(1986)1985 June 8 [TRIANTAFYLLIDES, P ] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MARIA ODYSSEOS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE EDUCATIONAL SERVICE COMMISSION,
- THE MINISTRY OF EDUCATION,
- THE COUNCIL O F MINISTERS, Respondent:,. (Case No. 482)83). Legitimate interest — Appointments of educationalists to the post of schoolmaster on contract, but not instead of applicant, who could and would have been appointed to one of the remaining vacant posts, if she had not been excluded from appointment on other grounds—No existing legitimate interest of applicant was directly and adversely affected in the sense of Article 146.2 by such appointments. 5 ietourse of annulment —Power of Court to examine the issue of legitimate interest ex proprio motu. tdministrative Law —Abuse or excess of power—Refusal to 10 appoint applicant on contract to post of schoolmaster notwithstanding applicant's eligibility, the existence of vacant posts and a request by the Ministry of Education to fill them—Refusal based on ground that applicant had not been appointed on contract for a previous school year— 15 Exclusion of applicant unjustified. dmitiistrative Law—Administrative 2686 act inextricably connected 3 C.L.R. Odysseos v. Republic with another administrative act found to be null and vaJ —Ground of annulment. 5 10 By this recourse the applicant challenges, in effect, the decis'on of respondent 1 to appoint on contract to the post of schoolmaster thirteen educationalists and to se cond to such post another educationalist !. Mylona. Ύ'··: 13 interested parties were among the 36 educational'ss appointed to the po-t in question for teaching commer cial subjects. When the 36 educational:sts were appoin'ed as aforesaid, there remained vacant another beven po>ts The applicant was excluded from appointment on the ground that she had not been appointed on contract for the school-year 198! -
- 15 Held, (!) This Court can examine ex proprio moH whether or not the applicant possessed a legitimate inte rest to file '.his recourse. 20
(2)As it is clear that the thirteen interested paiiu·were not appointed instead of the applicant, because she could and would have been appointed to one of the i-evei posts which remained unfilled, if she had not been ev cluded from consideration, no existing legitimate interest of the applicant has been d'rectly and adversely affected by the appointment of the thirteen interested parties 2f) 30
(3)Once there had remained seven vacant posts and the Ministry of Education had requested their filling, the de cision to exclude the applicant, who was eligible for ap pointment. >n 1983, on the ground that she had not beeι appointed on contract for the school year 198! - 1981' has been taken in excess or abuse of power. f4) The secondment of interested party Mylona v..; made, because the applicant and others like her \\ei\ excluded from appointment. It has, therefore, to be nn- 2687
(1986)Odysseos v. Republic nulled as inextricably connected with the unjustified fusal to appoint the applicant. re- Recourse succeeds in part. No order as to costs. Cases referred to: 5 Constantinou v. The Republic
(1974)3 C.L.R. 416; Papapetrou v. The Republic, 2 R.S.C.C. 61; lerodiaconos v. The Republic, 3 R.S.C.C. 55; Frangou v. Greek Communal Chamber and Others
(1966)3 C.L.R. 201; 10 HjiSavva v. The Republic
(1967)3 C.L.R. 155; Tseriotis v. The Municipality of Nicosia
(1968)3 C.L.R. 215; The Minister of Finance v. The Public Service Commission
(1968)3 C.L.R. 691; 15 The Republic v. Pericleous
(1972)3 C.L.R. 63; Veis v. The Republic
(1979)3 C.L.R. 390; Zachariades v. The Republic
(1984)3 C.L.R. 1193. Recourse. Recourse against the decision of the respondents to appoint on contract to the post of schoolmaster thirteen interested parties and to second to the above post interested party I. Mylona in preference and instead of the applicant. A. S. Angelides, 20 for the applicant. R. Vrahimi (Mrs.), for the respondent. 25 Cur. adv. vttlt. 2688 3 C.L.R. 5 10 OdyssQor. v. Republic TRIANTAFYLLIDES P. read the following judgment. By the present recourse the applicant challenges, in effect, the decision of the respondent Educational Service Commission to appoint on contract to the post of schoolmaster thirteen educationalists (to be referred to hereinafter as the "interested parties") and to second to such post another educationalist, I. Mylona (to be referred to hereinafter as "interested party Mylona"). In the course of the hearing of the case counsel for the applicant withdrew this recourse in so far as the Council of Ministers was concerned and it was dismissed accor dingly to. that extent. Before proceeding to examine the issues ra;sed by coun sel for the applicant I shall examine ex proprio motu (see. 15 inter alia, Constantinhlon v. The Republic,
(1974)3 C.L.R. 416, 418) whether or not the applicant possessed a legi timate interest, in the sense of Article 146.2 of the Con stitution. entitling her to file the mesent recourse (and sec. in this respect, inter alia. Papapetron v. The Republic. 2 20 R.S.C.C. 61. 64, Efthymios lerodiaconos v. The Republic. 3 R.S.C.C. 55. 56. 57. Fram>oti v. The Grck Coinnimuil Chamber and others,
(1966)3 C.L.R.
- HjiSavva v. The Republic
(1967)3 C.L.R.
- Tseriotis v. The Municipality of Nicosia.
(1968)3 C.L.R. 215. 2 2 ! . 25 The Minister of Finance v. The Public Service Commission.
(1968)3 C.L.R. 691. 697, The Republic v. Pericleous.
(1972)3 C.L.R.
- Vets v. The Republic.
(1979)3 C.L.R.
- Zachariades v. The Republic.
(1984)3 C.L.R.
- 1237): 30 35 The sub judice decision to appoint on contract thin\-si\ schoolmasters, who were going to teach commercial sub jects, was reached by the respondent Educational Server Commission on the 12th September 1983 and in the vM thirty-six schoolmasters were included ihe thirteen inv rested parties. As it appears from the materia! before me when ιlie Commission appointed, on the 12th September
- the 2689 Triantafyuidns P. Odysseos v. Repubiic
(1986)aforesaid thirty-six schoolmasters there remained vacant another seven posts of schoolmasters for the teaching of commercial subjects, even though the Ministry of Educat'on had requested the filling of such posts, too, in order to meet educational needs. 5 I have reached the conclusion that from the text of the sub judice decision there emerges clearly that the interested parties were not appo:nted instead of the applicant. because she could, and would, have been appointed on contract to one of the seven posts which were left unfilled H> had she not been excluded from consideration .on the ground that she had not been appointed on contract for the schoolyear 1981 -
- I am, therefore, of the opinion that no exiting legitimate interest of the applicant has been adversely and directly affected, in the sense of Article 146.2 of the Constitution, by the appointments on contract of the interested parties, and. consequently, the present recourse in so far as it is aimed at such appointments has to be dismissed for this reasons. On the other hand, once there had remained unfilled seven posts and since the filling of such posts had been requested by the Ministry of Education in order to meet educational needs, I find that the decision of the respondent Commission to exclude the applicant from appointment on contract in 1983 mainly because she had not been appointed on contract for the school-year 1981 - 1982, even though she was in 1983 eligible and suitable for appointment on contract to one of the said seven vacant posts, is a decision that was reached in excess and abuse of the powers 30 of the Commission and contrary to the principles of proper administration and has, therefore, to be annulled. There remams to be considered next the validity of the secondment, on the 15th October 1983, of interested party Mylona to one of the aforementioned seven vacant posts: 35 It is clear, in my op:nion, that this secondment was made because the applicant and others like her, had been wrongly excluded from appointment on the 12th September 1983 2690 15 20 3 C.L.R. Odysseos v. Republic Triantafyllides P. and, consequnetly, it has to be annulled as being inextricably connected with the unjustifiable refusal to appoint the applicant on contract on the 12th September
- 5 In the result this recourse succeeds in part, but without any order as to costs. Recourse succeeds in part. No order as to costs. 2691