(1987)l987Januaiy27 [SAWIDES,J ] INTHE MATTER O FARTICLE 146 O FTHE CONSTITUTION GEORGHIOS S. SARRIS. Applicant, v. THE REPUBLIC OF CYPRUS, AND/OR THE EDUCATIONAL SERVICE COMMISSION, Respondent. (Case No.940/85). Delegated Legislation—Once enacted by a competent organ, theadministration should comply withit, untilitisrepealedordeclaredbytheCourttobe«u/ira vires*.—Thus, notwithstanding thatregulations5and 10of TheEducational Officers(TeachingStaff)(Appointments,Postings,Transfers, Promotionsand Related Matters)Regulations. 1972weredeclaredbythisCourt,afterthesub 5 judice decision wastaken,asultra vires, therespondent Commission wasnot entitled toignoie thepnority listcompiled by virtueofthesaidregulations5 and
- Administrative Law—Discretion of administration—Respondent Commission failedtoexerciseitsown discretion butmerelyadopted decisionofCouncilof ^ Ministersand recommendations of Minister of Education—It thus took into consideration extraneous matters—Exercise of discretion defective—Sub judtce decisionannulled. Applicant's name wasplaced undersenal number 20 onthe prioritylistof candidates for appointment as teacher of Chemistry, which had been 1 5 compiled inaccordancewithregulations5and 10ofTheEducational Officers (TeachingStaff) (Appointments,Postings,Transfers,Promotionsand Related Matters) Regulations, 1972.The three interested parties were placed on the same listunder senal numbers28, 29and
- On 28 85 the Council of Ministerdecided thatwithcertain exceptionsthe 2 0 same officers as those serving during 1984-1985 should be appointed on contract for a period of three months. When the said decision was communicated totherespondentCommissionbytheDirector-Generalofthe MinistryofEducation,theChairmanoftheCommission wrotetotheMinister, conveyingthe viewsofthe Commission andrequestingthat«thereshouldbe 2 5 a clear written recommendation on thesubject». The Ministerrepliedthat«it is my suggestion that a three months contract be offered to those 186 3 C.LR. Sarris v. Republic educationalistswhohadbeen serving oncontractduringtheyear 1984-1985 In the meantime a relevant Bill will be placed before the House of Representatives for the regulation of thematterby law». 3 10 15 20 25 30 On 30.8.85 theCommission after referring tothesaid letterof Ihe Minister reconsideredthematterandappointedagain oncontractforapenodofthree months various educationalists, among whom were the three interested parties,who hadserved on contractduring 1984-
- As a result the applicant, who was not among those appointed, filed the present recourse It should be noted that some time after the sub judice decisionwas takenthesaidregulations5and 10were declaredas«ultravires» of theenacting law in Sawa ν TheRepublic
(1986)3 C.L.R 445. The following two questions were formulated for determinationby the Court: (a)Whether theorderof pnontyinthelistinquestioncouldhave been ignored bytherespondent,and(b)Whether thesubjudicedecisionwastaken in the exercise of the respondents' own discretion orwhether itwas a mere adoption of the decision of the Council of Ministers and/or the Ministerof Education Held,annullingthesub judicedecision
(1)Once legilsation ofa delegated naturehasbeenenactedbythecompetentorgan,anadministrativeorganhas to comply with ituntil itis repealed or untilit is found tobe «ultra vires»by a Judicial decision (Psara-Kronidou v. TheRepublic
(1985)3 C.L.R.1900and KouisandOthersv. The Republic
(1986)3 C.LR 1874 adopted) As inthis case the said regulations 5 and 10 were declared «ultra vires» after the sub judice decision was taken,the Commission was not entitledto ignorethem. when ittooksuch decision
(2)From the material placed before the Court no doubt is left that the respondents did not exercise their own discretion in the matter,but merely acted in compliance with the decision of the Council of Ministers and the recommendationsoftheMinisterof Education.ItfollowsthattheCommission relied on extraneous considerations and failed to exercise its discretion properly. Subjudice decisionannulled. No orderas tocosts Casesreferredto: 35 Sawa v. TheRepublic
(1986)3 C.L.R.445; Psara · Kronidouv. TheRepublic
(1985)3 C.L.R. 1900; KouisandOthersv. TheRepublic
(1986)3 C,L R. 1874; 187 San-is v. Republic
(1987)PapaKyriacouν The Republic
(1983)3 C.L.R.
- Recourse. Recourseagainst thedecision of therespondenttoappointthe interested partiestothepostof Teacherof Chemistry on contract inpreference and instead oftheapplicant. 5 A S . Angelides with L. Sarris, fortheapplicant. /?. Vrahimi -Petridou (Mrs.),fortherespondent. Cur, adv. vult SAW1DES J. read the following judgment. By the present recourse theapplicantprays for thefollowingrelief; 10 (a)AdeclarationoftheCourtthattheactand/ordecision ofthe respondent published in thedaily press on 1.9.85,whereby the interested parties, namely, Tembriotou Elisavet, Stavrinakis Andreas and NicolaidouAthanasia were appointedtothepostof Teacher of Chemistry oncontractis nullandvoid andof nolegal 15 effect. (b) A declaration that the refusal and/or omission of the respondents to appoint the applicant to the post of Teacher of Chemistry, in spite of his priority on the list of candidates for appointment,is nullandvoid and of nolegal effect. 20 Thefacts of thecase areas follows: Theapplicantisagraduate oftheMetsovion NationalTechnical University of Athens inChemical Engineering, having graduated in 1973 and his nameappears underserial number20 onthelist of candidates for appointment as teachers of Chemistry. By its 25 decisiondatedthe30thAugust,1986 (thesubjudice decision)the respondentCommissionappointedthethreeinterestedpartieson contract as Teachers of Chemistry for a period of threemonths. The serial number of the interested parties were 28, 30 and 29 respectively. In fact, the said interested parties had also been 30 appointedonyearly contractsfortheschoolyears 1983-1984and 1984-
- The applicant challenged also their previous appointmentsbyrecoursesNos424/83 and456/84whicharestill pendingbefore thecourt.Theapplicantfiledthepresentrecourse challenging the sub judice decision and contending that the 35 respondent Commission by failing to appoint him instead of the 188 3 C.L.R. Sarris v. Republic S a w l d e s J. interestedpartiesactedinviolationofthelawandtheregulations. Fromthe written addresses of both parties, twolegal questions pose for consideration.
(1)Whether the order ofpriority on the listof candidates set up 5 in accordance with the regulations, Gouldhave been ignored by the respondent.
(2)Whether the decision ofthe respondent wasproperly taken inthepresentcaseintheexerciseofitsown discretionorwhether it was a mere adoption of a decision of the Council of Ministers 10 and/or the Minister of Education. Counsel for applicant in dealing with the first question submitted that according to the Regulations, The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972, a list ot 15 candidates for appointment isset up in order of prionty and the appointrfients have tobe made inthe order appearing on thelist. Counsel further submitted thattherespondentwasbound bysuch regulations and could notactinanyotherway, irrespective ofthe factthatitmighthavetheopinionthatsuch regulationswere ultra 20 vires or unreasonable and itshould continue so to act until such regulations were either repealed or declared as invalid by a competent court. In advancing his argument on this issue he submitted thatthedecision ofthisCourt inEfstathiosSawa v. The Republic (Case No.361/83 in which judgment was delivered on 2$ the 8th March, 1986)*, by which the said regulations were declared void for unreasonableness and consequently ultravires, wasdelivered after thesubjudicedecision andatthematerialtime the respondent wasbound toabide bythe Regulations. In arguing the second question, counsel submitted that in the 30 presentcasethedecisionforthecontractualappointmentofthose whohadalreadybeen soappointed duringthepreviousyearswas taken by the Council of Ministers and was communicated to the respondent through the Ministerof Education whosuggested that appointment should be offered to those already serving on 35 contract. The respondent, therefore, in taking the sub judice decision acted onextraneous considerations and infactinsteadof exercising its own discretion on the basis of the Regulations, *Reportedm
(1986)3C.LR 445 139 SawideaJ . Sarris v. Republic
(1987)adopted and gave effect to the suggestion of the Minister of Education. Counsel for the respondent, on the other hand, submitted that the respondent in this case did not act on the basis of the Regulations which were ultimately found by the court as unreasonable and ultra viresinthe case of Sawa v.Republic but 5 proceeded to select those who in its opinion were the most suitable candidates and that had the respondent followed the procedure contemplated by the Regulations its decision would have been annulled on the basis of the above decision. Counsel further added that the respondent in dealing with the said 10 appointments, acted on thebasisofallthematerialbefore itwhich consisted of
(1)the decisionsoftheCouncilofMinisters dated 20.5.85and 2.8.85.
(2)A letter from the Director-General of the Ministry of 15 Education dated the 26th August, 1985.
(3)Aletter from the Ministerdated the29th August, 1985.
(4)The relevant lawsand regulations. Thedecision oftheCouncilofMinisters,counselsubmitted, was properly taken in accordance with section 27 of Law 10/69.The 20 decision of the Council of Ministersand the lettersof the Ministry and the Minister to the respondent, clearly indicated that the Council ofMinistersdidnottakeafinaldecisiononthematter, and the letter of the Minister ismerely an expression ofopinion to the respondent. The respondent did not in any way consider itself 25 bound by the opinion of the Minister and this is clear from the minutes of the meeting of 30.8.85 when the subjudice decision was taken. Counsel in concluding his argument submitted that from the material which is before the court, the respondent Commission 30 took a decision to offer new contracts of three months duration and it appears nowhere in the decision that it was a renewal of existing contracts which is mentioned in the decision of the Council of Ministers and the letter of the Minister. Under the provisions of the Educational Officers (Teaching 190 35 3C.L.R. Sarrie v. Republic SawidesJ. Staff) (Appointments, Postings, Transfers, Promotions and RelatedMatters)Regulations, 1972published inthe official Gazetteof the 10th November, 1972,Supplement No.3,Part I,Not.205, as amended by the Educational Officers (Teaching Staff) 5 (Appointments etc.) (Amendment No.2) Regulations, 1974, published in the official Gazette of the 20th September, 1974, Supplement No.3Part I,Not.250,and inparticular Regulations 5 and 10.provision ismade for the setting up of a listof priorityof candidatesforappointmentandappointmentsshouldbemadeon the basis of the order of priority as appearing on the listof those n eligibletobe appointed. ThevalidityofsuchRegulationswasconsideredbythiscourtin the recent case of Sawa v. The Republic
(1986)3 C.L.R.445in whichthe Court found such regulations as ultraviresthe law and 15 also as void for unreasonableness. Triantafyilides, P. in his judgment atpp.448,449had thistosay: 20 25 30 35 «InthelightofthesubmissionsofthepartiesIhave carefully considered theissue of ultra viresof the relevant provisions of the aforesaid Regulations and I have reached the conclusion that the said provisions and, in particular, regulations 5 and 10 and the Appendix thereto, especially when applied together, are ultra vires Law 10/69, and, particularly, sections 28 and 76, thereof, because the said section 28 of Law 10/69 enumerates exhaustively the prerequisites for appointment and section 76, under which the Regulations in question were made, does not empower theaddition ofthefurther prerequisitethatthe educationalists to be appointed should have priority for this purpose in accordance withalistofthoseeligibletobeappointed, which isprepared onthebasisofthecriteriasetout inthe Appendix tosuch Regulations Iam, furthermore, of the opinion that the aforementioned provisionsoftheRegulationsinquestion,and,inparticular,of the Appendix thereto, are void for unreasonableness, and, consequently, ultra vires, because they introduce some unreasonable criteria of priority for appointment which are clearly entirely incompatible with the paramount object of appointingthemostsuitablecandidates (see,interalia,inthis respect, Avraam v. The Municipality of Morphou,
(1970)2 191 SawidesJ. Sarrls v. Republic
(1987)C L R 165, and Angehdes ν The Republic,
(1982)3 C L R 774)» The sub judice decision was pnor to the above decision in the Sawa case With regard to the question whether the respondent coyld, in the absence of any decision of the Court on its own 5 motion, consider the Regulations as ultra vires and refrain from acting upon them,in the case of Psara-Kronidou ν The Republic
(1985)3 C L R 1900, at ρ 1903. Lons. J expressed the following opinion «Ihold theview thattherespondentCommission couldnot 10 disregard the Regulations in question which have never been repealed or declared unconstitutional or 'ultra vires' the enabling Law These regulations are in effect legislation of a delegated natureenactedbytheCouncilofMinisterspursuant to the provisions of s 76 of the Public Educational Service 15 Law of 1969 (Law 10/69) and as stated by the learned President of this Courtin the case of Kapsou ν The Republic
(1983)3 C L R 1336 at ρ 1341 'Once such legislation was made by the competentorgan, in this case by the Councilof Ministers, such legislation has to be complied with until it is 20 repealed by the Council of Ministers or until itis found to be 'Ultravires' by a judicial decision (see in thisrespect, inter aha, Tsoutsos on the Administration and the Law
(1979)p p 4 1 , 88, 89, 99, 116, Manual of Administrative Law by Spiliotopoulos
(1977)ρ 79 et seq ,and Delikostopoulos on 25 Administrative Law Vol A
(1972)ρ 47etseq)» Thesame view was also expressed by meinthecase of Kouis& Others ν Republic, Cases Nos 34/85 etc judgment delivered on 25 9 86, still unreported)* In view of the above I find thatthisground of law succeeds, but 30 Iwill proceed to consider theotherground as well Relevant in this respect is the decision of the Full Bench in PapaKynacou ν The Republic
(1983)3 C LR 870, in which the appeal against the dismissal of the recourse of the applicant was allowed Hadjianastassiou, J in delivenng the judgment of the 35 Court, had this to say at pp 881 -882 •Reportcdm
(1986)3CLR 1874 192 3 C.L.R. 5 10 Sarris v. Republic Sawldes J •Therefore the Council ofMinistersindecidingwho should be appointed exceeded their powers. Their suggestion for fillingthepastbytherenewal ofexistingcontractsoughttobe disregarded bythe respondents. Farfrom disregarding them, the respondents approved the recommendation of the CouncilofMinistersinthisrespectandappointed officers who wereservingduringtheprecedingyearonacontractual basis. They acted contrary to the provisions of the law, notably s.5(l), making them in the absence of provision to the contrary the sole judges of who should be appointed. This duty they failed to carry out completely. They failed to exercise any discretion in the matter. They merely rubber stamped the decision of the Council of Ministers.» The question to be decided is whether the decision of the 15 respondent was properly taken, in the proper exercise of its discretionary power, orwhether itwastaken merely togive effect to the decision of the Council of Ministers and the recommendation of the Minister of Education. Forthepurpose ofanswering thisquestion, Ifind itnecessary to 20 make reference tothe material before me and alsotothe minutes of the meeting of the respondent Commission at which the sub judice decision was taken. The Council ofMinistersatitsmeeting ofthe2ndAugust, 1985, decided that the same number of educational officers as those 25 serving during 1984-1985, with the exception of those appointed asreplacements and wivesof Greek Officers forwhom a separate decision was taken, should be appointed on contract fora period of three months. Such decision was communicated by the Director-General of the Ministry of Education to the respondent OQ Commission by letter dated the26th August, 1985: As a result of such letter, the Chairman of the^Respondent Commission wrote a letter, on the 29th August, 1985, to the Ministerof Education the contents of which read as follows: 35 'Subject: Appointments of educationalists on contract for the needs of schools of Secondary/Technical and Elementary education. Iwish to refer to the documents of the Ministry of 193 Sawides J. San-is v. Republic
(1987)Education dated 26 8 85 and 2 8 8 85 (photocopies of which are attached) in connection with the above subject and to convey to you the views of the Commission If the intention of the Ministry of Education is the 5 appointment of the educationalists who were serving on contract dunng the school year 1984-1985, we request that there should be a clear wntten recommendation on this matter Otherwise, the Educational Service Commission is bound in accordance with the existing legislation and beanng in mind a recent decision of the Supreme Court to proceed to the appointment on contract of those entitled on thebasisof the listof those eligible for appointment 10 15 We request tohave your reply as soon as possible in view of the fact that Secondary Education schools c o m m e n c e their work on 2 9 1985 » The Minister of Education by his letter dated the 29th August, 1985, replied to the respondent as follows «I refer to your letter dated 29 8 1985 and you are requested to note that,in connection with the decision of the Council of Ministers on the subject of appointments of educationalists on contract, it is my suggestion that a three months contract be offered to those educationalists who had been serving on contract dunng the year 1984-85 (with the exception of replacements) Λρ, «'5 In the meantime a relevant bill will be placed before the House of Representatives for the regulation of the matter by law» The respondent met on 30 8 1985 and took the sub judice decision In the relevant minutes we read the following «In view of the document of the Minister of Education No 197/69/3 dated 29/8/85, by which he informs the Commission that within a p e n o d of three months a Billwillbe 3 5 submitted to the House of Representatives for the regulation of the question of appointments on contract by law, the 194 30 3 C.L.R. Sarris v. Republic Savvides J. Commission reconsiders the matter (see minutes 29/8/85) and for the purpose of avoiding any obstacle which may be caused tosuch arrangement andinordertoface, ontheother hand, the immediate educational needs, decides, for the purpose of supplementing theneeds of the schools with the commencement of thenew school year, toselect on thebasis of all relevant matters and appoint again on contract for a penod of three months only, that is, from 1 9 85 - 30/11/85 the under-mentionededucationalists » 10 And the names of the persons appointed follow Inthe circumstances of the present case and on thebasisof the matenal before me,beanng inmindthecorrespondence between the Chairman of therespondent Commission andtheMinisterof Education and in particular the letter of the Chairman dated the 15 29th August, 1985 requesting «a clear written recommendation» from the Minister otherwise the ΕS C would be bound to actin accordance with the existing legislation and the reply of theMi nister theretothatitwas his recommendationthata threemonths contract should be offered to all educationalists who had been 20 serving dunng the school year 1984-1985, on the basis of which the respondent, according to its minutes took the sub judice decision, no doubt is left mmy mind that the respondent did not exercise any discretion in the matter but merely acted m compliance with the decision of the Council of Ministers and the 25 recommendations of the Minister of Education The respondent should have earned its own inquiry in the matter on the basisof the relevant matenal before it instead of rubber-stamping the decision of the Council of Ministers and the recommendationsof the Minister of Education In taking its decision the respondent 30 relied on extraneous considerations and failed to exercise its discretion properly Therefore, the sub judice decision has to be annulled on this pointas well intheresult,thesubjudice decision isannulledwithnoorder for costs 35 Sub judice decisionannulled No orderas to costs 195