(1987)1987 September 17 tSAWIDES J ] IN THEMATTER OFARTICLE 146 OFTHECONSTITUTION CHRYSOSTOMOS Ρ ROUSSIS ANDOTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, Respondent (CasesNos 411, 412, 413, 434, 443, 519 520, 668, 679, 685, 686, 687, 695/84) Recourse forannulment—Practice—Same administrativeactchallengedby two recourses filed by the same applicant— Dismissal of second recourse as regards interested parties who arethe same as the interestedparties of the firstrecourse Educational Officers — Appointments/Promotions — Request for filling of vacanciesexistingatthetimeofsuchrequest aswellasofvacanciesexpected tooccur byreasonofimpendingpromotions— Whethersuchcourse can be followed—In thecircumstances, thequestionisansweredmtheaffirmative 5 EducationalOfficers— Promotions— Qualifications — Additional qualifications envisaged asanadvantageinthescheme ofservice—Specialreasonsshould 10 begiven fordisregardingthem EducationalOfficers — Appointments/Promotions — Firsf entryand promotion post — Decision to fillvacanciesfrom within the service — Once such decision was taken the Commission had to apply the three cntena (Merit, Quabficahons, Senionty) laiddown bysection35
(2)ofthePublicEducational ServiceLaw10/69,asamendedbysection 5
(6)ofLaw 53/79 15 EducationalOfficers — Promotions— Senionty — Meaningof — Doubt raised whether there wasconfusionbetween senionty andoveralllengthofservice — Ground of annulment AdministrativeLaw—General principles—Validityofadministrativeactshouldbe judged inaccordance with theposition prevailingatthetimeitwastaken to the exclusionofsubsequent events 1674 20 3C.L.R. Roussis & Others v. Republic The applicants challenge, by these recourses, the decision to promote10 the post of Assistant Headmaster in the Secondary Education, the interested parties instead of and in preference 10 them. 5 By letter dated 3rd May.
- addressed to the respondent a request was made, by the Ministry of Education, for the filling asfrom 1.9.1984 of 15 vacancies in the postofAssistant Headmaster in the Secondary Education (a first entry and promotion post) as well as 11 consequential vacancies in the same post which were to result from the filling of an equal number of vacancies in the postof Headmaster. 10 The respondent met on 7.6.1984 and after considering the applications submitted and excluding those candidates not satisfying the necessary prerequisites, proceeded to group the prevailing candidates under five categories(accordingtotheiryears ofservice,theirqualificationsand general assessment in the last two service reports). 1*5 The Commission then decided to invite the candidates included in the aforesaid categories to an interview. Finally, the Commission, after assessing the performance of the candidates at the interviews and hearing the recommendations of the Department proceeded to the selection of 22 candidates, amongst whom the interested parties, for promotion to the post of Assistant Headmaster asfrom 1.9.
- 20 Itmust be notedthatthescheme ofservice provides that.an additionaltitle of studies, with preference to Paedagogics or subjects relating to the administration and organisation of schools, is considered an additional qualification.» 25 The Court, after dismissing some of the recourses either in whole or as regards certain interested parties o n the ground that the sub judice act in earn of such recourses had also been challenged as regards the same interested partiesby another recourse by the same applicant, which was stillpending. Held,annulling thesubjudicedecision:
(1)In the presentcase none ofthe 30 applicants has been prejudicially affected by the fact that the proceduie ιοί the fillingofthe consequential vacancies hadstartedbeforethe postsbecame actually vacant. (Republic v. Pericleous and others
(1984)3 C.L.R. 577 and lordanous v. The Public Service Commission
(1985)3 C.L.R. 2502 distinguished). 35
(2)Although the posts in question were first entry and promotion posts,it isobvious fromthe subjudice decision thattherespondent decidedto fill the posts from those candidates already in the service and proceeded as in the caseofpromotions.Itfollows thattheCommission hadtoabide bythecritena laid down by Law {Section 35
(2)of Law 10/69 as amended, i.e Ment 40 Qualifications, Seniority). 1675
(1987)Roussts & Others v. Republic
(3)Thefive categonesinwhich thecandidateswere separated were based on the years of service of the candidates, their assessment in the last two service reports and their qualifications The seniority however of the candidates, does not appear to have been tak<;n into consideration in prepanng these lists and separating the candidates into the said categones Neitherdoes itappearlateron,especially intheminutesof 18 784 whenthe sub judice decision was taken,and the reasons given for selecting each one of the interested parties, whether the senionty of the candidates was duly considered as provided by the Law (4} Seniority has to be calculated as from the date the candidates were holding theirlastposts,grades orscales andnotfrom thedateof entenngthe service (see s 37 of the Law) Inthis case a doubt has been raised whether seniority in theaforesaid sense was confused inthemindsof themembersof the Commission with thelength of service
(5)Moreover certain applicants were nottreated as possessing additional qualifications ontheground thattheirpost graduate studies did notrelateto Paedagogics or School Administration Having regard tothewording of this provision anv additional title of studies should be considered an advantage, butspecial preference shouldbe given tothosepossessing titles inrelationto the sub)ects rnent-oned therein Special reasons should have been given by the respondentwhy suchadditional qualifications were disregarded 5 10 15 20 Subjudicedecisionannulled Noorderas tocosts Casesreferred to Republic ν Pencleousand Others
(1984)3 C LR 577, lordanousν PublicServiceCommission
(1985)3CLR 25 2502, Papaioannou ν Republic
(1987)3 CLR 474 Recourses. Recourses against the decision of the respondent topromote the interested parties to the.post of Assistant Headmaster in the 30 Secondary Educationinpreferenceandinsteadoftheapplicants. £ Efstathiou, for applicantinCase No. 411/
- A. S Angelides, for applicants in Cases Nos.412/84, 413/84, 434/84, 443/84,679/84,686/84, 695/
- A. Markides, for applicantsinCases Nos. 519/84 and520/
- Ch. lendes, for applicant inCase No. 685/
- 1676 35 3C.L.R. Roussls & Othersv. Republic Chr Tnantafylhdes, for applicant inCase No 668/84 R Petndou (Mrs ), for respondent Cur adv vult SAWIDES J read the following judgment The applicants 5 challenge, by these recourses, the decision of the respondent, dated 18 7 1984 to promotetothepost of Assistant Headmaster in the Secondary Education,the interested parties instead of and in preference tothem The promotion of 15 interested parties is challenged in total, 10 who, however vary from recourse to recourse The 15 interested parties are as they appear on a list drawn up by counsel for the applicants, the following 1 2 15 3 4 5 6 7 20 8 9 10 11 12 25 13 14 15 Phaedra Papacosta Elengo Rangou Elpida Hailou ElladaConstantinidou Makanos Papachnstoforou Mana Zavrou Michael Karpasitis George Theofilou Michael Yerolemou IoannisIoannides Stavros Mestanas Ekatenni HadjiDemetnou Vera Korfiotou PetrosPetrou Geoghia Mikellidou All cases were heard together as presenting common questions of law and fact 30 The facts which led to the sub judice decision are bnefly as follows All parties were serving, at the matenal time,as teachers inthe Secondary Educatr τ By letter dated the 3rd May,
- addressed tothe respondent a request was made,by the Ministry 35 of Education,for thefillingas from 19 1984 of 15vacancies in the post of Assistant Headmaster in the Secondary Education (a first entry and promotion post) as well as 11 consequential vacancies 1677 Savvides J. Roussls&Othersv. Republic
(1987)in the same post whichwere to result from the filling of an equal number of vacancies in the post of Headmaster. The vacancies were advertised in the official Gazette of the Republic on 11.5.1984 and the lastdate for submitting applications was fixed asthe26thMay, 1984.ThepromotionstothepostofHeadmaster 5 were effected on 6 6.
- The respondent met on 7.6.1984 and-after considering the applications submitted and excluding those candidates not satisfying the necessary prerequisites, proceeded to group the prevailing candidates under five categories (according to their 10 years ofservice,theirqualifications andgeneral assessment inthe last two service reports) and decided to invite them to personal interviews,heldfrom the 18thtothe25thofJune.Bylettersofthe Ministry of Education dated 16.6.1984 and 16.7.1984, the vacanciestobe finally filled were fixed to
- *^ At its meeting of 2.7.1984, the respondent assessed the performance of the candidates at the interviews and postponed further consideration of the matter. On the 18th July, 1984, after the recommendations of the Departments of Secondary and Technical Educationweresubmittedtherespondentproceededto 20 the selection of 22 candidates, amongst whom the interested parties,forpromotion tothepostofAssistantHeadmaster as from 1.9.
- The promotions were advertised in the daily press on thefollowing day,that is,the 19.7.
- Recourses Nos. 411,412, 413, 434, 443, 519 and 520 were 25 filed against the above decision. In the meantime, one of the candidatestowhompromotion wasoffered bytheabovedecision didnotacceptsuchoffer andasaresulttherespondent metagain on 31.8.1984 and decided tooffer promotion toZoe Kanthou as form 1.9.1984andtoNitsaPapadopoulou asfrom 1.10.84asMrs. 30 Kanthou was due to retire on such date. The promotions were finally advertised in the official Gazette of the Republic dated 5.10.1984 asaresultofwhichrecoursesNos. 668,679,685,686, 687and 695/84were filed. Before proceeding any further Iconsider itpertinent to clarify 35 theposition of certain oftheapplicantsintheabove recourses. Recourse No. 679/84 has been filed by six applicants, that is Andreas Papandreou, Alekos Leptos, Constantinos Yiangoullis, Andreas Georghiou, Anna Georghiou and Charalambos 1678 3C.L.R. Roussls & Others v. Republic Sawfdee J. Timotheou Twooftheabove applicantsthatisA Papandreouand C Yiangoullis had already filed recourses Nos 443 and 412/84 respectively, by which thesame administrative act is challenged also therelief sought isthesame and theinterestedparties whose 5 promotion is challenged are the same The same administrative act cannot be challenged twice by the same applicant and therefore, I consider Recourse No 679/84 as violating the pnnciple«nobisvexareproeademcausa» andI dismiss same inso far as applicants Papandreouand Yiangoullis areconcerned 10 Icome now to the position of applicant OuraniaProtopapa This applicant challenged onginally the sub judice decision by recourse No 413/84 After the publication of the sub judice promotions in the official Gazetteof the Republic on 5 10 1984, this applicant filed a new recourse, No 687/84, challenging the 15 same promotions,butwith theadditionof NitsaPapadopoulou in the list of interested parties to whom as explained earlier promotion was offered on 31 8
- as from 1 10 1984, after one of the candidatestowhom promotionwas onginally offered did not accept such offer However, by a statement filed by all 20 counsel for the applicants after the close of the heanng of the recourses which purported to eliminate the list of interested parties, the recourse against Ν Papadopoulou was withdrawn Since the remaining interested parties as well as the decision challenged arethesameasinCaseNo 413/841 considerrecourse 25 No 687/84 as futile and I therefore dismiss same accordingly Applicant Thekla loannidou first challenged the sub judice decision by recourse No 434/84 and later on when the promotionswere advertised intheofficial Gazetteof theRepublic she filed recourse No 686/84 Both recourses are directed 30 against the same decision thatof 18 7 1984 also the promotion of thesame interested party is challenged by both recourses For the same reasons as explained above 1 dismiss the second recourse of thisapplicant,thatisrecourse No 686/84 Lastly,applicantGeorghiosStavrou,ischallenging,by recourse 35 No 695/84, besides the promotion of certain of the interested parties whowere promotedby thedecision of 18 7 1984 (thesub judice decision) th" promotion of Zoe Kanthou and Nitsa Papadopoulou,whowere promotedbythedecisionof31 8 1984, as stated above Since, however, the names of these two 40 interested parties were not finally included in the common 1679 S * w i d e ·J. Rousslsft Othersv. Republic
(1987)statement of counsel for the applicants eliminating the list of the interested parties, I consider this part of the recourse as abandoned Iwillnowproceed toconsidertheissuesraised inthe recourses The arguments of counsel may be separated in two groups for 5 purposes of convenience Inthefirstgroup theremaybe included general and procedural grounds and in the second group all arguments regarding companson of the parties I shall begin with the first group The first ground tobe considered is the filling of consequential 10 vacancies As stated earlier, in the letter of the 3rd May, 1984, requesting thefilling of thevacancies, only 15 out of the26 posts to be filled were vacant on that date, the remaining being consequentialvacancies, which becameactuallyvacantonthe6th June, 1984, upon the promotion of a number of Assistant 15 Headmasters to the post of Headmaster, thatis, after the request for thefilling of thevacancies inquestion was madeandthe expiry of the last date for the submission of applications Finally, however, only22vacancies were filledby thesubjudice decision Counsel argued relying on the case of The Republic ν 20 Pencleous and others
(1984)3 CLR 577, thattherequest forthe filling of the consequential vacancies could not have been made before theposts becameactually vacant andwere advertised so as to enable other candidates who acquired the qualifications required by the scheme of service in the meantime to submit 25 applications Further,counsel argued that the promotions to the post of Headmaster which were effected on 6 6 1984, were later revoked, on 9 2 1985, and since revocation acts retrospectively the promotions of seven of the interested parties were made to postswhich were notvacantatthetimeofthesubjudice decision 30 The case of The Republic ν Pencleous (supra) sets down the date at which a candidate for appointmentor promotion should possessthequalifications required by theschemeofservice forthe post.Thusinthe case offirst entry andpromotionposts as itisthe case here, such date is the one prescnbed in the relevant 35 advertisement for thesubmission of applications Theabove case however, deals with normal and not consequential vacancies There is provision in the law thatno officer shall be promoted to any post unless a vacancy exists in such post There is no 1680 3 C-L.R. Roussis & Othersv. Republic S a w i d e sJ . piousion, however tothe effect thatthe procedure for the filling of a post cannot be started earlier although a positive provision that itcanbe so started inthe case of promotionposts which are to be vacated is to be round in Regulation 24 of the 1972 5 Regulations(nowrenumberedas Regulation23 by paragraph3of the 1985 Regulations) In the case of Iordanous ν The Public Service Commission 11985)3 CLR 2502, I annulled thepromotionof theinterested parties which was effected as a result of a consequential vacancy 10 on the ground that the applicant who did not possess the qualifications of the scheme of service at the time the request for the filling of the posts was made,but acquired them later, before the filling of the posts was made,was wrongly notconsidered for promotion 15 Thepresentcaseshouldbe differentiated bothfromthecasesof Pencleous and Iordanous (supra) The former case did not set down any rule with regard to consequential vacancies and inthe latter theapplicantwas notconsidered as qualified for promotion and thushisposition was affected In thepresent case noneofthe 20 applicants has been prejudicially affected by the fact that the procedurefor thefillingof theconsequentialvacancieshadstarted befoie theposts became actually vacant (Seealso,inthisrespect, the case of Papaloannou ν The Republic (case No 495/85, in which judgment was delivered by me on 3rd April, 1987, notyet 25 reported)* As to the part of the argument of counsel refemng to the subsequent revocation of the promotions to the post of Headmaster which were made on 6 6 1984 Ifind no ment init The validity of the sub judice decision should be judged in 30 accordancewith thepositionprevailing atthetimeitwas taken,to the exclusion of any subsequent events In any case, the promotions to the post of Headmaster were again reconsidered after theirrevocation, and effected again retrospectively, as from 6 6 1984 so that no gap was left This ground is, therefore, 35 dismissed The n^xt argument of counsel for the applicant is thatthe sub I'idice decision was based on cntena outside the Law, in that the respondent defined categones of candidates on the basis of tvtraneouscntena *Repored in
(1987)3 C LR 474 1681 a w i d e s J. Roussis& Others v.Republic
(1987)Although the posts in question were first entry and promotion tosts, it is obvious from the sub judice decision that the espondent decided tofilltheposts from those candidates already ηtheservice and proceed as inthe case of promotions. Section 35
(2)of the Law (No. 10/69) as amended by section •(b) of Law 53/79, provides that: 5 «
(2)κατά την εξέτασιν των διεκδικηαεων των εκπαιδευτικών λειτουργών προς προαγωγήν λαμβάνονται δεόντως υ π ' ό ψ ι ν ηαξία,ταπροσόντακαι η αρχαιότης συμφώνως π ρ ο ς διαδικασίαν ήτις 10 καθορίζεται.» (
(2)In considering the claims of educational officers for promotion the merit, qualifications and seniority of the candidates are duly taken into consideration in accordance with theprescribed procedure). 15 No procedure as contemplated by section 35
(2)of the law had een prescribed by the time of the sub judice decision but evertheless the respondent had toabide by thethreecriteria laid own by the Law. Having carefully considered the contents of the sub judice ecision in the light of the minutes of the meetings that led to it I /ish to make the following observations. 25 Itsismentioned intheminutesof themeeting of 7.6.1984under •aragraph (c),p. 2, that «On the basis of merit, qualifications and eniority, the Commission selects the candidates who appear in 30 ie attached appendix who are considered as prevailing». Thenfivecategories appear,based ontheyearsofserviceof the andidates, their assessment in the last two service reports and neirqualifications. The seniority however of thecandidates, does iot appear to have been taken into consideration in preparing 35 hese lists and separating the candidates intothe said categories. neither does it appear later on, especially in the minutes of L8.7.1984, when the sub judice decision was taken, and the easons given for selecting each one of the interested parties, vhether the seniority of the candidates was duly considered as 40 provided by the Law. A doubt is, therefore, raised in this respect jvhether seniority in its legal definition and length of service were :onfused in the minds of the m mbers of the respondent 1682 3 C.L.R. 5 Roussis & Others v. Republic Sawides ι Commission. Senionty has to be calculated as from the date th candidates were holding theirlast posts, grades orscales andn< from thedateof enteringtheservice (sees.37 of theLaw).Itseem from thecomparable tables thatcertainof theapplicantsaresenic tocertain of theinterested parties andallotherfactors being mor or less equal they should have been preferred onaccountof the senionty. It also appears that although certain applicants posses additionalqualifications they were nottreated aspossessingsam 10 because, as counsel for therespondentstated,their post-graduat studies did notrelate toPaedagogics orSchoolAdministration,e provided by the scheme of service. The scheme of service inthi respectprovides that«anadditionaltitleofstudies,with preferenc to Paedagogics or subjects relating to the administration an 15 organisation of schools, isconsidered anadditional qualificationHaving regard tothe wording of thisprovision any additionaltitl of studies should be considered an advantage, but specii preference should be given tothose possessingtitles inrelationt the subjects mentioned therein. Amongst the interested partie 20 there are persons who did notpossess any additional titles whil: certain of the applicants possessed such titles. In these case special reasons should have been given by the respondent wh such-additional qualifications were disregarded. For the above reasons the sub judice decision has to b 25 annulled. Having reached such conclusion I find itunnecessary toembar on the merits of each candidate compared tothe othersso asnc to prejudice the outcomeof the decision of therespondent whe re-examining the case and thusinterfere with the free exercise < 30 itsdiscretion on thematter. In the result recourse No. 679 so far as applicants / Papandreou and C. Yiangoullis are concerned, and recourse Nos.686 and687/84are dismissed. Theremainingrecourses,tha isNos.411,412,413,434,443,519,520,668,685,695aswell a 35 recourse No. 679, as far as it concerns applicants A. Leptos, A Georghiou,Anna GeorghiouandCh.Timotheousucceed andtht 1683 SawidesJ. Roussis &Othersv.Republic
(1987)subjudice decision in so far as the interested parties hereinabove referred to are concerned is hereby annulled. There will be no order for costs. Sub judice decision annulled No order as to costs. 1684 5