(19M) 1984 March 31 [PiKrs, J.) IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CLEOPATRA PAPADOPOULOU, Applu ant, v. THE REPUBLIC OF CYPRUS AND/OR EDUCATIONAL SERVICE COMMISSION, Respondents. {Case No. 339/83). Administrate e Lav,—Administrate e acts or decisions—Executory act —Decision declaring applicant ineligible for appointment as a secondary school teacher because she lacked the necessary qualifications—Executory because it was productive of legal consequences—And applicant had a legitimate interest to pursue a re- 5 course against such decision. Educational officers—Schemes of service—Alteration—Within discretion of appropriate Authority—No one has a right to demand their non-alteration—Inclusion in the table of candidates compiled by virtue of theprovisions of the Educational Service Regulations, 10 1972, does not confer a right to eligibility for appointment irrespective of changes in the schemes of set\ice—Interpretation of schemes of service by appointing authority—Judicial control— Principles applicable— Reasonablyopento respondentstoconclude that graduation from "Omeios" School did not qualify as the 15 envisaged, by the relevant scheme of sen ice, three-year cycle of post secondary school studies. Administrative Law—Principle of good faith—No administrative authority cane\ohe policiesinbreachof theproxistonsoj the law— And no one could repose faith in such policy. 20 Constitutional Law—Equality—Principle of Equality—Article 28 of the Constitution—Scheme of service for post of Art teacher— 332 3 C.L.R. Papadopoulou τ. Republic Exemptingfrom the qualifications provided therein art teachers appointedin 1981-82 on a temporary basis—And not exempting applicantwho servedin 1972-1976—Differentiation made doesnot offend Article
- 5 10 The applicant served on a temporary basis at different schools of secondary education as a teacher of art between the years 1972 and
- Her services were discontinued in 1976 for health reasons; and notwithstanding termination of her servi ces, her name was not removed from the table of candidates awaiting appointmentto the post of art teacher, compiled under the provisions of the Educational Service Regulations,
- The qualifications of the applicant were (a) leaving certificate of a Gymnasium 15 20 25 30 (b) Certificate for Decorators from Omeros School for Designers-Decorators, a private school, functioning under the supervision of the Directorate of Vocational Education of the Greek Ministry of Education. Though the above qualifications made her eligiblefor appoint ment in 1972, in view of the schemes of service then in force, requiring only leaving certificate of a secondary school and diploma or certificate certifying attendanceof a two-year special course, thereafter in 1982 another scheme of service was introduced, requiring, apart from a leaving certificate from a secondary school, a title, degree or diploma, awarded after attendance of a three-year post Lyceum cycle of studies on the subject candidates were intended to teach. When applications were invited for the filling of a number of posts of art teachers applicant's application was turned down for the reason that she lacked the qualifications envisaged by the new schemes of service. Hence this recourse. Counsel for the applicant mainly contended: 35 (a) That applicant was excluded from the list of candidates in breach of the rights vested in her by the inclusion of her name in the list of candidates compiled prior to
- (b) Thatthe respondents wrongly interpretedthe scheme of service. 333 Papadopoulou v. Republic
(1984)(
- c)That the respondents have acted contrary to the principle of good faith. (
- d)That the provisions of Article 28 of the Constitution were infringed because an arbitrary distinction was madeattheexpenseofthe applicantin that thescheme 5 of service contained a transient provision, exempting from the qualifications provided therein art teachers appointed in 1981-82,on atemporary basiswhoserved for a continuous period of five months. Contention (
- c)was based· on the ground that though the 10 administration by its policy represented that inclusion in a table of candidates was a mark of eligibility they acted in breach of their representations in the case of the applicant. Held,
(1)that the subjudice decision is executory because it waspioductive oflegalconsequencesinthesensethat it declared 15 the applicant ineligible for appointment as a secondary teacher; and that, further, applicant has a legitimate interest to pursue' thi»recoursebecausesheisnotchallenginghernon-appointment but the decision declaring her ineligible for appointment.
(2)That no onehasarightto demand thenon alteration of a 20 scheme of service; that the appropriate authority has a discretion in the matter and they may alter existing schemes or introduce an altogether new scheme of service; that the applicant had an expectation tc beappointed; that her inclusion in the table of candidatesdid not confer upon her arightto eligi- 25 bility irrespective of changes in the schemes of service; that in any event, possession cf the qualifications envisaged by the schemeofservicecurrentlyinforce,ismade,accordingto specific provisions ofthe law, asinequa nonfor appointment, independently ofinclusion in anytable of candidates; and that, there- 30 fore, the respondents were perfectly entitled to exclude her for consideration if she didnot possess the qualificat'oni envisaged by the scheme cf service introduced in 1982; accordingly contention (a) must fail.
(3)That the interpretation and application of the schemes of 35 service is the responsibility of the appointing authority; that solongastheyplaceupontheschemeareasonableinterpretation and apply it in a manner reasonably possible their decision will 334 3 C.L.R. Papadopoulou v. Republic be upheld; that it was reasonably open to the respondents to concludethat graduation from Omeros School did not qualify as the envisaged three-year cycle of post secondary school studies; accordingly contention (b) must fail. 5 10
(4)That a representation that inclusion in a tab'e of candidates wasa mark of eligibility would beillegal; 'hat no administrative authority can tvolve policiei in breach cf the provisions of the law and no one could repose any faith in such a policy; that there wasnothing whatever before this Court to suggest that Ihis was ihe policy of Ihe administration; accordingly contention (c) must, also, fail.
(5)That the shaping of the law or administrative policy is the concern of the appropriate authority; that the differentiation made does not offend Article 28 of the Constitution because of the immediacy of the ties of those in active service, be it on a temporary basis, at Thetime ofthe irtroduction oftheschemes of servicethat put them in a class apart; and that saving clause in their case was nol beyond the discretion of the appropriate authority; accordingly contention (d) must, also, fail. 20 Application dismissed. Cases referred to: Petsas v. Republic, 2 R.S.C.C. 60; Michael and Another v. P.S.C.
(1982)3 C.L.R. 726; HjiChristoforou v. Republic
(1983)3 C.L.R. 280; Makrides v. Republic
(1983)3 C.L.R. 622; Kambouris v. Republic
(1983)3 C.L.R. 1165; Republic v. Menelaou
(1982)3 C.L.R.
- Recourse. Recourse against the refusal of the respondents to re-appoint 30 the applicant as a teacher of art of secondary education. A. S. Angelides, for the applicant. R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. 35 PIKIS J. read the following judgment. Cleopatra Papadopoulou served on a temporary basis at different schools of secondary education as a teacher of art, between the years 1972 and
- She continued serving in that capacity after her 335 Pikis J. Papadopoukxi v. RepubUc
(1984)displacement from Famagusta in the wake of the Turkish in vasion in 1974. Her services were discontinued in 1976 for health reasons. Γη 1980, her health was restored to a degree enabling her to resume duties, as a government medical board certified. However, her request for reappointment was turned 5 down on the ground that there were other candidates who held superior qualifications. Notwithstanding termination of her services, her namewas notremoved from thetable of candidates awaiting appointment to the post of art teacher, compiledunder the provisions of the Educational Service Regulations - See, 10 reg. 5, Educational Service Regulations, Supplement 3, No. 205 - 10.11.72. The only qualifications that applicant has, are (
- a)The leaving certificate of the Gymnasium and, (
- b)Certificate for Decorators, from Omeros School for 15 Designers-Decorators ("ΟΜΗΡΟΣ" Μέσαι 'Ιδιωτικά! Τεχνικά! 'Επαγγελματικά! Σχολα!Σχεδιαστών—Διακο σμητών) a private school, functioning under the supervision of the Directorateof Vocational Education of the Greek Ministry of Education. 20 Her qualifications made her eligible for appointmentin 1972, in viewoftheschemes of servicetheninforce, requiring only leaving certificate of a secondary school and diploma or certificate certifying attendance of a two-year special course, thereafter. Things changed in 1982. A more exacting scheme of service 25 was introduced, requiring, apart from a leaving certificate from a secondary school, a title, degree or diploma, awarded after attendance of a three year post Lyceum cycle of studies on the subject candidates were intended to teach. In the meantime, thepost of secondary school art master,was regraded andclassi- 30 fied in scale A5 -A7, within the context of the restructure of the educational service. Applications were invited for thefilling of a number of posts of art teachers. The application of Miss Papadopoulou was turned down for the reason that she lacked the qualifications 35 envisaged by the schemes of service. A decision to that effect was taken on 16.6.83. On 18.6.83 she was informed that she was ineligible as candidate. The present recourse challenges that decision. 336 3 C.L.R. Papadopoulou \. Republic Pikis J. The decision under review is executory in that it sealed the fate of the applicant as a prospective teacher and, frustrated her expectations in that direction. It was pioductive of legal consequencesin the sensethat it declared the applicant ineligible for 5 appointment as a secondary school teacher. Counsel for the respondents submitted that applicant lacked, on account of heT qualifications, legitimate interest in the pursuit of the recourse. It seemsto methat counsel overlooksthat applicant isnot challenging her non-appointment, but the decision declaring her 10 ineligible for appointment. Certainly, she has a legitimate interest to contest that decision which has elected a barrier to her candidature for appointment. Unlessannulled, she will be unable to compete for appointment. Hence, the decision is definitive of the stand of the administration towards the appli15 cant. It affects her rights in a direct way. The recourse is justiciable. Ifind it convenient and time-saving to enumerate in the order appearing below, the grounds upon which the recourse is founded, recount the answer given theieto by the respondents and, 20 mydecision oneachgroundina sequence that befits the natuie and importance of each issue in the context of the proceedings. (A) Vested Rights: Central in the case of the applicant isthe contention that she was excluded from the list of candidates in breach of the rights 25 vestedinher bytheinclusion ofhernameinthe listof candidates compiled prior to 1982. Respondents replied that inclusion in a table of candidates and any rights arising therefrom, aie dependent on thecontinuance in force of the scheme of service, on the basis of which the table was compiled. Eligibility for ap30 pointment is forfeited upon a change of the provisions of a scheme of service upon which inclusion was decided. Regulation 6
(1)specifically postulates possession of the qualifications required bytheschemesof serviceas a pierequisite to eligibility. The law itself, s.28(c), categorically provides thai no one can be 35 appointed in the educational service unless he possesses the qualifications required by the schemes of service (see. also. reg. 10
(3)of Educational Service Regulations). No one has a right to demand the non alteration of a scheme of service, ft is settled beyond doubt that the appropriate 337 Pikis J. Papadopoulou v. Republic
(1984)authority hasa discretioninthematter. Theymayalter existing schemes or introduce an altogether new scheme of service. They aTe the arbiters in the matter. This is a salient rule of administrative lawthat reflects theneed to ensurethat the administration enjoys the necessary freedom to model specifications 5 for themanningofthePublicService,inthiscasethe Educational Service, ontheneeds of the Serviceand present state of scientific and cultural knowledge, as well as the availability of personnel to meet these requirements, a social consideration. Any other approach would stultify progress and make for a static state of 10 affairs. The applicant had an expectation to be appointed. Her inclusion in the table of candidates did not confer upon her a right to eligibility irrespective of changesin the schemesof service. In any event, possession of the qualifications envisaged by 15 the scheme of service currently in force, is made, according to specific provisions of the law, a sine qua non for appointment, independently of inclusion in any table of candidates. For instance, if the name of the candidate is wrongly included in a table, it does not make him eligible if he lacks the necessary 20 qualifications. In myjudgment, the respondents were perfectly entitledtoexcludeherfor consideration ifshedidnot possessthe qualifications envisaged by the scheme of service introduced in 1982. (B) The Qualifications of the Applicant for Appointment: 25 Theinterpretation and application of the schemes of serviceis the responsibility of the appointing authority. They have a wide discretion in the matter. And so long as they place upon the scheme a reasonable interpretation and apply it in a manner reasonably possible, their decision will be upheld (see, inter 30 alia, Petsas v. Republic, 2 R.S.C.C. 60; Michael and Another v. P.S.C.
(1982)3 C.L.R. 726; Hadjichristophorouv.Republic
(1983)3 C.L.R. 280; Makrides v. Republic
(1983)3 C.L.R. 622; Kambouris v. Republic
(1983)3 C.L.R. 1165). What the respondents had to decide,waswhethergraduation from Omeros 35 School', in the light of the nature, educational standing,and the tuition offered, qualified as a three year post Lyceum cycle of studiesand, whether thecertificate or diploma issuedupon completion of the studies, qualified as a title, degree or diploma following such athree-year cycle of studies. Although I agree thp.t 40 338 3 C.L.R. Papadopoulou v. Republic Pikis J. reference to a Lyceum could not possibly exclude graduates of a six-year Gymnasium, it was, to say the least, reasonably opento the respondents to conclude that graduation from Omeros School did not qualify as the envisaged three-yeaT cycle of post 5 secondary school studies. It was reasonably open to the re spondents to decide as they did. Theiefore, the case of the applicant fails on this ground as well. (C) Good Faith: Counsel for the applicant made refeience in his address to the 10 principle of good faith binding the administration not to deviate from its proclaimed policy of practice - Dagtoglou, Administra tiveA', 1977, p.106. Theconductof theadministration must be consistent with the faith reposed in them by members of the public and the argument is that, whereas the administration, by 15 its policy represented, that inclusion in a table of candidates was a mark of eligibility, they actedin breach of theirimplementations in the case of the applicant. Firstly, any ιepresentation along the lines suggested, would fly in theface of specific provisions of the law and would be illegal. No administrative authority can 20 evolvepolicies in breach of the provisions of the law and,noone could repose any faith in such a policy. Secondly, there is nothing whatever befoie me to suggest that this was the policy of the administration. I consider the advancement of this ground, on behalf of the applicant, as totally lacking in merit. 25 The case of the Republic v. Menelaou
(1982)3 C.L.R. 428. is distinguishable from the present case. Reliance upon that de cision can cairy the case for the applicant no further. (D) Equality: Lastly, it was argued on behalf of the applicant that the pro30 visions of Article 28 of the Constitution were infringed becau-c an arbitrary distinctionwas made attheexpense of theapplicant. The scheme of service contains a transient provision, exempting from the qualifications provided therein art teachers appointed in 1981-82, apparently on a temporary basis, who seived for a 35 continuousperiod offive months. The submission is. thcio was no justifiable distinction between such candidates and others. like the applicant,who satisfied therequirements of thepre\ious scheme of service and served for a similar period of time. I find it unnecessary to discuss at length the principles, repeatedly 339 Pikis J. Papadopoulou v. Republic
(1984)stated,thatdefineequalitybeforethelaw-aprinciplethat binds equally legislative and administrative authorities. The distinction must bereasonableandobjectively relevant. Theremust be a reasonable basis for the differentiation. Moreover, the differentiation musthaveanexustotheaimsofthelaworadmi- 5 nistrative policy or requirements. Beyondthat, the shapingof thelaworadministrativepolicyistheconcernoftheappropriate authority. Irefer advisedly to laws and administrative policies for, Idonotwishtogo,inthiscase,intothejuridicalnatureofa scheme of service. Having anxiously reflected upon the diff- 10 rentiation made,Ihavecometotheconclusionitdoesnot offend Article28. Tothisconclusion, Iwasdrivenmostlyonaccount oftheimmediacy ofthetiesofthoseinactiveservice,beit ona temporaiybasis,atthetimeoftheintroduction oftheschemesof servicethat put them inaclassapait. Asavingclauseintheir 15 casewasnot beyondthediscretion oftheappropriate authority. Intheresult, therecourseisdismissed. Lettherebenoorder' as to costs. Recourse dismissed with no order as to costs. 20 1 340