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(1987)1987 February, 26 fTRIANTAFYLLIDES, Ρ. SAWIDES, LORIS PIKIS. KOURRIS, JJ ] SAWAS KARATSIS, Appellant, ν
  1. THE REPUBLIC O FCYPRUS, THROUGH THE MINISTER OF EDUCATION,
  2. THEEDUCATIONALSERVICE COMMISSION, Respondents. (RevisionalJurisdichon Appeal No. 390). Acts ordecisionsinthe sense ofArt. 146.1 of the Constitution—Justiciabilityofan act thereunder — Theprerequisitesthathave to besatisfied. Executoryact — Testapplicableinordertodetermine thequestion whetheran act is of an executory nature Legitimateinterest— Decisiontosecond appellantwith the educationalmissionin UK. foradefinitepenod—Decision torecallappellantasfromtheexpiration of suchperiod — Inthe circumstances the appellant,who had accepted the terms of his secondment, possesses a legitimate interest to challenge the validityof the decision to recallhim 5 Competency— Decisiontaken byanincompetent organ— Groundof annulment. \Q AdministrativeLaw — Due inquiry- Lackof— Groundof annulment. On 10.1 80, the appellant, who isa teacher in elementary education, was seconded to the Ministry of Education on special duties On 7.8.80 he was chosen toparticipate intheEducationalMission inthe UnitedKingdom until 31.8.
  3. Thisperiod was laterextended until31.8.
  4. 1^ in the meantime,on 18.3 82 the Council of Ministers decided toset upa Committee of Ministers tostudy the problems touchingthe operation of the Mission intheU.K. One of the topics which were discussed by the said Committee at its meeting of 23.4.83 was thereplacement of the members of the Mission.The Committee decided to proceed with the recalling of those members of the Mission,whocompletefiveormoreyears intheU.K.bySeptember 1983and for this purpose a questionnaire was sent to 16 members of the Mission m 900 20 3 C.L.B- Karatsis v. Republic order to ascertain whether there is no insurpassable obstacle for the application of thedecision. As theapplicant was notwithin theclassof those to be recalled,Jhe questionnairewas no* senttohim 5 1U 15 The result of the questionnairewas embodied inareportof the Ministryof Education,submitted toajointCommitteeof representatives of the Ministnes of Education and Financein accordance with thedecision of theMinistenal Committee. Thejoint Committeestudies «the cumulative material prepared by theMinistry of Educationon thebasisof theanswers tothequestionnaire which was sent to 16 members of the Educational Mission who had completed atleast five years service inthe Mission.» On 18.83 theMinisterof Educationforwarded asubmission onthe subject to the Council of Ministers On 2.8 83 the Council decided that a new Ministenal Committeebe appointed inorderto study «the said suggestions» and «submit a report to the Council». Amongst «the suggestions» in the submission of the 18.83 was «to approve the immediate recalling of five members of the EducationalMission andtheirreplacementbyfive new ones ΟΓΐ t h e b^ClS of t h r t "CVJ *"»"rr*c 'if eor\t\r&» 20 On 11.8 83 theMinistryof Educationrequested the Director-Generalof the Ministry toproceed, after consultationwith the members of the Committee, ^ ' h the immediate recalling of five members of the mission. The names of those to be recalled were given to the Director-Generaland included the name of theapplicant. By letterwritten on thesame day (11.8.83) theDirector-General informed the applicantof thedecision torecallhim 25 30 35 On 6.9.83 respondent 2 decided to transfer and post the applicant at Ipsonasvillageas from 10.9.
  5. As a result the applicant filed a recourse impugning the validity of the decision to recall him (Prayer 1)and of the decision to post him at Ipsonas (Prayer2). Therecourse was dismissed on thefollowinggrounds,namelythat as thesecondmentof applicanttotheMission was for aspecified period and as the applicant consented tothe termsof his such service, applicant hasno legitimate interesttochallenge thedecision torecall him,thatthe'decisionin question could notbe claimed as having been taken by an organ having no competenceinthematter,thatthe appellant'srecallingtoCypruswas arrived a t fl er a ft dueinquiry,thatthe subjudice decision was dulyreasoned,andthat therewas nothingillegalwith thedecision topostapplicantatIpsonas. Hence this appeal. 40 Held, allowing the appeal and annulling the sub judice decision, Triantafyllides, P.andLoris,J.dissenting: I)PerSawides, J.(A)
(1)Asfromthe l8thMarch 1982whenmeCoundlofMinisterswasseizedofmismatterand the decision was takenfor theappointmentof thefirstMinisterialCommittee 901 Karatsis v. Republic (19S7) to study the problem and report back to it the Council of Ministers became the only competent organto decideon thestructure composition andfuture of the Educational Mission in the U Κ
(2)From the matenal beforethe Court itemanates thatthe practice, which prevailed, was that the recalling of the members of the Mission should be effected amongst those who had completed five years of service in the Mission unless there were insurpassable obstacles for personal family or other reasons concerningsuchpersons
(3)In the lightof theabove practicetherenewalofappellant's secondment in the Mission for further penods of up to five years was reasonably within 5 10 appellant scontemplation
(4)The recalling of the appellant was not made by virtue of the onginal arrangement of his secondment but in implementation of thedecision of the Ministenal Committee to recall him There ibno doubt that the decision was taken by an organ entirely different from the one, which had seconded the appellant to the Mission It follows that the sub judice decision to recall the appellant is by itself a complete administrative act of an executory nature affecting the position and status of the appellant as a member of the U Κ Educational Mission Therefore the appellant hadalegitimate interesttoseek the review of such decision 20 Β
(1)The termsof referenceof the Ministenal Committee, which took the decisionto recalltheapplicant was toreportback totheCouncil ofMinisters In takingthe aforesaid decision the Committee actedin excessand/or abuse of its powers Furthermore such decision was a decision taken by an incompetent organ 25
(2)As the decision to post the appellant at Ipsonas village was consequential to his recallingfromthe Mission,it must, also, be annulled II) Per Pikis, J , Koums, J concumng A(l) As regards the question of legitimate interest, the decision appealed from wholly overlooks that the compositionoftheU Κ Missionafter31 8 83was thesubjectofanew inquiry 3 0 and that the appellant was among the candidates considered for service in U Κ after 1 9 83 2) The test for deciding whether an act is justiciable under Article 146, is substantive not formal To bejusticiable anactmustbeofanadministrative or executive character,issuedinthe domain of publiclaw, andexecutory To be 3 5 executoty the act must be productive of legal consequences, that is, the act must emanate from and express the will of the Administration and for that reason rtmustbe unilateral,definitive of thenghts,statusorpositionin factor law of persons affected thereby Whether any particular pe*-son is thus affectedisa mixed questionoflaw andfacttobe resolved byreierencetothe 4 0 902 15 3 C.L.R. Karatsls v. Republic facts of the particular case Applying this test to the decision of 11 8 83 we notice that it was issued by an administrative authonty it operated in the domainof public law andhad repercussions on thestatusandpositionsofthe thenservingmembers of the UΚ Mission 5 10 15 The appellant was one of the candidates for selection and thedecision to leave him out had direct repercussions on his status and position, including financial consequences B)
(1)Recitationof the facts relevant tothisdecision,immediately discloses that the ministenal committeehad noauthontytodecide thecompositionof the mission Assumption of power by an incompetentorgan constitutesan abuse of power rendenngthedecision takenvulnerable tobe setaside The ministenal committeehad neitherpower inlaw todecide thecompositionof the UΚ mission norwas itentrusted with such a function
(2)Inany event, thedecision torecall theappellant,hastobe annulled for lack of dueinquiry,even ifwe assume thatitwas takenby a competentorgan The questionnaire had not been sent to the appellant and, theretore,there was no inquiry as to his personal circumstances Further, no satisfactory reasons were given for excluding the applicant, who unlike others hadless than 5years service from theU Κ Mission 20 Appealallowed No orderas to costs Casesreferredto Zachanadesv TheRepublic
(1984)3 C LR 1193 25 Sofoclis Demetnades and Son and Another ν The Republic
(1969)3 C L R 557, Frangosν MedicalDisciplinaryBoard
(1983)1C LR 256, Costeasv TheRepublic
(1983)3 C L R 115, VorkasandOthersν TheRepublic
(1984)3 C LR 757, Hadjianastassiou ν TheRepublic
(1982)3 C LR 572, 30 Paraskeva andAnother ν Municipal Committee o//jmasso/
(1984)3 C L R 59, Antomades and Others ν Mmicipal Council of Paphos
(1985)3 CL.R 1695, Payiatasv TheRepublic
(1984)3C LR 1239 903 Karatsis v. Republic
(1987)Appeal. Appeal against the judgment of a Judge of the Supreme Court ofCyprus(A.Loizou,J.)givenonthe27thApril,1984 (Revisional Jurisdiction Case No. 370/83)* whereby appellant's recourse against the decision of the respondents to terminate appellant's posting in England as a member of the Cyprus Educational 5 Mission was dismissed. A. S. Angelides, for the appellant. R. Vrahimi-Petridou (Mrs.), forthe respondents. Cur.adv. vult, The followingjudgments were read: 10 TRIANTAFYLUDES P.: Inthisappeal the appellant challenges thevalidity of a first instancejudgment ofaJudge ofthisCourt by meansof whichthere wasdismissed theappellant's recourse(No. 370/83), under Article 146 of the Constitution, against the decision of the respondent Minister of Education, which was 15 conveyed to the appellant on 11 August 1983, to terminate the posting of the appellant in England, as a member of the Cyprus Educational Mission there, and to order him to return to Cyprus, and, also, against the decision of the respondent Educational Service Commission to post the appellant, after his return to 20 Cyprus, atYpsonas, as from 6 September
  1. Theappellant isaschool-teacher andheservedasamemberof the Cyprus Educational Mission in England from 1980to
  2. The main contention of the appellant in this appeal isthat the decision to recall him from England was taken by the Minister of 25 Education at a time when he was not competent to do so as the matter was in the hands of the Council of Ministersbyvirtue of a decision of the Council of Ministerstaken on 2August
  3. By its said decision the Council of Ministers had, in effect, decided to examine the problems relatingto educational facilities 30 made available by the Government of the Republic of Cyprus to Cypriots in London and elsewhere and a Ministerial Committee consisting of the Minister to the Presidency, the Minister of *Reportedin
(1984)3C.L.R. 488. 904 3 C.L.R. Karatsis v. Republic TriantafyUIdea P. Education and the Minister of Foreign Affairs was appointed to studyvariousproposalsthathad been made andtoreportbackto the Council. It is correct that among the said proposals, which were contained in a submission made on 1August 1983 by the 5 Ministry of Education tothe Council of Ministers,there had been included a proposal for the immediate recall of five membersof the Cyprus Educational Mission in England and the replacement of them by five other educationalists under new terms of service which were tobe approved alsobythe Council of Ministers.Ido 10 not agree,however, withcounselforthe appellant thatby means of itssaid decision the Council ofMinistershad assumed itself the competence oftheMinisterof Education todecidewhowouldbe recalled from the Mission in England to the exclusion of the exercise ofsuch competence bythe Ministerof Education. 15 A meeting of the Ministerial Committee was fixed on 9 September 1983 but, in the meantime, as time was short, the Minister of Education, after consulting the members of the Committee, decided to recall to Cyprus five members of the Mission, one of whom wasthe appellant. 20 Iam of the view that until a decision would be taken by the Council ofMinistersregulating the matterinquestion the relevant competence remained vested inthe Ministerof Education and he has consulted on this occasion the members of the Ministerial Committee exabundant!cautelaandnotbecause hehadtoshare 25 hisresponsibility with them. I cannot, therefore, find any meritin the contention that the Minister of Education has acted without competence. Asregardsthe remaining groundsofappeal I think thattheyall relate to issues which were raised before the learned trial Judge 30 and inwhich I can find no real meritand, therefore, Ilimitmyself tosayingthat inrespect ofsuch groundsthisappealshould failfor thesamereasonsasthosegivenverylucidlyinhisjudgmentbythe trialJudge. Iam,therefore, oftheviewthatthisappealshouldbedismissed. 35 SAWIDESJ.: ThisisanappealagainstthejudgmentofaJudge of this court exercising revisional jurisdiction in thefirstinstance whereby he dismissed the recourse of the appellant by which he was challenging the decision of respondent 1 communicated to 905 SawidesJ . Karatsls v. Republic
(1987)him by letter dated 11th August, 1983, terminating his participation in the United Kingdom Educational Mission and recalling him to Cyprus, and also the decision of respondent 2, consequential to the decision of respondent 1,totransfer and/or place him at Ipsonasvillage. 5 The learned trial Judge after he had dealt explicitly with all grounds of lawraised bycounsel for theappellant found that the appellant by having had accepted his secondment in England which was for a specified period and having consented to the conditions subject towhich hissecondment wasmade,according 10 to which he was bound to return to Cyprus by the 31st August, 1983, had no legitimate interest to challenge the sub judice decision of respondent 1. He also found that the decision in question could not be claimed ashavingbeen taken byan organ havingnocompetence inthematter,thattheappellant'srecalling 15 toCypruswasarrivedatafter adueinquiryandthatthesubjudice decision wasdulyreasoned. The learned trialJudge in dismissing the recourse concluded as follows: «To any mind there was nothing illegal in the act, of recalling of the applicant and consequently his transfer to 20 Ipsonas could not be found as being contrary to Law as claimed by him, and there isnothing offending section 38of thePublicEducation ServiceLaw,1969(LawNo.10of 1969) asamendedbysection7ofLaw53of1979.The secondment oftheapplicant cametoan end onaccountofthesubsequent 25 actsthatsupersededsame,sometakenathisownrequestand someaccepted byhimasalreadysetoutinthisjudgmentand in any event impliedly brought toan end by the respondent Commission takingthesubject decision.» The grounds raised by counsel for appellant insupport of this 30 appeal arebrieflythatthedecision ofthetrialcourtwasincorrect, inpronouncing that(a)thesubjudicedecisionswerevalidand lawful, (
  1. b)the decision to recall the appellant from London was taken lawfully andbytheappropriate organ, (c)there was due inquiryand proper reasoning, (
  2. d)that the secondment of the appellant to the United Kingdom Educational Missionwasterminated lawfully and 906 35 3CX.R. Karatsis v. Republic SawldeaJ. (e)thatthe decision of respondent 2was lawful. 5 Asthe questions posing for consideration inthisappeal^arenot sosimple astheymayappear atafirst glance,Ifind itnecessaryin narratingthefactstogoat some length on certain mattersrelevant thereto. The appellant isa teacher in the elementary education having been appointed tosuchpostpermanently on the 11th December. 1978, after he had served on contract and on probation, since 1975.On the 10thJanuary, 1980,bydecision ofrespondent 2he 10 was seconded to the Ministry of Education for special duties.On the 9th July, 1980, in response toan announcement inthe press aboutvacanciesintheEducational MissionintheU.K.heapplied to the Head of Elementary Education for service with the said Mission. His application was favourably considered and he was 15 chosen together with five other teachers to participate in the Educational Mission inthe U.K.subject tothetermsembodied in a letterdated 7th August, 1980,addressed totheappellant bythe Director-General of the Ministry of Education, the contents of which read as follows: 20 25 «I wish to inform you that you have been chosen to participate in the Educational Mission in the U.K. This arrangement willbe valid untilthe 31stAugust, 1982,and so longasitlastsyouwillbepaidalltheemolumentsofyourpost in Cyprus and in addition the allowances which have been approved for the members of the Mission (the cost of travelling from England to Cyprus will be paid by the Government oftheRepublicofCyprus).Detailsofyourduties and relevant instructions will be given through the Educational Officer incharge of the Mission.» 30 Theappellantcontinuedtoserveunderthesametermsafter the expiration ofthetermsofhisoriginalappointment. Byletterdated the 23rd February, 1983,the Ministry of Education informed the appellant that it had been decided that his participation in the EducationalMissioninEnglandbeextendedforoneyearuptothe 35 31stAugust, 1983on the same terms. Inthe meantime thestructure, composition, financial problems and various other matters touching the operation of the Educational Mission inthe U.K.were thesubject of consideration not only by the Ministry of Education but also bythe Council of 907 SawidesJ. Karatsls v.Republic
(1987)Ministers. From what emanates from the material in the relevant files, in March, 1982, after a submission by the Ministry of Education, the Council of Ministers at its meeting of 18.3.82 decided to set up a committee of Ministers composed of the Ministers of Education, Foreign Affairs, Interior, Finance and 5 Presidency, to study the problems touching the operation of the Mission in the U.K. According to the minutes of the meeting of suchCommittee, ofthe 11thDecember, 1982,inwhich reference ismade to the decision of the Council of Ministers to set up the Ministerial Committee, certain decisions were taken including, 10 inter alia,the carryingout ofan inquirybythe Ministerof Foreign Affairs withtheassistanceoftheAmbassadorofCyprusinLondon as to the possibility of setting up joint Educational Media composed of representatives of the Governments of Greece, Cyprus and of the Church to deal with problems of the 15 Educational Mission in the U.K.Alsothat efforts should be made forcloseco-operation oftheMinistriesofEducationofCyprusand Greece for joint action on matters concerning the operation of such media in the U.K. for the purpose of satisfying the educational needs of the community there. 20 Andtheminutesof the meetingthen goon asfollows: «The above should takeplacetillthe 15th March, 1983,so that itwillbecome possible for the Committee of Ministersto meet and decide: (
  1. a)On the structure and composition of the Cyprus 25 Educational Mission. (
  2. b)The criteria for the selection of the members of the Mission. (c)Theadministration and supervision oftheMission. (
  3. d)The progressive renewal of the members of the 30 Mission.» Various views were also expressed at the meeting on the financial problemsoftheMission. TheMinisterialCommitteemetagainonthe23rdApril,1983,to considerfurthertheproblem.Fromwhatappearsintheminutesof 35 suchmeeting,theCommitteehadbefore itthe listofthe teachers whowereserving inthe Educational Mission in London who are described in the minutes as being 24, six of whom had been 908 3 C.I..R. Karatsls v. Republic Savvldes J . serving since the 20th January. 1977. 10 since 10th October, 1978, 4 since the 1st September. 1980 and 4 since the 1st September. 1981. One ofthe topics which wasdiscussed atsuch meeting wasthe 5 replacement of members of the Mission. In this respect, the following decision was taken: 10 «Toproceed firstwiththerecallingofthosemembersof the Mission who complete five or more years in the U.K. by September, 1983. For such purpose a questionnaire should be prepared and be sent to the affected members of the Mission
(16)to ascertain whether there is no insurpassable obstacle by the application of the aforesaid decision as from the newschool year (1983-1984).» Itisobviousfrom thesaiddecision thatthe 16members referred 15 to in the decision are those who had been serving since the 20th January, 1977 and 10th Octouei, 1978and who by Septpmber. 1983, would have completed five yearsservice inthe U.K. Infurtherance ofsuch decision, a questionnaire wassent tothe said 16 teachers as to their personal and family problems. Such 20 questionnaire was not sent to the appellant and seven other teachers who had been seconded after the 1stSeptember, 1980, as they had not completed five years service abroad. The cumulative resultsofthequestionnaire wereembodied ina report prepared by the Ministry of Education which was submitted to a 25 joint Committee of representatives of the Ministries of Education and Finance in accordance with the decision of the Ministerial Committee. The joint committee met on the 8th June, 1983 and arrived,at certain conclusions which it decided to submit to the Ministerial Committee. Itfurther decided to request the Minister 30 of Education to hold a meeting of the Ministerial Committee the soonest possible. Itisworthwhile to note from the minutes of the meeting of such joint committee that it studied, amongst others, «thecumulative materialprepared bytheMinistryofEducation on thebasisoftheanswerstothequestionnaire whichwassentto 16 35 members of the Educational Mission who had completed atleast fiveyearsserviceintheMission.» From the relevant file of the Ministry of Education which is before us, itappears that a meeting of the Ministerial Committee was summoned by the Minister of Education for the 24th June, 909 S a w i d e s J. Karatsls v. Republic
(1987)1983, which, however, did not take place due to the inabilityof certain Ministers to attend and the meeting wasadjourned to the 1st July, 1983 and then again to the 13th July,
  1. Nothing appears in the record that any meeting took place for further discussion on the matter. The Minister of Education on the 1st 5 August, 1983, presumably bearing in mind the various decisions of the Ministerial Committee and the suggestions of the joint committee made a submission to the Council of Ministers on the subject which was placed before the Council of Ministers at its meeting of the 2nd August. 1983.Atsuch meeting, according to 10 the minutes: «The Minister of Education informed the Council of Ministers on the various proposals of hisMinistry concerning the effective solution ofthe problem to render facilities tothe Cypriot communities inLondon and elsewhere.Particularsof 15 the proposals are contained in the submission of the Ministry of Education, copy of which isattached to the minutes. It has· been agreed that a Committee be appointed consisting of the Minister of Education, Presidency and Foreign Affairs in order to study the said1suggestions and
  2. submita report tothe Council.» Amongst the suggestions contained in the submission of the Minister of Education1to which reference ismade in the minutes, were under para.5 «thenewtermsofservice»ofthe membersof the Mission'and.under paragraph 6(c)«toapprove the immediate 25 recalling of five members of the Educational Mission and their replacement by five new ones on-the basis of the new terms of service.» According toa note (note27)intherelevantfilethesecretaryof the Council' of Ministers addressed a request to the Director- 30 General· of the Ministry of Education that the Ministerial Committee should be summoned *"H submit its report to the Council ofMinistersfo"thetakingofafinaldecision onthematter. The Director-General of the Ministry of Education conveyed the requestto the Minister of Education·on 11.8.1983,whobya note 35 tothe Director-General (note29)ofthesamedatedirectedhimas follows: 910 3 C.L.R. Karatsis v. Republic S a w i d e s J. «D.G. 5 10 Asthere isno time for holding meetings of the Ministerial Committee, after consultation with the members of such Committee please proceed to recall five members as we agreed, havingtaken intoconsideration their years of service intheMission,thedifficulties theyface forreturningtoCyprus andtheinefficiency (inonecase).Thefivememberswhoshall be recalled are: » (a list of the names then follows which includes that of the appellant). Atthe end ofthe above note therearethe following records: «Weshould summon the Committee the soonest possible. Signature 2.8.83» 15 «Note. After consultation with the Minister of Education and due totheabsence of theMinisterstheMinisieilal Committee willbesummoned intheweek commencing22.8.
  3. Signature 13.8.83.» 20 Intherelevant filethereisasummonsdated23rdAugust,1983, conveninga meetingoftheMinisterialCommittee onwhich there isarecorddated 10.9.83.totheeffect thatthemeetingdidnottake place and it was postponed. In fact, there is no record as to the holdingofanymeetingoftheMinisterial Committee thereafter, or 25 that such Committee did ever submit a report to the Council of Ministers. What,however, happened, wasthattheDirector-General ofthe Ministry, in compliance with the directions of the Minister of Education of the 11th August, 1983wrotetothe appellant on the 30 same day, informing him as follows: «Ihave been instructed to refer toyour participation in the Educational Mission inthe U.K.and wishtoinform you thatit hasbeen decided thatyourparticipation beterminated onthe 31st August,
  4. 35 In consequence thereof, as from 1.9.1983 you should return tothe duties ofyour post in Cyprus.» Upon receipt of such letterthe appellant protested inwritingto the Director of Elementary Education complaining for unfair and 911 S a w i d e s J. Karatsls v. Republic
(1987)unequal treatmentandaskingforthereasons ofhisrecall,towhich the Directorof Elementary Educationreplied on30th September, 1983 givingthefollowing reasons « (
  1. a)The arrangement was subject to revision from year to year and itis within theexclusive competenceof theMinistry of Education toextend or terminateit 5 (
  2. b)It was made clear to you by our letter Ρ 4695 dated 7 8 1980 as well as by our letter of 23 2 1983 that the arrangement was for one year's duration In your case the 10 arrangement began on 1 9 1981 expired on 31 8 1982 and was renewed for the period 19 1982 till 31 8 1983. Both on the first occasion and on the second occasion you have accepted without any reservation We regret that the reservations which you now raise are out of place and time 15 and cannotbe considered » The decision of respondent 1 which was communicated tothe appellant by letter dated 11th August, 1983, was challenged by theappellant by his recourse underprayer 1 On 6th September 1983 respondent 2 decided totransfer and 20 post theappellant atIpsonasvillageas from 10 9 83 Such transfer was challenged underprayer 2 of the recourse What emanatesfrom thematenalbefore us,thefunctioning and the composition of the UΚ Educational Mission, and matters pertaining to the rendering of assistance to the vanous Cypnot 25 communitiesin the UΚ,became thesubject of anew inquiry by the Council of Ministers after a submission had been made by the Minister of Education, very nghtly in my view, under the provisions of section 6
(2)(
  1. b)and (
  2. e)of Law 12/65 As from the 18thMarch, 1982 when theCouncilof Ministerswas seized ofthis 30 matterand the decision was taken for theappointmentof the first Ministerial Committeetostudy the problem and reportback toit, the Council of Ministers became the u.ily competent organ to decide onthestructure,composition andfuture oftheEducational Mission mthe U Κ On the question of recalling of some of the members of the Mission, it is quite clear that all along from the time the first Ministerial Committee was appointed, as it emanates from the minutesof themeetings of suchCommitteeandthesteps taken for 912 3 C.L.R. Karatsls v.Republic S a w i d e s J. the implementation of its decisions, and well before, the practice that prevailed was that there should be a progressive renewal of the members of the Mission and that concerning the recalling of members, such recalling should be effected amongst those who 5 had completed five years service inthe Mission unless there were insurpassable obstacles for personal, family or other reasons of such persons. It is in furtherance of this decision that the questionnaire wassenttoonly 16members oftheMission, thatis. those whohad completed five yearsparticipation inthe Mission. 10 With the above facts in mind, I come now to consider the question as towhether the appellant wasvested with a legitimate interest to challenge the sub judice decision concerning his recalling from the Mission. Counsel for the respondents in his address insupport ofthe subjudice decision and thefirst instance 15 judgment, contended that the terms of service of the appellant werewellknowntohimandinfactformed partotthe arrangement for his secondment to the Mission; that appellant by having had accepted such terms unconditionally and unreservedly deprived himself ofanyrighttochallengesucharrangementatalaterstage. 20 It is correct that the original term of the arrangement for the secondment of theappellant wasforaperiod oftwoyears ending on 31.8.82. Nevertheless, renewal of his secondment for further periods up tofive years wasreasonably within his contemplation. in view of the existing practice, as it appears from the file of the 25 Ministry of Education inwhich the termsofservice ofmembersof the Mission appear, tohave such service prolonged for up to five years unlessthe needs ofthe service otherwise required. Itwasin fact asa result ofsuch existingpractice that after the expirationof the original term, appellant's secondment was prolonged for a 30 further year expiring on 31.8.1983. In the meantime and before even the expiration ofthe first term of hissecondment, asalready mentioned, the Council of Ministers became seized of the matter ofthe composition ofthe Mission and initiated an inquiryintothe matter. 35 Thetermination oftheparticipation oftheappellant intheU.K. Mission and his recalling to Cyprus was not based on a decision taken by virtue of the arrangement for his secondment but in implementation, according to the record of the Minister of Education, ofthedecision oftheMinisterialCommittee which had 913 S a w i d e s J. Karatsis v. Republic
(1987)been appointed by the Council of Ministers.There isnodoubt, in my mind, that such decision was a decision taken by an organ entirely different from that which seconded the appellant to the Mission in London and therefore it is by itself a complete administrative actofanexecutorynatureaffecting thepositionand status of the appellant as a member of the U.K. Educational Mission and as such could be challenged by a recourse under Article 146 of the Constitution. Therefore, the appellant had a legitimate interest toseek thereview of such decision with a view of testing itsvalidity. 5 Having found that the appellant had a legitimate interest to challenge the sub judice decision, I shall proceed to examine the validity ofsuch decision. The terms of reference of the Ministerial Committee by the decision of which the termination of the participation of the 15 appellant was effected, were toconsider thematterspertaining to thestructureand composition oftheU.K.EducationalMissionand the recalling of itsmembers,and toreportback tothe Councilof Ministers. It had no power to implement by itself any decision taken by it. By implementing such decision the Ministerial 20 Committee had exceeded the authority entrusted to it by the Council of Ministers and thus acted in excess and/or abuse of powers.Furthermore, inaccordancewiththetermsofreferenceof such Committee the decision taken by it to terminate the participation of the appellant inthe U.K. Educational Mission and 25 recall him to Cyprus was a decision taken by an incompetent organ. (Asto the effect of decisions taken byincompetent organs useful reference may be made to the case of Zachariades v. Republic
(1984)3 C.L.R. 1193). For the above reasons the sub judice decision for the 30 termination of appellant's secondment in the U.K. Mission and recalling him toCyprus should have been annulled. Inview of my above conclusion, the decision of respondent 2 for posting the appellant at Ipsonas village which was consequential to the termination of his participation in the U.K. 35 Educational Mission and hisrecallingtoCyprus,should also have been annulled. 914 10 3C.L.R. Karatsis v. Republic Sawides J . In the result the appeal succeeds and the sub judice decisions challenged byappellant's recourse, are hereby annulled. There willbe no order for costs. 5 LORIS J.: 1had the opportunity of reading in advance the judgmentdeliveredbythelearnedPresidentoftheCourtand Iam infull agreement with him. PIKISJ.:The twomotionsfor which relief wassought, entailing judicialreviewofadecision oftheeducationalAuthoritiestorecall the appellant to Cyprus from the United Kingdom educational 10 mission and, the decision incidental thereto to reassign him teaching duties in Cyprus, were dismissed for lack of legitimate interest. Under review on appeal, isthe correctness of the above judicial decision and, if wrong, the propriety of the relevant decisions of the educational Authorities. The learned trial Judge 15 took the view that appellant was· bound by the terms and conditions of his aiiachrneni to the U.K. mission to return to Cyprus by 31st August, 1983: in consequence, no legitimate interest of his was prejudicially affected or could be prejudicially affected by any decision requiring him to return to Cyprus. 20 Moreover, the reassignment of duties to him in the Educational Servicewasnothing otherthan areaffirmation ofhisdutytoserve asateacher after the implicittermination ofhissecondment tothe Ministryof Education forspecialduties.Theforemost issueinthis appeal, the one that attracted most argument, is the first issue 25 turning primarily on the legal implications of the decision of the ministerial committee to recall him to Cyprus for educational duties after 31.8.83. Forproper appreciation of the legal nature, character and implications of this decision,,we must narrate the facts, albeit briefly, preceding,and surrounding it. 30 In January, 1980, the Educational Service Commission seconded the appellant to the Ministry of Education for the discharge of «special duties». Responding toan advertisement of theeducational Authorities, the appellant successfully applied for servicetotheU.K.educationalmission'of Cyprus.Byadecisionof 35 the appropriate Authority, dated7.8.80, hewasappointed to the United Kingdom Educational Mission for an initialperiod of two years;extended forone moreyear, a factformally communicated to him on 23.2.83.Hisservice inthe U.K.wasdue tocome toan endon31.8.83. 915 Plkls J. Karatsls v. Republic
(1987)Meantime,the Ministry of Educationinitiatedan inquiry intothe structure of the UΚ mission with a view to -(
  1. a)institutionalising culturaland educationalassistance totheUΚ Cypnotcommunity and, (
  2. b)minimising the cost to government The results of this inquiry and suggestions for changes, were the subject of a 5 submission totheCouncilof Ministerson 1 8 83 Itwas proposed inter alia, toreduce the force of themission by recalling five of its members and altenng the terms of service of the remaining members Also, suggestions were made for the restructure of the mission by entrusting responsibility toan independent institution, 10 a foundation, that would be able to attract funds from non governmental sources as well The Council of Ministers discussed the submission on 2 8 83 and referred it to a ministerial sub-committee for further consideration with a view to reporting back to the Council of 15 Ministers on its merits and measures necessary for itspromotion Soon afterwards on 8 8 83 the Secretary to the Council requested the ministerial committee to convene the earliest and report back to the Council of Ministers without delay The ministerial committee did neither They neither met nor reported 20 back to the Council of Ministers Instead, they took it upon themselves to adopt measures for the implementation of some aspects of the submission of the Ministry of Education to the Council of Ministers,specifically to recall five of the members of the UΚ mission, including the appellant On the day consensus 25 was reached among the ministenal committee on the above, a letter was despatched to the appellant informing him of the decision to recall him Earlier, it must be noted the Ministry of Education had addressed a questionnaire to members of the mission with five or more years service inthe UnitedKingdom,in 3Q order toelicittheirpersonal circumstancespreliminary todeciding which of them would be recalled It appears the Ministry was onginally inclined to confine the inquiry on who should be recalled among those members of the mission who were in the UΚ for five or more years As appellant had less than five years 35 service, his circumstances were not probed nor was he given an opportunity toput forward his views on thematter The review of thevalidity of theabove decision was the subject matterof therecoursebefore thetnalCourt,aswellasthedecision following thereto to revoke his secondment to the Ministry of 40 Education and assign him teaching duties in elementrary 916 3 C.L.Η Karatsis v. Republic Plkls J. education. The learned trial Judge dismissed both motions as ill founded. The decision torecall him.inparticular,was found to be nonjusticiable for lackof alegitimate interest.Intheopinionofthe learned trialJudge appellant had norighttoremain intheUnited 5 Kingdom, except in accordance with and subject to the terms of his appointment. As they required him toreturn toCyprus by 31.8.83 he had nolocusstandiorinterestinany decision deciding the composition of the U.K. mission thereafter. Thedecision wholly overlooks that the composition of the U.K. mission after 10 31.8.83 was the subject ofa fresh administrative inquiry andthat appellant was among thecandidates considered for service inthe U.K. after 1.9.83. Ontheface of it thedecision torecallthe appellant was unconnected with the terms of his previous assignment and theirimplementation. 15 Counsel for theappellantargued appellant hadadirectinterest in the decision taken, because hewasa member of the U.K. mission, and acandidate for service in the U.K.after 31.8.83.As the decision had direct repercussions on his position and status, and affected himfinancially as well, he had a legitimate interestto 20 seek the reviewofthedecision torecall himwith aview to testing its validity. Onthemerits of his complaint he submittedthe decision to recall him could notstand the testofany scrutiny asit was the result ofabuse and excess ofpower on the part ofthe ministerial committee who decided torecall him. 25 Counsel for the respondent, on the other hand,supported the decision ofthe trial Courtas valid,and argued thatappellant had no interest toquestion itas hehad norighttoremain intheUnited Kingdom after 31.8.83. Alternatively, the decision of the ministerial sub-committeeof11.8.83, ifreviewable, constituteda 30 valid exercise ofthe discretionary powers of the committee.The appeal turnsprimarily onthejuristic natureandimplicationsofthe decision of 11.8.83; in particular, whether itwas executory and, secondly, prejudicial toany legitimate interest ofthe appellant. The test fordeciding whether an act isjusticiable under Article 35 146, issubstantive notformal*. Tobe justiciable anactmustbe of an administrative or executive character, issued inthe domain of public law and, executory. Tobe executory theactmust be productive oflegal consequences, that is, the act must emanate • See. interaha. SofoclesDemetriadesandSon andAnother v. Republic
(1969)3C.L.R.557; and Frangosv. MedicalDisciplinaryBoard
(1983)1CLR. 256. 917 PiklsJ. Karatsls v. Republic
(1987)from and expressthewilloftheAdministration andforthat reason it must be unilateral, definitive of the rights, status or position in fact or law of persons affected thereby. Whether any particular person isthus affected, isa mixed question of law and fact to be resolvedbyreference tothefactsof theparticularcase*.Applying 5 thistesttothe decision of 11.8.83,we noticethat(a)itwas issued byan administrative authority, (
  1. b)it operated in the domain of public law inasmuch asit purported to determine the composition of a body charged with an important mission in whose success the public had a 10 vital interest and, (
  2. c)it had repercussions on the status and position of the then serving members inthe U.K.mission. The inquiry was confined to deciding which members of the U.K. mission should continue serving in the U.K. asfrom 1.9.83. 15 Appellant was one of the candidates for selection and for that reason the decision had direct repercussions on his status and position, including financial consequences.The decision to leave himoutaffected him directlyand forthatreason hecouldseekthe review of itslegality.The decision wasdefinitive ofhisposition in 20 the public service as from 1.9.83. Forthat reason, I am unable to uphold the decision of the trial Court that he had no legitimate interest topursue thepresent proceedings. Itbecomes, therefore, necessarytoexaminethemeritsoftherecourse,thatis,thevalidity of the decision of the ministerial committee of 11.8.83. 25 Therecitation ofthefactsrelevanttothisdecision,madeearlier, immediately discloses that the ministerial committee had no authority to decide the composition of the U.K.mission. Itsterms of reference were specifically confined tostudy of the submission of the Ministry of Education of 1.8.83with a viewto reporting to the Council ofMinisterson itssoundnessand measures necessary 30 for itsimplementation. Assumption of power byan incompetent organ constitutesanabuse ofpower, renderingthedecision taken vulnerable to be set aside**. The ministerial committee had neither power in law to decide the composition of the U.K. mission, nor wasitentrusted withsuch a function. 35 • See. interalia.Costea v. Republic
(1983)3 C.L.R. 115:Vorkas and Othersv. Republic
(1984)3C.L.R.757. " ·See, interalia,Hadpanastassiouv.Republic
(1982)3C.L.R.572;Paraslw-i andAnother v. MunicipalCommittee ofLimasso!
(1984)3C.L.R. 54;AntoniadesandOthersv. Municipal CouncilofPaphos
(1985)3C.L.R. 1695;and. Payiatasv.Republic
(1984)3 C.L.R.1239. 918 3 C.L.R. Karatsls v. Republic ριυβj . Even ifwe supposed thattheywerevestedwith authoritytotake thesubjudice decision,itwould again have tobeannulledfor lack of due inquiry. Contrary to their professed aim to elicit the personal circumstances of the members of the U.K.mission they 5 omittedtomake such inquiry inthecase of appellant Further, no satisfactory reasons are given for excluding theappellantfrom the U.K.mission who,unlikeothers,hadlessthanfiveyears servicein the U.K. In view of our conclusion to allow the appeal and set aside thedecision of 11.8.83, itbecomes unnecessary toexamine 10 the second prayer of the appellant for improper reassignment to him of elementary school duties. For all the above reasons, the appeal is allowed and the sub judice decision is annulled.Letthere be noorderas to costs. KOURRIS. J.: I had opportunity to read in advance the 15 Judgmentof Ptkis. J and I agree with hisreasons andconclusions and I would allow theappeal. Appeal allowed by majority.No order as to costs. 919

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.