clr/1988/1988_3_593.pdf

(1)—WhetherthepoweroftheCommission thereunderto make appointments oncontractislimitedtothosealready servingoncon-. tract—Questiondeterminedinthe negative. EducationalOfficers—Appointmentoncontract—TheEducationalOfficerson Contract (Appointments to Posts in the Public Service) Law 1985 (Law 161/85), section 3

(1)—Appointments made on basis of the date on which thecandidatesobtainedtheirDiplomas, thegradesoftheirdiplomasandthe ageofthecandidates—SuchcriteriaarethesameasthoseinRegulation5

(2)oftheRegulations of1972,whichhasbeendeclaredvoidfor unreasonableness in Savva v. The Republic

(1986)3 C.L.R. 445—Itfollows that for thesamereasonthesubjudice decision hastobe annulled. EducationalOfficers—Appointmentsoncontract—The EducationalOfficerson Contract (Appointments to Post in the Public Service) Law, 1985 (Law 161/85)—Seniority—Oneday'sseniority—in a caseof a contractofshort duration cannothaveanybearing. 593 Papakyriakou v. Republic

(1988)Thefacts of thiscaseappearsufficiently in thejudgmentof theCourt Subjudice decision annulled. No orderasto costs. Casesreferredto: Savva v.The Republic

(1986)3C.L.R.445. <- Recourse. Recourseagainstthedecision oftherespondent toappointon contracttheinterestedpartiestothepostofteacherofCommercial subjectsinpreference andinsteadoftheapplicant. A. S.Angelides,for theapplicant. 10 P.ClerideSyfor therespondent. i. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant challenges,bythepresentrecourse,thedecisionof therespondents to appoint, on contract, the interested parties, namely, 15 ChristosVassiliou,ConstantiaStylianouandLambrosDjordjis to thepostofteacherofCommercial subjectsinsteadofandinpreferencetoher. TheapplicantgraduatedtheHigherSchoolofCommerce,Athens,in 1974,andwasenrolledonthelistofcandidateswishing 20 tobeappointedasteachers. Bylettersdated3rdOctoberand6thOctober, 1986,theMinistry of Education conveyed to Respondent No. 1the needs of schoolsincommercial subjects,andrequestedtheappointmentof teachersinordertocoverthesaidneeds. 25 The respondent Educational Service Commission (to bereferred to as the E.S.C.), met on 11th October, 1986,and after 594 3 C.L.R. Savvides J. taking intoconsideration thefact thatthelists of appointees had been declared as ultra vires the law by the Court, appointedon contract,as from the 13th October and for a period of 15 days, a number of educationalists, on the basis of section 3

(1)of Law 161/

1. Itis stated in theminutesof theCommission thatthese­ lection of the appointed teachers was made after consideration of thecases of all candidates interested andon the basisof thedate on which they obtained theirDiplomas,thegrade of theDiploma andtheirage. Oneoutof thefive teachers so appointed for Commercial subjects was interested party No.
2. 5 Λ As two of the teachers appointed for theabove subject didnot accept their appointment,therespondent E.S.C.met again onthe 13th October, 1986 andrevoked their appointments.Itthenpro­ ceeded toappoit interested party No. 3for aperiod of 15days as from 15.10.1986on thebasis of the criteria set down inits previ­ ous meeting of 11th October. In the place of the other teacher who did notaccept his appointment, theE.S.C.decided "inview of the necessity for the immediate covering of educational gaps to appoint temporarily on contractas from 14.10.86for a period of 15 working days, " theapplicant in order to enable itself to get incontactwith thoseof thecandidates interested who had priority on thebasis of thecriteria set down by it which are mentioned above. c 0 Papakyriakou v. Republic Inview of theexpiration of theabove contractual appointments theE.S.C.met on the31st October, 1986, andrenewed for a fur­ ther period of 15 days, the appointments of interested parties 2 and 3, but not that of the applicant. Instead, it proceeded toap­ point as from 1st November, 1986, for a period of 15 working •'days, interested party No. 1,stating that "Mr. Vassiliou has pri­ ority over theothercandidates onthebasis of thecriteria defined atthemeeting of theCommission,dated 11.10.1986". V! Theapplicant filed thepresent recourse challenging the above decision. Thefirst pointraised by counsel for theapplicantis thattheap595 SavvidesJ. Papakyriakou v. Republic

(1988)pointmentofinterested partyNo. 1was madecontrarytothepro­ visions of Law 161/85 since he was not,on the 31st October, 1986 an "educationalist oncontract" within themeaning of the Law. Counsel for the respondent argued, in respect of this point, 5 thatthelaw cannotbe interpreted tomeanthatthepower of the E.S.C.is limited inappointingoncontractonly thoseeducation­ alistswhoarealready servingoncontract.Hepointedoutthat the contractual appointment of the applicant for 15 days was only madeuntil theE.S.C. would be able to study thecases of those JQ having priority for appointmentsandmakethenecessary contacts withthem. Therelevant Law applicable with regard tothisground isthe Educational Officers on contract (Appointment toPosts in the Public Educational Service) Law, 1985 (Law 161/85). Section 3 15

(1)of thisLaw reads as follows: "3. -Κατά παρέκκλισηαπό τις διατάξεις των περίΔη­ μοσίας Εκπαιδευτικής Υπηρεσίας Νόμωντου 1969 έως (Αρ.2)του 1985 ήοποιουδήποτε άλλουΝόμουή Κανονι­ σμούοοποίοςαφοράστηδημόσιαεκπαιδευτικήυπηρεσία, 20 σχετικάμετις μεθόδουςκαιδιαδικασίεςπλήρωσηςθέσεων στηδημόσια εκπαιδευτικήυπηρεσία,ηΕπιτροπήδύναται κατά διακριτική εξουσία ναπροβαίνεισε διορισμούςεκ­ παιδευτικώνλειτουργών με σύμβαση." AndtheEnglish translation. 25 ("3.

(1)Indeviation totheprovisions of thePublicEduca­ tionalService Laws 1969 to(No.2) 1985oranyotherLaw or Regulation concerning the public educational service, the Commission may within its discretionary power effect ap­ pointmentsof educationalofficers oncontract) Counsel for applicant relyingon thecombined effect of this section andthedefinition of "educationalofficers oncontract" in 596 30 3 C.L.R. Papakyriakou v. Republic Savvides J. section 2

(1)contendedthatthepower of theE.S.C.toappointon contract was restricted tothose educational officers already serv­ ing on contract,which was notthecase with interested partyNo. 1. 5 10 Thedefinition of "educational officer oncontract"in section 2

(1)of Law 161/85is as follows: "' εκπαιδευτικόςλειτουργός με σύμβαση σημαίνει εκ­ παιδευτικό λειτουργό χωρίς διορισμόο οποίοςδιορίστηκε στηδημόσιαεκπαιδευτικήυπηρεσίαμε σύμβαση σύμφωνα μετις διατάξεις τουπαρόντος Νόμου." And theEnglish translation: 15 20 '"Educational officer oncontract'means aneducational of­ ficer without appointmentwho was appointedin thepublic ed­ ucational service oncontractinaccordance with the provisions , of this Law". . Ifind myself unable toagree with theinterpretationof theLaw as suggested by learned counsel for the applicant. It is obvious from thewording of section 3

(1)thatitgives power to theE.S.C. toappointeducationalofficers oncontract.And any educationalist so appointed becomes an "educational officer on contract" within themeaning of section 2

(1). 25 Theterm "educational officer oncontract" appears in section 3

(2), the purpose of which is to offer ordinary appointment to those educational officers serving on contracton.the 1stDecember, 1985 andtheterm "educational officer on contract"is used in that context, and notfor thepurpose of limiting orrestricting the power of theE.S.C undersection 3

(1).This contentionof coun­ sel therefore fails. 30 .The second ground raised on behalf of the applicantconcerns the appointmentof interested party No.3. Counsel argued that theapplicant was senior tohim having been appointed as from the 597 Savvides J. Papakyriakou v. Republic

(1988)14thOctober, 1986, whilstthisinterested party was appointed as from the 15thof thesame month,thatshealso hadexcellent ser­ viceandshould therefore hadbeenpreferred tohim. Ifindthiscontention of counsel ascompletely groundless and Itherefore dismiss it.Theonly thing Imay addis thatoneday's 5 seniority in acase of acontractual appointmentof such a short durationas in thepresentcase (15days)cannothave any bearing onthecase. Thelast groundraised by counsel for applicantis thatthe crite­ ria for selection set down by the E.S.C. on the 11th October, 10 1986, on the basis of which the subjudice appointments were made,areoutsidethecontextof theLaw andmorespecifically s. 28 of Law 10/69. Hecontended that they are the same criteria contained in Regulations 5 and 10, of the 1972 Regulations, which were declared by theCourt as ultravires theLaw, in the 15 case of Savva v. TheRepublic

(1986)3 C.L.R.445. Counsel for therespondent argued that theE.S.C. tookinto accountallrelevantconsiderations andtheappointmentswerenot madeon thebasisof thedateand grade of theDiploma andthe age of thecandidates alone. As regards interested party No. 1, 20 counsel argued, hepossessesthesamequalifications astheappli­ cantbuthaving obtained themtwoyears earlier thanher,he had priority over herforappointment. Thecriteria set down by theE.S.C.atits meeting of the 11th October,1986,as appearing intheminutes,were asfollows: "Η επιλογή των πιο πάνω καθηγητώνγίνεταιύστερα από μελέτη των περιπτώσεωνόλων τωνενδιαφερομένων γιαδιορισμόκαι μεβάση τηνημερομηνίααπόκτησηςτων απαιτουμένωνγιαπρώτοδιορισμόπτυχίου,το βαθμότου πτυχίου,καιτηνηλικίατωνενδιαφερομένων." Itisobviousfromtheabove thatthedateonwhich the candi­ dates obtained theirDiplomas,thegrades of theirdiplomas and 598 25 30 3 C.L.R. Papakyriakou v. Republic Savvides J. the age of the candidates were major considerations in reaching the sub judice decision. 5 10 25 «Q 2 c 3 0 . These criteria are the same with the criteria which appear in Regulation 5

(2)of the 1972 Regulations (No. 205/72) and the Schedule thereto,which have been declared as ultra vires the Law and void for unreasonableness, in the case of Sawa ν.' Republic

(1986)3 C.L.R., 445. The relevant pan of the judgment in the aforesaid case appears at pp.448 -449 as follows: "In thelight of the submissions of the parties I have carefully considered theissue of ultra vires of the relevant provisions of the aforesaid Regulations and I have reached the conclusion that the said provisions and,in particular, regulations 5 and 10 and the Appendix thereto, especially when applied together, 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 and section 76, under which the Regulations in question were made, does not empower the additionof thefurther prerequisite that the educa­ tionalists to be appointed should have priority for this purpose in accordance with a list of those eligible to be appointed, which is prepared on the basis of the criteria set out in the Ap­ pendix tosuch Regulations. As regards the matter of delegated legislation being ultra vires the statuteunderwhich it has been made I would add that the relevant principles have already been expounded in case law of this Court and need not be repeated in this judgment once again (see, in this respect, inter alia, Marangos v. The Municipal Committee of Famagusta,

(1970)3 C.L.R. 7, Spyrou (No. 2) v. The Republic,

(1973)3 C.L.R. 627, Stavrou v. The Republic,

(1976)3 C.L.R. 66, Michaeloudes v. The Republic,

(1979)3 C.L.R. 56t Menikos v. The Republic,

(1983)3 C.L.R. 1130, and Ethnikos v. Κ.ΟΛ.,

(1984)3 C.L.R. 1150). I am, furthermore, of the opinion that the aforementioned 599 SavvidesJ. Papakyriakou v.Republic

(1988)provisions of the Regulations in question, and,in particular, of theAppendix thereto,arevoid for unreasonableness, and, consequently,ultravires,becausetheyintroducesomeunreasonablecriteria of priority for appointment which areclearly entirelyincompatible withtheparamountobjectofappointing 5 the most suitable candidates, (see,inter alia,in thisrespect, Avraamv. The Municipality of Morphou,

(1970)2C.L.R. 165,andAngelides v. TheRepublic,

(1982)3C.L.R.774). AsIsaidearlier,thecriteriaonwhichthesubjudiceappointmentsweremade,werebasically thesameasthosecontainedin IQ Regulation 5

(2)and the Schedule to the Regulations of 1972, whichhavealreadybeendeclaredasultraviresandvoidforunreasonableness.InviewoftheaboveIfind thatthesecriteriacannotberelied upon asthedecisivefactor, ashashappenedinthe presentcase,sincetheyareoutsidethecontextoftheLawandthe *e subjudicedecisionmust,therefore, beannulledonthisground. Intheresultthisrecoursesucceedsandthesubjudicedecision isherebyannulled.Therewillbenoorderforcosts. Sub judice decision annulled. Noorderasto costs. o(\ 600