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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 38
1989 January 13
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
NIOVI PAPAIOANNOU AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION AND OTHERS,
Respondents.
(Cases Nos. 678/84, 688/84, 19/85,28/85)
Recourse for annulment - Abatement - Annulment of sub judice act in another recourse by a first instance judgment - Appeal not filed - In the circumstances present recourse abated.
Annulment of administrative act by the Supreme Court - Effect - Analysis of relevant principles.
Annulment of promotions -Re-consideration - Retrospective promotion of successful applicant - "Service" of three years to that post required as a qualification for further promotion in a higher post - Period to be computed as from date, when the promotion took effect, not as from date of beginning of actual service.
Educational officers Promotions - Service reports - Whole career of candidates should be taken into account, though recent reports may be relied upon more than older ones.
Educational officers - Promotions - The Public Educational Service Law, 1969 (Law 10/69), section 35(2) - Identical to section 44(2) of the Public Service Law - Therefore, the principle in Zachariades v. The Republic (1986) 3 C.L.R. 852 is equally applicable.
By means of the above recourses applicants challenged the validity of the promotions to the post of Headmaster A by a decision dated 3/1/85 and by a decision dated 30/11/84.
The promotions of the interested parties effectedunder the decision of 3/1/85 were annulled by a first instance judgment of a Judge of this Court. This development raised the issue whether the recourses, as far as the decision of 3/1/85 was concerned, were abated.
In the light of the following principles, namely:
(a) that an annulling decision of the Court annuls the sub judice act ex. tune and tuna omnes,
(b) a Judge exercising jurisdiction under section 11(2) of the Administration of Justice Act, 1964 (Law 33/64) is the Court, unless appeal is taken against his. decision,
the recourse is deprived of its subject matter, unless adverse consequences detrimentally affected the applicant have not been obliterated. In this case no such adverse consequences remained. Therefore, the recourses are abated.
Various, other issues were raised as far as the decision of the 30/11/84 was concerned. The more important of them appear in Headnotes. 2-4 hereinabove, wherefrom one can, also, deduct the principles: expounded by the Court in determining them. Finally, having reached the conclusion that the promotions under the decision of the 30/4/84 were reasonably open to the Public Service Commission, the Court dismissed the Recourses.
Recourses dismissed. No order as to costs.
Cases referred to:
Yioutanis v. Republic (1987) 3 C.L.R. 490,
Papaleontiou v. Educational Service Commission (1987) 3 C.L.R.: 1341,
Michaeloudes andAnother v. Republic (1979) 3 C.L.R. 56,
Loizidou - Papaphoti v. Educational Service Commission (1984) 3 C.L.R. 933,
Republic v. Roussos (1987) 3 C.L.R. 1217,
Republic v. Zachariades (1986) 3 C.L.R. 852,
Georghiouv. Republic (Public Service Commission) (1976) 3 C.L.R. 74.
Recourses.
Recourses against the decision of the respondents to promote the interested parties to the post of Headmaster A' in the Elementary Education.
A. S. Angelides, for Applicants in Cases Nos. 678/84, 688/84 and 19/85.
Y. Erorocritou, for Applicant in Case No. 128/85.
M. Florentzos, Senior Counsel of the Republic, for Respondents.
G. Triantafyllides, for Interested Parties A. Petridou, A. Protopapa, I. Hadjiantoni, S. Theodotou, Fr. Charalambous and C. Economides.
Cur.adv. vult.
STYLIANIDES, J. read the following judgment. By means of these recourses the applicants in Cases Nos. 678/84, 688/84 and 128/85 challenge the legality of the decision of the Respondents taken on 30th November, 1984, whereby 13 Headmasters were promoted to the post of Headmaster A in the Elementary Education with effect from 1st December, 1984. Recourse No. 19/85 is directed both against the above decision as well as against a decision taken by the Respondents on 3rd January, 1985, for the promotion of the six interested parties to the same post with effect from 1st January, 1985.
The Director General of the Ministry of Education by letters ending on 23rd October, 1984, requested the Respondents, theEducational Service Commission, to fill 13 posts of Headmaster A'. The Commission considered the matter at its meetings of 24th October, 1984, 30th October, 1984, 31st October, 1984, 1st November, 1984, 5th November, 1984, 6th November, 1984, 7th November, 1984, 14th November, 1984, 22nd November,1984 and 26th November, 1984, when the Director of Elementary Education produced to them the recommendations of the appropriate Department.
On 30th November, 1984, the Respondents reached the sub judice decision, whereby 13 Headmasters were promoted to Headmasters A'. The Respondents had before them the files of the service reports and the personal files of all the candidates besides the recommendations of the Department.
Recourses Nos. 678/84, 688/84 and 19/85 challenge the promotion of all the promotion except that of Hasapis. In the course of the hearing counsel for the applicants in these recourses withdrew the case against the promotion of interested party Theofilides. Recourse No. 128/85 is directed against the promotion of all 13 Headmasters.
PROMOTIONS BY THE DECISION OF THE RESPONDENTS DATED 3RD JANUARY, 1985:
The applicant in Case No. 19/85 seeks, also, the annulment of the decision of the Respondents taken on 3rd January, 1985, which was published in the Official Gazette on 22nd February, 1985, whereby the six interested parties in this Recourse (Nos. 13-18 both inclusive) were promoted as from 1st January, 1985, to the post of Headmaster A' in Elementary Education.
I consider it pertinent to deal first with this sub judice decision. The Minister of Education informed in writing on 17th December, 1984, the Respondents that on 31st December, 1984, seven Headmasters A' would have retired and requested the filling of the seven consequential vacancies as from 1st January, 1985, to avoid anomaly in the headship of the schools. The respondent Commission at its meeting of 2nd January, 1985, dealt with the filling of these promotion posts and on 3rd January. 1985., decided to promote seven Headmasters, interested parties and Andreas Hadjipieris.
The validity of the promotion of these six interested parties was challenged by another recourse filed by EftychiosYioutanis, a Headmaster, by Recourse No. 58/85. Another Judge of this Court annulled the sub judice decision, on the ground of lack of due inquiry - Yioutanis v. Republic (1987) 3 C.L.R. 490).
The revisional jurisdiction in this country was introduced by Article 146 of the Constitution. Paragraph 4 reads:-
"4. Upon such a recourse the Court may, by its decision -
(a) confirm, either in. whole or in part, such decision or act or omission; or
(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or
(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed."
This jurisdiction was by paragraph 1 conferred exclusively on the Supreme Constitutional Court. When that Court became defunct, by section 9(a) of the Administration of Justice (Miscellaneous Provisions) Law, 1964, (Law No. 33/64), the competence of the Supreme Constitutional Court, including the jurisdiction under Article 146 of the Constitution, was vested in the Supreme Court and by virtue of section 11(1) of the same Law the jurisdiction under Article 146 of the Constitution is to be exercised by the Full Bench of the Court, subject to the provisions of sub-sections 2 and 3 of section 11 and any Rules of Court to be made by the Supreme Court. Sub-section 2 of section 11 provides in effect that the first instance jurisdiction of the Supreme Court in a recourse may be exercised (δύναται να ασκηθή) by a Judge or Judges of the Court as the Court may decide(ως ήθελε το Δικαστήριο αποφασίσει) and that the first instance judgment is subject to appeal.
An annulling decision of the challenged administrative act annuls ex tunc and ergaomnes against all, including those who did not participate in the recourse. All legal results areobliterated and the act is considered as if it had never existed.
In Dendia "Administrative Law", Volume P, p. 352 we read:-
"2. Αποτελέσματα της ακυρωτικής αποφάσεως. - Η ακυρωτική απόφασις επάγεται την ακύρωσιν της προσβληθείσης πράξεως, ήτοι την νόμιμον αυτής κατάργησιν έναντι πάντων (erga omnes), δηλ. και των μη μετασχόντων της ακυρωτικής δίκης, διότι δεν είναι νοητόν πράξις, ήτις ηκυρώθη, ήτοι εξέλιπεν ως παράνομος, να διατηρή το ανύπαρκτον κύρος της ως προς δεδομένον πρόσωπον. Επέρχεται δε η κατάργησις αυτής και εξ υπαρχής (ex tunc), εξα-φανιζομένων και των εκ της εκτελέσεως της πράξεως παραχθέντων αποτελεσμάτων, αφ' ης παρήχθησαν, και επαναφερομένων των πραγμάτων εις ο χρονικόν σημείον ευρίσκοντο πριν ή η διοίκησις επιληφθή του θέματος και υπό το τότε υφιστάμενον νομικόν και πραγματικόν καθεστώς. Ούτω η ακύρωσις ανατρέχει εις τον χρόνον εκδόσεως της πράξεως, αποβαίνει δηλ. αύτη ανύπαρκτος νομικώς, της διοικήσεως αδυνατούσης να θεωρή ταύτην ου μόνον ως υπάρχουσαν, αλλά και ως υπάρξασάν ποτέ."
See, also, Conclusions of the Jurisprudence of the Greek Council of State 1929-59, p. 279.
This principle was incorporated in paragraph 5 of Article 146 which provides that any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities of the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
The subject matter of a recourse is the legality of the challenged act. If the administrative act is declared null and void in another recourse by the Court - a Judge exercising jurisdiction under section 11(2) is the Court, unless appeal is taken against his such decision - this results in the abatement of another pending recourse against it in as much as the recourse is deprived of its subject matter, unless adverse consequences of such act or decision detrimentally affecting a legitimate interest of the applicant have not been obliterated. It is to be noted that in this country damages for material detriment suffered as a result of an administrative act or decision can be recovered onlyunder paragraph 6 of Article 146 after obtaining a judgment of this Court under paragraph 4 of the same Article, otherwise noone is entitled to a claim for relief under paragraph 6.
In Dendia (supra) at p. 309 we read:-
"8. Έλλειψις ουσιαστικού αντικειμένου εν ακυρωτική δίκη. Η ενώπιον του ΣΕ ακυρωτική δίκη καθίσταται άνευ ουσιαστικού αντικειμένου, της συνεχίσεως αυτής μη εξυπηρετούσης σκοπόν τίνα και ούσης ούτω περιττής, εις περιπτώσεις, ως αι εξής:
(α) ............................................................
(β) Οσάκις η αίτησις ακυρώσεως στρέφεται κατά πράξεως, ήτις έχει ήδη ακυρωθή υπό του ΣΕ3 ... ότε ως εκ του λόγου τούτου η αίτησις ακυρώσεως ενώπιον του ΣΕ καθίσταται απαράδεκτος λόγω του δεδικασμένου....
3. ΣΕ492, 781/1938, 369/1940."
In Tsatsos "Application for Annulment", 3rd Edition, at p. 374 it is stated:-
"189. - Εάν η προσβαλλομένη πράξις ή παράλειψις ακυρωθή εξ' ολοκλήρου δι' ετέρας αποφάσεως του Συμβουλίου της Επικρατείας, η περί ακυρώσεως αυτής αίτησις, η τυχόν εισέτι εκκρεμούσα, αποβαίνει άνευ αντικειμένου, της ακυρωτικής αποφάσεως εξαφανιζούσης την πράξιν εξ' υπαρχής, έστω και αν η διοίκησις μέχρι της εκδικάσεως της εκκρεμούσης αιτήσεως δεν συνεμορφώθη προς την ακυρωτικήν απόφασιν του Συμβουλίου της Επικρατείας. Εις τοιαύτην περίπτωσιν έδει να προσβληθή η ενέργεια ή η παράλειψις η συνιστώσα την μη συμμόρφωσιν."
Having regard to the object of the administrative justice and the principles governing the review of the legality of administrative acts or decisions, it is not permissible for the same administrative act or decision to be declared null and void in one recourse and be confirmed in another recourse The mechanism of administration of justice shouldbe co-ordinated in such a way, so as to avoid undesirable and impermissible separate judicial pronouncements, regarding the legality of the same administrative act or decision challenged by more than one applicant in different recourses.
In view of the above, as the sub judice decision of the Respondents of 3rd January, 1985, relating to the promotion of the six interested parties to the post of Headmaster A', was declared null and void in another recourse, ex tunc and ergaomnes, this recourse had been deprived of its subject matter so far as it relates to this act, it has been abated and it will be struck out.
DECISION OF 30TH NOVEMBER. 1984:
As it has been said earlier on, the recourse against the promotion of Theofilides was withdrawn except in Recourse No. 128/85. It was submitted that Theofilides lacked the required qualification of three yearsservice in the post of Headmaster. It was argued that the promotion of this interested party (Theofilides) was not valid in that he lacked the prescribed qualification of three years service in the lower post of Headmaster. He was not promoted in 1980 as others were preferred. After a successful recourse to this Court that act was annulled and in 1984 the Respondents, having reconsidered the filling of the post under the legal and factual situation existing in 1980, as their duty was, promoted him retrospectively as from 1980. It was submitted that "service" in the contents of the scheme of service means actual service which Theofilides lacked.
As it was said earlier, the effect of an annulling decision is to obliterate the act challenged ex tunc. The promotions after an annulling decision by this Court are made retrospectively, i.e., with effect from the date of the annulled decision, an exception to the rule against retrospectivity. The fruit of the success in a recourse of this nature is this: The reconsideration of the matter by the appointing authority and the probable selection of the applicant retrospectively. Theofiides was promoted retrospectively from 1980, more than three years before the request for the filling for the post of the sub judice decision.
In GeorghiosPapaleontiouv. The Educational Service Commission (1987) 3 C.L.R. 1341, it was held that though the appellant was promoted to the same post after the filing of the recourse, he had a legitimate interest to pursue the recourse, as if the sub judice decision were annulled, he had a prospect of retrospective promotion, which would affect his seniority, one of the three factors on which the claim of persons in the Public Service for promotion or appointment is based.
If the submission of counsel were accepted, the administration of justice and the judicial control of promotions would be derogated and the annulling decisions of the Supreme Court would be deprived of their force and effect.
In view of the foregoing, "service" means holding the post in question: The period to be computed from the effective date of the promotion to the previous post and not only the period of actual performance of duties.
It was submitted by learned counsel for the applicants that the Respondents acted contrary to the provisions of sections 26(3) and 35(2) of the Educational Service Law, 1969 (Law No. 10/69), as amended by Law No. 53/79, in that no lists of educationalists - headmasters eligible for promotion were prepared or published.
It must be born in mind that Regulations 26, 28 and 29 of the 1972 Regulations (No. 105/72) were declared ultra vires the Law in Michaeloudes and Another v. Republic(1979) 3 C.L.R. 56. Soon afterwards the amending Law 53179 was enacted. Section 26(1) as amended reads:-
"26. - (1) Επιφυλασσομένων των διατάξεων του νόμου αυτού, κενή θέσις Πρώτου Διορισμού ή κενή θέσις Πρώτου Διορισμού και Προαγωγής δημοσιεύεται εις την επίσημον εφημερίδα της Δημοκρατίας. Η δημοσίευσις παρέχει τα αφορώντα εις την θέσιν στοιχεία και καθορίζει τον τρόπον και την προθεσμίαν υποβολής αιτήσεων.
(2) Κενή θέσις Προαγωγής πληρούται, άνευ δημοσιεύσεως, διά προαγωγής εκπαιδευτικού λειτουργού υπηρετούντος εις την αμέσως κατωτέραν τάξιν, θέσιν ή βαθμόν."
A new sub-section was added by Law 5 3/79 which reads:-
"(3) Η διαδικασία προς πλήρωσιν κενής θέσεως δυνάμει του παρόντος άρθρου, περιλαμβάνουσα και πρόνοιαν περί καταρτισμού, περιεχομένου και δημοσιεύσεως πινάκων διοριστέων ή προαξίμων, ως θα ήτο η περίπτωσις, οίτινες έχουσι τα προς τούτο καθωρισμένα προαπαιτούμενα, καθορίζεται."
As Regulations 26, 28 and 29 of the Educational Officer (Teaching Staff), (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972 were declared ultra vires the enabling Law, they ceased to be in force and applicable. The addition of sub-section 3 afterwards did not revive them. In 1985 Regulations 26, 28 and 29 were reintroduced by amendment of the existing Regulations. This subsidiary legislation came into force after the sub judice decision and therefore it was not applicable at the material time. Regulation 27 read alone provides only for the evaluation of the Educational Officers as to their fitness for promotion at least once a year and nothing more. Having regard to the Law, including the Statute and the Regulations, in force on 30th November, 1984, the contention of the applicants in untenable.
Section 35(2) of Law 10/69 as amended by Law 53/79 reads:-
"Κατά την εξέτασιν των διεκδικήσεων των εκπαιδευτικών λειτουργών προς προαγωγήν λαμβάνονται δεόντως υπ' όψιν η αξία, τα προσόντα και η αρχαιότης συμφώνως προς διαδικασίαν ήτις καθορίζεται."
("In considering claims of educational officers: for promotion, merit, qualifications and seniority are duly taken into consideration in accordance with the prescribed procedure.") Subsection 3 reads:-
"Κατά την προαγωγήν η Επιτροπή λαμβάνει δεόντως υπ' όψιν τας περί των υποψηφίων υπηρεσιακός, εκθέσεις και τας συστάσεις του οικείου Τμήματος Εκπαιδεύσεως."
This provision corresponds to section 44(2) and (3) of the Public Service Law, 1967 (Law No. 33/67).
In Elli Loizidou-Papaphoti v.The Educational Service Commission (1984) 3 C.L.R. 933.at p. 938 it was said:-
"The Head of the Department in the case of public servants and the appropriate Department in the case of educationalists has the duty to make an assessment of the suitability of a candidate on consideration of all factors relevant to his merits, qualifications and seniority and then, after comparing the candidates, arrive at a conclusion and this would be the respective recommendation. It is not necessary for the recommending person or body to state reasons for such recommendations, but if reasons are given, they are subject to judicial scrutiny."
In the present case the recommendations run as follows:-
".... σχετικά με το πιο πάνω θέμα παραθέτω πιο κάτω τις συστάσεις του Τμήματος Δημοτικής Εκπαίδευσης.
Οι συστάσεις υποβάλλονται αφού λήφθηκαν υπόψη οι προσωπικές μου γνώσεις για τους υποψηφίους, οι συστάσεις και απόψεις των οικείων επιθεωρητών, οι υπηρεσιακές εκθέσεις και όλα τα στοιχεία των σχετικών φακέλων."
Twenty-five names with their personal number in the service are set down and it concludes:-
"Especially I recommend Mr. Christos Theofilides, Mr. Theofilides possesses three M.S. and Ph.D. Degrees. He is teaching at the Pedagogical Institute very serious series of lessons including a series on "organization and administration" for headmasters of Secondary and Primary Education."
It was contended that this recommendation does not record the personal knowledge, the view and the recommendations of the various persons involved - the Director of Elementary Education, the Inspectors - and all other relevant material and no reasons are given for such recommendations. The only applicant who is recommended is NioviPapaioannou, applicant in Case No. 678/84. All promotees were amongst those recommended. The list of the names in the recommendation is given in alphabetical order.
According to the passage cited from Papaphoti case, this document satisfies the requirements of the Law. It would be, however, invalid if it were inconsistent with the material in the file. On the material before me I find no fault with regard to the recommendations of the Department of Elementary Education.
Applicant in Case No. 678/84 complained that her "additional qualification" was disregarded without special reason. The Commission has wrongly taken into consideration unlawful acts of her persecution by some persons in Authority.
The last contention is unfounded; there is nothing, either in the sub judice decision or anywhere else in the material placed before the Court, to substantiate this allegation. The certificate of attendance of the applicant was before the Commission and it can be inferred that it was treated as not amounting to an additional qualification under the schemes of service. Such interpretation was reasonably open to the Respondents, in view of the requirement that post-graduate training, etc., had to be in educational matters. This ground, also, fails.
Applicant in Case No. 688/84 contented in the written address that the expression of opinion and observations by this applicant, which are in his personal file, might have to an uncertain degree influenced the respondent Commission in reaching its sub judice decision. This allegation is not born out at all, either from the material in the file or from the minutes of the respondent Commission.
Applicant in Case No. 19/85 alleges that after the sub judice decision was taken his marks for the last two years were 37-38 and 37-37 and this might have influenced the Commission. The revision of his marks took place after the sub judice decision was reached but, in any way, this slight differentiation having regard to the material in the file, would not have influenced the Commission. It is worth noting that he was not recommended by the appropriate Department.
A ground raised by more than one of the applicants is that the Commission wrongly took into consideration the service reports of the evaluation of the candidates for only the last two years.
In Republic v. Roussos (1987) 3 C.L.R. 1217, the same point was raised and the Full Bench in a unanimous Judgment delivered by Triantafyllides, P., said at p. 1224:-
"Secondly, it is true that the whole career of an officer should be taken into account, so that a complete picture about him may be formed but it cannot be said that there is being entailed a wrong exercise of the relevant discretionary powers if the recent reports are relied upon more than the older ones, because it cannot be denied that the recent reports present a picture which is more relevant on the date on which the selection of the candidate to be promoted or appointed is made."
It was contended by the applicants and more strenuously by applicant in Case No. 128/85, besides the grounds mentioned above to which reference was made, that they were better than the interested parties, especially in view of seniority, and that the Commission failed in its paramount duty to select the best suitable candidate.
The criteria laid down in section 35(2) of Law 10/69 for the claim of promotion of educationalists are identical to those set out in section 44(2) of the public Service Law, 1967 (Law No. 33/67) for public officers. The following passage from Republic v. Zachariades (1986) 3 C.L.R. 852, at p. 856, applies: equally for educationalists:-
"Also, we are of the view that the three criteria which are set out in section 44(2) of the Public Service Law, 1967 (Law 33/67), namely merit, qualifications and seniority, have to be weighed together,.
An appointing authority, such as the appellant Commission, when weighing together the said three criteria, in order to find the most suitable candidate, may attribute such significance to them as it may deem proper, provided that it exercises correctly, in the course of doing, so, its relevant discretionary powers ...; and it is not provided by section 44(2) that any one of the three criteria has, in any event, greater importance than the other two."
(See, also, OdysseasGeorghiou v. Republic (Public Service Commission) (1976) 3 C.L.R. 74 at p. 82).
On the basis of the material before this Court, and in the light of the arguments advanced, I have reached the conclusion that in the present cases it was reasonably open to the respondent Commission to select the interested parties as the most suitable candidates for promotion to the post in question. The Administrative Court, cannot go so far as in effect to substitute its own discretion in the place of that of the respondent Commission as regards the choice of the most suitable candidate.
None of the applicants has established striking superiority over any of the interested parties.
In view of the foregoing, all recourses fail, they are hereby dismissed and the sub judice decision is confirmed under Article 146(4)(a) of the Constitution.
In all the circumstances, let there be no order as to costs.
Recourses dismissed. No order as
to costs.