(1984)1984 March 22 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION. NICOS AVRAAM1DES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE MINISTER OF EDUCATION
- THE EDUCATIONAL SERVICE COMMITTEE, Respondents. (Case No. 444/80). Educational Officers—Secondary Education Schoolmaster—Assignment of duties of Assistant Headmaster—Such assignment a measure of a temporary natureresorted toinorderto meet specific educational needs whicharise and does not create any legal rights —No duty upon the appropriateauthority to make a comparison 5 amongst the Officers eligiblefor performing thedutiesof the higher posts—Only requirementbeing that theperson to whomtheassignment of duties ismadeshouldhavethequalifications requiredunder theschemes of service—Andnoduty toselect thebest candidateso qualified or to assign such duties to the applicant or to anybody 10 else—No vested right vestedin applicant'sfavour by thefact that such duties were assigned to him during the previous year. By a letter dated 9.10.1979, signed by the Director of Higher and Secondary Education the applicant, a secondary education school-master, was informed that the appropriate authority 15 decided, in order to satisfy educational needs to assign to him the duties ofAssistant Headmaster at Aradippou Gymnasium for the academic year 1979-
- On 2.10.1980 he was transferred' for educational needs from Aradippou Gymnasium to Makarios III Gymnasium of Larnaca; and on the 8th1 November, 1980'he 20 was informed "that it has not been possible for the current year" to assign to him duties of Assistant Headmaster. Hence this 408 3 C.L.R. Avraamides v. Republic recourse whereby applicant sought a declaration of the Court that: 5 10 "I. The decision of the respondents or either of them not to assign duties of Assistant Headmaster to the applicant for the academic year 1980-1981,isvoid and of no legal effect whatsoever.
- The decision of the respondents or either of them not torenewtheassignment ofdutiesofAssistant Headmaster to the applicant, for the year 1980-1981, is void and of no legal effect whatsoever.
- Thedecision oftherespondents oreitherofthemtoassign duties of Assistant Headmaster to the interested parties instead of the applicant is void and of no legal effect whatsoever". 15 20 25 30 35 Held,
(1)that though Law 10/69doesnot specifically provide about anyassignment ofdutiesthispowertoassignisconsidered asfallingwithin theinherentpowersoftheappropriate authority to meet educational needs for the proper functioning of schools (see regulation I3(a)(iii) and (iv) of the Regulations)*; that assignment of duties as such is only a measure of a temporary nature resorted to in order to meet the specific educational need which arises and does not create any legal rights; that, therefore, no duty is cast upon the appropriate authority to make a comparison amongst those officers eligible for performing thedutiesofthehigherpost,sinceitisonlyatemporary measure and not a promotion, the only requirement being that theperson towhomtheassignment ofdutiesismadeshould have the qualifications required by the schemes of service for therelevantpost;thatthereisnodutytoselectthebestcandidate so qualified; that, therefore, there was no duty either on the part of the Educational Service Committee or the Minister of Education to assign the duties of Assistant Headmaster to the applicant or to anybody else; and that, accordingly, prayer I of the applicant, must fail·since the respondents hadno duty, under the Law to assign to him the duties of Assistant Headmasterortomakeaselection,for suchassignment,bycomparing the applicant with those officers, to whom such duties were These Regulations are the Educational Officers (Teaching Personnel) (Appointments, Postings Transfers, Promotions andi Connected Subjects) Regulation, 1977. 409 Avraamides v. Republic
(1984)assigned, bearing also in mind that the applicant is not vested with any right to be assigned with such duties.
(2)That the fact that the duties of Assistant Headmaster were assigned to the applicant during the previous years does not create any vested right in his favour; and that, therefore, the 5 respondents were under no duty to assign to the applicant again for the year 1980-1981,in another school, the duties of the post of Assistant Headmaster; and that, accordingly, prayer 2 of the recourse of the applicant, must, also, fail.
(3)That the respondents were under no duty to make a select- 10 ion of the best candidate amongst those qualified for promotion the only considereation beingthat the persons towhom the duties of the higher post were assigned possessed the qualifications required by the schemes of service of that particular higher post; and that since there was no allegation that the interested 15 parties did not possess these qualifications prayer 3 of the recourse must also fail. Application dismissed. Cases referred to: Olympios v. Republic
(1974)3 C.L.R. 17; 20 Tsiropoullou-Kyrillou v. Educational Service Committee
(1983)3 C.L.R. 313 at p. 320; Shener v. Republic, 3 R.S.C.C. 138 at pp. 141, 142; Tourpeki v. Republic
(1973)3 C.L.R. 592 at pp. 599, 600; Partellides v. Republic
(1969)3 C.L.R. 291 at p.
- 25 Recourse. Recourse against the decision of the respondents not to assign duties of Assistant Headmaster to the applicant for the academic year 1980-
- Sp. Spyridakis, for the applicant. 30 G. Constantinou {Miss), Counsel of the Republic, for the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant in this case seeks a declaration of the Court that:
- The decision of the respondents or either of them not to assign duties of Assistant Headmaster to the applicant 410 35 3 C.L.R. Avraamides v. Republic Sanides J. for the academic year 1980-1981, is void andof no legal effect whatsoever. 5 10
- The decision of the respondents or either of them not to renew the assignment of duties of Assistant Headmaster to theapplicant, for theyear 1980-1981, is void and of no legal effect whatsoever.
- Thedecisionoftherespondents oreither ofthem toassign duties of Assistant Headmaster to theinterested parties instead of the applicant is void and of no legal effect whatsoever. The facts of the case arebriefly as follows: The applicant holds the post ofa school master of Secondary Education since
- By a letter dated 9.10.1979, signed by the Director of Higher 15 and Secondary Education, applicant was informed that the appropriate authority decided, in order to satisfy educational needs to assign to himthe duties of Assistant Headmaster at Aradippou Gymnasium for the academic year 1979-
- 20 25 30 On 23.9.1980 theapplicant wrote a letter to the Director of Higher and Secondary Education complaining about the fact that no acting appointmentorassignment of duties of Assistant Headmaster were offered to himfor the year 1980-1981 and requesting that such duties should be assigned tohimuntil his case was re-examined. On 2.10.1980 the applicant was transferred for educational needs from Aradippou Gymnasium to Makarios 111Gymna sium of Larnaca. Applicant did not challenge such transfer. On 24.10.1980 he addressed another letter to the Minister of Education complaining about the non-assignment of duties of Assistant Headmaster to him,for the year 1980-1981 and requesting a reconsideration of his case anda reply to hisre quest. On the8th November, 1980 the Director of Higher and Secondary Education replied to the applicant as follows: 35 "With reference toyour letters tothe Minister dated 24.
- 1980 andtheDirector dated 23.9.1980 Ϊ regret that ithas not been possible for the current year to assign to you 411 Savvides J. Avraamides v. Republic {1984) duties of Assistant Headmaster. I also express my con tentment for thevery satisfactory way in which you have discharged such duties which were assigned to you last year". As a result the applicant filed the present recourse. The interested parties referred to in this recourse, as they appear in Appendix *A* thereof, are the following: 5
- HadjiMitsi Georghia, 4th Gymnasium of Paphos, Com mercial Science.
- Papachristoforou Makarios, Solea Gymnasium, Religion. 10
- ICorfiotou Vera, Ε Gymnasium of Limassol, Philologist.
- Chrysostomou Chrysostomos, Lanition Gymnasium of Limassol, Philologist.
- Vrahimis Georghios, Paralimni Gymnasium,Commercial Science. 15 The grounds of law relied upon insupport of the application, are the following: '*I. The above decision of the respondents wastaken without consideration and/or due evaluation of the real facts and/or was based on wrong facts and/or wrong evalu- 20 ation of facts.
- The above decision of the respondents amounts toexcess and/or abuse of power.
- The above decision violates the principle of equality.
- The decision of the respondents amounts toa revocation 25 of an individual administrative act which has created vested rights.
- The decision of the respondents is unlawful and contrary to theprinciples of good administration; it is also con trary to the practice followed by the respondents until 30 today.
- The decision of the respondents actually amounts to the degrading and/or disciplinary punishment and/or a disciplinary measure against the applicant whilst no reason for it exists. 412 35 3 C.L.R. Avraamides v. Republic Sav\ides J
- Taking into consideration the circumstances of the case, especially the greater experience, competence and qualifications of the applicant as against the interested parties, the applicant should have been preferred to them". 5 Counsel for applicant has argued in his written address that the assignment of duties of a higher post resembles promotion and is a recognition of the service of the person to whom the assignment is made. He also contended that the assignment of duties to the applicant during the previous year amounted 10 to a normal individual administrative act and as such it cannot be revoked since it has created vested rights in favour of the applicant. Counsel further maintained that the non-assignment of such duties to the applicant during 1980-1981 whilst the same duties were assigned to him during the previous year, amounted 15 in fact to his demotion which in its turn isa form of disciplinary punishment of the applicant which was imposed'on him without first informing or trying him of any disciplinary offence. Counsel lastly proceeded to compare theapplicant and the interested parties with regard to merit and to conclude that applicant 20 *is better than allinterested parties and that he should, therefore, have been preferred to them. 25 30 35 40 Counsel'for therespondents argued her caseonthe assumption that assignment of duties resembles acting appointments and that it is made for the same purpose, that is the purpose of servingeducational needs, and on the same lines. She argued in this respect that it is made for a specific period of time, when there is a vacancy and it is.also made·for the specific post and thespecific school wherethe vacancyexists;that itisa temporary measure and does-not create any vested rights for permanent promotion or appointment to that post. She made referencein this respect to section 34 of Law 10/69, section 42 of Law 33/67 and. to the case of Olympios v. The Republic
(1974)3 CL.R. 17, at p. 27 in support of the proposition that when the appropriate authority recommends somebody for an acting appointment, the Committee is bound to follow such recommendation without making any comparison or selection. For. this reason, counsel maintained, the applicant has.no legitimate interest, to contest the appointments of the interested parties, which were, made for another period: and not in Aradippou Gymnasium, where applicant was performing the duties of 41-3 Satvides J. A\raamides v. Republic
(1984)Assistant Headmaster during theprevious year, which post was in the meantime, filled permanently. Before I proceed anyfurther, Iwish to point outthat the act challenged by the applicant is not an acting appointment for which provision is made insection 34of the Public Educational 5 Service Law, 1969,(Law 10/69). Acting appointmentsaremade, according to section 34, by theEducational Service Committee on the recommendation of the Minister, are published inthe official Gazette of the Republic (G.O.I1/3.4) and the persons so appointed receive an acting allowance (G.O.II/3.6), whereas 10 in the present case the assignment was offered by the "appro priate authority", which, according to section 2 of the Law,is the Minister acting through the Director-General of the Ministry, it has not been published in the official Gazetteand the person to whom the assignment was made did not receive 15 (according to what counsel for applicant has mentioned inhis written address) any additional emoluments for performing such duties. Moreovei, no mention of "acting appointment" is madeinthe letter Annex Ά ' tothe opposition, butof "assign ment of duties". \n addition, acting appointments (as well as 20 secondments), arc effected incases where there arevacant posts, whereas here, it is the case of counsel for therespondents, there were noorganic posts of Assistant Headmaster inthe academic year 1979-1980. No provision is made either in the Law or the Regulations 25 about such "assignment of duties" and as to how and. when it is effec-ied. 1amnotgoing to embark fuiiher onthenature of the sub judice decision since no such point is raised by counsel. Imayonly say that as it seems from theletter Annex *A' to the opposition, it is a measure resorted to by theadmi- 30 lustration in order to meet educational needs in cases where for some reason, no other appointment either acting or byway of promotion may be made. Regulation 13(a)(iii)and(iv) defines the term "Educational needs" as including "thepower to settle cases dictated by other 35 lawful considerations" and "special circumstances dictating immediate settlement for the proper functioning of schools". Educational needs are within the ambit of the powers of the appropriate authority. The law does not specifically provide about any assignment of duties but 1will consider this power 40 to assign as falling within the inherent powers of the appro- 4!4 3 C.L.R. 5 10 15 20 25 Avraamides v. Republic Savvides J. priatc authority to meet educational needs for the proper functioningof schools. Assuchit isonly a measure of a temporary nature resorted to in order to meet the specific educational need which arises and does not create any legal rights. It may therefore be said that no duty is cast upon the appropriate authority to make a comparison amongst those officers eligible for performing the duties of the higher post sinceitisonly a temporary measure and not a promotion. No such duty is cast upon the same authority even in the cases of acting appointments or secondments for which special provision is made in. the Law. (Sec the cases of Olympiosv. The Republic
(1974)3 C.L.R. 17, and Tsiropoullou—Kyriliou v. Educational Service Committee
(1983)3 C.L.R. 313, 320). The only requirement is that the person to whom the assignment of duties is made should have the qualifications required by the schemes of service for the • relevant post. There is no duty to select the best candidate so qualified. The considerations of promotion apply only in the case of a proper promotion under the Law. There was no duty, therefore, either on the part of the Educational Service Committee or the Minister of Education to assign the duties of Assistant Headmaster to the.applicant or to anybody else. The decision to assign such duties to certain other educational officers was reached by the appropriate authority (the Minister) in order to meet certain educational needs in specific schools, which, in his judgment, required immediate settlement. Prayer 1 of theapplicant, therefore, fails, sincethe respondents had noduty, under the Lawto assignto him theduties of Assistant Headmaster or to make a selection, for such assignment, by comparing the applicant with those officers to whom such 30 duties were assigned, bearing also in mind that the applicant is not vested with any right to be assigned with such duties. 1come now to examine prayer 2 of the recourse, by which the applicant prays thatthedecision of the respondents not to renew for the year 1980/1981 the assignment of duties of Assistant 35 Headmaster, which was made to him for the year 1979/1980, be declared void and of no legal effect whatsoever. It has been decided by our Courts in the case of secondments and acting appoinlments, that they are not of a permanent nature but only of a temporary duration and they do not in any 415 Savrides J. Airaamides v. Republic
(1984)way confer any vested rights in favour of the holders butarc only taken into consideration for the purpose of assessing experience. Relevant in this respect are the cases of Shener v. Republic,3 R.S.C.C. 138,at pp. 141,142; Tourpeki v.Republic
(1973)3 C.L.R. 592, at pp. 599, 600, and Partetlides v. Republic 5
(1969)3 C.L.R. 291 at p. 296. It should be noted that the duties assigned to the applicant were assigned to him temporarily for a specific period, that is, for the year 1979/1980and they were not terminated before their expiration but were exercised for the whole of such period. 10 Thefact thattheduties of Assistant Headmaster were assigned to the applicant during the previous year does not create any vested right in his favour. There was a specific educational need in the school where applicant was serving which theappro priate authority solved temporarily by assigning the duties 15 of Assistant Headmaster to 1dm. It is an accepted fact that in thefollowing year that particular need was met by thepromotion of another Master to the post of Assistant Headmaster against which promotion the applicant did not complain. The res pondents were under no duty to assign to the applicant again 20 for the year 1980/1981, in another school, the duties of the post of Assistant Headmaster. I, therefore, find that prayer 2 of the recourse of the applicant, also fails. I come lastly to examine prayer 3 of the recourse of the applicant, which is to the effect that assignment of the duties 25 of Assistant Headmastershould have been madetotheapplicant, instead of the interested parties. I have already found earlier that the respondents were under no duty to make a selection of the best candidate amongst those qualified for promotion (see the cases of Olympios v. Republic 30 (supra) and Tsiropoullou—Kyrillou v. Educational Service Committee (supra)). The only consideration is that the person to whom the duties of the higher post are assigned possesses the qualifications required by the schemes of service of that particular higher post. Since there is no allegation that the 35 interested parties do not possess these qualifications, Τfindthat this part of the recourse must also fail. I also find the contention of counsel for applicant that the non-assignment 416 3 C.L.R. Avraamides v. Republic Savvitfes J. of the same duties to the applicant for the year 1980/1981 amounts to a disciplinary punishment entirely unfounded. There is nothing in his files about any disciplinary complaint against him, but on the contrary, from the contents of the letter 5 of the Director of Higher and Secondary Education dated 8th November, 1980, the satisfactory way in which applicant had discharged the duties assigned to him, ispraised. Furthermore, the applicant has failed to substantiate his allegations by any other evidence whatsoever. 10 In the result, the recourse fails and is hereby dismissed but in the circumstances there will be no order for costs. Recoursedismissedwithno order as to costs. 417