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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 312
(LORIS, J.)
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS KISSONERGIS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE EDUCATIONAL SERVICE COMMISSION,
Respondent.
(Case No. 903/85).
Administrative Law - General principles - Subsidiary legislation - Once enacted by the competent organ, it has to be complied with until repealed or declared by a judicial decision to be ultra vires the law.
Administrative Law - Discretionary powers - Administrative Authority vested with such powers - Not entitled to subordinate the discretion to another organ.
Administrative Law - General principles - Legality of administrative act - Governed by legislation in force at the time it was made.
The interested parties in this recourse were appointed on contract to the post of Schoolmaster of Gymnastics in contravention of the list of priorities compiled in virtue of reg. 5 of the Educational Officers (Teaching Staff) (Emplacements, Transfers, Promotions and Related Matters) Regulations 1972 as amended in 1974. The reason of departing from the order of priority was due to the recommendations of the Ministry of Education.
As a result the applicants, who in accordance with the said list had priority over the interested parties, filed the present resource.
Held, annulling the sub judice decision: (1) As the regulations in question were made by the competent organ, they had to be complied with, until repealed or declared as ultra vires the enabling law.
(2) In Savva v. The Republic (1986)3 C.L.R. 445 regulations 5 and 10 of the aforesaid Regulations were declared as ultra vires the enabling law, but, as this decision was issued after the sub judice decision had been taken, the regulations were valid and in force at the time when the sub judice decision was taken. The legality of an administrative act is governed by the legislation in force at the time when it was made. It follows that the sub judice decision has to be annulled.
(3) Moreover, there is another ground of annulment, namely subordination of the exercise of the respondents discretion to the recommendations of the Ministry of Education (Kyriakidou v. The Republic 1986) 3 C.L.R. 913 and Papakyriakou v. The Republic (1983) 3 C.L.R. 870.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Savva v. The Republic (1986) 3 C.L.R. 445;
Psara - Kronidou v. The Republic (1985)3 C.L.R. 1900;
Kapsou v. The Republic (1983)3 C.L.R. 1336;
Lordou and Others v. The Republic (1968)3 C.L.R. 427;
Kyriakidou v. The Republic (1986)3 C.L.R. 913;
Papakyriakou v. The Republic (1983)3 C.L.R. 870.
Recourse.
Recourse against the decision of the respondent to appoint the interested parties on contract to the post of Schoolmaster of Gymnastics in preference and instead of the applicants.
A. S. Angelides, for the applicants.
R. Vrahimi - Petridou (Mrs), for the respondent.
E. Efstathiou, for interested party No.4,
S. Mamantopoulos, for interested party No. 15.
Cur. adv. vult.
LORIS J. read the following judgment. The seven applicants of the present recourse impugn the decision of the Respondent commission published in the daily press on 1.9.85 and 8.9.85 whereby the 17 interested parties were appointed on contract to the post of Schoolmaster of Gymnastics in preference to and instead of the applicants for a period of three months i.e 1985 - 30.11.85.
The applicants duly qualified Schoolmasters of Gymnastics were emplaced on the table of priorities prepared by the Ministry of Education pursuant to regulation 5 of the Educational Officers (Teaching staff) (Emplacements, Transfers, Promotions and Related. Matters) Regulations 1972 as amended on 20.9.74 (K.D.P. 250/74) in a prior serial order than the 17 interested parties in the present recourse.
The complaint of the applicants is that the interested parties aforesaid were appointed on a contractual basis as schoolmasters of Gymnastics by the respondent for a period of three months i.e 1.9.85 - 30.11.85 in breach of the right of the applicants to prior appointment safeguarded by the table of priorities as aforesaid. The respondent commission decided to appoint the interested parties in preference to and instead of the applicants relying inter alia, on a relevant a «submission» made to it by the Ministry of Education. (Vide Appendices B and C attached to the opposition).
At the hearing of this case learned counsel appearing for the respondent conceded that the sub judice decision was wrong in principle as the priority tables were not followed. Counsel appearing for the interested parties No. 4 and No. 15 (the only interested parties appearing in this recourse) adopted the stand taken by learned counsel appearing for the respondent and stated that the sub-judice decision ought to have been annulled.
It is abundantly clear from the facts before me and it is common ground between the litigants that regulations 5 and 10(2) of the aforesaid regulations were in force at the time the sub judice decision was given, although I was referred to the case of Savva v. Republic (1986)3 C.L.R. 445 whereby regulations 5 and 10 were declared as being ultra vires the enabling enactment (Law 10/ 69). In this connection I may repeat here what I have stated in Psara-Kronidou v. Republic (1985) 3 C.L.R. 1900 where adopting the case of Kapsou v. Republic (1983) 3 C.L.R. 13361 held that as the regulations in question were made by the competent organ, had to be complied with until repealed by the organ concerned or declared ultra vires by a judicial decision.
It is abundantly clear that in this case as well, the regulations were valid and they were not declared ultra vires by judicial decision at the time of the sub-judice decision and therefore they had to be followed by the administrative organ taking the relevant decision i.e the respondent commission.
It is clear that Savva case (supra) was decided on 8.3.86, whilst the sub-judice decision was taken in September 1985 and it is well established in administrative law that the legality of administrative acts is governed by the legislation in force at the time when they were made. (Lordou and others v. Republic (1968)3 C.L.R. 427, Kyriakidou v. Republic (1986)3 C.L.R. 913.)
Therefore the sub judice decision has to be annulled on the ground that the respondent did not follow the relevant regulations which were valid and in force at the time of the taking of the sub-judice decision by the respondent. But this decision has to be annulled on another ground as well: It is clear from the opposition that the reason for departing from the order of priorities by the Respondent Commission was due to the recommendations of the Ministry of Education; that tantamounts to «Subordination of the exercise of their power, necessarily invalidating their decision, for it is not a decision emanating from the organ specified by law. And as such, it is vulnerable to be set aside for both abuse of power as well as excess of power. The law did not entrust either the Council of Ministers or the Ministry of Education with the appointment of teachers or the Ministry of Education with the appointment of teachers in the Public Educational Service. The power vested solely and exclusively in the Educational Service Commission.»(Kyriakidou v. The Republic (Supra), Papakyriakou v. Republic (1983) 3 C.L.R. 870.)
For the reasons given above the sub-judice decision is hereby annulled.
Let there be no order as to its costs.
Sub judice decision annulled.
No order as to costs.