(1988)1988March12 [LORIS, J.] INTHE MATTER OF ARTICLE 146OF THECONSTITUTION COSTAS ATTAS ANDOTHERS, . Applicants, v. THE REPUBLIC OFCYPRUS,THROUGH THEEDUCATIONAL SERVICECOMMISSION, Respondent (Cases Nos 549185, 623/85, 696/85) PublicOfficers—Appointments—Qualifications—Material dateon which can didates mustpossess them—Penclcous and others ν TheRepublic
(1984)3CLR 577 (ued with apptoval PublicOfficers—Appointments—Scheme of service—Interpretation andappli cation of—Judicialcontrol—Principles applicable 5 Public Officers—Appointments—Scheme of service—Application to the facts of the case in question—The needfor prior due inquiry into all material considerations Due inquiry—Application ofscheme ofservice relating toapost inthe public service—Should be preceded bydue inquiry into all material consideralions JQ The applicants challenge ihcappointment of the interested party to the postof Inspector B,Elementary Education, forGymnastics Their maincomplaint is thatthe interested party was noteligibleforap pointment.Therelevantschemeofservice readsas follows 15 "3 Educational service for at least two years in thepostof Head master A' inElementary Education and/oratotal educational serviceof 506 3 C.L.R. Attas and Others v. Republic 21 years out of which the last 5 years in the teaching of special lessons." Thequestion inthiscaseiswhethertheinterestedparty had "thelast fiveyears"of hisservice"in theteaching of speciallessons." _ .„ Itisan undisputed fact that the interested party wason study leave to Australia from 1.2.80up to20.11.80 where he was attending special lessonsinGymnastics; he returned toCyprus on 20.11.80 andcontinued his educational servicehere;throughout theperiodof20.11.80uptothematerialdatei.e. 16.3.85hewasadmittedly teaching thespecial lesson ofGymnasties. However,counsel for therespondentmaintained thatthe interestedpartywassoengaged in theteachingof thespecial lessonofGymnastics duringtheperiod 1978-1979and 1979upto 1.2.80when heleft for Australia. 15 2Q From thematerial placed before theCourt itemanated that thisallegation was notknown to theCommission. In fact theCommission by letter dated 21.3.85 inquired of the qualifications of the interested party and of other candidates (butnotofapplicant in recourse696/85).Inreply theDirectorofElementaryEducationsimply stated thattheywere qualified. Asfarasapplicant incase696/85 isconcerned, hewasinvitedtoaninterview,butthenhewastreated asnoteligiblefor appointment, TheCourt,after referring totheprinciplesrelatingtotheJudicialcontrol oftheinterpretation andapplication oftheschemeofservice, 25 Held,annulling thesubjudice decision:
(1)Theapplication ofascheme of servicetothecircumstancesofeach particularcasehas tobemade after sufficient inquiry regarding all material considerations.
(2)In this case the Commission failed tocarry a due inquiry into the qualifications of theinterested party; moreover,they failed tocarry suchan inquiry astothequalifications of theapplicant incase696/85. Subjudice decision annulled. No orderastocosts. „« Casesreferredto: Republic v.Pericleousand Others
(1984)3C.L.R.577; Papapetrou v.TheRepublic, 2R.S.C.C. 61; 507 Attas and Others v. Republic
(1988)Petsas v.TheRepublic, 3R.S.C.C. 60; Georghiadesv. TheRepublic
(1967)3 C.L.R.
- Recourses. Recoursesagainstthedecisionoftherespondenttoappointthe interestedpartytothepostofInspectorB'ElementaryEducation, 5 forGymnastics,inpreference andinsteadoftheapplicants. A. S.Angelides, for applicantsincasesNos.549/85and696/
- Chr.Triantafyllides, forapplicantinCaseNo.623/
- R.Vrahimi-Petridou(Mrs.),for therespondent. ,Q E. Efstathiou, for theinterestedparty. Cur. adv. vult. LORISJ. read the following judgment. All applicants in the aboveintituled recourses,whichwereheard together,aspresentingcommonfactual andlegalissues,impugn thedecisionofthe 15 respondentEducational ServiceCommissiondated 16.5.85,publishedintheOfficial Gazetteof theRepublicon 14.6.85,wherebytheinterestedparty,namelyAndreasTheodorou,wasappointed to the post of Inspector B', Elementary Education, for Gymnastics,inpreference toandinsteadoftheapplicants. 20 Themaincomplaintofallapplicantsintheaboveintituledrecoursesisthattheinterestedpartyinallrecourseswasnoteligible for appointment in theaforesaid post, which isafirst entry and promotion post according totherelevant schemeof serviceappearinginAppendix 1 attached totheopposition,asallegedlyhe 25 didnotfulfil atthematerialdate,therequirementsofthescheme of service to which I shall bereferring later on in the present judgment. 508 3 C.L.R. .5 ΙΟ Attas and Others v. Republic LorisJ. Thematerial dateinquestion is, according tothejudgmentof theFull Bench of this CourtinRepublic v.Pericleous & Others
(1984)3C.L.R. 577 atp. 586) "...thedateatwhich acandidate mustpossesstherequired qualifications, inthecaseof aFirstEntry andFirstEntry andPromotionPost,is thelastdateof the pe riod prescribed intheadvertisement for thevacancy by whichap plications have tobe submitted..." Intheinstantcasesthelastdateof theperiod prescribed in the relevant advertisement intheOfficial Gazetteof theRepublic for thevancancy inquestion,by which application hadtobe submit ted,was the 16thof March
- Therelevant partof theschemeof serviceisparagraph 3 there of which reads: 15 "
- Εκπαιδευτικήυπηρεσίατουλάχιστονδύοετώνστην θέση Διευθυντή Α' Σχολείων Δημοτικής Εκπαίδευσης ή/ και συνολική εκπαιδευτική υπηρεσία 21 ετών από τα .οποία τα 5 τελευταία στην διδασκαλία ειδικών μαθημάτων." (English Translation): 20 "
- Educational Servicefor atleast two yearsinthepostof Headmaster A' inElementary Education and/oratotaleduca tional serviceof 21 years out of which thelast 5yearsinthe teaching of special lessons." 25 It is common ground that at thematerial date the interested party hadnoeducational servicefor atleast twoyearsinthepost ofHeadmaster A1in Elementary Education;anditis anundisput edfact thattheinterested party had'atthematerialdateeducational serviceof 21years. What ischallenged is thattheinterested party did nothave "thelast5years" of his educational service,"inthe teaching of special lessons". 30 Itis anundisputed fact that theinterested party was on study 509 Loris J. Attas and Others v. Republic
(1988)leave to Australia from 1.2.80 up to 20.11.80 where he was attending special lessons in Gymnastics; hereturned toCyprus on 20.11.80 and continued his educational service here; throughout the period of 20.il.80 up tothematerial date i.e. 16.3.85 he was admittedly teaching thespecial lessonof Gymnastics. 5 Applicants maintain, and mathematical calculations support their view, that the period between 20.11.80 and 16.3.85is definitely lessthan 5years. Learned counsel for respondent maintains in her written addressrelying on the documents appended thereto,that theinter- ,« ested party wasteaching the special lesson ofGymnastics, whilst in theEducational Service, prior to 1.2.80as well, when the interested party left on study leave toAustralia; Shemaintains that the interested party was soengaged intheteachingof the special lesson of Gymnastics during the period 1978-1979 and 1979 up 5 to 1.2.80when he left for Australia. Learned counsel for applicantsmaintain that theinterested party attended special lessons onGymnastics during his study leave in Australia and submit that hecould not teach Gymnastics prior to getting qualified in such special lesson. Furthermore they allege that what has been put forward by learned Counsel for the ^0 E.S.C. in her written address with regard to the period prior to the 1.2.80 was unknown to the E.S.C, who did not carry out due inquiry towards that direction before reaching at the subjudice decision, and as a result they have acted under a misconception astomaterial facts whenconstruing therelevant scheme 25 of service in connection with theinterested party and eventually reaching atthe sub-judice decision. Before examining the submissions of both sideson thisissue, Iconsider itpertinent todeal briefly with thelegal aspect on this topic. 30 As early as 1961 it was laid down by the then Supreme Constitutional Court inPapapetrou and theRepublic, 2RS.C.C. 61 atp. 69 "that indeciding whetherornot thePublic Service Com510 3 C.L.R. 5 10 25 20 25 30 Attas v.Republic LorisJ. mission in a given case hasconformed with therelevant scheme ofservicetheCourtwillnotgivetosuchschemeadifferent interpretationotherthan thatgiven toitbythePublic ServiceCommission provided that such interpretation was reasonably open toit on thebasisof thewordingof thescheme in question". InPetsas and the Republic, 3 R.S.C.C. 60 atp. 63 the Court affirming theapproach adopted inPapapetroucase(supra)added: "Likewise,indetermining whetheracertain applicantinfactpossesses therelevant qualifications theCommission isgiven adiscretion, and this Court can only examine whether the Commission, on the material before it, could reasonably have come toa particular conclusion." With theaboveprinciplesoftheLaw inmind, Ishallproceed toexaminethe material before therespondent E.S.C. and thenature andextent of itsinquiry with aview toascertaining thematerial facts pertaining tothequalifications of thecandidates andin particular tothoseof theinterested party. Having carefully considered the material before.me, I have cometotheconclusion thattheappendices attached tothewritten address of learned counsel for therespondent werenot beforethe E.S.C,when examining these cases. The contents of the appendicesdo not appear inthepersonal files of theapplicantsandthe interested party; and presumably that wasthereason why therespondent E.S.C. decided on 21.3.85 to address, and in fact did address, totheDirector ofElementary Education, aletterinquiring whether applicants in recourses: 549/86 and 623/85 and the interested party in all cases had the qualificuons envisaged by therelevant schemeof service. „ In thisconnection Ishallconfine myself atthis stageinlaying emphasis to the fact that theE.S.C. did not include applicant in case No.696/85 in their saidquery, addressed tothe Directorof Elementary Education; Ishall bereverting lateron inthepresent judgment on thismatter. - , 511 LorisJ. Attas and Others v. Republic
(1988)The Director of Elementary Education in his reply dated 26.3.85 (videAppendix Aattached tothewritten addressofthe respondent)stated simplythatapplicantsincases549/85and623/ 85 as well as the interested party namely Andreas Theodorou "haveeducational serviceinteachingthespecialsubjectinGym- 5 nasties,forthelastfiveyearsandtheythereforefulfil the relevant provisionof theschemeofservice". It must be noted here that thereply of theDirector doesnot mention anything abouttheabsenceoftheinterested party from Cyprusduring theperiodof 1.2.80-20.11.
- 10 What happened next clearly appearsfrom theminutesofthe respondent E.S.C. On3.4.85theCommissiononbeinginformed ofthecontents of the letter of the Director of Elementary Education dated 26.3.85decided tocallall theapplicantsandtheinterestedparty 15 topersonalinterviewon6.4.
- On6.4.85applicantsinall3casesandtheinterested partyare beinginterviewed bytheE.S.C. The respondent E.S.C. meets again on 30.4.85 and 3.5.85 studyingthepersonalfilesandtheconfidentialreportsofthecan- 20 didates,andfinally on 16.5.85reachesatthesub-judice decision withoutanyfurther inquiryintothematter. Itisclearfrom theabovethattheRespondentE.S.C.afterreceivingtheaforesaid letteroftheDirectordated 26.3.85,which waspartlyincorrect asregardstheinterestedparty,didnotcarry outanyfurther inquiryintothematter. Buttheapplication bytheCommissionofaschemeofservice tothecircumstancesof eachparticularcasehastobemade after sufficient inquiry regarding all material considerations (Athos Georghiades v.TheRepublic
(1967)3C.L.R.653atp.668). 512 25 3 C.L.R. Attasand Others v.Republic Loris J. Therespondent commission failed tocarry out due inquiry as tothequalifications of theinterested party.Theyfailed toexercise theirdiscretion.Thistranspiresfrom thematerial before me. But the failure of the respondent E.S.C. to carry out due in5 quiry wasnotonlyconfined totheinterested party. Itisextended . toapplicant incaseNo.696/85 as well. AsI have already stated earlier on in thepresentjudgment theE.S.C.did not include applicant in case No.696/85 in their letter of 21.3.85 inquiring of theDirector of theElementary Education astothe qualifications 20 ofthecandidates. 15 20 25 OQ Thisomission isnot unequivocal; itmay mean that they knew that he was not qualified and there was no need toinquire; or it may mean that they were so sure that he was qualified, so they considereditunnecessary tomix hisnameintheinquiry aboutthe remainingcandidates. The subsequent conduct of the respondent, notably to invite applicant in case No.696/85 as well topersonal interview, indicates that they were of the view that he was qualified. Yet on 16.5.85without holding anyfurther inquiry,they decided that he was not eligible for appointment as hedid not fulfil the requirementsof theschemeof service. Concluding Ihold theview that therespondnet E.S.C.hasnot conducted the sufficiently necessary inquiry into amost material aspect of the case it was examining, notably the task to ensure thattheinterested party waseligible under therelevant schemeof servicefor appointment'to thepost inquestion; thelack ofdueinquiry resulted in exercising its discretion in adefective manner; thusthesub-judice decision invirtueof which theinterestedparty was appointed tothepost in question, waswrong inLaw having been reached at in excess and in abuse of powers and has to be annulled. Having held as above, Iconsider it unnecessary todeal with any other grounds on which the validity of the sub-judice deci513 LorisJ. Attasand Others v.Republic
(1988)sion inbeing challenged. Intheresult all aboveintituledrecoursessucceed andthesubjudice decision is hereby annulled. Let there be no order as to costs. Subjudice decisionannulled. 5 No orderasto costs. 514