clr/1984/1984_3_1081.pdf

(1984)a duty on the administration to repeal transgressionor diiergence from the law. Applicant, a Secondary School Teacher of English, contested the validity of the decision of the respondent Ojmmission, taken on 30.5.1983, whereby her claim to be positioned on 5 scale A8-A10-A11 was refused. At the material time applicant was positioned at the top scale of Scale B6and would be entitled to be positioned on scale A8-AI0-A11, ("the new grade") provided she held the essential qualifications for promotion from the old salary scale B6 to BIO. One of the conditions set 10 down by the scheme of service, defining the prerequisites for promotion to old Scale BIO from Scale B6 was one year's postgraduate education at a school specially approved by the Ministry of Education. Though applicant possessed a diploma in the teaching of English as a foreign language, acquired after 15 a year's studies at the University of London, there was nothing before the Court to suggest that this qualification was ever approved by the Ministry of Education as the special qualification envisaged by the scheme of service for posts on Scale BIO. Counsel for the applicant mainly cortended that the sub judice decision was contrary to section 4(b) of Law 12/81 and that it, also, infringed the principle of equality befoie the law ard the administiation, safeguaided by Article 28 of the Constitution, because two fellow teachers similarly positioned as the applicant were, following the enactment of Law 12/81, emplaced on Scale A8-AI0-A11. 25 Coursel foi the respondent opposed the rtcourse oo sub«taniive gtoujds and, alsc, raided a pielimirary objection that the lecouise was not justiciable because it lacktd 'he necessaiy 30 executei> character to make it leviewable undei Aiticle 146 of the Constitution. Held,

(1)on the preliminary objection: That examination of the decision t f the respondents, embodied in the letter addiessed to the applicant on 30.5.1983, cleaily 35 suggests that respondents made a substantive evaluation cf her claim and purported, by their decision, to define her rights under the law; that it was certainly productive of legal 1082 20 3 C.L.R. Skouridou v. Republic consequerces, in that it denned by necessary adminHiative action her status in the educational hierarchy under the law; andthat, therefore, itwasofan executoiy character and assuch reviewable under Article 146 of the Constitution. 5 10 15 20 25 30 35 Held, (II) on the meritsof the recourse:

(1)That as a matter of interpretation of the law, the respondents rightly concluded that emplacement on the new grade presupposed, in the case of the applicant, the qualifications necessary under the old scheme for promotion to Scale BIO; and that, therefore, they correctly perceived the effect of s.4(b) of Law 12/81.

(2)Thatthere isnothingwhatever establishing that theeducation of the applicant was obtained at a special foreign school specifically approved,for thepurpose,bythe MinistryofEducation; that, therefore, it was at least reasonably open to the respondents to construe the scheme of service in the manner they did, if not unavoidable, having regard to the wording of the scheme of ser\ice; that given the construction placed upon the scheme of service, the decision to reject the claim of the applicant was inescapable having regaid to the lack of the necessary qualification by the applicant.

(3)Thatthe righttoequaltreatment intherecognitionoflegal rights inrestricted torightsknownto the law and arisingthereunder;that itismorethan settledthat deviation from theprovisions of the law on one occasion, neither confers a right on another to claim a simitar treatment, nor doesit impose aduty on the Administration to lepcat ti&mgression or divergence from the law; and that, trerefcre, if the respondents, on any prior occasion, acted in breach of the provisions of the scheme of service, their action was illegal and, as such, established no precedent to go by;accordingly the recourse must bedismissed. Application dismissed. Cases referred to: Paphitisand Others v. Republic

(1983)3 C.L.R. 285; PankypriosSyntechniaDimosionYpallitin v. Republic

(1978)3 C.L.R. 27; Vakis v. Republic

(1984)3 C.L.R. 952; Ioarmides v. Republic

(1973)3 C.L.R. 118; 1083 Skouridou v.Republic

(1984)Karayiannisand Others v. EducationalService Commission

(1979)3 C.L.R. 371; Georgkiou v. Republic

(1981)3 C.L.R. 591. Recourse. Recourse against the refusal of the respondents to emplacc 5 "applicant on Salary Scales A.8-A.10-A.11. A.S. Angelides, for the applicant. R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. PIKISJ. read the followingjudgment. Applicant, a secondary 10 school teacher of English, contests by this recourse the validity of a decision of the Educational Service Commission, taken on 30.5.1983, whereby her claim to be positioned on Scale A8A10-A11 wasrefused. Itishercasethatthedecisioniscontrary to law, namely s.4(

1. b)of Law 12/81, and ought to be set aside. 15 The rescision of the decision is also sought for infringement of the principle of equality before the law and the Administration, t safeguarded by Article 28 of the Constitution. In her contention, two fellow teachers, similarly positioned as herself, were, following the enactment of Law 12/81, emplaced on the 20 aforementioned scale to which applicant claims she had a right to climb to. The recourse is opposed on formal and substantive grounds. The Court was moved to examine, preliminary to the merits of the case, the justiciability of the recourse, on the contention 25 that the act lacks the necessary executory character to make it reviewable under Article 146. Inthesubmission ofthe respondents, they did no more than inform her of the position in law, relevant to her case,asthey comprehended it. Asto the merits, the decision is supported as valid in law, while allegations of 30 unequal treatment are refuted as unfounded. The Nature of the Act: Examination of the decision of the respondents, embodied in a letter addressed to the applicant on 30.5.1983,clearly suggests that respondents made a substantive evaluation of her 35 claimand purported, bytheir decision,to define her rights under the law. It was Certainly productive of legal consequences, in that itdettned bynecessary administrative action her status in 1084 3 C.L.R. Skouridou v. Republic Pikis J the educational hierarchy under the law. If the respondents misconceived either the law or the facts relevant to the claims of applicant, the only means of redress was by recourse under Article 146.1. The aim of the present proceedings is, in my 5 judgment, to scrutinize the legality and validity of the action taken. It affected the interests of the applicant in a direct manner, making it legitimate for her to have recourse to the Courtforreviewoftheaction. Hencethepreliminary objection is dismissed. 10 Merits of the Application: In 1970 the applicant was appointed teacher of English at thesecondaryeducation, at Scale B3. Uptothat date,shewas a teacher-of elementary education. She was offered appointment on the strength of her qualifications, consisting of— 15 (
2. a)Diploma from the CyprusPaedagogical Academy,and (
3. b)diploma in the teaching of English as a foreign language,acquired after a year's studies at the University of London. Without the latter qualification, she would be ineligible for 20 appointment to the position to which she was appointed. The schemeof servicefor the post, covered by Scale B3,made that abundantly clear. Certainly, she could not be appointed on the basis of her diploma from the Paedagogical Academy. Law 12/81introduced structuial changes to the hierarchy of 25 secondary education. New grades were created, covered by salaiy scales that bore no immediate comparison to those abolished or replaced. Section 4(
4. b)made provision for the repositioningof holders ofpositionson thecombined establishment of Scales B3-B6. Applicant was positioned at the top 30 scale of Scale B6 and would be entitled to be positioned on Scale A8-A10-A11, hereafter referred to as the new grade, provided she held the essential qualifications for promotion from the old salary scale B6 to BIO. One of the conditions set down by the scheme of service, defining the prerequisites 35 for promotion to old Scale BIOfrom Scale B6,was one year's postgraduate education at a school specially approved by the Ministry of Education. Counsel for the applicant suggested applicant satisfied this qualification by possessing the afore1085 Pikis J. Skouridou τ. Republic

(1984)mentioned diploma of the London University for the teaching of English as a foreign language, obtained after one year's studies at a foreign institution. There is nothing before the Court to suggest this qualification was ever approved by the Ministry of Education as the special qualification envisaged 5 by the scheme of service for posts on Scale BIO. For the res­ pondents it was submitted, the decision of the Educational Service Commission was inevitable in view*of the absence of thequalifications necessary for promotionundertheoldschemes, to a post on Scale BIO—a prerequisite for repositioning at an 10 appropriate scale of the new grade. Two points arise here, firstly, whether the respondents cor­ rectly appreciated the effect of s.4(

1. b)and, secondly, whether the interpretationaccorded to the old scheme of service for the post of educationalists at BIO scale, was reasonably open to 15 them. A question ancillary to the second, is whether they correctly applied the scheme to thefacts surrounding thequali­ ficationsof the applicant. As a matter of interpretation of ' the law, the respondents rightly concluded thatemplacement on the new grade presupposed, in the case of theapplicant,the 20 qualifications necessary under the old scheme for promotion to Scale BIO*. Therefore, I am of opinion that they correctly perceived the effect of s.4ib)—Law 12/81. Theprovisions oftherelevantschemeof serviceforpromotion from Scale B6 to BIO,of the establishment in forco prior to 25 1981, are very specific. Para, (
2. c)lays down categorically that one year's postgraduate education is essential but not at any school or institution. Only postgraduate education at aschool specially approved by a decision of the Ministry of Education would be of a kind qualifying the candidate for promotion to 30 BIO. Acquisition of such a qualification would have to be certified by an appropriate certificate of studies. Even if we were to assume that the diploma of the applicant from the University of London could, under any circumstances, qualify as a postgraduate course for the puiposes of pata. (c)above— 35 a very doubtful pioposition—certainly it was not of the kind provided in para. (c). There is nothing Whatever establishing thattheaboveeducationwas obtainedataspecialforeign school * Sec, the case of PaphitisAnd Others v. The Republic

(1983)3 CX.R. 285. 1086 3 C.L.R. Skouridou v. Republic Pikis J. specifically appioved, for the purpose, by the Ministry of Education. In my judgment, it was at least reasonably open to therespondentstoconstruetheschemeof serviceinthemanner they did, if not unavoidable, having regard to the wording of 5 the scheme of service. Given theconstruction placed uponthe schemeofservice,thedecisiontorejecttheclaimoftheapplicant was inescapable having regard to the lack of the necessary qualification by the applicant. Thecase would have normally ended here but for the com10 plaints of applicant of unequal treatment. Two of her colleagues, namely, Takis Papadopoulos and Andreas Papavassilis, though similarly circumstanced in hei contention, they were regarded as possessing the additional qualifications envisaged bytheschemeof servicefor Scale BIOand weretreated accord15 ingly. Schemes of service are legislative instruments that bind the Administration, as well as everyone else, to give effect to them according to the letter and spirit of the law*. Equality before the law, under Article 28, binds the Administration to admi20 raster the law uniformly and treat claims for the recognition of legal rights under the law, in a fair and equitable manner. The right to equal treatment in the recognition of legal rights isrestricted to rights known to the lawand arising thereunder. It is more than seltled that deviation from the provisions of 25 the law on one occasion, neither confers a right on another to claim a 'im'Iar treatment, nor does it impose a duty on the Administration to repeat transgression or divergence from the law**. Consequently, if it wasnot possible for the Educational ServiceCommission,byanyreasonableinterpretation, toaccept 30 the qualificatioixs of the applicant as capable of satisfying the requirement of the law, the scheme of service, for ScaleBIO that is, arbitrary recognition of similar qualifications on a previous occasion, created no precedent to be followed. In the two examples cited in support of the claim for equal 35 treatment, it appearsthat, in theonecase—that of Takis Papadopoulos—it was reasonably open to the Educational Service * See, inter alia, Pankyprtos SyntechtUt Dimoslon Ypattihn v. Republic

(1978)3 C.L.R. 27; Vakis v. Republic

(1984)3 C.L.R. 952. · * See, inter alia, loatmides v. Republic

(1973)3 C.L.R. 118; KarayUmms And Others v. Educational Service Commission

(1979)3 C.L.R. 371; Georghtou v. Republic

(1981)3 C.L.R. S91. 1087 Pikis J. Skouridou v. Republic

(1984)Commission to treat hisqualifications as satisfying the requirements of Scale BIO and rendering him eligible for promotion under Clause B.2 of the pertinent scheme of service. The positionismorecomplicated inthecaseofAndreasPapavassilis. Itappearsthatsince1977,after becomingtheholderofaUniver- 5 sity degree obtained bycorrespondence, he became eligible for promotion to Scale BIO under Clause B.2 cf the scheme of service. However, he waspromoted before ihat date, as from 1970,at a time when heheld similar qualifications totheapplicant. Examination ofhisfilerevealstwocontradictorydecisions 10 of the Educational Service Commission. The first was taken on 5.3.1970, to the effect that a diploma from the University of London in theteaching of English as a foreign languagedid notsatisfy therequirementsofthespecialqualification envisaged byClause B(c)of ScaleBIO. Shortly afterwards, on 18.4.1970, 15 a decision to the contrary effect was taken and the diploma of Mr. Papavassilis was recognised as satisfying the relevant provision of the scheme of service, notwithstanding the absenceof any decision of the Ministry of Education that the school attended was a specialschool certified as such bythe Ministry. 20 Iam of opinion, the second decision of the Educational Service Commissioninthecaseof Mr.Papavassilis,wasarbitrary,unless there existed other facts not disclosed to the Court, of which I am unaware. I must make clear that Mr. Papavassilis had neveran opportunity tobeheardinthematter, heisnot aparty 25 to the proceedings and whatever is said here must not beconstrued as adverse to his position or his career. Reference to his case was solely made for the purposes of examination of allegations of applicant for unequal treatment. Inmyjudgment,itwasnotreasonablyopenunderanycircum- 30 stances to the respondents to treat the qualifications of the applicant as satisfying the requirements of Clause B(c) of the scheme of service for the old Scale.B10 and, consequently, she cannot ground a case for equal treatment. If the respondents, on any prior occasion, acted in breach of the provi- 35 sions of the scheme of service, their action was illegal and; as such, established no precedent to go by. Therecourseisdismissed. Lettherebenoolderastocosts. Recourse dismissed. No order asto costs. 1088