clr/1987/1987_3_696.pdf

(2)andtheAppendix thereto— Ultra viresenablinglaw (The Publing EducationalService Law 10/69andinparticular, sections 28 and 76thereof)— Theyare, also, voidforunreasonableness Legitimateinterest—Educationalofficers—Pnontyofinterestedpartiesover the applicantm thelistofpnonties compiledin virtueofReg 5oftheEducational 10 Officers (Teaching Staff) (Appointments, Emplacements, Transfers, Promotions and Related Matters)Regulations 1972 — As the sub judice decision inSawa ν TheRepublic

(1986)3C LR 445,wherebyRegs 5and 10

(2)of thesaidRegulations, weredeclaredultra viresthe enablinglaw,the respondentCommissionhadtoapplythesaidregulations—Since,however, 1 5 itdidnot apply them, theapplicanthasalegitimateinterestto challengethe subjudice appointments Administrative Law — Discretion of administration — In effecting sub judice appointment therespondent Commissionfailedtoexerciseitsdiscretion, but simply acceded to a request by the Ministerof Education — Ground of 20 annulment Bymeansofthisrecoursetheapplicantchallengestheomiss'tn ίοappoint her oncontractasteacherofEnglishfortheschoolyear 1985-1986aswellas 696 5 3 CX.R. Ella v. Republic theappointmentoncontractoftheinterestedpartesasteachersof English for the aforesaid penod Theinterested partieshadpnontyover theapplicantin virtue of the respective places of each one of them in the list of pnonty compiled invirtue of Reg 5 of theaforesaid Regulations S 10 15 On2 8 85 theCouncilof Ministersdecidedthatwith certainexceptionsthe same officers asthoseservingin1984-1985shouldbe appointedoncontract for a penod of three months When thesaid decision was communicatedto the respondent Commission by the Director - General of the Ministry of Education,theChairmanof theCommissionwrotetotheMinister, conveying the views of the Commission and requesting that «there should be a clear wntten recommendation on the subject» The Minister replied that «it is my suggestion that a three monthscontractbe offered to those educationalists who had been serving on contract dunng the year 1984-1985 In the meantime a relevant Billwill be placed before theHouseof Representatives for theregulation of the matterbylaw» The respondent Commission met on 30 8 85 and effected the appointmentsoncontractinaccordancewith thesuggestion of theMinister 20 The applicant's complaints are {a) That the respondents relied on the aforesaid Regulations, which are ultra vires Law 10/69, and (b) The Commission did not exercise its own discretion, but merely acted in compliance with the decision of the Council of Ministers and the recommendations of the MinisterofEducation 25 Held, annulling thesub judice decision

(1)Regulations5 and 10 andthe Appendix theretoareultraviresLaw 10/69 and,particularly,sections28and 76 thereof and, moreover, they arevoid for unreasonableness (Sawa ν The flepub/ic

(1986)3 C LR 445adopted) Asthe respondentsactedon invalid regulations thesub judice decision would beannulled 30 35 40

(2)At the timewhen the sub judice decision was taken the Regulationsin question were still inforce (thedecision inSawa's case,supra was delivered in March 1986) and, therefore, the Commission had to apply them in accordancewith thepnnciplethatregulations enactedbyacompetentorgan should be applied by the Administration, until repealed or untilfound by a judicial decision tobe ultravirestheenablinglaw Inthelightoftheabove and assuming that the Commission followed the pnontymthelistand thatthey exercised their own discretion, this Court would have agreed that the applicanthadnolegitimate interesttochallenge thesub judice decision

(3)Fromthe matenal before it,thisCourtis satisfied thattheCommission did not follow the Regulations with regard to the priority list, but they appointed thoseservingon theprevious year inaccordancewith thewishes of the Minister Itfollows thatthesub judice decision should be annulled for the additionalreason thattheCommission failed tofollow thelistinthatthey acceded to the request of the Minister and made the sub judice 697

(1987)Elia v. Republic appointments without exercisingtheir discretioncoiitrury to law. Subjudice decision annulled. ~ .. t Casesreferredto: No oider astocosts. Kapsouv. TheRepublic

(1983)3 C.L.R. 1336: Psara-Kronidou v.TheRepublic(19X5)3 C.L.R. 1900: Kyriakidouv.TheRepublic

(1986)3 C.L.R.913: HouisandOtheisv TheRepublic{W86) 3 C.L.R. 1874: Sawa v.TheRepublic

(1986)3 C.L.R.

1. Recourse. Recourse against the omission of the respondents to appoint applicant on contract for theschool year 1985-1986 asteacherof Englishand against the decision oftherespondentstoappoint the interested parties to the above post in preference and instead of the applicant. A. S.Angelides, for the applicant. St. Theodoulou forR. Petridou (Mrs,), forthe respondent. A. Haviaras, for interested partyNo.
2. Cur. adv. vult. KOURRISJ. readthe followingjudgment.Theapplicant,bythe 20 present recourse, prays for a declaration that the omission of the respondents to appoint her on contract for the schoolyear 19851986 as a teacher of English, as well as the appointments of the interested parties whose names appear in the attached list, as teachers of English, made on 30/8/1985 to the exclusion and/or 25 instead of the applicant shouldbe declared nulland void. Applicant challenges the sub judice decision mainly on two grounds:1)Thedecision oftheEducationalServiceCommissionwasnot taken in the exercise of its own discretion but itmerely acted in 30 compliance with the decision of the Council of Ministers and the recommendations of the Ministerof Education contrary tolaw, 2) The respondent Commission relied on the Educational Officers {TeachingPersonnel) (Appointments,Postings,Transfers, PromotionsandAncillaryMatters)Regulations 1972whichisultra 35 vires the enabling section 76 of the Public Educational Service Law 10/
3. Ipropose to deal first with the second ground to the effect that 698 10 15

(1987)Ella v. Republic theregulationswereuliravirestheenablinglaw.Thevalidityofthe Regulationscarne up for consideration inthecaseofSawa v. The Republic

(1986)3 C.L.R. 445 in which Triantafyllides, P., in his judgment atpp. 448-449 had thisto say:· 5 «InthelightofthesubmissionsofthepartiesIhave carefully consideredtheissueofultraviresoftherelevantprovisionsof the aforesaid Regulations and I have reached the conclusion thatthesaidprovisionsand inparticular,regulations5and 10 and the Appendix thereto, especially when applied together 10 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 andsection 76,underwhichtheRegulationsinquestion were made, does not empower the addition of the further 15 prerequisite that the educationalists to be appointed should havepriorityforthispurpose inaccordancewithalistofthose eligibletobeappointed, whichisprepared onthebasisofthe criteriasetoutintheAppendixtosuch Regulations. 20 25 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 appointing the most suitable candidates (see,interaliainthis respect, Avraam v. The Municipality of Morphou,

(1970)2 C.L.R. 165,and Angelides v. The Republic,

(1982)3 C.L.R. 774).» 30 WithduerespectIadoptthedecisionofthelearnedPresidentof this Court and I have also reached the conclusion that the Regulations and in particular Regulartions 5 and 10 and the Appendix thereto, especially when applied together, are ultra vires Law 10/69, and, in particular, sections 28 and 76. I also 35 respectfully agree that the said Regulations are ultra vires by reason of the their unreasonableness. For this reason alone the recourse succeedsbecause the respondent Commission acted on invalid Regulations and the subjudicedecision isannulled. Ipropose, now,toexamine thenextquestion raisedbycounsel 40 for the applicants to the effect that the respondent Commission failed to exercise their discretion in the matter and they merely 699 K o o r r i ·J . Ella v. Republic

(1987)rubber stamped the recommendations of the Minister of Education. Counsel for the respondent on the other hand, raised the question that the applicant has no legitimate interest in the sense of Article 146 of the Constitution and, consequently, the sub judice decision cannotbe made thesubject of a recourse. 5 The Ministry of Education prepares a table which shows the candidates due for appointmentinthePublic Educational Service and determine the order in which they would be appointed.The table of prioritiespreparedbytheMinistry of Educationispursuant 10 to the provisions of Regulation 5 of the Educational Officers (Teaching Personnel) (Appointments, Placements, Transfers, Promotions and Ancillary Matters) Regulations 1972. The table was compiled by reference tothecriteria set outinthe Regulations taking intoaccountthe academic qualifications, performance and 15 date of graduation of candidate and itgivesthecandidatesa serial number for appointmentinthe Service. Reaulation 10

(2)reads as follows:«10

(2)- Οι επί συμβάσει διορισμοί διενεργούνται εκ των σειρών πινάκων διοριστέων κατά σειράν προτε- 20 ραιότητος». In English:«10

(2)-Appointments on contract are made in order of priority from the relevant listsof persons tobe appointed». Applicant was listed 100th in the table of priorities and the 14 25 interestedparties were listed undernumbers 1,20,21,22,23,24, 25,26, 27, 30, 31,32, 33 and 34. Itshould be notedatthisstage that interested party Ioakim is numbered 1 and that counsel for the applicant withdrew the recourse against interested party 15, Kaizer Gregoriou Iphigenia because service of the recourse 30 was not effected upon her and the recourse was accordingly dismissed against her. In view of these facts counsel for the respondentcontendedthattheapplicanthasnolegitimate interest because she had no priority over the interested parties. Assuming that the respondent Commission followed the 35 priority onthelistand assuming thattheyexercised theirdiscretion in the appointments of the interested parties and the applicant, 700

(1987)Elia v. Republic Kourris J . then, Iwould have agreed that the applicant had no legitimate interestinthesense of Article 146 of theConstitutiontoattackthe sub judice decision because at the material time the said regulations were m force and in reaching the sub judice decision 5 the respondent Commission would have to reiy on the said Regulations and it ought to follow them because the Regulations were made by the Council of Ministers pursuant tothe provisions of s 76 of the Public EducationalService Law 10/69 which was a competent organ and therespondent Commission hadtocomply 10 with it until it was repealed by the Council of Ministers or until it was found to be ultia vnes the enabling law by a judicial decision (See Kap^ou ν The Republic

(1983)3 C LR 1336 Psara -Kromdouν TheRepublic (\9S5)3 C L R 1900atp 1903 Loukia Kyuahdou ν The Republic Case No 785 in which 15 judgment was delivered on 4/6/1986* Kouis and others ν The Republic, Case No 34/85 in which judgment was delivered on 25/9/1986** The Regulations were declared tobe ultraviresthe enabling Law 10/69 andalso by reason of their unreasonableness in the case of Sawa ν The Republic

(1986)3 C LR 445 which 20 was delivered on8/3/1986 Consequently,asthesaid Regulations were in force at the material time, the respondent Commission ought tohave applied them I shall now proceed and examine whether the sub judice decision was properly taken by therespondent Commission inthe 25 exercise of itsown discretion according tolaw orwhetheritmerely adopted the decision of the Council of Ministers and the recommendation of theMinister of Education The Council of Ministers at its meeting of 2/8/1985 decided that the same number of Educational Officers as those serving 30 during 1984-85. with exception of those appointed as replacements and wives of Greek Officers for whom a separate decision was taken,should be appointed on contract for a penod of three months Such decision was communicated by the Director-General of the Ministry of Education to the respondent 35 Commission by letter dated 26th August 1985 (Vide Appendix «A-) As a result of thesaid letter theChairman of the respondent Commission wrote a letter, dated 29/8/1985 to the Minister of Education the contentsof which read as follows -(Vide Appendix •Reportedin

(1986)3CLR 913 "Reported in

(1986)3CLR 1874 701 KourrisJ. Elia v. Republic

(1987)(Στ) to the reply to the written address by counsel for the applicant j. «Θέμα: Διορισμοί εκπαιδευτικών μεσύμβαση γ ι ατην επάνδρωση των σχολείων Μέσης/Τεχνικής και Δημοτικής Εκπαίδευσης. Αναφέρομαι στα έγγραφα τ ο υ Υπουργείου Παιδείας με ημερομηνίες 26/8/85 και 28/8/85 (φωτοαντίγραφα επισυνάπτονται) σχετικά με τ ο πιο πάνω θέμα και σας γνωστοποιούμε τιςαπόψειςτης Επιτροπής. 5 Αν σκοπός του Υπουργείου Παιδείας είναι ο 10 διορισμός των εκπαιδευτικώνεκείνωνπου υπηρέτησαν 'με σύμβαση κατά τ η σχολική χρονιά 1984/85, παρακαλούμε να υπάρξει σαφής γραπτή εισήγηση πάνω στο θέμα αυτό. Διαφορετικά η Επιτροπή Εκπαιδευτικής Υπηρεσίας 15 είναι υποχρεωμένη σύμφωνα με την υπάρχουσα νομοθεσία και έχοντας υπόψη πρόσφατη σχετική α π ό φ α σ η τ ο υ Ανωτάτου Δικαστηρίουνα προχωρήσει στο διορισμό με σύμβαση των δικαιουμένων με βάση τον κατάλογο διοριστέων. 20 Παρακαλούμε όπως έχουμε απάντηση σας όσο τ ο δυνατό πιο γρήγορα ενόψει τ ο υ γεγονότος ότι τ α σχολεία Μέσης εκπαίδευσης αρχίζουν τις εργασίες τους στις 2/9/1985». In English:- 25 «Subject:- Appointments of Educationalists on contract for the needs of schools of Secondary-Technical and Elementary Education. Iwish torefer tothedocuments of theMinistry of Education dated 26/8/85 and 29/8/85 in connection with the above 30 subject and to convey the viewsof the Commission. If the contention of the Ministry of Education is the appointment of the Educationalists who were serving on contract during the school year 1984-1985 we request that there should be a clear written recommendation on this 35 matter. Otherwise the Educational Service Commission is bound in accordance with the existinglegislation,bearing in mind a recent decision of the Supreme Court to proceed to the appointment on contract of those entitled on the basis of the lists of the those eligible for appointment. 40 702 s 3 C.L.R. Ella v.Republic KourrfsJ. We request to have your reply as soon as possible inview of thefact thatSecondary Educationschools commencetheir work on 2/9/1985». The Minister of Education by this letter dated 29th August, 5 1985, replied tothe respondents as follows:- 10 15 20 25 «Αναφέρσμαι στην επιστολή σαςυπό ημερομηνία 29/ 8/1985 και παρακαλώ σημειώσατεό τ ι , σχετικά με την απόφαση τ ο υ Υπουργικού Συμβουλίου για το θέμα διορισμών εκπαιδευτικών με σύμβαση, είναι εισήγηση μου όπως προσφερθεί τρίμηνη σύμβαση σε όσους εκπαιδευτικούς υπηρετούσαν μεσύμβασητ οέτος 198485 (εξαιρουμένων των αντικαταστατών). Εν τ ω μεταξύ θα κατατεθεί σχετικό νομοσχέδιο στη Βουλή για νομοθετική ρύθμιση τ ο υ θέματος (Appendix«Β»).» InEnglish it reads:«I refer to your letter dated 29/8/1985 and you are requested to note that in regard 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' contractbe offered to those Educationalists who had been serving on contract during the year 1984-85 (with the exception of replacements). In the meantime a relevant bill will be placed before the House of Representatives for regulation of thematter by law)». The respondent Commission met on 30/8/1985 and took the sub judice decision and effected the appointment on contract of thecandidates inaccordance with thesuggestion of theMinisterof Education. Although intheminutesitisstated thattheyhave only takeninto 30 consideration that part of the letter of the Minister which informs the Commission thatwithin a period of three monthsa billwill be submitted totheHouseof Representatives fortheregulation of the question of appointmentsoncontractby law andtheydo not refer to his suggestion of those to be appointed (See Appendix «Δ», I 35 have nodoubt inmy mind thattherespondent Commission acted in compliance with the recommendations of the Minister of Education and this isapparent from the contentsof theirletter 29/ 8/1985 (supra). Furthermore, Iam satisfied on the material before me that the 703 KourrlsJ. Ellav. Republic

(1987)respondent Commission did not adhere to the Regulations with regard to the priority list when they proceeded to select for appointment the interested partiesbut they appointed those who were appointed in the previous years in accordance with the wishes of the Minister of Education. In view of the above the 5 applicant hasa legitimate interest. In these premises this is another reason why the sub judice decision ought to be annulled i.e. that the respondent Commission failed to follow the list in that they acceded to the request of the Minister of Education and they appointed allthose 10 who were serving on contract in the year 1984-1985 without exercising their discretion contrary to law. Forallthe above reasonsthesubjudicedecision isannulledbut without any order as tocosts. Sub judice decision 15 annulled. No order asto costs. 704