(1987)1987October 6 [SAWIDES,J] INTHE MATTER OF ARTICLE 146 OFTHE CONSTITUTION CHRISTOULLA THEOPHANOUS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE EDUCATIONAL SERVICE COMMISSION,
- THE MINISTRY OF EDUCATION, Respondents. (Case No. 577/86). Educational Officers — Transfers — The Educational Officers(TeachingStaff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations1985—Reg 23
(1)— Whetherultra viiesthelaw — Question answered inthe negative — Whether the EducationalService Commission entitled'.oadopt a uniformguide and weight numencally the 5 vanous cnteriareferredtotherein—Questionansweredintheaffirmative— Reg. 14
(2)— Whether ultravires the law — Question answered in the negative. Subsidiarylegislation —Retrospectivityof—In theabsence ofaspecificauthonty in the enabling law, such legislation cannot begiven retrospectiveeffect— 10 Relianceonpasteventsforthepurpose offormulatingaprospectiveruledoes not contravene the said rule — Reg. 14
(2)of the EducationalOfficers (TeachingStaff)(Appointments,Postings, Promotions, TransfersandRelated Matters)(Amendment)Regulations,1985doesnothaveretrospectiveeffect Natural justice — No-one can be a Judge in his own cause — Transfersof 1 5 Educational Officers — Objections in respect of — Regulations giving competence todetermine objectionstotheorganthattook thedecision—Do not violatetheaforesaidruleofnaturaljustice. The applicant was serving at the material time as a teacher of French at AyiosGeorghios Gymnasium atLamaca. The respondent Commission considered the evaluation of the various critena set out in regulation 23
(1)and the weight to be attached to such critena.Asaresultitsetupaformula wherebytheimportance ofsuchcritena was weighted numerically and then duly adjusted to reflect the liability to transfer of educabonalists inthe serviceof the Republic.Onthebasisofsuch 2 5 1574 c\J 3C.L.B. Theophanott·v. Republic evaluation, a table was compiled by theΕS C of the educationalists subjec totransfer and Intheexercise of thepowers vested initunderparagraph3ο Regulation 24 Theapplicant's namewas included insuch table 5 The applicant objected to the inclusion of her name in the table ot transferable educationalists for reasons of health Herobjection was rejected on theground thatthecase was notcovered by Regulation 22(
- a)On 5 6 1986 the Commission decided totransfer the applicant from Ay GeorghiosGymnasiumLamaca toParahmniGymnasium 10 The applicant objected to such transfer on account of health and family reasons,contestingalsothecalculationofherunits On24 6 86shewasheard bytherespondentinsupportofherobjection,whichwas rejected on17 7 86 15 Hencethisrecourse Themaingroundsonwhichtheapplicantrelied were as follows (
- a)Thesystem adoptedfor the determinationof the transferability of educationalists has no sanction in law and is ultra vires the law (
- b)Regulation 14
(2), referring to the place of residence of educationalists, has retrospective effect and is therefore ultra vires the enabling law, (Law 4/85) which does not contain any provision for the making of any regulation with retrospective effect 20 25 30 35 (c) Violation of the rules of natural justice in that the applicant was not afforded the opportunity of having been heard further in support of her objection before theobjection was dismissed, andinthattheobjection ofthe applicant was decided by the same organ against the decision of which the objection was made Held,dismissing therecourse
(1)ThedecisionsinAnshdes ν TheRepubhc
(1986)3CLR 466 and Kilamotis ν 'fne Republic
(1986)3 CL R 1797 should be distinguished from the present case, because the issue in those cases concerned the validity of Reg 23
(2)* whereas this case concerns the validity of Reg 23
(1)of theaforesaid Regulations
(2)The respondent Commission was entitled to adopt the weighting system, which itadopted,of thevanous cntenareferred toinReg 23
(1)The adoption of a uniform guide in their evaluation is a safeguard to equal treatment of all educationalists in matters of transfer {Tingindou ν The Republic
(1987)3 CLR 1181 adopted)
(3)Intheabsence of specific authorisationbythestatute,theadministrative aathonty cannot give retrospective operation to the rule or otherstatutory instrument made by it This rule does not prevent the subordinate law making body from relying on past activities or events for the purpose of •Quotedatρ 1579-1580 1575 Theophanousv. Republic
(1987)formulating or enforcing a prospective rule (A passage from Basu's Commentary on theConstitutionof India,5th Ed Vol 1atρ 277 adopted) Invirtue of Reg 14
(2)* therehasbeen relianceonpast events for the purpose of formulating aprospective rule {Tingindou ν TheRepublic
(1987)3 C L R 1181 adopted) 5
(4)The facts of this case do not justify the complaint that no opportunity was given totheapplicanttoexpound thereasons of her objection
(5)There is nomenteitherinthecontentionthattherehasbeen a violation of the pnnciple that no one can be a judge in his own cause We are not dealing in the present case with a hierarchical recourse from one organ to another,butwith thedecision of oneandthesame organ which is lawbound when an objection ismade and certain facts are brought to its knowledge to consider whether such objection iswellfounded ornot 10 Recoursedismissed 15 No orderas to costs Casesreferred to Anstidesv Repub/ic
(1986)3 C LR 466, Kilamotis ν Republic
(1986)3 CLR 1797, Tingindou ν Republic
(1987)3CLR 1181 Recourse. Recourse against the decision of the respondents to transfer applicant from Lamaca toParalimni 20 AS. Angehdes, for the applicant. P. derides, for therespondents. Cur. adv vult. 25 SAWIDES J. read the following judgment. The applicant, a secondary education teacher, challenges by this recourse the validity of her transfer from Larnaca to Parahmni. The applicant was serving at the matenal time as a teacher of French atAyiosGeorghiosGymnasiumatLamaca.She ismarried 30 to an educationalist who was also serving at Lamaca, and is the mother of two children attending schools at Lamaca. As a result of the decision of the Supreme Courtin the case of Aristidesv. The Republic
(1986)3 C.L.R.466 whereby paragraph • Quotedatρ 1582 1576 3 C-L.R- Theophanousv. Republic S a w i d e s J.
(2)of Regulation 23 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters)(Amendment)Regulations 1985 was declared ultravires, the respondent E S C held two meetings onthe29th Apnl, 1986 5 and 10th May, 1986, andconsidered theevaluation of the vanous cntenaset outinrejulation 23
(1)andtheweighttobe attachedto suchcntena Asaresultitset upaformula whereby theimportance of such cntena was weighted numencally andthen duly adjusted to reflect theliability totransfer of educationalists intheserviceof 10 the Republic On the basis of such evaluation, a table was compiled by the Ε S C of the educationalists subject to transfer and intheexercise of thepowers vestedinitunderparagraph 3of Regulation 24 Theapplicant's namewas included insuch table Theapplicant objected totheinclusion of hernameinthetable 15 of transferable educationalists for reasons of health Her objection on this ground, as well as similar objections of other educationalists were considered by the respondent at its meeting of 19 5 1986 and rejected on the ground, as recorded in the minutes,thattheircases were notcovered by Regulation 22(a), in 20 that reasons of health relating to the transport of educationalists from theirplace of residence totheirplace of work donotamount by themselves to a ground for transfer under the provisions of Regulation 22(
- a)On 5 6 1986 theCommission decided totransfer theapplicant 25 from Ay Georghios Gymnasium Lamaca to Parahmni Gymnasium Theapplicantobjected tosuchtransfer onaccountof healthand family reasons, contesting also the calculation of her units On 24 6 1986 she was heard by the respondent in support of her 30 objection, which was rejected on 17 7 1986 Thereasons givenin the minutesof therespondent inwhich anumberof objections by othereducationalistswere disposed of, are as follows- 35 40 «Theophanous Chnstoula She objects to hertransfer Her transfer was decided on the basis of her senal order on the table of those transferable inaccordancewith the regulations The reasons of health which she invokes have been considered by theCommission, subsequent totheopinionof the Medical Board, thatthey do notfall within the provisions of Reg. 22(
- a)(mm 19 5 1986)» As a result the applicant filed thepresent recourse 1577 S a w t d e sJ. Theophanousv.Republic
(1987)The main grounds upon which the applicant challenges the validity of her transfer are, as expounded by her counsel, briefly the following:(a) The system adopted for the determination of the transferability of educationalists hasnosanction inlawand isultra 5 vires the law. Counsel further contended that the numerical evaluation of the criterial besides being ultra vires, hinders the properexercisebytherespondentCommission ofitsdiscretion.In expounding on his contention on ultra vires, counsel submitted that such numerical evaluation wasvested under regulation 23
(2)10 intheCouncilofMinistersand notintherespondent Commission. After the decision in Aristides case (supra) to the effect that Regulation 23
(2)isultra vires the law,the respondent could not adopt a procedure which isbased on such regulation. (b) Regulation 14
(2), referring to the place of residence of 15 educationalists, hasretrospective effect and istherefore ultravires the enabling law, (Law 4/85) which does not contain any provision for the making of any regulation with retrospective effect. In the absence of any provision in the law enabling retrospectivity, the weight to be attached to the factor «place of 20 residence»couldnothaveanybearingontheyearsofserviceprior to the enactment of such regulations butonly on years of service from then on. Insupport of hisargument that the intention of the legislator was not to give any retrospectivity in the evaluation of the «place of residence» of an educationalist counsel sought to 25 refer to the provisions of a new bill in this respect laid before the House of Representatives and the explanatory report of the objects of such bill by the Attorney-General which isannexed to thebill. Byhiswritten addressinreply counsel for applicant raised the 30 additional ground that the respondent in reaching the subjudice decision have acted in violation of the rules of natural justice in that:(a) The applicant was not afforded the opportunity of having beenheardfurther insupportofherobjection before theobjection 35 wasdismissed. (b) The objection of the applicant was decided by the same organ against the decision of which the objection wasmade. In support of his first main ground of law counsel for the applicant sought to rely, inter alia, on the / decision of 40 Triantafyllides, P. inAristidesv. The Republic
(1986)3 C.L.R. p. 1578 3 C.L.R. Theophanous v.Republic Savvtdes.J . 466 which was followed by me in Kiianiotis ν The Republic
(1986)3CLR 1797 Neither of these cases lends any assistance in the presentcaseas the questionwhicharoseinboth of them was the validity of paragraph
(2)of regulation 23 purporting to 5 empower the Council of Ministers to weigh the importance of the cntena laid down by paragraph
(1)of regulation 23 What we are concerned with in the present case is not paragraph
(2)of Regulation 23 but paragraph 1 of such regulation which provides as follows 10 «23.-
(1)Η Επιτροπή κατά τη διενέργεια των μεταθέσεων σύμφωνα με τους Κανονισμούς 19, 20 και 21 θα ακολουθεί σειρά προτεραιότητας η οποία θα καθορίζεται από τ α πιο κάτω κριτήρια: 15 (α) Τη δυσμένεια της θέσεως στην οποία είναι τοποθετημένος έναςεκπαιδευτικός λειτουργόςκαι που καθορίζεται από* (ι)την απόσταση του τόπου εργασίαςαπό την έδρα (ιι) τη χρονική περίοδο υπηρεσίας σε σχολεία εκτός έδρας 20 25 (ιιι) τον τύπο του σχολείου προκειμένου για εκπαιδευτικούς λειτουργούςδημοτικής εκπαίδευσης (ιν) τ ο αν ο τόπος εργασίας βρίσκεται σε αστική ή αγροτική περιοχή, όπως επίσης τις κλιματολογικές συνθήκες του τόπου εργασίας και τις συνθήκες συγκοινωνίας τ ο υ τόπου εργασίας μετην έδρα
(6)τα έτη υπηρεσίας που ένας εκπαιδευτικός λειτουργός υπηρέτησε σε δημόσια σχολεία της Δημοκρατίας 30 (γ) τη σύνθεση της οικογένειας ενός εκπαιδευτικού λειτουργού. The English translation of which is as follows(«23 -
(1)The Commission in effecting the transfers in accordance with Regulations 19,20 and 21 shall follow the 35 order of pnonty which will be determined by the following cntena-(a) The disadvantages of the post in which an educational officer is posted which are decided on the basis of 1579 SavvMe*J. Theophanousv.Republic
(1987)(
- i)the distance of the place of work from the place of residence; (ii)the period ofservice inschools away from the placeof residence; (iii) the type of school in cases of educational officers of elementary education; 5 (iv)whethertheplaceofworkissituatedinanurbanorrural area, as well asthe climatological conditions of the place of work andthemeansoftransportfrom theplaceofworktothe centre. (
- b)The years of service that an educational officer has served inpublicschoolsof the Republic. (c)Thecompositionofthefamilyofaneducational officer).» The question of thevalidityof the numerical evaluation bythe E.S.C. of the criteria laid down by Regulation 23
(1)was 15 considered recently byPikis,J. inthe case of OlgaTingindou v. TheRepublic(l987)3C.L.R. 1181.Usefulreferencemaybemade tothe following opinion inthesaidjudgment atpp. 1186-1187:«The criteria laid down by Reg. 23
(1)are objective in the sense thattheyrelatemainlytoverifiable factorsapplicableto 20 all educationalists. It can be validly presumed that the legislature intended to make the transfer of educationalists subject to objective criteria in the interest of uniformity of treatment;asalutaryobjectiveitmustbeaddedmoresoaswe are concerned with a branch of the public service with 25 thousands of officers. The importance of the various factors and their interaction is rightly left to the discretion of the competent authority.Asthelawstands,itisverymuch forthe respondentstoevaluatethesecriteriaandattachtothemsuch importance asthedeterminingfactorsfortransfer astheymay 30 deem appropriate inthe light of the needsof the service and their experience in that area. The first question I must ask myself is whether it would be incompetent for the respondents to adopt the weighting system they did for the determination of an individual application for transfer. My 35 answer isunhesitatingly no;the lawleavesthe applicationof the relevant criteria to the respondents including power to evaluate their impact as they may judge appropriate. Is the 1580 *" 3 C.L.R. Theophanous v.Republic S a w l d e s J. systeminvalidatedbecauseofthegeneralityofitsapplication? Inthefirstplace,the legislatureintended thattransfers should be made on the basis of objective considerations. Secondly and more importantly, unifonnity of treatment of the 5 employees of the Administration is not only a desirable objective but in the case of Cyprus a mandatory one inview of the provisions of Art. 28.1. of the Constitution. The adoption of a uniform code for the determination of the liability of educationalists to transfer, in accordance with the 10 criteria laid down bythe law,wasnotonlypermissiblebut,in myjudgment, salutarytoo.Adherence toapreordained code closes the door to favouritism and just as importantly to a semblance of favouritism, equally damaging to the image of the Administration and faith in its impartiality. Ifthe weight 15 attached to the criteria provided by law was unreasonable, any decision founded thereon might be vulnerable to be set aside on that account. No such suggestion was made in this case nor does the system evolved appear to me in any way unreasonable or irrelevant to the needs of the educational 20 service.» Isharetheaboveviewsand Iadoptthemforthepurposespf the presentcase. Ifind that the adoption of a uniform guide inthe evaluation of thevariouscriteriasetoutinRegulation23
(1)onthebasisofwhich 25 the preparation of tables determining the transferability of educationalists was made isa safeguard to equal treatment ofall educationalists inmattersof transfer. In the result the submission of counsel for applicant that the adoption ofauniform systemfortheevaluation ofthe importance 30 ofthe criterialaiddown inRegulation23
(1)isoutsidetheambitof the enabling law fails. Also the submission that the adoption of such system deprives the respondent Commission from the free exercise of itsdiscretion cannotbe maintained. UnderRegulation 22(a)health reasonsofan educationalist ormembersofhisfamily 35 aregroundstobe taken intoconsideration and there isnothingin theregulations deprivingthe E.S.C.when dealingwitha genuine objection against a transfer to exercise itsdiscretion in modifying itsdecision bytaking into consideration the exceptional personal circumstancesofanobjector subject howevertotheprevalenceof 40 the needsoftheservice and the principle of equal treatment. 1581 SawldesJ. Theophanousv.Republic
(1987)Ishall nextdealwiththeothermaingroundraised by counsel for applicantthatRegulation 14
(2)is ultravirestheenabling law asit gives retrospective effect to the provisions contained therein. Regulation 14
(2)provides as follows:«
(2)Σαν έδρα των εκπαιδευτικών λειτουργών κατά τ η 5 διάρκεια των ετών υπηρεσίας τους πριν α π ό την εφαρμογή των Κανονισμών αυτών, θα θεωρείται η μόνιμη κατοικία που είχαν κατά τ α έτη αυτά. Η διαπί στωση τηςμόνιμηςκατοικίας θα γίνεται απότην αρμό δια αρχή μετά από έρευνα τ ο υ περιεχομένου δηλώσεως 10 των ενδιαφερομένων εκπαιδευτικών λειτουργών που θα πρέπει να υποβληθεί μέσα σε δυο μήνες μετά από την έναρξη τηςισχύοςτων Κανονισμώναυτών: Νοείται ότι υπηρεσία σε δημόσια σχολεία της Δημοκρατίας στη διάρκεια των σχολικών ετών 1974-76 15 εκτοπισθέντος εκπαιδευτικού λειτουργού που κατείχε θέση στη δημόσια εκπαιδευτική υπηρεσία στις 20 Ιουλίου, 1974θαθεωρείται ως υπηρεσίαεκτός έδρας.» The English translation isas follows:(«As place of residence of the educational officers during 20 their years of service before the application of these Regulations will be considered theirpermanenthome which they had during those years. The ascertainment of the permanent home will be made by the appropriate authority after an inquiry in the contents of the statement of the 25 educational officers concerned which must be submitted within two months from the coming into force of these Regulations: Provided that service in public schools of the Republic during the school years 1974-1976 by a displaced 30 educational officer who possessed a post in the public educational service onthe*20th July, 1974 willbe considered as service away from theplace of residence)». The answer to this question may be found in Basu's Commentary on the Constitutionof India,5thEd.Vol. 1inwhich 35 at p. 277 we read the following:«What ismeantbythisruleisthat,intheabsence of specific authorisation by the statute, the administrative authority cannot give retrospective operation to the rule or other 1582 3 C.L.R. Theophanous v.Republic S a w l d e s J. statutory instrument made by it. It does not prevent the subordinate law-making body from relying on past activities or events for the purpose of formulating or enforcing a prospective rule.» 5 Useful reference inthisrespectmaybemadetothejudgmentin Tingindou case(supra) asfollows:«Thefirst wasthat Reg. 14
(2)isultra viresthe enabling law inthat contrary tothe provisions ofthestatute aretrospective legislative measure was enacted thereby. Retrospectivity 10 derives, as counsel submitted, from the fact that the seat of educationalists is discerned by reference to events that occurred prior to the enactment of the law. This is, with respect, a fallacious understanding of the principle of retrospectivity. A law is not made retrospective merely 15 because its application is made dependent on past events. The law becomes retrospective only if it upsets rights that crystalysed and vested underthe lawbefore theenactmentof the impugned legislation. Ifind this ground to be devoid of meritand assuch itisdismissed.» 20 In the circumstances of the present case I have come to the conclusion that reliance on past events was clearly made for the purpose offormulating orenforcing aprospective ruleandassuch Regulation 14
(2)isnotultraviresthe enablinglawand itdoesnot violate the principle of non retrospectivity. Therefore, the 25 submission of counsel for applicant inthisrespect also fails. Before concluding on this issue, I wish to mention that the lengthy argument advanced by counsel for applicant on a Bill introduced for enactment into law by the House of Representatives and the reasons and objeccts given by the 30 Attoreny-General for theintrodution ofsuchbill,isboth irrelevant and inadmissible. Such bill was a matter for future consideration by the House of Representatives and, therefore, a matter of speculation and notamatterwhichcouldhaveanybearingonthe application of the existing legislation at the time when the sub 35 judice decision wastaken. Finally, I shall deal briefly with the additional ground raised by counselforapplicantinhisaddressinreply,thatoftheviolationof the rulesof naturaljustice. I find no meritinsuch contention. In the present case the applicant besides filing a written 40 objection and giving her reasons in support thereof, was also 1583 S a w l d e s J. Theophanous v.Republic
(1987)afforded the opportunity toattendthemeeting ofthe respondent Commission forthe examination ofobjections and make her oral representations. Ifind no merit either inthe contention ofcounsel for applicant thatbythe determination oftheapplicant's objection bythesame 5 organ which took the original decision there hasbeen aviolation of the principle that noone can be a judge inhisown cause.We are not dealing in the present case with a hierarchical recourse from one organ but withthe decision of one and the same organ whichislawbound whenanobjection ismadeandcertainfactsare 10 brought to its knowledge to consider whether such objection is wellfounded or not. Before concluding Iwish to mention that in view of the result reached asabove, Ifind itunnecessary todealwiththe objection raised bycounsel fortherespondentsinhiswrittenaddressthatin 15 view of the fact that subsequently tothesubjudicedecision, and more particularly on 22.8.1986, the applicant requested the respondentCommissionthatifhertransfertoParahmnicould not be reconsidered her husband be also transferred there. This, in counsel'ssubmission,amountstoanunconditionalacceptanceby 20 theapplicant of the decision for hertransfer andhasdeprived her of any legitimate interest to challenge the sub judice decision. There isno material before me insupport ofsuch objection asto what exactly transpired between applicant and respondent and what werethecircumstances surrounding thealleged acceptance 25 of the sub judice act which would enable me todecide that such acceptance, ifany,wasafree and voluntary one. For all the above reasons this recourse fails and is hereby lismissed. ItiswithgreatreluctancethatIdecided nottomake an wderfor costs. Recourse dismissed. No orderasto costs. 1584 30