1984 April 26 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THRASIVOULOS VLOTOMAS AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE COUNCIL OF MINISTERS,
- THE MINISTER OF EDUCATION, Respondents, (Case No. 500/82). 5 10 15 20 Schemes oj service—Made by Council of Ministers—Is delegated legislation under Article 54 of the Constitutionfor thepurpose oj carrying into effect theprovisions of the relevant Law, in this case the Public Educational Service Law, 1969 (Law 10/69)—,W beinganact of a legislativenature doesnot come within the ambit of thejuridiction under Article 146 and cannot be challenged by a recource thereunder. The applicants in this recourse challenged the validity of the schemes of service for the post of schoolmaster/instructor of the Secondary Technical and Vocational Education regarding promotion to scale A
- Held, that the schemes of service made by the Council of Ministers is delegated legislation made under Article 54 of the Constitution, for the purpose of carrying into effect the provisions of the relevant Law, in the present case the Public Educational Service Law, 1969 (Law 10/69); that being an act of legislative nature, it does not come within the ambit of the jurisdiction under Article 146 and, therefore, such act cannot be challenged by a recourse under the said Article; accordingly the recourse must fail. Application dismissed. Cases referred to: PA.SY.DY v. Republic
(1978)3 C.L.R. 27 at pp. 30, 31; loannou v. Electricity Authority
(1981)3 C.L.R. 280 at p. 295* 423 Vlotomas and Others τ. Republic
(1984)Recourse. Recourse against the decision of the respondents to approve and/or put into operation the schemes of service in connection with the promotion of schoolmasters of Secondary Technical and Vocational Educationwho teach subjects of practical knowledge from salary scale A.9 to A.
- 5 A. Eftychiou with Y. Charalambous, for the applicants. R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. SAVVIDES, J. read thefollowingjudgment. Thefiveapplicants 10 are holding the post of schoolmaster in the Secondary Technical and Vocational Education teaching the subject of practical knowledge. Prior to their appointmentto such post, they were holding the post of teacher in the Elementary Education and following attendance of a course in practical knowledge, they 15 were seconded to serve in the Secondary Education as teachers of practical knowledge. As a result of the enactmentof the Public Educational Service (Increase of Salaries, Restructuring and Placement of Certain Posts on United Salary Scales) Law, 1981 (Law 12/81) ), the 20 applicants raised a claim for their appointment as school masters teaching practical knowledge in the Secondary Technical and Vocational Education, and emplacement on the same scale applicable to schoolmasters who held appointmentsto such post. Their claim was pursued through the Union of Teachers of 25 Secondary Education (OELMEK)and finally a collective agree ment was reached between such Union and the Government on the 23rd April, 1981 which was embodied in amemorandum dated the 4th May, 1981, the material part of which reads as follows: a. The appointment, retrospectively from the 1st Jan uary, 1979, of the 53 teachers on secondment to the post of Master on the combined scales A5 and A7, which scale is combined with the post of Master on scale A
- Those officers who are in the service on the 30th March, 35 1981, the date of publication of the Public Educational Service (Increase of Salaries, Restructuring and Placement of Certain Posts on United Salary Scales) Law of 1981 424 30 3 C.L.R. Vlotomas and Others v. Republic Sawides J. (No. 12of 1981), on being promoted to the post of Master on scale A8, will be placed, on a temporary basis, on scale A
- 5 10 For the purposes of emplacement and re-adjustment ol salaries of the affected educational officers on the salary scales of their new post, the provisions of the Public Educational Service (Increase of Salaries, Restructuring and Placement of Certain Posts on United Salary Scales) Law of 1981 (Law 12 of 1981), apply. b. The gradual creation of 28additional posts of Mastei on scale A10 for the purposes of the promotion of the 53 officers to be appointed to the post of Master on the basis of the present agreement: Provided that in case a numbei of the said teachers would not accept appointment to the postof Master, thenumber of theadditional postsof Mastei on scale A10 will be reduced accordingly so that the same analogy is preserved, that is, 1:0.9". As a result of such agreement, the applicants agreed to join the Secondary Education and were offered an appointment as Schoolmasters of Secondary Technical and Vocational Education, for teaching the subject of practical knowledge retrospectively, as from 1.1.1979 and they were emplaced on scale A9 since they belonged to the category of those who had been serving in the Secondary Education before the 30th March. 1981, when Law 12/81 came into operation. The Council of Ministers after consultations had taken place between the Joint Committee of Personnel and the Unions of Eductionalists,(theUnionofTeachersofSecondary Educatior (OELMEK.) and the Union of Teachers of Technical Educatior (OLTEK) of which the applicants were members as a result of which an agreement was finally reached concerning the schemes of service, by its Decision No. 21526 dated 18.3.1981 approved the schemes of service for schoolmasters/instructors of the'Secondary Technical and Vocational Education regarding " promotion to scale A10, with effect from such date. According to the said schemes of service which was made pursuant to the memorandum of agreement mentioned above the qualifications required for promotion to scale A10, were "
(1)To hold for three years, the post of Master/Instructoi 425 Sawides J. Vlotomas and Others v. Republic
(1984)on ScaleA8or onthe personal ScaleA9after promotion fromthesalaryScalesA5andA7andhaveaneducational service ofeighteen yearson Scales B2-B4, B2-B3, B3-B6 and on Scale A8 or the personal Scale A9. Note: For the filling of the posts for the first time after the 5 approval of the present Scheme of Service, Masters/ Instructors who do not have a three-year service on ScaleA8orthePersonal ScaleA9mayalsobepromoted, provided they have a sixteen-year educational service as a whole on Scales A5-A7, on the former scales B2- 10 B4, B2-B3, B3-B6 and on Scale A8 or the Personal Scale A9.
(2)To have a very satisfactory service on the basis of the last two confidential reports.
(3)A certificate of successful completion of post-graduate 15 training in a recognised institution on a subject related to his specialisation or in Paedagogics, is considered an additional qualification. Note:(
- a)The posts to be filled are apportioned between Masters/Instructors on the basis of the proportion 20 existing from time to time between Masters/ Instructors on Scales A5-A7-A8, to the exclusion of Masters whoteach the subject of practical knowledge. (
- b)For Masters whowereteachingthesubject of pract- 25 ical knowledge during the academic year 1980/81, an educational service of eighteen years as a whole is required out of which at least seven years in the teaching of the subject of practical knowledge. (
- c)The number ofpostsintended to beallocated to the 30 Masters teaching the subject of practical knowledge isdefinedintheMemorandum ofAgreementbetween them and the Government, dated 4.5.1981". Such decision was communicated to the chairmen of the two ducationalists unions, OELMEK AND OLTEK and copies 35 f the approved schemes of service were forwarded to them >r information of their members. 426 3 C.L.R. 5 10 15 20 Viotomas and Others v. Republic Sawides J The applicants allege that they took notice of such decision on the 29th October, 1982 and that the notice sent to the Chair men of their Assocations do not constitute sufficient notice to them, as such unions represented them only for the purpose of negotiating the agreement of 4.5.1981 and not in respect of any other agreement concluded thereafter concerning the schemes of service. As a result, they filed the present recourse, praying for: "A declaration of theCourtthatthedecision of the respondents whereby on or about the 18th March, 1982, they approved and/or put into operation the schemes of service attached to the recourse as exhibit (
- c)in connection with the promotion of schoolmasters of Secondary Technical and Vocational Educationwho teach the subject of practica1 knowledge, from salary scale 9 to salary scale 10 and i: connection with which the applicants took notice on ο about the 29th October, 1982, is null and void and of n. legal effect whatsoever". The grounds of law on which this recourse is based are th following: 25
(1)The sub judice decision was taken in contravention ο Articles 6and 28 of the Constitutionin thattheapplicant are treated in a discriminatory and unequal manner a: compared to other educationalists serving in the Second ary Technical and Vocational Education. 30
(2)The sub judice decision violates the vested rights of the applicants and/or prejudicially affects the normal evolu tion of their career and/or takes no congnizance of the total period of their service in the Elementary and Secondary Education.
(3)The sub judice decision was taken in violation of Aiticlc 57.4 of the Constitution, in that it was not published in the official Gazette of the Republic. 35
(4)The sub judice decision was taken in excess and/or abuse of powers. The application was opposed and the legal ground advanced in opposition is that the present recourse is unfounded in thai there is no administrative act and/or decision falling within the ambit of Article 146 of the Constitution. 427 ianides J. Vtotomas and Others v. Republic
(1984)Counsel for applicants by his written address, submitted chat the decision of the Council of Ministers is an executory idministrative act which can be challenged by a recourse under Article 146 of the Constitution. Counsel contended that the :ondition in the schemes of service that for promotion from 5 «aleA9 to scale A10 a seven years educational serviceis required η the teaching of the subject of practical knowledge, is unjust ind unreasonable and results in the discriminatory and unequal .reatment of the applicants as against the rest of the schoolnasters who are serving in the said post and that such treatment 10 violates Articles 6 and 28 of the Constitution. That the period >f their service in the Elementary and Secondary Education ,hould have been taken into consideration and that such service s longer than that of schoolmasters who had been appointed η the Secondary and Technical Education. Furthermore, 15 .hat the vested rights of the applicants which they acquired by he agreement reached between their Unionand theGovernment lave been violated. Counsel for the respondents, on the other hand, submitted .hat the schemes of service which are made by the Council of 20 Ministers under section 24
(1)of Law 10/69 are in the nature >f delegated legislation and as such they cannot be challenged yya recourse underArticle 146 of the Constitution. She refuted he allegation thattherewas unequal or discriminatory treatment indalleged that the schemes of service are in line with the agree- 25 nent reached between the Educationlists* Unions and the jovernment by which a limited number of posts was provided or the promotion of schoolmasters who had been appointed η the Secondary Education after they had been seconded from he Elementary Education. She concluded that the applicants 30 md no legitimate interest to challenge thedecision of theCouncil )f Ministers. The question as to whether the making of schemes of service s an administrative act within the ambit of Article 146 of the Constitution, has been considered in the case of Pankyprios 35 Syntechnia Dimosion Ypallilonv. The Republic
(1978)3 C.L.R. Π, in which Triantafyllides, P. had this to say at pp. 30, 31: "At the commencement of the hearing of this case counsel for the respondent argued, as preliminary objections, grounds of law (A) and (B) in the Opposition, namely 40 428 3 C.L.R. 5 10 15 20 25 30 Vlotomas and Others v. Republic Sawides J. that the said scheme of sercice is not an administrative act within the ambit of the jurisdiction under Article 146 of the Constitution, and, also, that no existing legitimate interest of the applicants had been adversely and directly affected by it in the sense of paragraph 2 of Article
- In relation to the first of the above issues I am inclined to agree with both counsel that if it had to be resolved in the context of the administrative law applicable in Greece I would have had to hold that the present recourse could have been made against the sub judice scheme of service. because in Greece the main test by means of which the existence of jurisdiction concerning an administrative recourse is established is notthe natureof theact or decision which is being challenged by a recourse, but the nature of the organ from which such act or decision has emanated. thus, an act of general regulatory application, such as the scheme of service in question, emanating from the Council of Ministers, in the Executive Branch of the Government, could apparently be attacked by an administrative recourse in Greece (see Κυριακοπούλου " 'Ελληνικών Δ'οικητικόν Δίκαιου", 4th ed., vol. A, p. 52, Στ. Άνδρεάδου "Ή Ακυρωτική Δικαιοδοσία τοϋ ΣυμβουλίουΈτπκρατίοξ", 1936, vol. Α. ρρ. 128-130, and Γ. Πατταχατζή "Μελέται έττίτοϋ Δικαίου των Διοικητικών Διαφορών", 4th ed , pp.
- 44). In Cyprus the test which has been adopted and consist ently applied, inview of the particular wording of paragraph 1 of Article 146 of the Constitution, is that of the nature of the act or decision concerned, but, of course, in deter mining such nature, account must, also, be taken of the nature of the organ which has made such act or decision (see, inter alia, Demetriades and Son and another v. The Republic,
(1969)3 C.L.R. 557, and Kourrisv. The Supreme Council of Judicature,
(1972)3 C.L.R. 390. 400^101, 408409, 411-12, 443, 461, 462)". 35 And after reviewing our case law on the matter, he concluded as follows at pp. 33, 34: "Even if I had to decide the said issue before theenactment of the Public Service Law, 1967 (Law 33/67), 1would have decided, bearing in mind the essential nature of a scheme 429 Sawides J. Vlotomas and Others v. Republic
(1984)of service and the purpose that it is destined to serve, that it is an act of a legislative nature made by the Council of Ministers and, that, therefore, it is not within the ambit of Article 146. In my view the matter has been put really beyond any doubt since the enactment of Law 33/67, section 29 of which reads as follows: 5 '29.-(l) The general duties and responsibilities of an office and the qualifications required for the holding thereof shall be prescribed in schemes of service made 10 by decision of the Council of Ministers.
(2)A scheme of servicemay provide as a prerequisite to appointment or prornotion the passingby candidates of an examination'. A scheme of service made by the Council of Ministers, 15 under section 29 is, in my opinion, delegated legislation— in the sense of the Hondrou case, supra—made under Article 54 of the Constitution for the purpose of carrying into effect the provisions of Law 33/67, and, in particular, of provisions such as sections 33and 34thereof. It follows 20 that, being an act of legislative nature, it does not come within the ambit of the jurisdiction under Article 146. Consequently, this recourse, which has been made under the said Article against a scheme of service, as such has to be dismissed for lack of jurisdiction of this Court to 25 entertain it". The decision in the PankypriosSyntechniaDimosionYpallilon v. Republic(supra) was followed by A. Loizou, J. in Ioannouv. Electricity Authority
(1981)3 C.L.R. 280, where at page 295, he had this to say: "As against the nominations the applicant filed recourse No. 328/78, both as against the selection made by the Authority under Relief A and as against the classification of the post made by it under Relief B. The complaintof the applicant emanates from the fact that these postswere 35 graded asdifferent bytheAuthority and weregiven different salary scales with the result that the one given to him was 430 30 3 C.L.R. VJotomas and Others v. Republic Savtides J. lower than the rest. All posts were classified on salary scale0.5,whereas thatfor whichtheapplicantwasnominate and later appointed was classified on scale 0.6. 5 10 15 20 An objection has been taken on behalf of therespondent Authority that Relief Β in Recourse No. 328/78 does not lie as the act and/or decision complained of therein is not an executory act or decision in the sense of Article 146 of the Constitution. It was held in the case of PAS YDΥ v. Republic (through The Councilof Ministers)
(1978)3 C.L.R., p.27, following Papapetrou v. TheRepublic, 2R.S.C.C.61,thatthe schemes of service are acts of a legislative nature and not acts of an executive or administrative naturein the sense of Article 146 of the Constitution. Also that schemes of service constitute delegated legislation in the sense of Police v. Hondrou & Another,3 R.S.C.C. 82, made by the Electricit> Authority of Cyprus for the purpose of carrying into effect the provisions of the Electricity Development Law, Cap. 171, and Law 61 of
- 1 fully agree with this submission and dismiss Relief Β as such classification is tantamount to a scheme of service". I fully adopt the opinion expressed in the said decisions that the schemes of service made by the Council of Ministers is delegated legislation made under Article 54 of theConstitution. 25 for the purpose of carrying into effect the provisions of the relevant Law, in the present case Law 10/
- Being an act of legislative nature, it does not come within the ambit of the jurisdiction under Article 146 and, therefore, such act cannot be challenged by a recourse under the said Article. 30 Having reached such conclusion, I find it unnecessary to deal with the other legal grounds advanced by this recourse. In the result the recourse fails and is hereby dismissed with no order for costs. 35 Recourse dismissed with no order as to costs. 431