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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 151
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
IOANNIS VALIANTIS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS THROUGH
THE EDUCATIONAL SERVICE COMMISSION,
Respondents.
(Case Nos. 724/85, 827/85, 845/85 and 1000/85).
Recourse for annulment-Abatement-Revocation, of sub judice decisions- Whether and in what circumstances a recourse challenging the revoked act is abated by reason of the revocation-Present: recourses not: abated as the injurious results of the revoked acts, were not obliterated by the revocation.
Educational Officers-Transfers-The Educational Officers (Teaching Staff) (Appointments,. Postings, Transfers, Promotions and Related Matters) (Amendment) Regu1ations. 1985-Ultra vires enabling statute-Sub judice transfers annulled.
Damages-Constitution Article 1466.
The sub judice transfers were revoked after the decision in Aristides v. The Republic (1986). 3 C.L.R. 466,. whereby the Educational Officers (Teaching Staff)t (Appointments,. Postings, Transfers, Promotions: and Related Matters) (Amendment) Regulations, 1985, on the basis of which the said transfers had been made, were found to be invalid. The question that arose for determination is whether by reason of such revocation, the above recourses have been abated.
Held (1) It is well established that only a successful applicant in a recourse under Art. 146 of the Constitution is entitled to seek just and equitable: damages under paragraph 6 of the said Article., Where an act of limited duration, has ceased to exist without: having produced, before ceasing to be operative, any adverse consequences for the applicant, the recourse filed against it is abated. In these cases, however, the revocation did not obliterate any adverse results, which the sub judice transfers might have caused to the applicants. It follows that the recourses have not been abated.
(2) The revocation is an admission of the invalidity of the sub judice decisions at least on the ground that they were taken on the basis of invalid delegated legislation.
(3) On the material before the Court the sub judice decisions are faulty as they were based on delegated legislation, which is ultra vires the enabling statute and unreasonable.
(4) Recourse of applicant 1 in 1000/85 is out of time.
Recourse of applicant 1 in 1000/85 dismissed.
Save as aforesaid, sub judice decisions annulled.
Cases referred to:
Anstides v. The Republic (1986)3 C.L.R. 466;
Kyriakides v. The Republic, 1 R.S.C.C. 66;
Christodoulides v. The Republic (1978) 3 C.L.R. 193;
Hapeshis and Others v. The Republic (1979)3 C.L.R. 550;
Agrotis v. The Republic (1983)3 C.L.R. 1397;
Kittou and Others v. The Republic (1983)3 C.L.R. 605;
Maliotis v. The Municipality of Nicosia (1965)3 C.L.R. 75;
Vafeades V.V The Greek Communal Chamber (1966) 3 C.L.R. 197;
Andreou v. The Republic (1975) 3 C.LR. 108;
Christodoulou v. The Republic, 1 R.S.C.C. 1;
Spyrou and Others v. The Republic (1973) 3 C.L.R. 624;
Papaxenophontos and Others v. The Republic (1982)3 C.L.R. 1037;
Salem v. The Republic (1985)3 C.L.R. 453.
Recourses.
Recourses against the decision of the respondents to transfer applicants in accordance with the provisions of the Educational Officers (Teaching Staff) (Appointments. Postings. Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985.
A.S. Angelides, for the applicants in Cases Nos. 724/85,845/ 85 and 1000/85.
A. Triantafyllides, for applicant in Case No. 827/85.
A. Vassiliades, for the respondents.
Cur. adv. vult.
STYLIANIDES J. read the following judgment. The applicants in these recourses are educationalists - teachers of primary education and teachers of secondary education. By means of these recourses they seek the annulment of their transfers which were made on the basis and in accordance with the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985, commonly referred to as «Regulations 71/85».
The said regulations were found to be invalid by the President of this Court in Soterios Aristides v. The Republic of Cyprus, through the Educational Service Commission, (1986) 3 C.L.R. 466, for the reasons stated therein.
Consequent to the aforesaid judgment the respondents on 23.4.86 «decided to recall the sub-judice» transfers and communicated this to the applicants by letter dated 25.4.86.
It is the contention of counsel appearing for the respondents that due to the revocation the recourses have been abated due to having been deprived of their subject-matter.
Paragraph 6 of Article 146 of the Constitution gives effect to the general principle laid down in. Article 172 that the Republic is liable «for any wrongful act or omission causing damage committed in the exercice or purported exercice of the duties of officers or authorities of the Republic» in respect of all matters coming within the scope of Article 1d6 - (Kyriakides v. The Republic, 1 R.S.C.C. 66, at pp. 74-75)
Paragraph 6 reads:
«Any person aggrieved by any decision, or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.»
It is well established that only a successful applicant in a recourse seeking redress under Article 146 of the Constitution is entitled to seek just and equitable damages under Article 146.6 - (See., inter alia, Christodoulides v. The public, (1978)3 C.L.R. 193; Hapeshis and Others v. The Republic, (1979)3 C.LR. 550; Agrotis v. The Republic, (1983)3 C.L.R. 1397; Kittou & Others v. The Republic, (1983) 3C.L.R. Q5).
Where an act of limited duration has ceased to exist without having produced, before ceasing to be operative, any adverse consequences for the applicant, the recourse Which was made against it is abated, because if there are "no adverse consequences of such an act no need to annul it, in view of the provisions of Article 146.6, would arise (Maliotis v. The Municipality of Nicosia,(1965) 3 C.L.R. 75, 94, 95; Vafeades v. The Greek Communal Chamber, (1966) 3 C.L.R. 1.97., 199; Andreou v. The Republic, (1975)3 C.LR. 108, 110).
The revocation of the sub-judice decisions is an admission of their invalidity at least on the ground that they were taken on the basis of invalid delegated legislation Christodoulou v. The Republic, 1 R.S.C.C.1; Spyrou and Others v, The Republic, (1973) 3 C.LR. 624; Papaxenophontos and Others v. The Republic of Cyprus, through the Council of Ministers and Others, (1982)3 C.L.R. 1037).
It is not within the task or competence of this Court to inquire whether the applicants suffered any damage from the revoked decisions. This is within the exclusive jurisdiction of the District Court.
I am of the view that the revocation has not obliterated any adverse injurious results that the challenged decisions might have caused to the applicants until the date of the revocation. The recourses, therefore, have not been abated due to having been deprived of their subject-matter-(Salem v. Tie Republic (1985) 3 CLR. 453).
On the material before me the sub-judice decisions are faulty as mainly they were based on delegated legislation which is ultra vires.-the enabling statute and unreasonable.
Objection was taken to the recourse of applicant Marios Nicolaides, the first applicant in Recourse No. 1000/85, that it is out of time.
The decision, that he challenges was taken on 23.8.85 and his transfer was with effect, from 1.9.85. The recourse was filed, on. 25.1 1.85, well beyond the 75 days prescribed peremptorily b. paragraph 3 of Article 146. His case: cannot, therefore, be entertained by the Court and is doomed to failure.
For the foregoing; reasons and in virtue of paragraph 4 (b) of Article 146, the sub-judice decisions, with the exception of the case concerning applicant. Marios Nicolaides, are, declared null and void and of no effect whatsoever. I need not stress that such a declaration annuls an administrative act from the time of its genesis.
The recourse of Marios: Nicolaides, applicant No. 1 in Case: No. 1000/85, is hereby dismissed.
Let there be no order as to costs.
Sub judice decision annulled
in all cases except case No.
1000/85 which is dismissed.
No order as to costs.