clr/1987/1987_3_196.pdf

(1987)1987February13 [SAW1DES.J.) INTHE MATTEROFARTICLE 146OFTHE CONSTITUTION MAROULLA EROTOCRITOU THEMISTOCLEOUS, Applicant, v. THEREPUBLIC OFCYPRUS,THROUGH

1. THE EDUCATIONALSERVICECOMMISSION,
2. THEMINISTRYOFEDUCATION,
3. THECOUNCILOFMINISTERS, Respondents. (CaseNo. 816/85). The facts of this case aresimilar tothe facts inSanis v. The Republic

(1987)3 C.L.R. 186, that is the respondent Commission, adopting the relevantdecisionoftheCouncilofMinistersandthe recommendationsoftheMinister of Education, appointed the interested parties on contract as teachersof Chemistry, notwithstanding applicant's pnonty inaccordance withthelist, ** compiled in virtue of regulations 5 and 10 of The Educational Officers {TeachingStaff) (Appointments, Postings,Transfers, Promotionsand Related Matters) Regulations* Held, that thesubjudicedecision hastobe annulled on thesame grounds asthose expounded inSamsv.TheRepublic

(1987)3CL.R. 186. 10 Subjudice decisionannulled. No orderastocosts, Casesreferredto: Sarrisv. TheRepublic

(1987)3C.L.R. 186; PapaKynacou v. TheRepublic

(1983)3C.L.R.

1. • RegulationsSand 10weredeclaredAS.ulnawres-theenactinglawinSawa v.TheRepublic {1986)3C.LR.445 196 15 3C.L.R. ThemUtocJeon· v.Republic Recourse. Recourseagainstthedecisionoftherespondentstoappoint the interested parties on contractto the post of teacher of Chemistry inpreference and instead ofthe applicant. 5 A.S. Angelides, for the applicant. R. Vrahimi-Petridou (Mrs.), for the respondents. Cur.adv.vult. SAWIDES, J. read the following judgment. By the present recourse the applicant challenges the decision of respondent 1 to 10 appoint on contract the interested parties, namely, Georghia Kazantzi, Maria Fotsiou, Elisavet Tembriotou, Athanassia Nicolaidou and Andreas Stavrinakis to the post of teacher of Chemistry. The recourse is directed against the Educational Service Commission, respondent 1, who effected the 15 appointment, the Ministry of Education, respondent 2, and the Council of Ministers, respondent
2. Respondents 2 and 3 were added, in view of the fact that in hisprayer for relief, counsel for applicant prays also for a declaration that the direction given by respondents 2and 3torespondent 1 toappoint orre-appoint the 20 said interested parties on contract is illegal and/or in abuse of powers. The facts of the case are briefly as follows: The applicant is a graduate of Chemistry. During the years 1972-1976 she worked in private schools and as from 1978 till 25 recently she was casually employed by the Public Works Department on an hourly basis. The name of the applicant appearedunderSerialNo.10onthelistofcandidateseligibletobe appointed as teachers which was prepared by respondent 1in July, 1985, pursuant to Regulation 5 of the Educational Officers 30 (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972 (see Not.205, Third 197 S a w i d e s J. Themistocleous v. Republic

(1987)Supplement Part Ito the official Gazette of the Republic dated 10th November, 1972) as amended, in particular by the Amending (No 2) Regulations of 1974 (See Not 250/74) By its decision dated the 30th August, 1985, (the sub judice decision) the respondent Commission appointed the five - 5 interested partiesoncontractasteachersof Chemistry for apenod of three months The senal numbers of theinterested partieswere 13 14, 28, 29 and 30 respectively In fact, the said interested parties had also been appointedonyearly contractsfor theschool years 1983-1984 and 1984-1985 The applicant, as a result, filed 10 the present recourse challenging such decision The appointment of interested parties 3, 4, and 5, namely, Tembnotou, NicolaidouandStavnnakis was thesubject matterof another recourse, No940/85, Sams ν The Republic, dealt with by me, in which judgment was delivered on the 27th January, 15 1987*, whereby the decision challenged was annulled on the ground thatrespondent 1 inmaking theappointmentsinquestion failed to cany out a due inquiry and to exercise its discretion properly Thearguments advanced by bothcounsel arethesame as those 20 in Case No940/85 and I need notdeal at length with them The questions which pose for consideration are

(1)Whether respondent 1 was bound to apply the Regulations and follow the pnonty on the list of candidates for appointment which was set up maccordancewith theRegulations, and 25

(2)Whether respondent 1properly exercised itsown discretion in the matter, or whether the sub judice decision was a mere adoption of the decision of the Council of Ministers and/or the Ministerof Education These questions have been dealt with by me in Case No940/ 30 85. Sarns ν The Republic by which the same decision was challenged and Ifind it unnecessary to expound, once again, on the same matters as what Ihave said in that case apply mutatis mutandis in the present case and is fully adopted by me Iwish, however, to repeat my reference in the said case to the dicta in 35 • Reportedin11987)3CLR 186 198 3 C.L.R. Themistocleous v. Republic S a w i d e s J. Papafyriacou v. The Republic

(1983)3 C.L.R. 870 at pp.881. 882, as follows: 5 10 15 «Therefore the Council ofMinistersindecidingwhoshould be appointed exceeded their powers. Their suggestion for fillingthepostbytherenewalofexistingcontractsoughttobe disregarded bythe respondents. Farfrom disregarding them. the respondents approved the recommendation of the CouncilofMinistersinthisrespectandappointed officers who wereservingduringtheprecedingyearonacontractualbasis. 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.» Inshorttheanswertothe first question isthatrespondent 1 was bound to apply the Regulations so long as they had not been repealed ordeclared void and null byany competent court. Concerning the second question, respondent 1 instead of 20 carryingitsownenquiryand exercisingitsdiscretion inthe matter. on the basis of the relevant material before it. merely rubberstamped the decision of the Council of Ministers and the recommendations of theMinisterof Education.Therefore thesub judice decision hastobe annulled. 25 Intheresultthesubjudicedecision isannulledwithnoorder for costs. Sub judice decisionannulled. No orderastocosts. 199