 1957), and at p. 317 the learned author makes it clear that it is an administrative act and the relation* ship of public servants is created. In Antigoni Paschalidou v. The Republic,

(1969)3C.L.R. 297, Triantafyllides, J. (as he then was) had this to say at p. 300:30 . "The Appellant's appointment wasmade under the appropriate legislation which was in force at the time, namely, under section 4

(2)of the School-Teachers of Communal Elementary Schools Law, 1963 (Law 7/63 of the Greek Communal Chamber) and it was, on the face of it, made 35/ in the ordinary course of satisfying the needs of the educational service,which, byitsvery nature,isa publicservice; theAppellant beingappointed to serve "in schoolsof elementary education". Moreover, as stated in her contract of appointment, the 877 Hadjianastassiou J. PapaKyriacou v. Republic

(1983)Appellant's service as a school-teacher would be governed by the relevant Laws and Regulations of the Greek Communal Chamber and by any directives, circulars or other orders of the education authorities. Viewed in its proper context, the appointment of the 5 Appellant cannot betreated asanything other than amatter within the realm of public Law; the fact that it wasmade on contract cannot alter its essential nature; this was not a case of a contract entered into between Government and an individual in such circumstances as to render the re- 10 lationship thus created one of private law. It follows, therefore, that a recourse under Article 146 did lie in this case." Indeed, I think I would also add that Ihavedelivered ajudgment of my own and had this to say at pp. 303 - 304:15 "The main question which I have really to decide in this appeal is whether the appointment of the Appellant, under thesaidcontract ofservice,wasamatter withinthedomain of public Law, or as the learned trial Judge found, it was within the provisions of the private Law. 20 Having given the matter my best consideration, 1have reached the conclusion that this contract of service was governed by the provisions of public law for the reasons already advanced by my brother Triantafyllides, J. With regard to the question of dismissal, after listening 25 to the argument of counsel for the Appellant I am of the view that the services of a school-teacher can be properly terminated under thetermsof thecontract of appointment, in a proper case, and by the appropriate authority acting under the provisions of section 29

(2)of Law 7/63. 30 Pausing there for a moment it would be observed that under the contract of Appellant's service, the appropriate authority could properly terminate her services by giving a month's notice in writing. I would, however, state that under section 7 of Law 35 12/65, the appointment and dismissal of a school-teacher 878 / 3 C.L.R. 5 10 PapaKyriacou \. Republic ' Hadjianastassiou J. wasentrusted to a Committee of Educational Services. In the absence, therefore, of any evidence that a proper decision by this organ was taken in order to terminate Appellant's services, and that the Director of Education in addressing the letter dated May 31, 1965,was acting under the authority of such organ, 1 am of the opinion, that the termination of the appointment of the Appellant was wrongly made and was, therefore, null and void and of no effect whatsoever. In my view, counsel for the Respondentsquiterightly conceded that no record of anykind was traced to that effect in the files of the Ministry." In IroPaschali v. TheRepublic,

(1966)3 C.L.R. 593,Triantafyllides, J., (as he then was) had this to say at p. 607:"But the appointment of a public officer is an administrative act, not a mere contractual engagement (see Decision 954/1933 of the Greek Council of State). 20 25 30 35 It isclear that by an administrative act comes into force what is stated therein and nothing else. So,what was not stated in the terms of appointment of Applicant (exhibit 1) - not even in the relevant decision of the Commission (exhibit 21)-cannot nowbeofanyeffect visavisApplicant irrespective of what was within the intention of the Commission without becoming part of its relevant act or decision too. It is, also, wrong to say that Applicant ought to have knownthat shewouldbebound bythetermsoftheadvertisement, notwithstanding what isstated in her instrument of appointment, when by the said instrument of appointment thePublicServiceCommission appearsclearly tohavedecided to appoint applicant on terms other than those advertised. I am of the view that the terms of appointment of Apphcant are those to be found set out in exhibit 1, and no others." InGeorghiaPapakyriakou v. TheRepublic,

(1970)3C.L.R.351, Triantafyllides, J. (as he then was) had this to say at p. 354:*Theproper approach toasituation ofthisnaturehasbeen laid down by this Court, on appeal, in Paschalidou v.The 879 Hadjianastassiou J. PapaKyriacou v. Republic

(1983)Republic,

(1969)3 C.L.R. 297; It was held in that case that the employment of a nursery school teacher on contract, on a month to month basis,waswithintherealmof public law because the appointment had been made 'In the ordinary course of satisfying the needs of __ a public 5 service'. Likewise, the Applicant in the present case had been employed, for a very long and indefinite period of time on a temporary basis, in the ordinary course of satisfying theneedsofapublicservice,vizthematernity service provided by the Nicosia General Hospital. 10 In the light of the foregoing Ihold that the employment of the Applicant was within the domain ofpublic lawand that, therefore, I have jurisdiction under Article 146.1 to decideonthevalidityoftheterminationofsuchemployment which is in issue in these proceedings." 15 In Ioannou and Anotherv. Republic,

(1979)3 C.L.R. 423 at p. 451, I had this to say:"Mr. Cacoyiannis in addressing theCourt arguedthatthe suspension of the promotions effected by the Minister of Interior isa matter falling within thedomain ofpublic law. 20 Because, there is no provision in the Police Law as to the relationship between theadministration and the twoapplicants and what kind of an administrative act or contract was made by the offer of promotion by the Minister of Interior to the posts of Chief Superintendent and Superin- 25 tendent B' and the acceptance of it by the applicants, 1 thinkitisuseful torefertothecaseofPantelidouv.Republic, 4 R.S.C.C. 100, 104and 105,wherethe Court held that the termination of the services of the applicant was a matter falling within the domain of public lawand not of private 30 law (see John Stamatiou v. The Electricity Authority of Cyprus, 3 R.S.C.C. 44 at p. 46) and therefore a recourse under Article 146of theConstitution could bemade before the Court against the termination of the services of the apphcant. Also in the case of Paschalides v. Republic 35

(1969)3 C.L.R. 297 the Court in exercising its revisional jurisdiction held that the contractual appointment of the appellant to a post in the Elementary Education was a matter falling within the domain.of pubUc law and there880 3 C.L.R. 5 PapaKyriacou v. Republic Hadjianastasslou J. fore the Court had jurisdiction to try the recourse in ac-' cordance with Article 146 of the Constitution. The fact that theappointment wasmade on contract could not alter its essential nature. Therefore I am of the view, relying on the aforementioned authorities as well, that such suspension isa matter falling within the realm ofpublic law." In the final analysis the issues to be resolved are (

1. a)whether theCouncilofMinistershadauthority apart from decidingupon the modeoffilling vacant posts,powertodecideor recommend 10 who would be appointed; (
2. b)whether the respondents exceeded theirpowersbydisregarding the provisionsof regulation 6 setting forth the order in which candidates should be considered. It isclear from perusal of the Minutes of the respondent that they failed to carry out an inquiry of their own into 15 who was elligible for appointment, they simply approved the . decision of the Council of Ministers. Presumably they acted on the assumption that they had no duty to inquire into the serial number of thecandidates because it was not a casefor a first contract appointment but a case for renewal of an existing 20 contract. Weare unableto support theviewof the trial Judgethat the Council of Ministers had power under s.27(
3. l)of Law 10/69to decide who should be appointed be it by renewal of contract. Their powers were confined to deciding the mode of filling a 25 vacant post by permanent, temporary, or by appointment on contract and not the selection ofthecandidate for thepost thus to be filled. This is manifest from the plain provision of s.27(l): 30 "A permanent post is filled either on a permanent or temporary basis or by contract for a specified period of time or from month to month as the Council of Ministers might decide." Therefore the Council of Ministers in deciding who should be appointed exceeded their powers. Their suggestion for 35 filling the post bythe renewal of existingcontracts ought to be disregarded by the respondents. Far from disregarding them, the respondents approved the recommendation of the Council of Ministers in this respect and appointed officers who were servingduring thepreceding year on a contractual basis. They 881 Hadjianastassiou J. PapaKyriacou v. Republic

(1983)acted contrary to the provisions of the law, notably s.5(l), making them in the absence of provision to the contrary the solejudges of who should beappointed. This duty they failed tocarry out completely. They failed to exercise any discretion in the matter. They merely rubber stamped the decision ofthe 5 Council of Ministers. This being the case, it becomes unnecessary to examine the implications of reg. 6 upon the exercise of their powers. We leave open the question of the priority among candidates and whether a candidate who refuses appointment on contract in 10 oneyear forfeits hispriority visavisotherswhoaccept appointment with regard to a future appointment. The appeal is allowed. No order as to costs. Appeal allowed withno order as tocosts. 882