SC.L.B. 1987 January 24 [STYUANIDES, J ) INTHEMATTEROFARTICLE146OFTHE CONSTITUTION IOANNISVALIANTIS ANDOTHERS, Applicants, ν THEREPUBLICOFCYPRUSTHROUGH THEEDUCATIONALSERVICE COMMISSION, Respondents (CaseNos 724/85, 827/85, 845/85 and 1000/85). Recourse for annulment—Abatement—Revocation of sub judice decisions— Whether and in what circumstancesarecoursechallengingthe revoked actis abated by reason of the revocation—Present recourses not abated as the mjunous resultsof the revoked actswere not obliteratedby the revocation 5 Educational Officers—Transfers—The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment} Regulations, 1985—Ultraviresenabling statute—Sub judice transfersannulled t> Damages—Constitution, Article146 6 10 15 20 £& Thesubjudice transfers were revoked after the decisioninAnsttdes ν The Republic
(1986)3 C LR 466, whereby theEducationalOfficers (Teaching Staff) (Appointments,Postings, Transfers, Promotionsand RelatedMatters) (Amendment)Regulations, 1985,onthebasis of whichthe saidtransfers had been made, were found to be invalid The question that arose for determination iswhether by reason ofsuch revocationtheabove recourses have been abated Held,
(1)Itiswellestablished thatonly asuccessful applicantina recourse under Art 146 of the Constitution is entitled to seek just and equitable damages under paragraph 6 of the said Article Where an act of limited duration has ceased toexistwithout havmg produced, before ceasing to be operative, any adverse consequences for the applicant, the recourse filed against itisabated Inthese cases, however, therevocationdid notobliterate any adverse results, which thesub judice transfers mighthave caused tothe applicants Itfollows thattherecourses have notbeen abated
(2)The revocation is an admission of the invalidity of the sub judice 151 Vallantis and Others v. Republic
(1987)decisions at least on theground thatthey were taken on thebasisof invalid delegated legislation.
(3)On the material before the Court the sub judice decisions are faulty as they were based on delegated legislation, which is ultra vires the enabling statute and unreasonable. 5
(4)Recourse of applicant 1in 1000/85is outof time. Recourse of applicant1 in 1000/85 dismissed. Save asaforesaid, sub judice decisionsannulled. Casesreferred to: Anstides v. TheRepublic
(1986)3 C.L.R. 466, 1 0 Kyriahdesv. The Republic, 1R.S.C.C. 66; Christodoulidesv. TheRepublic
(1978)3 C.L.R. 193; Hapeshis and Others v. TheRepublic
(1979)3 C.L.R. 550; Agrotisν TheRepublic
(1983)3C.L.R. 1397; Kittouand Others v. TheRepublic
(1983)3 C.L.R. 605; 15 Maliotisv. TheMunicipalityof Nicosia(1965}3 C L.R. 75; Vafeadesv. TheGreek Communal Chamber
(1966)3 C.L.R 197; Andreou v. TheRepublic
(1975)3CL.R 108; Christodoulou ν The Republic, 1R.S.C.C. 1; Spyrou and Others v. TheRepublic
(1973)3 C.L.R.624; 20 Papaxenophontos and Others v. TheRepublic
(1982)3 C.L.R. 1037; Salem v. TheRepublic
(1985)3 C.L.R.
- Recourses. Recourses against the decision of the respondents to transfer applicants in accordance with the provisions of the Educational 25 Officers (Teaching Staff) (Appointments. Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations,
- AS. Angelides, for theapplicantsinCases Nos.724/85,845/ «Q 85 and 1000/
- 152 3 C.L.R. Vallantis and Others v. Republic A. Triantafyllides, for applicantinCaseNo. 827/
- A. Vassiliades, fortherespondents. Cur. adv. vuit. STYUANIDESJ. read thefollowingjudgment. Theapplicants 5 in these recourses are educationalists - teachers of primary education and teachers of secondary education. By means of these recourses they seek the annulmentof theirtransfers which were made onthebasisand inaccordancewith theEducational Officers (Teaching Staff) (Appointments, Postings, Transfers, 10 Promotions and Related Matters) (Amendment) Regulations, 1985, commonlyreferred toas«Regulations 71/85». Thesaid regulations were found tobe invalid by thePresident of this Court in SoteriosAnstides v. The RepublicofCyprus, throughthe EducationalService Commission,
(1986)3 C.L.R. 15 466, for thereasons statedtherein. Consequent to the aforesaid judgment the respondents on 23.4.86 «decided to recall the sub-judice» transfers and communicatedthistotheapplicantsbyletterdated 25.4.86. It is the contentionof counsel appearing for the respondents 20 thatduetotherevocation therecourses have beenabated dueto having been deprived oftheirsuoject-matter. Paragraph6ofArticle 146oftheConstitutiongiveseffect tothe general principle laid down in Article 172 that the Republic is liable «for any wrongful act or omission causing damage 25 committed in the exercice orpurported exercice of thedutiesof officers or authorities of the Republic» in respect of all matters coming within the scope of Article 1Λ6 - (Kyriakidesv. The Republic, 1R.S.C.C.66, atpp. 74-75). Paragraph 6reads:30 35 «Any person aggrieved by any decision oractdelcared to be void underparagraph 4 of thisArticle orby any omission declared thereunder that it ought not to have been made shallbeentitled,ifhis _Iaimisnotmettohissatisfaction bythe organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being grantedotherremedyandtorecoverjustand equitable 153 StytlanlcteeJ. VallantisandOther*v.Republic
(1987)damages to be assessed by the court orto begranted such otherjust and equitable remedyassuchcourtisempowered togrant.» It is well established that only a successful applicant in a - recourse seeking redressunderArticle 146ofthe Constitution is * entitledtoseekjustandequitabledamagesunderArticle146.6(See,interalia, Christodoulidesv.TheRepublic,
(1978)3C.L.R. 193;HapeshisandOthersv.TheRepublic,
(1979)3C.L.R. 550; Agrotisv.TheRepublic,
(1983)3C.L.R.1397;Kittou&Othersv. TheRepublic,
(1983)3C.L.R.605). 10 Where an act of limited duration has ceased to existwithout having produced, before ceasing to be operative, any adverse consequences for the applicant, the recourse which was made againstitisabated,becauseiftherearenoadverse consequences . of such an act no need to annul it, in view of the provisions of 15 Article 146.6, would arise - (Maliotis v. The Municipality of Nicosia,
(1965)3 C.L.R. 75, 94, 95; Vafeadesv. TheGreek CommunalChamber,
(1966)3C.L.R.197,199;Andreouv.The Republic,
(1975)3C.L.R.108,110). The revocation of the sub-judice decisions isan admission of 20 theirinvalidityatleastontheground thattheyweretaken ontha basis of invalid delegated legislation - (Christodoulou v. The Republic, 1 R.S.C.C.l; Spyrou and Others v. TheRepublic,
(1973)3 C.L.R. 624; Papaxenophontos and Others v. The RepublicofCyprus, throughtheCouncilofMinistersandOthers, 25
(1982)3C.L.R.1037). Itisnotwithin the taskorcompetence of thisCourtto inquire whether the applicants suffered any damage from the revoked decisions. This iswithin the exclusive jurisdiction of the District Court. Iam of the view that the revocation has not obliterated any adverseinjurious resultsthatthechallengeddecisionsmighthave caused to the applicants until the date of the revocation. The recourses, therefore, have not been abated due to having been deprived oftheirsubject-matter-(Salem v.TheRepublic
(1985)3 35 C.L.R.453). Onthematerialbeforemethesub-judicedecisionsarefaultyas mainly they were based on delegated legislation which isultra 154 30 3C.L.R. Valiant!·andOther·v.Republic StyUanldesJ. virestheenablingstatuteandunreasonable. Objection was taken to the recourse of applicant Marios Nicolaldes,thefirst applicant inRecourse No. 1000/85,that itis outoftime. 5 The decision thathe challengeswastaken on 238.85 andhis transfer was with effect from 1.9.85.The recourse was filed on 25.1185, well beyond the 75 days prescribed peremptorily by paragraph 3 of Article 146. His case cannot, therefore, be entertainedbytheCourtandisdoomedtofailure. 10 Forthe foregoing reasons and invirtue of paragraph 4 (b) of Article 146, the sub-judice decisions, with the exception of the case concerning applicant Marios Nicolaides, are declared null andvoidandofnoeffect whatsoever.Ineednotstressthatsucha declaration annuls an administrative act from the time of its 15 genesis. TherecourseofMariosNicolaides,applicantNo.l inCaseNo. 1000/85,isherebydismissed. Lettherebenoorderastocosts. 20 Subjudicedecisionannulled inallcasesexceptcaseNo. 1000/85whichisdismissed. Noorderastocosts. 155