clr/1987/1987_3_211.pdf

(1982)3 C LR 435anditwasagaindeclaredby the sameJudge asnullandvoidin Tomansv TheRepublic

(1982)3C LR 1165 On 11582 respondent 2 promoted again theappellant tothesaidpost retrospectively asfrom 11180 Respondent 1challengedthevalidityofthis promotion anda Judgeof this Court annulled it As a resulttheinterested party inthesaidrecoursefiled thepresentanpr il Respondent 1filedacross- 211 Pepaleontiou v. Republic

(1987)appealcontendingthat theappellantwasnot eligible forpromotion,because he had not completed at least two years satisfactory service in the post of Inspector, GeneralSubjects,Elementary Education Theissueofeligibility of the appellant for promotion to the post m question had, also been raised before the tnal Judge, who, however, decided that the matter had been 5 decided, though not expressly, by Hadjianastassiou, J in the said two recoursesandwas,therefore,asfarasthepresentpartieswereconcernedres judicata The appellant was promoted to the post of Inspector General Subjects, Elementary Education on 12 77 On 178 77heleftonscholarshipto USA From 188 77-22 12 78 he took his Master's Degree and from 23 1278 he remained in U SA on Scholarship for a Ph D Degree He returned to Cyprus on 21 5 80 and actually resumed the duties of his post The Ph D degree isnot anecessary qualification for promotion tothe subjudice post .10 Counsel for respondent 1argued that «satisfactoryservice·inthe relevant scheme of service means actual performance of the duties of Inspector Counselfortheappellant andrespondent2contendedthattheappellantwas eligible for promotionandinsupportof theirargument theyinvokeddecision No 12 655 of 13 9 73 of the Council of Ministers and reg 39(1} of The Educational Officers (Teaching Staff) (Appointments Emplacements, Transfers, Promotionsand RelevantMatters) Regulations, 1972asamended by Reg 250/74 Counsel for respondent 2 referred also to reg 34 (renumbered 38) ofthesaid regulations The saiddecisionof theCouncil of Ministers provides that for the purpose of a scheme of service of a post in which certain service or experience is required, a post-graduare diploma or degree acquired after studies abroad andnotconstitutingarequiredqualification forthepost shouldbereckoned on thebasis of the required time for itsattainment, asserviceor expenence upto two years maximum Counsel for respondent 1argued that the said decisionisnotapplicabletothepresentcase,becauseanInspector.General Subjects, Elementary Education is not «a public officer· as defined in the Public Service Law 33/67 Reg 39 provides that the penod of post-graduate studies or other postgraduate education abroad uptotwoyearsinasubjectrelevanttotheduties oftheeducationalofficer is reckoned asserviceorexpenenceinasubject for thepurposeof theschemeof serviceofanypostforwhichacertainperiodof service or expenence is required Regulation 34 provides that asservice or educational service for purposes of promotion, according to the approved scheme of service, istaken into consideration thepenodwhich byvirtue of the relevant regulations,isrecognised for the purpose of increments unless otherwiseisprovidedintheschemeofserviceorintheregulations Dunngthe penodofhispostgraduatestudiestheappellantwasreceivinghtsincrements 212 15 20 25 30 35 40 3 C.L.R. Papaleontiou v. Republic Held, allowingthe appealand dismissingthe cross-appeal

(1)Thereisno need to delve upon the issue of res judicata in administrative law because Judge Hadjianastassiou had not decided or expressed any opinion on the matterof appellant's qualifications 5 10 15 •-" 25 30

(2)Neitherthe postof Inspectornorthe subjudicepostarewithin the ambit of«public service· or«public officer» asdefined inLaw 33/67 and«Inspector» is not«teaching staff» or «educational officer» as these two expressions are defined in the said regulations Itfollows that the post of Inspector is not covered byeitherthe aforesaid decisionof the Councilof Ministersorthe said regulations Nevertheless, respondent2could rely on thesaid regulations by way ofguidance Theregulationsregulatepostswithclose affinity tothe post ofInspector Itwasopentorespondent2tofollow the rulescontainedtherein, though notboundby them ThisCourtdoes not interfere inacase inwhich the interpretationandapplicationof aschemeof service was resonablyopen to the appointing Authonty in the particular circumstances «Service· and «satisfactory service» could not be limited to actual service and exclude a person who is on scholarship abroad toenhancehis knowledge in orderto render betterservicestotheeducationof the country

(3)After annulmentof a promotiontheAdministration hasto make a new inquiry, to make a duly reasoned companson of the candidatesconcerned and reachanewdecisiononthe basisof the factualandlegalsituationexisting at thetimetheannulleddecisionwas taken,thoughitisnotboundtobasethe newdecisionexclusivelyonthefactsand circumstancesonwhichtheonginal decision wastaken

(4)The tnalJudge wrongly found thatrespondent 2 was precluded from selecting the appellant, whose first promotion had been annulled by Hadjianastassiou, J for lack of due inquiry, lack of reasoning and failure to takeintoconsiderationmatenal factors

(5)Respondent 2 amved at the sub judice decision after a thorough investigation, taking all relevant mattersinto consideration its decision was duly reasoned It was reasonably open to respondent 2 This Court as an administrative Courtdoes notinterfere with a decision which,inaccordance withthelaw applicable andthefacts of thecase, was reasonably opentothe appointingauthonty «35 Appealallowed Cross-appealdismissed Casesreferredto Papapetrouv TheRepublic.2 RS C C 61 Josephides ν TheRepublic 2 R S CC 72 213 Papaleontlou v. Republic

(1987)Petsas ν The Republic, 3R S C C 60, Neophytou'v The Republic, 1964 C L R 280 Georghiadesv The Republic,

(1966)3 C LR 827, Georghiades ν The Republic

(1967)3 C L R 653 Tryfonv TheRepublic

(1968)3 C L R 28. 5 The Republic ν Aivaliotis

(1971)3 C L R 89 Paraskevopoulhu ν TheRepublic {1971) 3 C L R 426 Piendesv The Cyprus BroadcastingCorporation

(1972)3 C L R 149 Lambrakisv TheRepublic

(1973)3 C L R 29, Ktondesv The Republic

(1973)3 C L R 171 Kynacouv The Republic 11975)3 CLR 10 37, Skarpansv The Republic

(1978)3 C L R 106, Andreou ν The Republic

(1979)3 C L R 379, Styhanou ν The Public Service Commission

(1980)3 C L R 11 Sotenou ν The Republic

(1980)3 C L R 237 Kolokotronisv 15 The Republic

(1980)3 C L R 418, Larkosv The Republic

(1982)3 C L R 513. Sotenadouv The Republic

(1983)3 C L R 921. Makndesv The Republic

(1983)3 C L R 622, 2 0 Myric/es ν The Republic

(1983)3 C L R 1096. Kampounsv The Educational Service Commission

(1985)3 C L R 1165, Xmanv 77ieRepublic

(1984)3 C L R 598, Der Parthogh ν The CyprusBroadcasting Corporation

(1984)3 C L R 635 Frangoullides andAnother ν ThePublic Service Commission

(1985)3C L R 1680. 25 Constantmou ν Greek Communal Chamber 11965)3 C L R 96 Kypnamdesv The Republic {\9&&) 3 CLR 653 loanmdes and Another ν TheRepublic

(1979)3 C L R 628 214 3 C.L.R. Papaleontiou v. Republic Pratopapasv 7he/?epub/jc

(1981)3C LR 456 Chnstohdesv TheRepublic

(1985)3 CLR 1127, Chnstou ν TheRepublic, 4 RS CC 1. Georghiadesv TheRepublic

(1970)3 CLR 257 5 Georghiouν TheRepublic

(1976)3 CLR 74, Petndesv TheRepublic (\9%A) 3 C LR 341, Constantmou ν TheRepublic

(1984)3 CLR498, Efthymiouv 77ie/?epuWic

(1984)3 CLR 1171, Pipensv TheRepublic

(1984)3 C L R 1306, 10 Papadopoullosν ThePublicService Commission

(1985)3 CLR 405 TneRepublic ν Zachanades

(1986)3CLR 852 Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (Demetnades, J ) given in the 26th November, 1983 15 (Revisional Junsdiction Case No 258/82)* whereby appellant's promotion to the post of General Inspector of Elementary Education was annulled A S Angehdes, for the appellant G Tnantafylhdes, for respondent 1 20 R Petndou (Mrs),for respondent 2 C Η It TRIANTAFYLLIDES, Ρ The judgment of the Court will be delivered by Mr Justice Stylianides STYLIANIDESJ This appeal isdirected against the judgment 25 of a Judge of this Court exercising onginal revisional junsdicton whereby the promotion of the appellant by the Educational Service Commission, respondent No2, to the post of General Inspector of Elementary Education was annulled RespondentNo 1,applicantinthefirstinstanceproceedings, by 30 cross-appeal seeks the adjudication that the appellant was not eligiblefor promotiontothesaid post. •ReponedasKuragheorghisv Republic

(1983)3 CLR 1211 215 Stylianides J. Papaleontiou v. Republic

(1987)The history of this case goes back to 1980 The appellant and respondent No 1 are Inspectors of Elementary Education Request was sent to the Educational Service Commission, lespondent No 2, on 31 5 80 for the filling of a post of General Inspector Elementary Education and a further request for the 5 filling of a second same post was made on 9 9 80 On 22 10 80 they promoted Georghios Papaleontiou the appellant,and A Papadopoulos with effect 1 11 80 The promotionof Papaleontiouwas annulled by aJudge of this Court, Hadjianastassiou, J on 5th May, 1982, in Cases No371/ 10 80 and 483/80 - (See Karageorghis ν The Republic,

(1982)3 C L R 435) The same Judge in Recourse No 1/81 filed by Ioannis Κ Tomans again declared null and void the already annulled promotion of Papaleontiou and the promotion of Papadopoulos 15 •(Tomans ν The Republic)

(1982)3 C LR 1165) Shorty after the annulment of the said promotions - on 11th May, 1982 -respondent No2 promoted again the aforesaid two Inspectors to the post in question retrospectively from 1 11 80 Karageorghis by Recourse No 258/82 challenged thevalidity of 20 the decision of the promotion of Papaleontiou in preference to him Demetnades,J ,on 26 11 83 annulled thesaid promotion(Karageorghis ν The Republic,

(1983)3 C L R 1211) The interested party, Papaleontiou, being aggrieved, raised this appeal Respondent No 1, Karageorghis - applicant in the 25 recourse - cross-appealed, as above On 22 12 83, five days before the filing of this appeal, respondent No2 reconsidered the matterof the filling of the two posts of General Inspector of Elementary Education and promoted neither Papaleontiou nor Karageorghis but 30 Papadopoulos and Tomans At the commencement of the heanng of this appeal counsel appeanng for respondentNo 1raised apreliminary objection that the appeal could not be proceeded with by the appellant since, according to his contention, the decision of respondent No2, 35 which isthesubject-matter of thepresent proceedings, has ceased to be of an executory nature We overruled the objection as,inter 216 3 C.L.R. Papaleontiou v. Republic Styllanldes J. alia,iftheappealoftheappellantissuccessful andthefirstinstance judgment which has annulled his promotion is set aside, the decision topromote him,whichwastaken byrespondent No.2,as aforesaid, on the 11th May. 1982, would preserve its executory 5 nature - See Georghios Papaleontiou v. A. Karageorghis,

(1986)3C.L.R. 1233). Inthe course of the hearing counsel for the appellant objected that respondent No.l, who was the successful applicant in the recourse (No.258/82) against the outcome of which the present 10 appeal was made, cannot cross-appeal against the judgment which wasgiven inhisfavour insuch recourse. It was decided by this Court on 11.6.86 - (Papaleontiou v. Karageorghis and Another,

(1986)3 C.L.R. 1238) -that since the appellant had challenged bymeansofthisappealthefirstinstance 15 judgment, which was given in favour of respondent No.l, as the applicant in a recourse, respondent No.l is entitled to crossappeal; and, of course, counsel for the appellant may, inviewof the nature of the present proceedings, raise, too, the issue of eligibilityofrespondent No.l forpromotion tothepostof General 20 Inspector of Elementary Education. • We consider expedient to deal firstly with the cross-appeal, as, Ifitisfound that theappellant wasnoteligibleforpromotion, then the appeal failsand the decision of hispromotion isnull and void for thissole reason. 25 Itisthecontention ofrespondentNo.1 thattheappellant lacked at the material time a qualification prescnbed by the scheme of strvice, i.e. satisfactory service of at least twoyears in thepostof Inspector, General Subjects, Elementary Education. The learned trial Judge said that the possession of the 30 qualification required by the second paragraph of the scheme of service, i.e.satisfactory serviceforatleasttwoyears,was, though not expressly, decided byHadjianastassiou, J., in Karageorghisv. Educational Service Commission,

(1982)3 C.L.R.

1. In the judgment we read:35 «Thelearned trialJudge wasoftheviewthatthe interested party was eligible to be considered by the respondents as a candidateforthepost, inthathepossessedthequalificationof 'satisfactory service1,or else he (Hadjianastassiou, J.) would nothave proceeded todecidetheissueson which heruled». 40 Andproceeded:217 Papaleontiou v.Republic (19S7) «Having reached the conclusion that the issue of the eligibility of the interestedparty as acandidatetothesaid post was infact decided inhisfavour inRecourses No.371/80and 483/80, and since no appeal was filed by the applicant, the present applicant, against the judgment delivered in those Recourses on this issue, I find thatthisissueis,with regard to the present parties, a res judicata». 5 Though Judge Hadjianastassiou in his judgment made extensive reference to the argument of the parties, he did not resolve the issue of the qualifications; he did neither decide the 10 issue norexpress any opinion.We need notdelve intotheissueof resjudicata inadministrative law asthereisnojudicial decision on whether the appellant at the material time possessed the qualification of satisfactory service for at least two years, Inthesub-judice decision ofrespondentNo.2itisrecordedthat 15 all six candidates possessed the qualifications required by the scheme of service for the post of GeneralInspector. Papaleontiou was promoted to the post of Inspector,General Subjects, Elementary Education,on 1.2.77.On 17.8,77he left on scholarship toU.S.A. From 18.8.77-22.12.78hetookhisMaster's 20 Degree inEducation.From23.12.78hewas onscholarship inthe United States for a Ph. D. Degree. He remained in the United States pursuing this post-graduate degree until 21.5.80 when he returned to Cyprus and actually resumed his duties as Inspector. The Ph.D. Degree is not a necessary qualification under the 25 scheme of service. Learned counsel for respondent No. 1 submitted that the appellant did notpossess thetwo years' satisfactory service inthe previous post and in support he argued that «ευδόκιμος υπηρεσία» (satisfactory service) means actual service thatentails 30 actual performance of the duties of Inspector. According to the decision of the Councilof Ministers No. 12.655 of 13.9.73 f<->rthe purpose of scheme of service of a post in which certainservice or experience is required, a post-graduate diploma or degree acquired by a public officer after studies abroad and not 35 constituting a required qualification for the post, should be reckoned, on the basis of the required time for its attainment,as service or experience upto two years maximum. Counsel submitted thatthisdecision isnotapplicable inthepresentcase as 218 3 C.L.R- Papaleontiou v. Republic Stylianides J. an Inspector, General Subjects, Elementary Education, whose postisprovided bythePublicEducationalService Law, 1969 (No. 10 of 1969), is not a «public officer», as defined in the Public Service Law, 1967 (No. 33 of 1967), and thatthe Ph.D. Degree 5 was awarded to the appellant after the material time he should have possessed theprescribed qualifications. Learned counsel for the appellant contended that the interpretation of thescheme of service anditsapplication iswithin theexclusivedomainoftheEducationalService Commission,and 10 if the interpretationandapplication is reasonable, then thisCourt does not intervene, that if we exclude the period from 17.8.77 22.12,78, when the appellantwas doing his Master's Degree,the period from 1.2.77 - 17 8.77 and from 23 12.78 until either 31.5.80 or9.9.80 - thetimeof therequest of thefilling of thispost 15 - hehadservice forover twoyears; that«satisfactory service» need not be service with actual performance of duties and that the period that the appellant has been on scholarship for hisPh.D. shouldbe reckoned for thepurpose of thequalifications required by thescheme of service. Heinvoked the Decision No. 12.655 of 20 13 9.73 above and the Educational Officers (Teaching Staff) (Appointments, Emplacements, Transfers, Promotions and Relevant Matters) Regulations, 1972, as amended by Regulation No. 250/74, published in the Official Gazette of the Republic, Supplement No.3, underNotification No. 205/72, p.
2. 25 Regulation No.39

(1)oftheabove Regulations provides thatthe period of post-graduate studies or otherpost-graduate education («μετεκπαίδευσις») abroad uptotwo years in a subject relevant to the duties of educational officer is reckoned as service or experience inasubject for thepurpose of thescheme of service of 30 any post for which a certain period of service or experience is required. On the invitation of the Court counsel for the respondent Commission addressed theCourtregarding the interpretationand application of therelevant scheme of service. She submitted that 35 the appellant possessed all the required qualifications; that only the period from 18.8.77 - 23.12.78was notservice. She invoked the circular for the public servants and the Educational Officers (Teaching Staff) (Appointments, Emplacements, Transfers, 219 Styllanldes J. Papaleontiou v. Republic

(1987)Promotions and Relevant Matters) Regulations, 1972. She referred particularly to Regulation 39 above and to regulation 34 which was renumbered to 38 under which, as service or educational service for purposes of promotion, according to the approved scheme of service of a promotion post, is taken into 5 consideration the period which, by virtue of the relevant regulations, is recognized for the purpose of increments unless otherwise is provided in the scheme of service or in the regulations. The appellant during the whole period of his postgraduate studies in the United States from 17.8.77 -21.5.80, he 10 was receiving regularly his increments. Neither the post of Inspector, General Subjects, Elementary Education, nor the post of General Inspector, Elementary Education,arewithintheambit of «public service» or «public officer», as defined in the Public Service Law, 1967 (No.33 of 1967). «Inspector» isnot «teaching 15 staff» or«educational officer», asthesetwoexpressionsare defined in the regulations aforesaid. We hold the view that the post of Inspector isnot covered by either the decisions of the Councilof Ministersorbythe Educational Officers Regulations. Nevertheless, though the aforesaid .Regulations were not 20 directly applicable to the post of Inspector, the Educational Service Commission could rely on them by way of guidance in order to perform itsduties under the Law and to decide the issue of qualifications inorder to exercise itsdiscretionary power of the interpretation and application of the scheme of service. The 25 Educational Service (Teaching Staff) Regulations regulate posts which have close affinity to the Inspectors, though not covering the latter. Itwas open to the Commission, inthe exercise of their function, to follow the rules contained therein, though not bound by them. «Service» and «satisfactory service» in this scheme of 30 servicecould notbelimitedtoactualserviceandexcludeaperson who ison scholarship abroad toenhance hisknowledge in order to renderbetter services totheeducation of the country. The cross-appeal fails as it was reasonably open to the Commission to interpret andapplytherelevantscheme ofservice 35 inthemannerinwhichithasdonewiththeresultthattheappellant possessed the required qualifications, including the two years' satisfactory serviceatthelowerpostofInspector.ThisCourtdoes not interfere in a case in which the interpretation and application 220 3 C.L.R. Papaleontiou v. Republic Styllanlde· J. of the scheme of service by an appointing authority was reasonablyopen toitintheparticularcircumstances-(Papapetrou v. TheRepublic, 2 R.S.C.C. 61,69;Josephides v. The Republic, 2 R.S.C.C.72,75,77;Petsasv.TheRepublic, 3 R.S.C.C. 60,63; 5 Neophytou v. TheRepublic, 1964C.L.R. 280,299; Georghiades v. The Republic,

(1966)3 C.L.R. 827, 848; Georghiades v. The Republic,

(1967)3 C.L.R. 653, 668; Tryfon v. The Republic,

(1968)3C.L.R. 28,40; TheRepublic v, Aivaliotis,

(1971)3 C.L.R. 89, 93;Paraskevopoullou v. The Republic,

(1971)3 C.L.R. 426, 10 432; Pieridesv. The Cyprus Broadcasting Corporation,

(1972)3 C.L.R. 149,156; Lambrakis v. The Republic,

(1973)3C.L.R. 29, 33; Ktoridesv. the Republic,

(1973)3 C.L.R. 171,173;Kyriacou v. The Republic,

(1975)3 C.L.R. 37, 44; Skarparis v. The Republic,

(1978)3 C.L.R. 106, 113; Andreou v. The Republic, 15

(1979)3 C.L.R. 379, 386; Stylianou v. The Public Service Commission,

(1980)3 C.L.R. 11, 17, Soteriou v. The Republic,

(1980)3C.L.R. 237,242; Kolokotronis v. TheRepublic,

(1980)3 C.L.R. 418, 427; Larkos v. The Republic,

(1982)3 C.L.R. 513, 519; Soteriadou v. The Republic,

(1983)3 C.L.R 921, 940 20 (which was reversed on appeal but on other points); Makridesv. TheRepublic,

(1983)3C.L.R. 622,630;Mytides v.The Republic,

(1983)3 C.L.R. 1096, 1107; Kampouris v. The Educational Service Committee,

(1983)3 C.L.R. 1165, 1169; Xtnariv. The Republic,

(1984)3 C.L.R. 598,600; DerParthogh v. The Cyprus 25 Broadcasting Corporation,

(1984)3 C.L.R. 635, 638; Frangoullides and Another v. The Public Service Commission,

(1985)3 C.L.R. 1680). Thefirst instanceJudge annulled thesub-judicc decision onthe groundthattherespondent Commission reached itsnewdecision 30 to promote the interested party on insufficient reasoning and on grounds of reassessment of the interested party (the appellant) whichwere inexistentasthe materialwhichtheyhad before them was the same on which they reached their decision of 22nd October, 1980,whichwas annulled byHadjianastassiou, J. 35 The decision of22.10.80wasannulled byHadjianastassiou, J., onthegroundsoflackofdueinquiry,lackofreasoningand failure totake into consideration allrelevant factors. After annulment of a promotion the Administration has to proceed to make afresh a new inquiry, to-make a duly reasoned 40 comparison of the candidates concerned "and reach a new 221 Styllanldes J. Papaleontiou v. Republic

(1987)decision on the basis of the factual and legal situation existing at thetimetheannulled decision was taken,though itisnotboundto base its new decision exclusively on the facts and circumstances on which theonginal decision was based - (Constantmou ν Greek Communal Chamber,

(1965)3 C LR 96, 105, Kypnanides ν 5 TheRepublic,

(1968)3 C LR 653,660, loanmdes andAnother ν The Republic,

(1979)3 C LR 628, Protopapas ν The Republic,

(1981)3 C L R 456, Chnstofidesv TheRepublic,

(1985)3C L R 1127) We have considered the sub-judice decision and the matenal \Q that was before the Commission, including the report of Anastassiades and the statement of the Director of Elementary Education, Mr Papaxenophontos,before the Commission inthe lightof theargumentsadvanced duringtheheanngof thisappeal The respondent Commission, after making a thorough 15 investigation, taking into consideration all relevant factors and making an assessment of the candidates, issued the sub-judice decision which, inour view, isduly reasoned The trialJudge wrongly found thattherespondentCommission was precluded from selecting theappellant amongthecandidates 20 for promotionafter athorough investigation of the matenal before it The decision toselect the appellantfor promotiontothepostof General Inspector, Elementary Education,was reasonably open to the Commission It is well settled by the case-law of this Court that an administrative Court does not interfere with a decision which, in accordance with the law applicable to, andthefacts of aparticular case, was reasonably open to the appointing authonty, and this Court does notsubstitute itsown discretion as regards thechoice 30 of the most suitable candidate for promotion or appointmentin the place of the discretion of the competent organ -(Chnstou ν The Republic, 4 R S C C 1,6; Georghiades ν The Republic,

(1970)3 C L R 257, 268, Georghiou ν The Republic,

(1976)3 C L R 74,82, Petndesv TheRepublic,

(1984)3C LR 341,350, 35 Constantmou ν The Republic,

(1984)3 CLR 498, 502, Efthymtouv TheRepublic,

(1984)3 C LR 1171,1174, Pipen ν The Republic,

(1984)3 C L R 1306,1311, Papadopoullos ν The 222 25 3 C.L.R. Papaleontiou v. Republic Styllanldes J. Public Service Commission,

(1985)3 C.L.R. 405, 413; The Republic v.Zachariades,

(1986)3 C.L.R. 852). For all the «foregoing» reasons the appeal isallowed and the cross-appeal is dismissed. The sub-judice decision of the 5 respondent Commission isconfirmed under Article 146.4 of the Constitution. Inthe circumstances we decided tomake no order astocosts. Appeal allowed. Cross-appeal dismissed. No orderastocosts. 10 223