(1987)1987 December 22 [TRIANTAFYLLIDES Ρ SAW1DES LORIS PIKIS KOURRIS JJ1 PETROSPAPACHARALAMBOUS AND ANOTHER, Appellants-Applicants, ν THE REPUBLIC OFCYPRUS,THROUGH 1 THE MINISTRY OFEDUCATION, 2 THE DIRECTOROFSECONDARY EDUCATION, Respondents (RevistonalJunsdictionAppealsNos 597, 667) Legitimate interest — Educational Officers aspmng for promotion to post of Assistant Headmaster —Schemeofserviceforsuchpostrequired arating of at least 'very good» in the two last confidential reports — Dismissal of objections lodged pursuant toReg 22 of theEducational Officers (Inspection and Evaluation) Regulations 1976 against ratings of *very good» and 'excellent* —No existing legitimate interest of either appellant was affected ' thereby Executory act — Preparatory act— Testapplicable for discerning theexistenceof an executory act — Educational Officers — The Educational Officers (Inspection andEvaluation) Regulations 1976 —Special reports— Whether such reports constitute an executory administrative act 5 ,r\ Appellant Papacharalambous, was ratedby means ofaconfidential report as «very good· in respect of the school year 1983/1984, having been accorded33 marks outof 40, and appellant, Kammitsi, wasratedby means ofaconfidential reportas«excellent·in respectoftheschoolyear1982/1983, 1 5 having been accorded36marks out of40 The Regulations provide for the evaluation and assessment ofthe services end qualities of secondary school teachers in special and ordinary reports prepared every twoandthree years, respectively Special reports, though confidential,may bedisclosedtoeducationalists on requestwho may, ifthey 2 0 feel aggrieved, petition fortheir review beforethe Inspector-General Each of the appellants filed an objection against the respective report. pursuant toReg 22 oftheaforementioned regulations Both objectionswere turneddown Asaresulteach of the appellants filed arecoursetothisCourt Bothrecourseswere dismissedonthegroundthatthe 2132 25 3 C.L.R. Papacharalamboua v. Republic •iui. j-. '-·••i.-.'i'ii'jr. waL, notan lixeeulory administrative aci.Therecourseof appellant Papacharalambous wasdismissedontheadditional ground that no existing legitimate interest of his was directly and adversely affected by the rejection of hissaid objection. c. 10 Held,dismissingtheappeals: (A)PerTnantafyllides. P.:Atthematerialtime both the appellants were aspiring to be promoted to the post of Assistant Headmaster inSecondary Education. According to the scheme of service for this post there was required asa qualification forpromotion atleastaratingof-very good»on thebasisofthe twomost recent confidential reports. There is nothing before the Court to show that on the strength of the aforementioned ratingstheappellantswereplacedonlistsofthoseeligiblefor • promotionsand thustheirpromotion prospects were affected. 15 20 Asneither of thetwoappellantswasprejudicially affected asregardshisor herprospectsofpromotiontothepostofAssistant Headmasterbythereports inquestion,theconclusion isthatnoexistinglegitimateinterestofeitherofthe appellants wasadversely and directlyaffected bythecomplained ofbythem dismissalsoftheir objections againstthesaidratings. (B)PerPikis, J.:
(1)To begin, the changes brought about inthe systemof assessment of the work of educationalists leave unaffected the juristic implications of the system, in effect indistinguishable from that reviewed in Paviides v. TheRepublic{1977)3C.L.R. 421.
(2)Responsibility for the promotion of educationalists in Cyprus vests exclusivelyintheEducationalServiceCommission.Thecriteriatowhichthey c.Z> musthaveregard inmakingtheir choice are laiddown ins.35{2)ofLaw 10/ 69 as amended, merit, qualifications and seniority of the candidates. In discerning the qualities and worth of competing candidates the law enjoins the E.S.C. to duly heed service reports, material no doubt relevant to the merits and devotion of educationalists to their duties. Neither special nor 3 0 ordinary reportsare in themselves definitive of therightof an educationalist topromotion. 35
(3)Thejudiciaryisnotcharged undertheConstitution withthe overseeing of administrative efficiency or proficiency. Itsjurisdiction is confined to the control ofthelegalityofexecutoryadministrativeaction.Tobejusticiablethe actmust have legalconsequencesascertainable from an objective angle. 4Q Itistritelawthatonlyexecutoryactsareamenable tojudicialreviewunder Article 146.1of the Constitution. Asoften repeated only acts productive of legalconsequences classify asexecutory. Legalconsequencesinthe domain of public law ensue whenever, asaresult of unilateral administrative action. the rightsofthesubject areaffected thereby. 2133 Papacharalambot» v. Republic
(1987)
(4)The sub judice decisions left the status and position of both appellants intheservice wholly unaffected They hadnonoticeable legal consequences whatsoever They were intemumsof theAdministration for the assessment of the services of educationalistsandtotheextentthattheyaffected therightsto promotion of the officers concerned theyconstitutedpreparatory acts 5 Appealsdismissed Noorder as tocosts CasesreferredtoPavltdesν TheRepublic
(1977)3 C LR 421. Tanis ν TheRepublic
(1978)3 C LR 314. l'J Kosteaν TheRepublic
(1982)3 CLR 115 Karapatakiv TheRepublic
(1982)3 C LR 80. Yiallourouv TheRepublic
(1976)3 C L R 214, Kohkasstdes ν TheRepublic
(1965)3 C LR
- Republic ν Demetnou and Othersi\972) 3 C LR
- 15 Georghiouv TheRepublic
(1981)3 CLR 591 Frangosv Medical DisciplinaryBoard
(1983)1C LR 256. Papadopoullou ν TheRepublic
(1983)3 C L R 142: Papadopoullos ν TheRepublic
(1984)3 CLR 332 Sawav 7he/?epub/ic{1985)3CLR 2288 20 Appeals. Appeals against thejudgment ofJudges of theSupreme Court ofCyprus(Stylianides,J.andA.Loizou,J.)given onthe10thMay, 1986and 13thOctober, 1986 (RevisionalJunsdicttonCasesNos. 541/86* and 695/85** respectively) whereby appellants' 25 recourses against the rejection of tlieir objections against their ratingsfortheperiod1983-1984 and1982-1983 were dismissed. A. S.Angelides, for theappellants. *Reported In
(1986)3CLR 1042 "Reported In
(1986)3CLR 1561 I 2134 3C.L.B. Papachermlambot*·v.Republic N. Charalambous, Senior Counsel of the Republic, for the respondents. Cur.adv. vult. Thefollowing judgments were read: 5 TRIANTAFYLLIDES P.: These two appeals have been made separatelyagainst thefirstinstancejudgmentsgiven, respectively, in recourse No. 541/85 (filed by the appellant in revisional jurisdiction appeal No. 597, Petros Papacharalambous) and in recourse No. 659/85 (filed by the appellant in revisional 10 jurisdiction appeal No.667, EgliKammitsi). These appeals were heard together in view of their closely related natureand thisjudgmentisnowbeingdelivered in respect of both of them. Bytheirrecoursestheappellants had soughttoannul decisions 15 rejecting objections of theirs against the ratings which were accorded tothemaseducationalistsinSecondary Education. Both these recourses were dismissed on the ground that the decisionsbymeansofwhichtherewererejected theobjectionsof the appellants against the ratings accorded to them were not of 20 executory nature and, consequently, theycould not be made the subject-matter of recourses under Article 146of the Constitution. Moreover the recourse of appellant Papacharalambous appears tohave been dismissed onthe additional ground that no existing legitimate interest of his, in the sense of Article 146.2 of the 25 Constitution,wasdirectlyoradverselyaffected bytherejection of hisobjection againstthe complained of byhim rating. Each one of the learned Judges of this Court who tried, respectively,therecoursesoftheappellantsrelied,indecidingthat thedecisionsrejectingtheobjectionsoftheappellantswerenotof 30 an executory nature, on previous case-law of this Court to that effect, such asPavlides v. TheRepublic,
(1977)3 C.L.R.421and Tanisv. The Republic,
(1978)3 C.L.R.314. It is to be noted that one of the two appellants, Papacharalambous, wasratedbymeansofaconfidential reportas 35 «verygood»inrespectoftheschoolyear 1983/1984,havingbeen accorded 33 marks out of 40, and that the other appellant, Kammitsi, was rated by means of a confidential report as 2135 TriantafvOldn P. PapacharnUwboa»v.R«puhUc
(1987)«excellent» in respectof theschool year 1982/1983,having been accorded 36 marksout of40. Both appellants availed themselves of the opportunity to challenge the complained of by them ratings by means of objections lodged under regulation 22 ofthe Educational Officers (Inspectionand Evaluation)Regulations,1976(seeNo.223,inthe ThirdSupplement, Part I,totheOfficial GazetteoftheRepublicof 5 November 1976). 5 As already stated the objections of both the appellants were rejected and as a result they filed these recourses which were 10 dismissedbythejudgmentagainstwhichthepresentappealshave been made. At the material time both the appellants were aspiring to be promoted to the post of Assistant Headmaster in Secondary Education. 15 According to the scheme of service for the post of Assistant Headmaster which wasinforce atthematerialtime,having been adopted bytheCouncil of Ministersof 5August 1982,and which was published in the Official Gazette of the Republic on 23 December 1983, when vacancies in the post of Assistant 20 Headmaster in Secondary Education were advertised, there was required as a qualification for promotion at least a rating of«very good» on the basis of thetwomost recent confidential reports. As already stated the performance of appellant Papacharalambous wasratedas«verygood»andthatofappellant 25 Kammitsi was rated as «excellent» and, consequently, neitherof thetwowasprejudicially affected asregardshisorherprospectsof promotion tothe postofAssistant Headmaster. Itistobebome inmind,further, thatthereisnothingbefore me to show that on the strength of the aforementioned ratings the 30 appellants were placed on lists of those eligible for promotions and thustheir promotion prospects were affected. Inthe lightof theforegoing Ihave reached the conclusion that no existing legitimate interest of either of the appellants was adversely and directly affected by the complained of by them dismissalsoftheirobjectionsagainsttheratingsaccordedtothem andforthisreasontherecoursesofbothofthemoughttofailand theirappealshave tobedismissed;and,inthecircumstances,itis 2136 35 3C.L.R. PapacharaUunbotuv.H*pabBc TrianUfvOlde*P. not necessary to pronounce on the issue of whether or not the decisions dismissingtheirobjections are tobe treated asbeingof an executory nature it•stobenoted thatafter theseappealshadbeen filed therewas 5 promulgated in the Official Gazette of the Republic, on 8 May 1°87, the Public Educational Service (Amendment) Law, 1987 (Law 65/87), which has been relied on by counsel for the appellants in order toarguethata legitimate interest of hisclients has been affected by the sub judice dismissals of their aforesaid 10 objections jr Iam,however,oftheviewthattheprovisionsofthisLawarenot really relevant to the outcome of the present appeals because it was not in force at the matenat time when the objections of the appellants were dismissed, and I leaveentirelyopen whatmay be the effect of this Law on similar cases in future as regards the appellantsoranyothereducationaliststowhomitistobeapplied InconcludingIshouldobserve thatasfarasappellant Kammitsi isconcerneditappearsthatthethreeInspectorswhodealtwithher objection didnotagreeand,actually,twoofthemwereinclined to 20 .cecide the objection in her favour and, as a result, the General Inspector of Secondary Education recommended to the respondent DirectorofSecondary Education thattheobjection of this appellant should be sustained, but he rejected this recommendation and dismissed her objection 25 It seems, therefore, to me that there was real ment in the objection inquestion of this appellant Inthe resultboth these appeals have tobe dismissed,but there should be no order astotheircosts PIKISJ The gnevance of the appellants is that by declining 3Q revisional junsdiction the tnal Court left them remediless before the injustice done them in the assessment of their service by the inspectorate of secondary education The Court held that the rating of secondary school teachers in special reports submitted and confirmed under therelevant Regulations*introduced under 35 i, 76 of the Law**, is not an executory act and as such non justiciable under Article 146 of the Constitution, whereupon the recourses ofthe appellants were dismissed *(EducationalOfficers(Inspector!andRating)Regulations1976 **(Sep.PublicEducationalServiceLaw•10/69 (amended) 2137 PlklaJ. Papacharmlamboasv.Republic
(1987)The Regulations provide for the evaluation and assessment of the servicesand qualitiesofsecondary school teachers inspecial and ordinary reports prepared every two and three years, respectively. Special reports, though confidential, may be disclosed to educationalists on request who may, if they feel 5 aggrieved, petition for their review before the Inspector-General. Appellants, teachers of secondary education, were apprised on request of their rating in special reports submitted under the Regulations and, feeling aggrieved, soughtreview oftheir reports hoping for a favourable reappraisal. The Inspector-General 10 confirmed their rating whereupon they mounted separate recourses fora reviewofthedecision, oftheInspector-General.In viewofthesimilarityofthelegalissuesraisedinthetwo recourses theproceedingswerejointlytriedanddisposedofsimultaneously. The central point in the arguments raised on behalf of the 15 appellants is that special reports are reviewable notwithstanding the absence of any noticeable consequences on the status or position of the educationalists affected thereby. Byanalogytothe reviewability of decisions of Service Boards adjudicating upon complaints of public officers disputing the content of reports 20 prepared under the Greek Code of Public Employees, counsel submittedthatdecisionsoftheInspector-General issuedunderthe aforementioned Regulationsare,forsimilarreasons, amenable to the revisional jurisdiction of the Supreme Court. The point was pressed despite the absence of any immediate effects on the 25 position orprospectsofpromotion ofeitherofthetwoappellants. The recourses were pursued notwithstanding the «Excellent» overall assessment of appellant Egli Kammitsis and «Very Good» in the case of Papacharalambous. Counsel sought to distinguish the case of lacovos Pavlides v. 30 Republic* the ratio of which, he submitted, isinapplicable to the review of decisions relevant to special reports in the light of changes brought about in the system of assessment of educationalists. Inthe above case Malachtos,J., held that reports on educationalists submitted within the framework of the 35 assessment of their worth, are not acts of an executory character but acts of an intrinsically, preparatory nature and as such non justiciable. The changes brought about in the system of assessment of educationalists changed, counsel argued, the '
(1977)3CLR.421. 2138 3CUR. P a p a c b a n l u n l M W · v.Republic pfkla J. natureofthedecisions of theappropriateeducationalAuthorities bytheexposure ofthereporttohierarchicalreview,introducingin Cyprus, as inGreece, what he described as the«systemof open file». 5 To begin, the changes brought about in the system of assessment ofthe work ofeducationalists leave unaffected the juristic implications of thesystem, ineffect indistinguishable from thatreviewedinPavlides. Inthatcase,too,whatwaschallengedby the recourse was the confirmation bythe head ofHigher and 10 Secondary Education of a report of the Inspectorate on the aggrievededucationalist.Norhasthesignificance ofreportsupon educationalistsrespecting theirrightstopromotionbeenchanged. Specialreports,likethereportschallengedinthecaseofPavlides, supra,constitutematerialrevelatory ofthevalue of theservicesof -c aneducationalist.As Malachtos,J.,observed inPavlides, service reports in Greece,too,could notbe madethesubject of judicial reviewbefore theamendmentof the Codeof Public Employees whereby added significance wasattached toservice reports, definitive to afargreater extent than in Cyprus oftherightsof 20 public employees topromotion. Asa matter of factual reality servicereportsundertheGreekCodeof PublicEmployees areof far greater significance than corresponding reports on educationalists in Cyprus on their rights andprospects for promotion*. 25 Responsibility for the promotionofeducationalists in Cyprus vests exclusively in the EducationalService Commission**.The law entrusts theEducational Service Commission with wide discretion in making a selection of thecandidates best suited for appointment orpromotion.Theprocess of selection necessarily 30 involves in every case examination of the rival merits of candidates. Promotionsare made through comparison noton a qualifying basis. The criteria to which they must have regard in making their choice are laid down in s. 35
(2)***, merit, qualifications and seniority ofthe candidates. Indiscerning the 35 qualities andworth ofcompeting candidates thelaw enjoins the Έ-S.C.todulyheedservicereports,materialnodoubtrelevantto themeritsanddevotion of educationaliststotheirduties. *(See,Inparticular, articles92, 93,101 and 104). " (See,Law 10/69(asamended)). ***(See,Law 10/69 (asamended by Law 53/79) 2139 PikisJ. Papacharalambous v.Republic
(1987)The exercise of the discretion ofthe Commission isnot fettered byanyconsideration otherthanthatspecified ins.35(l)(c),thatis. that the educationalist must not have been reported upon as unsuitable forpromotion inthelasttwoservicereports.Itemerges that neither special nor ordinary reports are in themselves 5 definitiveoftherightofaneducationalisttopromotion.Moreover, their confidential character does not expose the worth of an educationalist to public view. Nonetheless, counsel invited us to exercisethejurisdictionvestedbyArticle 146.1oftheConstitution as a measure remedial for the preservation of the self-esteem of 10 the appellants and any other educationalist wronged in special reports. The judiciary is not charged under the Constitution with the overseetnc, o f administrative efficiency or proficiency. Its jurisdiction is confined to control of the legality of executory 15 administrative action. Judicial review under Article 146.1 isnot a forum for theventilation ofpersonal grievancesortheremovalof alleged administrative injustice, independently of the characterof the act*. To-be justiciable the act must have legal consequences ascertainable from an objective angle**· The internal functioning 20 of the Administration is not, as Triantafyllides, P., ruled in Chrystalla Yialhurou v.Republic***amenable tojudicial review under Article 146.1. The separation between the powers of the State prohibits the assumption of competence by anyone of the three powers inthe domain ofthe other powers of the State. 25 It is trite law that only executory acts are amenable to judicial review under Article 146.1ofthe Constitution. Asoften repeated only acts productive of legal consequences classify as executory. Legalconsequences inthedomainofpubliclawensue whenever, as a result of unilateral administrative action, the rights of the 30 subject are affected thereby. Inthecaseof public employees they are affected whenever theirstatusorposition inthe public service isprejudiced asa resultofthesubjudicedecision.The conceptof rightsinthisarea isnotidenticalwiththenotion ofrightsasknown to the civil law. It isa broader concept linked in the case of civil 35 servantstotheimplicationsofthedecisionontheirposition,status and eligibilityto promotion. '(See, Kosteav. Republic
(1983)3CLR. 115). **(See,Karapatakiv. Republic
(1982)3CLR.80, 94). "'
(1976)3CLR. 214. 2140 3 C.L.R. Papacharalambous v. Republic PildeJ . The test todetermine thejusticiability of anactunder Article 146 1 of the Constitution is substantive, notformal, interwoven with theimplications ofthe act on the interests ofthesubject *To be prejudicial to his position or status the decision must be c productive of legal consequences Whether legal consequences ensue from adecision isamixed question oflaw andfact Ineach case we mustdiscern theeffects ofthedecision onthepositionand status ofthe employee Ifthe decision has a beanng on eitherof the twoor is determinative of his eligibility to appointmentor 10 promotion,theactqualifies asexecutory because its repercussions areindistinguishable from afinite executory act Thus,inthe cases of Papadopouiou ν Republic** and Sawa ν Republic*** Hocsionsoft,eAdm-ii.sndtion affecting theeligibility and p n c t y of candidates to appointment, respectively, were held to be 15 justiciable because they were definitive of the nght of the candidateaffected toappointmentnotwithstandingtheabsence of vacancy The decisions were definitive of the position ofthe subject vis-a-vis the Administration and assuch amenable to the revisional jurisdiction ofthe Supreme Court 20 Thesub judice decisions left the status andposition of both appellants in the service wholly unaffected They had no noticeable legal consequences whatsoever They were intemums of the Administration for the assessment of the services of educationalists andto the extent that they affect thenghts to or promotionoftheofficers concerned,they constitutedpreparatory acts Consequently, inagreement with thelearned tnalJudge,we hold that theacts were non justiciable andfor that reason the appeals are dismissed Byway ofaddendum,itisnoticedthattherecentamendmentof 30 the EducationalService Law bythe provisions of Law 65/87 left unaffected the complexion of the subjudice decisions Nothing said inthis judgment should beconstrued ashaving any beanng on the interpretation orthe implications from the applicationof the newly enacted legislation 35 Appeals dismissed No orderas tocosts *(See, inter aha, Nicos Kolokassides and the Republic ofCyprus through theMinister of Finance(196'i)3CLR 542Republicν CostasCh DemetnouandOtheis
(1972)3CLR 219, Georghiou ν Republic
(1981)3 CLR 591, andFrangos ν MedicalDisciplinary Board
(1983)lCLR 256) "
(1984)3CLR 332see,also,Papadopoulhsv Republic
(1983)3CLR 1423,1426 *"
(1985)3CLR 2288 2141