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clr/1984/1984_3_473.pdf

3 C.L.R. 1984 March 6 [DEMETRIADES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION. ANDREAS CONSTANTINOU, Applicant, v. THE COUNCIL FOR THE REGISTRATION OF ARCHITECTS AND CIVIL ENGINEERS, Respondents. (Case No. 222/82). 5 10 Administrative Law-—Administrative acts or decisions—Must be taken after a due inquiry and reasons therefor must be given—Examinations entitling applicant to be licensed as buildingtechnician— Respondents decidingthat hefailed in the examinationsbecausehe did not pass the oral tests—No record of the marks he received during his oral examination, what were the questionsput to him who were the members of the examining Committee and what were the marks given by each of them to the applicant's oral answers—Sub judice decision annulled because it was taken without a proper inquiry and without giving reasons therefor. Costs—Successful recourse for annulment—Respondents ordered to pay applicant costs. 15 20 The applicant who had been practising the profession of building technician took the examinations that were perscribed by the respondents as aconditionwhichhehad tosatisfy in order to be entitled to be licensed as a building technician under the Architects and Civil Engineers Law, 1962. The respondents decided that he failed in the examinations because though he passed successfully the written tests he failed in the oral tests. Upon a recourse by the applicant against the validity of the above decision the Court found that though the intention of the respondents was that the marks a candidate would receive for his answers in his oral examinations would count or be added to 473 Constaotinou v.Councilfor RegistrationofArchitects

(1984)thosehehadreceived forhiswrittentests,nodecisionwastaken astowhetheracandidatehadtoreceivetheaggregateofacertain number of marks or theaverage ofthe marks hewasgivenin (
  1. a)Architectural Plan (
  2. b)Building Regulations etc., and (
  3. c)Oral Examinations; and that there wasno record what were 5 the markswhich theapplicant received duringhisoral examination,what werethequestionsputtohim,whowerethemembers of the examining committee andwhat were themarks givenby each of them to the applicant's oral answers. Held, that thedecisionofadministrative organs must be taken 10 after adueinquiry hasbeencarried outandthat thereasonsfor reaching their decision must begiven; that in the light ofthe above factual findings, thedecision ofthe respondents mustbe declared null and void in that they have failed to carry outa proper inquiry into the ability of the applicant to practise the 15 profession ofa building technician,and,they,also,failed togive their reasons for reaching their decision that the applicant failed in passing theexaminations. Held, further, that considering thefailure of the respondents to introduce regulations with regard tothematters envisaged by 20 the provisions ofsection 17of Law41/62 asamended laterand the wayin which the oral examinations were carried out, they should pay the costs of the applicant. Sub judice decision annulled. Recourse. Recourse against the refusal of the respondents to grant a licence of Building Technician to the applicant. A. S. Angelides, for the applicant. L. Demetriades with St. Nathanael, for the respondents. Cur. adv. vult. DEMETRIADESJ. read thefollowing judgment. Bythepresent recourse the applicant prays for:- 1. Declaration ofthe Court that thedecision of the respondents which wascommunicated to theapplicant by their letter dated the6th March, 1982,bymeans of which they 35 considered that the applicant had failed in the examinations for thegrant tohimofa licence of BuildingTechnician, is null, void and of no legal effect. 474 25 30 3C.L.R. Constantinouv. Council for Registration of Architects Demetriades J. 2. Declaration of the Court that the omission of the respondents to grant to the applicant a licence to become a Bu;lding Technician is void and that everything omitted shall have to be perfoimed. 5 The grounds of law on which the applicant bases his application are the following:(
  4. a)The decision was reached without due inquiry. (
  5. b)Thedecisionisthe product of a misconception asto the law or as to the facts. 10 (
  6. c)The decision wasreached in abuse or excess of powers. (
  7. d)The decision is the product of an alien purpose and contravenes vested rights of the applicant. (
  8. e)The decision lacks due reasoning. 15 (
  9. f)The decision was reached incompetently and/or by a· legally defective procedure. (
  10. g)The respondents omitted their legal duty. The respondents are, by section 9 of the-Architects and Civil Engineers Law, 1962 (Law 41/62), as-amended, by Laws 7 of 1964,43 of 1966,41 of 1968,84of 1968and 5of 1970,the appro20 priate authority to which a citizenofthe Repubhc mayapply for the grant to him, amongst others, of a licenceto-become a Building Technician. Under the provisions of section 9(l)(B)(
  11. b)of the said law, a citizen of"the·Republic is entitled to be licensed as a Building. 25 Technician if, amongst other conditions which-he has to satisfy, he passes examinations that are prescribed by the respondents. As it appears fromthe-record of the;present proceedings, the applicant had·been practising the professiomof Building Technician for sometime without having first obtained a licenceto that 30 effect and that-after criminal·proceedings-were· brought-against him;he, on-the 11th May, 1981·, and'the-12th May, 1981, addressedletters to the office ofthe President ofthe Republic of Cyprus, and to-the-respondents, by·which-he-was-complaining that the' examinations-provided for insertion 9(l)(B)(
  12. b)of Law 41/62had. 35 not taken place*for quite a longtime in contraventionof thepro475' Demetriades J. Coostandnou v. Councilfor Registrationof Architects
(1984)visions of the said Law. By his said letters he was suggesting that arrangements had to be made so that the examinations ought to take place at fixed times in order that candidates knew in advance when same were to be held. By section 17 of Law 41/62 the respondents are empowered to enact, with the approval of the Council of Ministers, regulations that make provision for, inter alia - 5 (
  1. a)the procedure to be followed for the submission of applications for the registration and/or the grant of a licence to Building Technicians, and (
  2. b)the carrying out of examinations imposed or permitted by the Law. Itis to be noted that up toat least thedate on which the appli­ cant submitted his complaints no steps had been taken by the respondents to introduce regulations with regard to the matters 15 envisaged by the above-mentioned provisions of section 17. On the 6th October, 1981, the respondents, by notification published in the local press, informed the public that exami­ nations for granting licences to Building Technicians were to take place at 8.00 a.m. on Saturday the 14th November, 1981, at 20 the Higher Technical Institute and that applications for parti­ cipation in theexams were to be accepted by them at their offices between the hours of 8.30 a.m. and 12.30 p.m. tilt the 7th No­ vember, 1981. On the 6th October, 1981, the applicant submitted his appli- 25 cation to the respondents and paid to them the examination fees. According to the contents of an affidavit sworn on the 22nd July, 1983, by a certain Chrystalla HadjiGeorghiou, who in her affidavit decscribes herself as the assistant secretary of the re- 30 spondents, she, after the applicant filed his application and paid the examination fees, handed to him a document containing the syllabus of the examinations (Πρόγραμμα Ύλης τωνΕξετάσεων). Copy of this document forms part of a bundle of documents that was produced and to which I will refer later on. 35 On the 14th November, 1981, the applicant presented himself 476 10 3 C.L.R. Constantinou v. Councilfor Registrationof Architects Denietriades J. and took part in the written examinations provided in the sylla­ bus handed to him. It must be noted that in the press release of the respondents, by which they announcedthat examinations foi those wishing to 5 be granted a licence to practice as Building Technicians were to take place, nothingwas mentionedthattheexaminations were to consist of oral and written tests or that all the tests were not to take place on the same date. In an affidavit that the applicant swore and which is dated 10 the 21st June, 1983, he alleges that after he sat for the written tests, he was informed that though he had passed them succes­ sfully, hehad to attendan informal interview with the examining board before he was issued with a licence. Itis the allegation of the applicant that he was never told that his interview by the 15 examining board would be considered as an oral test, part of the examinations advertised; that his answers to questions put to himwould bemarked andthatthemarks hewas toreceive would be taken into consideration by the examining board when decid­ ing whether he had passed or failed in the examinations. 20 Mr. Dionysios Toumazis, who at all material times was the Chairman of the board of the respondents, swore an affidavit in which he alleged that the oral examination had been a prere­ quisite for passing the examinations. There is no doubt that that might have been the intention of 25 the respondents and one can easily reach this conclusion if he looks at the note of the decision of the Examining Committee (see Blues 6 and 7 in the bundle of documents filed) which are the results of the written exams by candidates and in which it is stated that the marks that each candidate received in the tests 30 for the architectural plans and the subjects of "ΟικοδομικήςΣιδηροπαγούς Σκυροδέματος και Οικοδομικών Κανονισμών" ("Building construction - Reinforced Concrete and Building Regulations1') were to beadded tothose of the oral examinations so that final results would be reached. 35 As it appears from the minutes of the meeting of the respon­ dents, which was held on the 23rd September, 1981 (see Blue I in the bundle of documents filed), it was decided that the exa­ minations for Building Technicians were to be held on the 14th 477 Demctriades J. Constantinou v.Councilfor Registration ofArchitects
(1984)November, 1981, at the Higher Technical Institute; that a relevantnotification wastobepublishedinthepressandthatthe subjects of the examinations were to be prepared by Messrs. D. Toumazis and N. Savvides with regard to the Architectural part and Messrs L. Demetriades and Char. Kkolos with regard 5 to the Static Calculations, Building Regulations etc. Nowhere in this decision of the respondents does it appear that a clear directive with regardtothe syllabusoftheexaminations was given to the persons who wereentrusted with itspreparation, or that the candidates had to take part in written as 10 well as in oral tests. In the notification published in the local pressonthe6thOctober, 1981,towhich Ihavealready referred, no mention was made at all about oral tests. However, at the very end of the syllabushanded to theapplicant(seeBlue4(b)inthebundleofdocumentsfiled)andtowhich 15 1have earlier referred as having been handed to him by Mrs. HadjiGeorghiou, it is clearly stated that the examinations were toconsist of(a)writtenexaminations and (b)oralexaminations. Asit appearsfrom thedocumentsfiled Ifind that though the intention of the respondents was that the marks a candidate 20 would receive for his answers in his oral examinations would count or beadded to thosehehad received for his writtentests. nodecision was taken as to whether a candidate had to receive theaggregate of a certain number ofmarksortheaverageofthe marks he was given in (
  1. a)Architectural Plan, (
  2. b)Building Re- 25 gulations etc., and (
  3. c)Oral Examinations. In any event, there is no record what were the marks which the applicant received duringhisoralexamination,whatwerethequestionsputtohim, who were the members of the examining committee and what were,the marks given by each of them to the applicant's oral 30 answers. It has been repeatedly stated by this Court in a number of previous occasions that the decisions of administrative organs must betaken after a dueinquiry has beencarried out and that the reason for reaching their decision must be given. 35 In the present case and in the light of myabove factual findings, I have come to the conclusion that the decision of the re478 3 C.L.R. Constantinou v. Council for Registration of Architects Detnctriades J. spondents must be declared null and void in that they have failed (
  4. a)to carry out a proper inquiiy into the ability of the applicant to practice the profession of a Building Technician, and (
  5. b)to givetheir reasons for reaching their decision that the applicant failed in passing the examinations. In the result, the decision of the respondents is declared null and void and of no effect whatsoever. Considering the failure of the respondents to introduce regulations with regard to the matters envisaged by the provisions of section 17of Law 41/62 as amended later and the way in which the"oral examinations" werecarried out, 1 find that they should pay the costs of the applicant. Subjudice decision annulled. Respondents to pay applicant's costs. 479

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