CASES DECIDEDBY THE SUPREME COURT OF CYPRUS ONAPPEAL AND IN ITSORIGINALJURISDICTION Cyprus Law Reports Volume 3 (Administrative) 1987Februaiy4 [DEMETRIADES J ] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION CHRISTOS HJIANDREOU, Applicant THE EDUCATIONAL SERVICE COMMITTEE, Respondents (CaseNo 7/80} Reasoning of anadministrativeact—//maybe extractedfromorsupplemented by the matenalin therelevantadministrativerecord ConstitutionalLaw—Equality—Consttution, Art 28—There isno equalityinille gahty On the2 91179therespondents considered theapplication oftheappli cant for hisemplacement tothepost of Technical Assistant on salary scale Β 12, based on theassertionthathisqualification namely a HigherNational Diploma in Mechanical Engineenng of the Polytechnic of Central London was equivalent toaΒSc degree inEngineenng anddecided thatsuch quali 1 HjiAndreou v.E.S.C.
(1987)fication was so equivalent Onthe22 12 79 therespondentsintormedtheap plicant thatafter re-examining theirsaid decision, they had reached thecon clusion that the said qualification was not equivalent toa ΒSc degree and, therefore,applicant'sclaimforemplacementasaforesaid hadtobe rejected As a result theapplicant filed thepresent recourse based onthefollowing grounds,namelylackof duereasoning, discnmtnationandexcessofpowerin thatthepower tocreate new posts andtomakeoramendschemesof service belong to theCouncilof Ministers 5 Held, dismissing therecourse
(1)The decisions of theadministrationmust be duly reasoned, but thereasoning may be -as it isinthepresent case -ex- 10 traded from or supplemented by thematerial intherelevant administrative record
(2)Theapplicantdidnotputforward any instancessubstantiating hiscom plaint for discrimination,buteven if there were instances,where thesame as the applicant's qualification was treated as satisfying the requirement of the scheme of service, theapplicantwould nothave succeeded onthisground as there is no equality in illegality 15
(3)The respondents had neither created any post nordid they amend or make any scheme of service and,therefore, thethirdcomplaintof theappli cant isunfounded 20 Recoursedismissedwith costs Casesreferred to Choraitisv TheRepublic
(1984)3 CLR 1067, Sawa ν TheCouncilof Ministers,
(1984)3 C LR 285, Theodondouv TheRepublic
(1984)3 C L R 146, Voyiazianosv TheRepublic{\967)3 C LR 239, loanmdesv TheRepublic
(1973)3 C LR 117, Shamassianv TheRepublic
(1973)3 C L R 341 Recourse. Recourse against thedecision of therespondents wherebythey 30 revoked their previous decision to treat applicant's qualifications as equivalent to B.Sc in Engineenng. Ν Clendes, for the applicant Ν Charalambous, Senior Counsel of the Republic, for the *g respondent Cur. adv. vult DEMETRIADES J. read the following judgment. Inthe present case the applicant challenges the decision of therespondent Edu- 2 25 3 C.L.R. HjiAndreou v. E.S.C. Demetriades J. cational Service Committee, which was communicated to him onthe22nd December, 1979,and bymeansofwhichtherespondents revoked theirpreviousdecision totreat theapplicant's qualifications asequivalent toB.Sc.inEngineering. 5 Asaresultoftheirsaiddecision therespondentsrejected theapplicant'sapplication tobe empiaced inthepost ofTechnicalAssistant. The facts ofthe case are, briefly, the following: The applicant isaTrainerin Engineering atthe NicosiaTechni10 cal School and he isthe holder of a Higher National Diploma in Mechanical Engineering of the Polytechnic of Central London. Soon after he obtained his aforesaid qualification, the applicant applied forhisemplacement tothepostofTechnical Assistant,on salaryscale B12,instead of on salaryscale BIO,on which he was 15 empiaced when he wasappointed in 1976.Hisrequestwasbased ontheassertionthat hisqualification wasequivalent toaB.Sc.degree in Engineering which, in accordance with the relevant schemeof service, wasa qualification required for appointment tothe post. 20 On the 27th November, 1979,the respondents considered the application oftheapplicantandafter takingintoaccountthematerial placed before them, as well as the views of the Evaluation Committee astheyappear, interalia, inNote4of hispersonal file (P.M.P.6288J, reached theconclusion thatthequalifications ofthe 25 applicant were equivalent tothe B.Sc. degree. However, as at the time there were no vacancies of Technical Assistants, the respondents decided to examine the case of the emplacement of the applicant to the said post whenever there would bea vacancy insuch post. 30 The decision of the respondents was communicated tothe applicant bytheir letterdated the 29th November, 1979,but on the 22nd December, 1979, the respondents, byanother letter, informedtheapplicantthatafter re-examining theirsaiddecision inthe light of material placed before them and the viewsof the Evalua35 tion Committee, they had reached the conclusion that hisqualifications were not equivalent toa B.Sc. degree; that their decision of the 29th November, 1979, was revoked and that his claim for emplacement tothe post ofTechnical Assistant was rejected. 3 Dem*triad·*4. HJiAndreouv.ES.C.
(1987)Counselfortheapplicantsubmittedthatthesubjudicedecision isnotdulyreasonedandthatabsenceofduereasoningisaground byitselfforinvalidatinganadministrativedecision. Itisacardinalprincipleofadministrativelawthatthedecisions oftheadministration mustbedulyreasoned,butIthasalsobeen 5 heldjudiciallythatthereasoningofanadministrativedecisionmay beextracted from orsupplemented bythe materialcontainedin therelevantadministrativerecords(see,interalia,inthisrespect, Choraitisv.TheRepublic,
(1984)3CLR. 1067,1076,Sawa v. TheCouncilofMinisters,
(1984)3C.L.R.285,297,and Theodo- 10 ridouv.TheRepublic,
(1984)3C.L.R.146,153). Considering the material contained inthe personal file of the applicant,whichisExhibitNo.l before me,and,inparticular,the viewsexpressedbytheEvaluationCommittee(whichisNoteNo.4 inthesaidfile),whicharebasedontheletteroftheOfficer ofthe 15 HigherandFurtherEducationBranch2oftheDepartmentofEducationandScience ofU.K.,totheeffect thatthequalificationsof theapplicantcouldnotbeconsideredasequivalenttoaUniversity degree-qualifications whichwererequired forhisemplacement onscaleB12-1findthattherespondents,aftertheyre-examined 20 thecaseoftheapplicant,wererightindecidingtorevoketheirprevious decision and refuse his request for his emplacement on salaryscaleB12. Ithasbeenfurtherarguedthatthesubjudicedecisionwastaken contrarytoArticle28oftheConstitution,astherespondentCom- 25 mittee,bydecidingfirstthatthequalification oftheHigherNationalDiplomawasequivalenttoaB.Sc.degreeinEngineering,had created a classof personseligiblefor thepost ofTechnicalAssistant,whereas,bytheirsubsequentrevocationtheyhadcreateda discriminationagainsttheapplicant. 30 Apart from the fact that no specific instances, for purposesof comparison,arereferred tobycounselfortheapplicant,substantiatinghisallegation,evenifitisacceptedthattheremaybeinstancesinwhichpersonswiththesamequalifications oftheapplicant werewronglytreatedassatisfyingtherequirementsoftherelevant 35 schemeofservice,theapplicantcouldnothavesucceededonthis groundbecause,asitiswellestablished,therecouldnotbeequalityinillegality(see,inthisrespect, Voyiazianosv.TheRepublic,
(1967)3 C.L.R.239, 234,Joannides v. TheRepublic,
(1973)3 4 3 C.L.R. HilAndreouv. E.SX. Demetriades C.L.R. 117, 122, and Shamassian v. The Republic,
(1973); C.L.R.34i, 352). Theapplicantfurther complainedthattherespondentsactedii excessorabuse of theirpowers asthepower relating tothecrea 5 tion of newpostsandtothemakingandamendingofschemesο serviceconcerningexistingandnewpostsisvestedintheCounci ofMinisters. Ifindthisargumentaswhollyunfounded because by theirsul judice decision therespondentshadneithercreatedanypost, no 10 didtheyamendormakeanyschemeofservice. Therespondent were,inmyview,perfectly entitled,aftertheyhaddiscovered that duetoamistake,theyhadtreatedtheapplicant'squalifications a: equivalent to a B.Sc. degree, to revoke their unlawful decisior and,inevitably, thereafter, toreject theapplicant'srequest forhi: 15 emplacementonsalaryscale B12,because hedidnotpossesstht qualifications required under the relevant scheme of service fo thepost. Inviewofalltheaforesaid, thepresentrecourseoftheapplican cannotsucceed anditisdismissedwith costs. 20 Recoursedismisset with costs. 5