clr/1987/1987_3_705.pdf

(2)— The list compiled under Reg 5 — Reg 10

(2)clearly sets out rules of pnonty — Sub judice decision taken before the decision in Sawa ν TheRepublic [1986)3 C L R 445 whereby Regulations 5 and 10

(2)were declared ultra vires the enabling law — The respondents were not entitled to disregardthe said Regulations Legitimate interest— Appointments on contractin disregardofthe rulesofpriority (Regs 5and 10

(2)oftheEducational Officers(Teaching Staff) (Appointments Emplacements, Transfers Promotions and Related Matters) Regulations 1972)— Had therebeen strictcompliance with therulesofpriorityapplicants 2 and3 would nothavebeenappointed andapplicant 1 would not havebeen appointed exceptin theplace of one of the interestedparties — Application ofapplicants 2 and 3 dismissed—Application ofapplicant 1 succeedsinpart asagainst such interestedparty In making appointments on contract (or the school year 1983 1984 the respondent Commission did not follow the order of priority in the list compiled in virtue ofthe aforesaidRegulation 5 20 However in view of the places in the said list of the applicants and the interested parties, if the Commission had applied the list applicants 2 and 'Λ would not have been appointed whereas applicant 1 would have be£n 705 Themlstocleous v. Republic

(1987)appointed intheplace of interestedparty Nicos Chnstodoulou Held annulling in part the sub judice decision

(1)Reg 10

(2)of the aforesaid Regulationssetsoutclearly therulesofpriority Thecaselaw ofthis Court shows thatthe respondentCommission was notentitledto desregard the provisions of Reg 10

(2)which at the time of taking of the sub judice 5 decisionwere stillinforce TheCourtinthiscase isconcernedwiththelegality of the actat the timeitwas taken and for thisreason thedecision inSawa ν The Republic

(1986)3 CLR 445, which was delivered after thesub judice decisionandwhereby Regs 5and10

(2)ofthesaidRegulationswere declared ultravirestheenabling law, does notaffect theposition inthiscase 10

(2)Compliance with theorder o.fpnontywould have led to the following appointments that is of Applicant 1, Interested party Paraskevopoylos, interestedparty Kousparou interested partyGavriehdes andinterestedparty Mylonas Consequentlytheapplicationof applicants2and3cannotsucceed andtheapplicationofapplicant 1 canonlysucceedasagainst interestedparty 1 5 NicosChnstodoulou Recoursedismissedto the extent indicatedabove Appointment of interestedpartyChnstodoulou annulled Noorderasto costs 20 Casesreferredto Psara-Kronidou ν TheRepublic

(1985)3 CLR 1900, Kynahdou ν EducationalService Commission

(1986)3 CLR 913, Kouisand Othersν 7Tie/?epub/ic

(1986)3C LR 1874, Samsv TheRepublic

(1987)3 C L R 186, 25 Samsv TheRepublic

(1987)3 C L R 229 Sawav TheRepublic

(1986)3 C L R 445, Kapsosv 7?ieRepub/ic(l983)3CLR 1336 Recourse. Recourseagainst thedecision of therespondentstoappointthe 30 interested parties as school-master of Physics on contractfor the school-year 1983-1984 in preference and instead of the applicants. 77).Montis, for theapplicant 706 3CL.R. Themistocleous v. Republic Μ FJorentzos. Senior respondents Counsel of the Republic for the Th loanmdes, for interested party No 1 A Markides. for interested party N o 2 -5 Ν Panayiotou for interested party No 4 No a i.jearance for lnteies'ed parties Nos 3 and 5 Cm adv vult A LOIZOU J read the following judgment By the present recourse the three applicants seek 10 15 20 25 30 35 (

1. a)declaration of the Court that the act and/or decision of the respondent Commission by which they appointed Andreas Paraskevopoulos Androulla Kousparou Achilleas Gavnelides Photios Mylona and Nicos Chnstodoulou to the post of school-master of Physics ( Φ υ ο ι ο γ ν α κ η ι κ η ) on contract, for the year 1983 1984 instead ot the applicant*· is null and void and with no legal effect (
2. b)Declaration of the Court that the refusal and/or omission of the respondent Commission to appoint the applicants as school-masters of Physics in strict compliance with the order of pnonty of the List of candidates forappointment isnull and void and with no legal effectand what was omittedought to be done retrospectively (
3. c)Declaration of the Court that the suggestion and/or submission and/or order of another authority and especially of the Council of Ministers respondents 2 to appoint the aforesaid interested parties instead of the applicants is contrary to Law and in abuse of the powers giuen by the Public Educational Service Law 1969 (Law No 10of 1969) The three applicants were placed on the List of candidates for appointment as school-masters of Physics in the following order Applicant 1,Themistocleous under serial No 4 Applicant No 2 Loizidou, under senal No 25 and applicant No 3 Ponayi under senal No 26 The five interested parties were appointed under senal numbers, 15, 16, 2 0 24 and 3 7 The said list of candidates was prepared by virtue of the provisions of Regulation 5 of the Educational Officers (Teaching Staff) (Appointments, Emplacements, Transfers Promotions and 707 A. Loizou J. Themistocleous v. Republic

(1987)Related Matters)Regulations 1972. as amended Undertheprovisions ofRegulation 10

(2)thereof «appointments on contractare made inorderofpnority from therelevant listsof persons to be appointed» The reasons for the respondent Commission, not following the order of priority under the 5 aforesaid Regulation appear in paragraph 4ofits minutesofthe 12th September 1983, (Appendix «A») attached to the opposition Itstates that the stnct observance of the orderof pnonty of the new List of candidates for appointmentoffends the constitutionally safeguarded pnncipleofequality and itwould be 10 unfair for those appointed earlier to remain withoutappointment as onthe basis of the established practice those appointed on contracthadthe conviction thatthey were obtaining apermanent post andthat the manner of their appointment was a mere proceduralformality, thatistheyconsideredthemselves inasense 15 permanent and onthebasisof thisfactor they created obligations, family, social, financial and on many occasions left their previous employment Inthecase of Psara -Kronidouν TheRepublic

(1985)3 CL.R 1900 it was held that the respondent Commission could not 20 disregard the provisions of theaforementioned Regulation 10

(2), which forallintents and purposes atthe time oftaking the sub judice decision wasinforce This pnnciple was followed in the cases of Loukia Kynakidou ν 77ie Educational Service Commission, Recourse No 785/85, judgment delivered on the 25 4th June, 1986,* Kouis and Others ν The Republic, Recourse No 34/85, judgment delivered on the 25th September 1986**, and also in Georghios S Sams ν TheEducational Service Commission, Recourse No 940/85, judgment delivered on the 27th January, 1987***, -both judgments asyetunreported - 3 0 where extensive reference ismadetotherelevantCaseLaw ofthis Court This approach was followed by me inthe case of Georghios Sams ν The Republic, Case No 242/83, judgment delivered on the5th February, 1987****·I find noreason whatsoever todepart 35 from the approach ofmy learned brethren in the recourses just referred toandwhich Ifollowed intheSams case(supra) Thesaid Regulation sets outclearly the rules ofpnonty wrvth had tobe * Reportedm

(1986)3CLR 913 " Reportedm

(1986)3CLR 1874 '*' Reportedm

(1987)3CLR 186 ""Reportedm

(1987)3CLR 229 708 3 C.L.R. Themistocleous v.Republic A. Loizou J. observed inappointingoncontracteducational officers andwhich were indeed in force at the time the sub judice decisions were taken.AsIamconcerned inthepresentcasewiththelegalityofthe actatthetimeitwastakenandnotwiththeconsequences brought 5 about by the subsequently delivered judgment of the Supreme Court in EfstathiosSawa v. The Republic

(1986)3 C.L.R.445, whatwasheldinKapsosv. TheRepublic

(1983)3C.L.R.1336has no application. Acomparison, however, of the order of priority of the three 10 applicantswiththefive interestedpartiesshowsthatthosethathad tobeappointed incompliance withtheorderof prioritysetoutin the List of candidates were applicant 1, Themistocleous. interested party 1, Paraskevopoulos, interested party 2, Kousparou, interestedparty3.Gavrielides,andinterestedparty4, 15 Mylonas. Consequently the application of applicants 2 and 3 could not succeed and the application of applicant 1, could not succeed except only as against interested party Nicos Christodolou. The recourse therefore isdismissed tothe extent stated above 20 and it succeeds only as regards that part of the application of applicant 1,thatchallengestheappointment of interested party5. Nicos Christodoulou. Intheresultorderismadeaccordinglywithnoorderastocosts. Orderaccordingly. 709