(1987)1987March30 (LOR1S J ) INTHEMATTER OF ARTICLE 146 OFTHE CONSTITUTION ANDREAS KISSONERGIS AND OTHERS, „ , Applicants, ν THE REPUBLICOFCYPRUS, THROUGH THE EDUCATIONALSERVICE COMMISSION, Respondent (Case No 903/85) Administrative Law — General principles — Subsidiary legislation— Once enacted by the competent organ, ithas to be compliedwith untilrepealedor declaredby a)udrcja/decisionto be ultra viresthe law Administrative Law — Discretionarypowers — Administrative Authonty vested with suchpowers — Λ/or enbtied to subordinatedie discretionto another 5 organ AdministrativeLaw — General pnnciples — Legality of administrative act — Governed by legislationinforceatthetime itwas made The interested parties in this recourse were appointed on contract tothe post of Schoolmaster of Gymnastics in contravention of the listof pnonhes 1 0 compiled in virtue of reg 5 of the Educational Officers (Teaching Staff) {Emplacements, Transfers, Promotions and Related Matters) Regulations 1972 as amended in 1974 Thereason of departing from theorderof pnonty was due totherecommendationsof theMinistryof Education As aresultthe applicants, who maccordancewith the saidlisthadpriority over meinterestedparties,filedthepresentresource 15 Held, annullingthe subjudice decision
(1)As the regulationsInquestion were made by the competent organ, they had to be complied with, until repealed ordeclared as ultraviresthe enabling law
(2)InSawa ν TheRepublic
(1986)3CLR 445 regulations 5 and.10 of 2 0 the aforesaid Regulations were declared as ultra viresthe enabling law, but, as thisdecision was issued after thesub judice decision hadbeen taken,the regulations were valid and in force at thetime when the sub judice decision was taken The legality of an administrative act isgoverned by the legislation in force at the time when itwas made Itfollows thatthesub judice decision 312 3 C.L.B. KiMooergU * Others v. RcpabHc hastobe annulled 5
(3)Moreover,thereisanothergroundofannulment,namelysubordination of theexercise of therespondents' discretion totherecommendationsof the Ministry of Education (Kynakidou ν TheRepublic 1986) 3 CL.R 913 and Papakynakou v. TheRepublic
(1983)3 CLR 870 Subjudice decisionannulled No orderas tocosts Casesreferredto Sawa ν TheRepublic
(1986)3 C LR 445, 10 Psara -Kromdou ν TheRepublic
(1985)3 CL R 1900, Kapsouv TheRepublic H983) 3 C L R 1336, LordouandOthersν TheRepublic
(1968)3 C LR. 427, Kynakidouv TheRepublic
(1986)3 C LR 913, Papakynakou ν TheRepublic
(1983)3 CLR 870 15 Recourse. Recourse against the decision of the respondent to appointthe interested parties on contract to the post of Schoolmaster of Gymnasticsinpreference andinsteadof theapplicants. A. S.Angelides, for theapplicants. 20 R.Vmhimi-Petridou (Mrs.), for therespondent. E. Efstathiou, forinterestedpartyNo.4, S.Mamantopoulos, for interestedparty No.
- Cur. adv. vult LORISJ.readthefollowingjudgment.Theseven applicantsof 25 the present recourse impugn the decision of the Respondent commission published in the daily press on 1.9.85 and 8.9.85 whereby the 17 interested partieswere appointedoncontractto the post of Schoolmaster of Gymnastics in preference to and insteadof the applicantsfor aperiod of threemonthsi.e 1.9.85 30 30.11.
- 313 Lorto J. KteMHMrgl·* Other·v.Republic
(1987)The applicants duly qualified Schoolmasters of Gymnastics were emplaced on the table of priorities prepared by the Ministry of Education pursuant toregulation 5 of the Educational Officers (Teaching staff)' (Emplacements, Transfers, Promotions and Related Matters) Regulations 1972 as amended on 20.9.74 5 (K.D.P. 250/74) in a prior serial order than the 17 interested parties inthe present recourse. The complaint of the applicants is that the interested parties aforesaid were appointed on a contractualbasisas schoolmasters of Gymnastics by therespondent for aperiod of three monthsi.e 10 1.9.85 -30.11.85 in breach of the right of the applicants to prior appointment safeguarded by the table of priorities as aforesaid. The respondent commission decided to appoint the interested parties in preference to and instead of theapplicants relyinginter alia, on a relevant «submission» made to it by the Ministry of 15 Education.(VideAppendices ΒandCattachedtotheopposition). At the hearing of this case learned counsel appearing for the respondent conceded that the sub judice decision was wrong in principle as the priority tables were not followed. Counsel appearing for the interested parties No. 4 and No. 15 (the only 20 interested parties appearing in this recourse) adopted the stand taken by learned counsel appearing for therespondentandstated that the sub-judice decision ought tohave been annulled. Itisabundantly clear from thefacts before meanditiscommon ground between the litigants that regulations 5 and 10
(2)of the 25 aforesaid regulations were inforce atthetimethesubjudice deci sion was given, although I was referred to the case of Sawa v. Republic
(1986)3 C.L.R.445 whereby regulations 5and 10were declared as being ultra vires the enabling enactment (Law 10/ 69). In this connection I may repeat here what 1 have stated in 30 Psara-Kronidou v.Republic
(1985)3 C.L.R. 1900 where adopting the case of Kapsou v.Republic
(1983)3 C.L.R. 13361 heldthatas the regulations in question were made by the competent organ, hadtobe compliedwith untilrepealed bytheorgan concernedor declared ultraviresby ajudicial decision. 35 It is abundantly clear that in this case as well, the regulations were validand they were notdeclared ultraviresby judicial deci sion atthe time of thesub-judice decision and therefore they had 314 3CLJL KlMODertU* Other·v.RepabHc Lorl· J. to be followed by the administrative organ taking the relevant decision i.etherespondent commission. ItisclearthatSawa case(supra)wasdecided on8.3.86, whilst thesub-judice decisionwastakeninSeptember 1985anditiswell 5 established inadministrative lawthatthelegalityof administrative actsisgoverned bythe legislation inforce atthe time when they weremade. (Lordovand others v.Republic
(1968)3C.L.R.427, Kyriakidouv.Republic
(1986)3C.L.R.913.) Therefore the sub judice decision has to be annulled on the 10 groundthattherespondent didnotfollow therelevant regulations whichwerevalidandinforce atthetimeof thetakingofthesubjudice decision by the respondent. But this decision has to be annulledonanothergroundaswell:Itisclearfrom the opposition that the reason for departing from the order of priorities by the 15 RespondentCommissionwasduetotherecommendations ofthe Ministry of Education; that tantamounts to «Subordination of the exercise oftheirpower, necessarilyinvalidatingtheirdecision, for itisnotadecisionemanatingfromtheorganspecified bylaw.And assuch,itisvulnerable tobe setaside forboth abuse ofpower as 20 wellasexcessofpower.ThelawdidnotentrusteithertheCouncil of Ministersorthe Ministry of Education withthe appointment of teachers or the Ministry of Education with the appointment of teachers in the Public Educational Service. The power vested solejy and exclusivelyinthe Educational Service Commission...» 25 (Kyriakidouv.The Republic (Supra), Papakynakou v. Republic
(1983)3C.L.R.870.) Forthe reasons given above the sub-judice decision ishereby annulled. Lettherebe no orderastoitscosts. 30 Subjudice decision annulled.No order asto costs. 315