(1988)1988January16 [A.L0IZ0U,J.] INTHEMATTEROFARTICLE 146OFTHECONSTITUTION IOANNAPANAYIOTOUHADJICHARALAMBOUS, Applicant, v. THEREPUBLICOFCYRPUS,THROUGH 1.THEEDUCATIONAL SERVICECOMMISSION, 2.THEMINISTRYOFEDUCATION, Respondents. (CaseNo.36184). Administrative act—Legalityof—Itmustbeexaminedonthebasisofthelegalregimeprevailing atthetime itwas taken—Appointments ofeducationalofficersoncontractfor alimitedduration—Decisionsinrespect of periods1980181 and1981/83annulled—Subjudicedecisionrelatestothe period 1983/84—It is a newandindependent decisionand, therefore, shouldbejudgedonthebasisofthelegalregimeprevailingatthe timeit wastaken, andnotthatprevailingatthe time theannulleddecisionshad beentaken. Theapplicant wasappointed on a specialcontract tothepost ofInstructress in GoId-smilhing-Silver-smithing at the Technical Schoolof Nicosiaforeightperiodsperweekasfrom the6thOctober, 1976andat theProfessional School Larnaca, for tenperiodsper week as from the 28thFebruary 1977.Thisspecialcontract oftheapplicant wasrenewed successively untilAugust1980. For the reasons appearing in HadjiCharalambous v. TheRepublic
(1981)3 C.L.R.309,the interested party wasappointed for theperiod 1980/1981tothepostinsteadoftheapplicant. 24 3 C.L.R. HadjiCharalambous v. Republic Upontheannulmentof thedecision onthegroundof misconception, theinterestedpartywasoncemoreappointedbutherappointmentforthe period 1981-1983wasannulled inHadjiCharalambous v.TheRepublic
(1986)3C.L.R.2703. 5 10 InthemeantimetheFullBenchofthisCourtgaveitsjudgmentinthe caseofPapakyriacou v.Republic
(1983)3C.L.R.870inwhichthefollowingwasheld: "ThattheCouncilofMinistershadnopowerunders.27
(1)ofLaw 10/69todecidewhoshouldbeappointed,beitbyrenewalofcontract; thattheirpowerswereconfined todecidingthemodeoffillingavacant postbypermanent, temporary,orbyappointmentoncontractandnotbyselectionofthecandidadeforthepostthustobefilled*. Notwithstanding thesecondannulment,therespondentCommissiondecidedinthelightofPapakyriakou v. Republic, supratore-appointforthe 15 period 1983/1984theinterestedpartytothepostinquestionontheground thatherqualificationsweresuperiortothoseoftheapplicant. Oneoftheissuesthatarosefordeterminationwaswhethertherespondent Commission ought tohaveignored thelegal position asit wasexpoundedbytheFullBenchofthisCourtinthePapakyriacou casesupra 20 o r n o t · Held,dismissing therecourse:
(1)Thesubjudicedecisionofthe11th October 1983wasanewandindependentdecision inrespectofappointmentfor theschoolyear 1983-1984,for which therehadnotbeenanannullingdecision,unlikethedecisionstakeninrespectof theyears198025 1981 and 1981-1983whichdecisionswerethesubjectofthetwo recourses of HadjiCharalambous and with which therespondentCommission ought tohavecomplied with. Itfollows that thelawapplicable wasthe lawasitstoodatthetimethesubjudicedecisionwastaken.Thelegalityof thesubjudicedecision hastobeexamined bythisCourt onthebasisof 30 suchfactual andlegalregimeandnotofthatthatprevailedatthetimewhen thetwootherseparateandindependentactsweretobeconsideredasa resultoftheirrespectiveannulment
(2)Itisobviousthattheinterestedpartyhadbetterqualificationsthan theapplicant and therefore the decision of the respondent Commission 35 wasreasonablyopentoit,; Recoursedismissed. Noorderastocosts. 25 HadjiCharalambous v. Republic
(1988)Casesreferredto: HadjiCharalambousv.Republic
(1981)3C.L.R. 309; HadjiCharalambousv.Republic
(1986)3C.L.R. 2703; PapaKyriacou v.Republic
(1983)3C.L.R.870; Pieris v. Republic
(1983)3C.L.R.1054; 5 Tornarisv.Republic
(1983)3C.L.R. 1292; Sawa v.Republic
(1984)3 C.L.R.
- Recourse. Recourse against the decision of therespondent toappoint on contract for theyear 1983-1984 theinterested party tothepost of 10 Instructress in Technical Education in preference and instead of the applicant. A. S. Angelides, for the applicant. G.Erotocritou (Mrs.), Senior Counselof theRepublic,for the respondent. Chr.Mitsides, for the interested party. Cur. adv. vult. A.LOIZOU J.read thefollowingjudgment. By thepresentrecoursetheapplicant seeks: (a)Adeclaration of the Courtthat therefusal and/or omission of therespondentstoappoint heron contract tothepostofInstructress in Gold-smithing and Silver-smithing inspite of thejudg/ 26 20 3 C.L.R. HadjiCharalambous v.Republic A.Loizou J. ments of the Supreme Court in recourses 412/80 and 384/81, is null and void and of no effect whatsoever and that what was emittedought tobedone: (b)Adeclaration oftheCourtthattheactordecision ofthere5 spondents dated 5th November, 1983,toappoint on contract for theyear 1983-1984Christina Markidou hereinafter called theinterestedparty instead of the applicant, is null and void andof no theeffect whatsoever, (c) Declaration of the Court that the omission of the respon10 dents toreinstate and/orappoint on contract theapplicant and/or tocomply with thejudgments of theSupremeCourt in recourses 412/80and 384/81,iscontrary toLaw. The facts of thecase are simply these.The applicant between the years 1964-1973 did at first her apprenticeship and then 15 worked as a Gold-smith - Silver-smith at the work-shop of Mr. Constantinides inNicosia, andbetween theyears 1973-1976she worked on herown. From September 1966toJune 1970 she attendedacycleof lessonsof theApprenticeship Schemeorganized bytheMinistry ofLabour and Social Insuranceand uponitssuc20 cessful completion shewasawarded acertificate of specialization inSilver-smithing -Gold- smithing. The applicant wasappointed on a special contract tothe post ofInstructress inGold-smithing -Silver-smithing attheTechnical Schoolof Nicosiafor eight periodsperweek asfromthe6thOc25 tuber, 1976,andattheProfessional SchoolLarnaca, withtenperiodsperweek asfrom the28thFebruary 1977.This specialcontract of the applicant wasrenewed successively for employment until August
- Forthereasonsappearinginmyjudgment reported asIoanna 30 Panayiotou HadjiCharalambousv.TheRepublic
(1981)3 C.L.R 309,theinterested party wasappointed tothepost instead ofthe applicant 27 A. Loizou J. HadjiCharalambous v. Republic
(1988)Upon theannulment of thatdecision on thegroundof misconception and the case was re-examined the applicant was once more not appointed and bythejudgment of thelearned President of the Court in recourse No.384/81 delivered on the 28th May, 1983,reported asJoannaPanayiotouHadjiCharalambous v.The Republic
(1986)3 C.L.R. 2703 that second decision of the respondents was annulled. InthemeantimetheFullBenchof thisCourtgaveitsjudgment in the case of Papakyriakou v. The Republic
(1983)3 C.L.R. 870,in which thefollowing washeld: 5 *0 "That the Council of Ministers had nopower under s27
(1)of Law 10/69 todecide, who should beappointed beit byrenewal ofcontract; that theirpowers wereconfined todeciding themode of filling avacant post bypermanent, temporary, or byappointment on contract and not by selection of thecandi- 15 date for the post thus to be filled: that, therefore, the Council of Ministers in deciding who should be appointed exceeded theirpowers and their suggestion for filling thepost by therenewal of existing contracts ought tobedisregarded by therespondents; that far from disregarding them, the respondents 20 approved the recommendation of the Council of Ministers in thisrespectand appointed officers whohave servedduring the precedingyearon acontractual basis;thatthey acted contrary totheprovisions of the law, notably s.5
(1),making them in theabsenceofprovision tothecontrarythesolejudgesofwho 25 should be appointed. This duty they failed tocarry out completely. They failed to exercise any discretion in the matter. They merely rubber stamped the decision of the Council of Ministers;accordingly theappealmustbeallowed". Themisconception in thefirstHadjiCharalambous case was 30 that theselection of theinterested party wasmadenot becauseof a comparison of her respective merits and qualifications, with those of the applicant, but because of a misconception as to the effect of an agreement between theProfessional Organization of Secondary School Teachers and the Government which was ap- 35 proved by the Council of Ministers. In the second case the 28 3 C.L.R. HadjiCharalambous v. Republic A. Loizou J. learned President concluded that as no appeal was filed against thefirstjudgment hewasoftheopinion that theHadjiCharalambouscasewasbindingon therespondent Commission whenitreexamined thecaseof theapplicant on the 16thOctober, 1981.In 5 fact, as it appears from the statement of the facts in the second HadjiCharalambous case the interested party was reappointed once again oncontractinstead of theapplicantretrospectively as from the 23rd October,
- Tne learned President then held that:10 15 20 "Even though therespondent Commission has stated in its minutes for the 16thOctober 1981thatitappointed on contract theinterestedpartyinsteadof theapplicant becauseitfound the interestedpartytobebetterqualified thantheapplicantitseems tome that had theCommission felt bound,asitought to have felt bound, by the aforementioned decision of the Council of Ministers and thejudgment in the HadjiCharalambous case, supra, toreapoint the applicant on contract and, also,had the Commission not taken erroneously the view that it could not decide itself torenew theappointment oncontractof theapplicant,it would not haveappointed theinterested partyon contract insteadof theapplicant". Inre-examining thecaseof theapplicantafter theannulmentof their decision by thejudgment of the learned President, the respondent Commission at its meeting of the 11th October 1983, 25 decided, as it appears from their relevant minute (Appendix B), the following: "B.The Secondary Education.
- Appointments on contract. (a)Markidou Christina (PMP6983) 30 Instructress for Gold-smithing". The Commission inviewof thememorandum of theHead of 29 A. Loizou J. HadjiCharalambous v. Republic
(1988)Technical Education No.502.83 and dated 6th October, 1983, decidedtoappointoncontracttheaforesaid Instructressfrom1st September 1983-31stAugust 1984fortenperiodsattheTechnicalSchoolNicosia. The Educational ServiceCommission hasin mind thejudg- 5 mentof theSupreme Courtregarding Instructress IoannaHadjiCharalambous (PMP6345)butbelievesthatthejudgmentofthe SupremeCourtin Appeal293istheonethathastobeappliedto the present case. Miss Markidou is chosen for this post onaccountofhigherqualification. 10 It may be noted here that Appeal No.293referred to in the saidminute,isthatcaseofPapakyriakouv.TheRepublichereinabovecited. Furthermore theaforesaid letterof theDirectorof Secondary Education dated 6th October, 1983,(Appendix A),informs the 15 respondentCommissionthatthereisavacancyfortenperiodsfor the subject of Silver-smithing and Gold-smithing in the first TechnicalSchoolNicosiaandrequeststhattheyarrangethepostingofthenecessary staff. Acomparison ofthequalifications oftheapplicantandthein- 20 terested party maycompletethefactual backgroundof thecase. Theapplicantattended(a)forfouryearsthePhaneromeniGymnasium, (
- b)apprenticeship trainingfromSeptember 1967toJune 1970,certificate ofcompletionofthelessonsinthespecialization ofSilver-smithing -Gold-smithing,(c)apprenticetoSilver-smith 25 with Nicos Constantinides 1964-1967, (
- d)employee by Nicos ConstantinidesSilver-smith 1967-1973,(e)self-employed atNicosConstantinidessilver-smith 1973-1976. Theinterestedparty(a)graduatedtheLarnacaGymnasium,(
- b)Diplomaof the StateInstituteof Florence (DiplomaDiLicenza 30 Dal CorsoDi Magistero), threeyearcourse, (c)Diplomaof the StateInsituteofArtforTeachinggold-smithing. 30 3 C.L.R. HadjiCharalambous v. Republic A. Loizou J. Itis obvious thattheinterested party had better qualifications than the applicant and therefore the decision of the respondent Commission was reasonably open toit,having been taken in the exercise of its administrative discretion. 5 There is, however, the last question to be resolved, namely whether therespondent Commission oughttohave ignored thele gal position as it was expounded by theFull Bench of thisCourt in thePapakyriakou case (supra) or not.On this point extensive argument has been advanced by counsel on both sides, who re10 ferred meinteralia, tothecase of Pierisv. TheRepublic
(1983)3 C.L.R. 1054 at p. 1065; Tornaris v. The Republic
(1983)3 C.L.R. 1292 at p. 1299; Savva v. TheRepublic
(1984)3 C.L.R. 1391, at p. 1395 and to the textbook by Vegleris "The Compli ance of the Administration with theDecisions of theCouncil of 15 State" at p. 99, as well as to Kontoyiorga - Theoharopoulou "Consequences of the Annulment of the Administrative Act as against theAdministration", p.257. Tomy mind theLaw applicable was theLaw atit stood onthe day thedecision was taken as the subjudice decision of the 11th 20 October 1983, was a new and independentdecision in respect of appointment for the school year 1983-1984, for which year there had not been an annulling decision, unlike thedecision taken in respect of the years 1980-1981 and 1981-1983 which decisions were thesubject of the two recourses, Hadji Charalambous (su25 pra),and with which therespondent Commission ought to have complied with. Thatthis is so it is clear from thefact thatthe ap plicant inrespect of thetwo periods for which thedecision of the respondent Commission was annulled had instituted in theDis trict Court of Nicosia proceedings under Article 146
(6)of the 30 Constitutionfor compensation andindeedcompensation was paid for theyear 1980-1981, whilstthecivil action for theyears 19811983 is still pending. The sub judice decision therefore, had to be examinedirTthe light of thelegal andfactual situation prevailing atthetimeit was όο taken as same was explained or expounded hvfhe judgment of 31 A. Loizou J. HadjiCharalambous v. Republic
(1988)theFull Bench of this Court inthePapakyriakou caseandnaturallyitslegalityhastobeexaminedbythisCourtonthebasisof thatfactual andlegalregimeandnotthatthatprevailedatthetime thetwootherseparateandindependentactsweretobeconsidered asaresultoftheirrespectiveannulment. "5 Thatthesubjudicedecisionwasaseparateandindependent actnotthesubjectofanannullingdecisionofthisCourtbeforeit waschallenged bythepresentone,isfurther established bythe factthatthecontractsofemploymentoffered totheinterestedpartywereyearlycontractssince 1981. 10 Forall the abovereasons therecourseisdismissed butinthe circumstancestherewillbenoorderastocosts. Recoursedismissed. Noorderastocosts. 32