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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1979) 3 CLR 371
1979 August 22
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ECATERINI KARAYIANNI AND OTHERS,
Applicants,
v.
THE EDUCATIONAL SERVICE COMMITTEE,
Respondent.
(Case Nos. 101/78, 213/78, 214/78
and 215/78).
Educational Officers—Emplacement on higher salary scale (scale B.6)—Schemes of service—No evidence adduced by applicants to substantiate their allegation that they qualified thereunder—Conclusion of respondent Committee that they did not so qualify duly warranted by the facts before it.
Practice—Recourse for annulment—Factual issues not expressly admitted—Should be substantiated by evidence.
Equality—Discrimination—No entitlement to equal treatment on an illegal basis—Fact that administration did not conform with the law in other instances does not constitute a ground for annulling an administrative decision because compliance with the law was insisted upon in the latter instances—Principle applies with equal force in the case where conformity with the requirements of a scheme of service is in issue.
In November, 1976 the applicants, who are school-mistresses of Domestic Science at a Gymnasium, applied to the respondent Committee for emplacement to salary scale B.6. The respondent Committee turned down their applications on the ground that they did not possess the qualifications provided by paragraphs 1 and 2 of the relevant schemes of service. Hence these recourses.
Three of the applicants admitted that they have not attended the courses provided by paragraph 2 of the schemes of service; and though applicant in Recourse No. 101/78 asserted that she successfully attended such courses she adduced no evidence in support of her assertion when faced with the denial of the respondent and when it was pointed out to her by the Court, in the course of the hearing, that for the factual issues for which there was no express admission evidence should be adduced in order to substantiate same.
Counsel for the applicants contended that the requirement of attending approved educational courses in paragraph 2 of the scheme of service was not insisted upon in the case of teachers of English, Art and Gymnastics who were placed on higher scales after completion of seven years' satisfactory service and consequently this differentiation by the Committee, being arbitrary, constituted discrimination and unequal treatment of the applicants vis-a-vis those other teachers.
Held, (1)that on the material before this Court there is no difficulty in holding that no courses, as provided by paragraph 2 of the schemes of service, were attended by any of the applicants; and that, therefore, the conclusion of the respondent Committee that none of the applicants satisfied this provision of the schemes of service was duly warranted by the facts before the Committee and there was no misconception of fact in the circumstances.
(2)That there exists not entitlement to equal treatment on an illegal basis; that, no doubt, if emplacement of other teachers on Scale " B.6. " in disregard of the said paragraph 2 has been made, same is illegal; that the fact that the administration did not [*373] conform with the law and did not comply with its requirements in other instances, does not constitute a ground for annulling an administrative decision because compliance with the law was insisted upon in the latter instances; that this principle applies with equal force in the case where conformity with the requirements of a scheme of service is in issue; that, therefore, the applicants cannot succeed on the ground of discrimination and unequal treatment; and, that, accordingly, the recourses must fail.
Recourses dismissed.
Cases referred to:
Vrakas and Another v. The Republic (1977) 4 J.S.C. 457 at p. 477 (to be reported in (1977) 1 C.L.R.);
Voyiazianos v. The Republic (1967) 3 C.L.R. 239;
Ioannides v. Republic (1973) 3 C.L.R. 117.
Recourses.
Recourses against the decision of the respondent not to emplace the applicants, teachers of Domestic Science, on salary scale B.6.
Ph. Valiandis for L. Papaphilippou, for applicant in case No. 101/78.
K. Michaelides, for applicants in cases Nos. 213/78, 214/78 and 215/78.
A. S. Angelides, for the respondent.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By these four recourses which have been heard together as they involve common questions of law, the applicants seek a declaration that the decision of the respondent Committee dated the 18th February, 1978 not to emplace the applicants, teachers of Domestic Science, on the salary scale B.6 of the Secondary Education Service, is null and void and of no effect whatsoever.
All four applicants are graduates of the Harocopios School of Domestic Science. Ecaterini Karayianni, applicant in Recourse No. 101/78, has been a school-mistress for Domestic Science at a Gymnasium, since 1958. Kalomira Kyprianidou, applicant in Recourse No. 213/78, has been such, since 1960, Antigoni [*374] Nikita, applicant in Recourse No. 214/78 and Kleri Serghi, applicant in Recourse No. 215/78 have been also serving as such, since 1962. In 1969 they were all emplaced on salary scale B.3. In November, 1976 they applied to the respondent Committee for emplacement to salary scale B.6 for which the required qualifications under the relevant scheme of service (exhibit 'Z'), are as follows:-
"Απαιτούμενα Προσόντα:
1. Επταετής τουλάχιστον ικανοποιητική υπηρεσία εις την θέσιν Καθηγητού επί κλίμακος Β.3, ή
Συνολική ικανοποιητική εκπαιδευτική υπηρεσία τουλάχιστον επτά ετών, εκ των οποίων το τελευταίον εν τουλάχιστον έτος εις την θέσιν Καθηγητού επί της Κλίμακος Β.3, νοουμένου ότι ό υποψήφιος κατέχει τα απαιτούμενα θέματα διά πρώτον διορισμόν εις την θέσιν Καθηγητού επί της Κλίμακος Β.3.
Σημ.: Οι εν τη υπηρεσία κατά την 1ην Ιουλίου, 1969 Καθηγηταί επί της κλίμακος Β.3 οι έχοντες ή συμπληρούντες υπηρεσίαν ως ανωτέρω προάγονται, τηρουμένων των λοιπών όρων, εις την θέσιν Καθηγητού επί της κλίμακος Β6 έστω και εάν δεν κατέχουν τα απαιτούμενα προσόντα διά πρώτον διορισμόν εις την θέσιν Καθηγητού επί της κλίμακος Β.3.
2. Επιτυχής παρακολούθησις επιμορφωτικών μαθημάτων οργανουμένων ή επί τούτω εγκρινομένων υπό του Υπουργείου, όταν και ως ήθελεν αποφασισθή.
(Ενεκρίθη υπό του Υπουργικού Συμβουλίου.—Αποφάσεις υπ' αρ. 8974 και 10.368 ημερ. 7.8.1969 και 5 και 6.4.1971)."
("At least 7 years satisfactory service to the post of school master on Scale B.3, or
A total of satisfactory educational service of at least 7 years, out of which at least the last one year to the post of school master on Scale B.3, provided that the candidate possesses the qualifications required for first appointment to the post of school master on Scale B.3.
Note: School masters who on the 1st July, 1969, were in the service on Scale B.3, who have or have completed service as above are promoted, subject to the remaining conditions, to the post of school master on Scale B.6 even if they do not possess the qualifications required for the first appointment, to the post of school master on Scale B.3.
2.Successful attendance of courses in further education organized or approved in that behalf by the Ministry, when and as it will be decided.
(Approved by the Council of Ministers—Decision No. 8974 and 10.368 dated 7.8.1969 and 5 and 6.4.1971").
The respondent Committee considered the applications of the applicants at its meeting of the 18th February, 1978. After referring to the qualifications required for the post (see the minutes, exhibit 5), the Committee stated the following:-
"Η Επιτροπή Εκπαιδευτικής Υπηρεσίας, αφού εμελέτησε τας ως άνω περιπτώσεις κατέληξεν εις το συμπέρασμα ότι το αίτημα των καθηγητριών δεν δύναται να ικανοποιηθή καθ' ότι αύται δεν πληρούν τας ως άνω προνοίας (1 και 2) των Σχεδίων Υπηρεσίας.
Ειδικώτερον ως προς την πρόνοιαν της παραγράφου 1 η Επιτροπή Εκπαιδευτικής Υπηρεσίας είναι της γνώμης ότι απαραίτητος προυπόθεσις δια την προαγωγήν καθηγητού ευρισκομένου επί της κλίμακος Β.3 εις την κλίμακα Β.6 είναι όπως ούτος ευρίσκεται εις την εν λόγω κλίμακα (Β.3) είτε κατά πρώτον διορισμόν είτε διότι ούτος κατέχη τα απαιτούμενα προσόντα διά τον διορισμόν εις την κλίμακα (Β.3). Τούτο προκύπτει τόσον από το δεύτερον εδάφιον και την σημείωσιν της παραγράφου 1, των ως άνω Σχεδίων Υπηρεσίας όσον και από τας προνοίας των Σχεδίων Υπηρεσίας εις άλλας περιπτώσεις προαγωγών από κλίμακος εις κλίμακα διαφόρων θέσεων της Δημοσίας Εκπαιδευτικής Υπηρεσίας (Καθηγηταί και Εκπαιδευταί εκ της κλίμακος Β.10 εις την κλίμακα Β.12. Εκπαιδευταί εκ της κλίμακος Β.3 εις την κλίμακα Β.6. Καθηγηταί και Εκπαιδευταί εκ της κλίμακος Β.2 εις την κλίμακα Β.3) όπου εις εκάστην περίπτωσιν δίδεται ευκαιρία μόνον μιας προαγωγής (άνευ αποκτήσεως προσθέτων προσόντων) π.χ. Εκπαιδευτής επί κλίμακος Β.2 προάγεται εις Β.3 και δεν δύναται να προαχθή εις υψηλότερην κλίμακα άνευ αποκτήσεως υψηλοτέρων προσόντων, ως επίσης και πτυχιούχος της Χαροκοπείου Σχολής Οικιακής Οικονομίας— ως αι αιτήτριαι—διοριζομένη εις την θέσιν διδασκαλίσσης δύναται να προαχθή εκ της κλίμακος Β.2 εις κλίμακα Β.4 (αντίστοιχον προς την Β.3)
Εν πάση περιπτώσει ή Επιτροπή Εκπαιδευτικής Υπηρεσίας είναι έτοιμη να επανεξετάση το όλον θέμα, ευθύς ως το Υπουργείον προς το όποιον παρεπέμφθη ήδη τούτο ήθελε δώση διάφορον ερμηνείαν εφ' όσον τούτο είναι αρμόδιον διά την προετοιμασίαν των Σχεδίων Υπηρεσίας."
("The Educational Service Committee having considered the above instances came to the conclusion that the application of the school mistresses cannot be acceded to because they do not satisfy the above provisions (1) and (2) of the schemes of service.
In particular with regard to the provision of para. 1 the Educational Service Committee is of opinion that a necessary prerequisite for the promotion of a school master on Scale B.3 to Scale B.6 is that he should be on the said scale (B.3) either on first appointment or because he possesses the qualifications required for appointment to Scale B.3. This emanates both from the second part and the note to paragraph 1 of the above schemes of service, as well as from the provisions of the schemes of service in other instances of promotion from a scale to a scale of various posts of the Public Educational Service (School masters and instructors on Scale B.10 to Scale B.12, instructors on Scale B.3 to Scale B.6, school masters and instructors on Scale B.2 to Scale B.3), where in each case there is given the chance of only one promotion (without acquiring additional qualifications), e.g. instructor on Scale B.2 is promoted to B.3 and he cannot be promoted to higher scale without acquiring higher qualifications, as well as a graduate of the Harocopios School of Domestic Science—as the applicants—appointed to the post of teacher can be promoted from Scale B.2 to Scale B.4 (corresponding to B.3).
In any case, however, the Educational Service Committee is prepared to reconsider the whole matter as soon as the Ministry, to which it had already been referred has given different interpretation since it is competent for the preparation of the schemes of service.).
It is clear from the aforesaid decision of the respondent Committee that all four applicants were found not to satisfy both provisions 1 and 2 of the schemes of service.
I find it more convenient to take first provision 2 of the schemes of service which was also invoked by the respondent Committee in dismissing the applicants' applications. In this respect I was faced with the situation whereby the applicant in Recourse No. 101/78 asserted that she attended successfully courses in further education organized or approved by the Ministry of Education, whereas the three other applicants admitted in para. 9 of the facts of their applications that the respondents did not organize any educational courses for teachers of domestic science. Moreover, Mr. Michaelides in his reply, on seeing the assertion in the address of Mr. Papaphilippou that the applicant in Recourse No. 101/78 attended some kind of lessons or lectures organized by the Ministry of Education, pointed out that the same lectures were followed by his clients also which were not actually in a continuous series of lessons and that was why he did not refer to them. The respondents denied that the applicants or any of them attended such courses.
With regard to this factual issue as to whether the applicants did attend successfully courses in further education organized or approved in that behalf by the Ministry, as required by provision 2 of the schemes of service, no evidence was adduced, although it was pointed out by me in the course of the hearing that for the factual issues for which there was no express admission, evidence should be adduced in order to substantiate same. Moreover and independently of this, there is nothing in the personal file of any of the applicants from which the respondent Committee could infer that they did attend such courses, and I have no difficulty in holding, on the material before me, that no such courses were attended by any of the applicants. The conclusion, therefore, of the respondent Committee that none of the applicants satisfied this second provision of the schemes of service, was duly warranted by the facts before the respondent Committee and there was no misconception of fact in the circumstances. [*378]
It was argued on this point that this requirement of attending approved educational courses etc., was not insisted upon in the case of teachers of English, Music, Art and Gymnastics, who were being placed on higher scales after completion of seven years of satisfactory service and consequently this differentiation by the respondent Committee, being arbitrary, constituted discrimination and unequal treatment of the applicants vix-a-vis those other teachers.
It is well established that there exists no entitlement to equal treatment on an illegal basis (see: In Re Pantelis Vrakas and Another (1977) 4 J.S.C., p. 457, at p. 477; Voyiazianos v. The Republic (1967) 3 C.L.R., p. 239; Ioannides v. The Republic (1973) 3 C.L.R., p. 117). No doubt if emplacement of other teachers, as alleged, on Scale 'B.6' in disregard of para. 2 of the corresponding relevant schemes of service has been made, same is illegal. The fact that the administration did not conform with the law and did not comply with its requirements in other instances, it does not constitute a ground for annulling an administrative decision because compliance with the law was insisted upon in the latter instances. This principle applies with equal force in the case where conformity with the requirements of a scheme of service is in issue.
For all the above reasons these recourses fail as the applicants cannot succeed on the ground of discrimination and unequal treatment. Once, therefore, I have come to this conclusion, I need not examine the approach of the respondent Committee with regard to the first provision of the scheme on which extensive argument was heard, as everything which I may say on the matter will be obiter and I leave the matter entirely open. Before concluding, however, I would like to say that the applicant in Recourse No. 101/78 had no vested rights which have been defeated or ignored by the scheme of service in question nor does the principle of non retrospectivity of laws comes in issue nor there exists any misconception of fact or lack of due inquiry in these cases.
In the result these recourses are dismissed as all applicants do not satisfy, as yet, provision 2 of the scheme of service, but in the circumstances I make no order as to costs.
Recourses dismissed. No order
as to costs.