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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1967) 3 CLR 50
1967 January 28
[TRIANTAFYLLIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PAPAMILTIADES CHRISTODOULOU,
Applicant,
and
1. THE GREEK COMMUNAL CHAMBER THROUGH
THE DIRECTOR OF GREEK EDUCATION, AND/OR
2. THE REPUBLIC, THROUGH THE ATTORNEY-GENERAL
AS SUCCESSOR TO THE GREEK COMMUNAL CHAMBER,
Respondents.
(Case No. 66/65).
Secondary Education-Schoolmasters-Classification-Recourse against decision classifying Applicant as a schoolmaster, Grade B instead of Grade A-And against the omission to classify him in Grade A-The Masters of Communal Secondary Schools Law, 1963 (Greek Communal Chamber Law No 10 of 1963), section 42 (a)-The Masters, Teachers and Officers of Communal Schools (Exercise of Administrative Powers) Law, 1963 (Greek Communal Chamber Law No. 8 of 1963), section 5 (4) and (5)-The Regulations for the Classification of Masters of Creek Secondary Schools (Regulations No. 11 of 1961), Reg. 4-The Complaints Committee-Section 10 (3) of the Education Office Organic Law, 1960 (Greek Communal Chamber Law No. 7 of 1960)-The Education Office (Amendment) Organic Law, 1962 (Greek Communal Chamber Law No. 6 of 1962)-The Review Committee set up by the aforesaid Law No. 8 of 1963, supra-Competence-In the present case the Review Committee had no competence to take the decision complained of-in addition, its said decision is bad in law in that it is based on a material misconception of law-That is to say, on the erroneous assumption that the aforesaid Regulations had been declared by the Supreme Constitutional Court null and void-Whereas what the Supreme Constitutional Court did in the matter was merely to annul the administrative act, subject-matter of the recourse concerned, based on the said Regulations, the invalidity of which Regulations was only recognized by the parties and relied upon by the Court in the said recourse No. 15/62-
The said Regulations have not been, thus, annulled as such-Omission-Continuing omission to take the necessary administrative action-Cured by the Court-Decision complained of declared to be null and void-As being contrary to law and in excess and abuse of powers-See, also, under Administrative Law, below.
Administrative Law-Administrative decision-Decision annulled as being contrary to law and in excess and abuse of powers-Because it was taken by an organ which had no competence to deal with the matter-Also, because the said decision was based on a material misconception of law-Omission-Continuing wrongful omission-Cured by the Court-See, also, under Secondary Education, above; and under Administrative and Constitutional Law, below.
Schoolmasters-Classification-See under Secondary Education, above.
Administrative and Constitutional Law-Recourse under Article 146 of the Constitution-Res judicata-Regulations-The annulment of an administrative act, subject-matter of recourse under Article 146, on the ground that such act is based on Regulations conceded and recognised to be invalid-Such annulment does not operate as the annulment of the Regulations themselves-And it does not create a res judicata regarding the validity of such Regulations-See, also, under Secondary Education, above; and under Regulations, below.
Regulations-A judgment of the Court annulling an administrative act, subject matter of a recourse under Article 146 of the Constitution, on the ground that such administrative act was based on Regulations recognized to be invalid-Does not amount to the annulment of the Regulations as such-See, also, above under Secondary Education; Administrative and Constitutional Law.
Res Judicata-See above.
Decision-Contrary to law and in excess and abuse of powers in the sense of Article 146.1 of the Constitution-See above under Secondary Education; Administrative Law.
Abuse of powers-Excess and abuse of powers in the sense of Article 146.1 of the constitution-See above under Secondary Education; Administrative Law.
Excess of powers-See above under Secondary Education; Administrative Law.
In this recourse the Applicant complains against a decision of the Review Committee (post) classifying him in Grade B, instead of Grade A, as a schoolmaster, and which decision was communicated to him by letter of the 19th February, 1965. He, further, complains against an omission to classify him in Grade A as aforesaid.
The Applicant is a permanently appointed schoolmaster, in secondary education, teaching religion and posted in Famagusta. On the 12th May, 1961, the Famagusta School-Committee decided to classify Applicant as a schoolmaster Grade A, with retrospective effect as from the 1st September, 1960. Till then he had been serving as a schoolmaster, Grade B. On the 8th November, 1961, the Applicant having received from the Greek Education Office an appointment dated the 21st September, 1961, and classifying him in Grade B, Objected against such appointment to the Complaints Committee, which was functioning at the time in the Greek Education Office under section 10 (3) of the Education Office Organic Law, 1960 (Law of the Greek Communal Chamber No. 7 of 1960). Before the Complaints Committee had come to deal with his objection against his classification, the Applicant was given on the 15th January, 1962, a new appointment, again classifying him in Grade B, but with an increased salary scale.
Eventually the Complaints Committee-which in the meantime had been reconstituted by the Education Office (Amendment) Organic Law, 1962 (Law of the Greek Communal Chamber No. 6 of 1962)-dealt with the case of the Applicant on the 14th August, 1962. It held, inter alia, that the Applicant's said complaint regarding non-classification in Grade A was covered by regulation 4 of the Regulations for the Classification of Masters of Greek Secondary Schools, made by the Greek Communal Chamber and published in the Official Gazette on the 7th July, 1961, under Notification No. 11 (to be referred hereinafter as Regulations 11/61). Regulation 4 provided that schoolmasters who had been promoted, after the 1st September, 1960, by a School-Committee to an immediately higher grade, and possessed 15 years' service, might, by decision of the Education Committee of the Greek Communal Chamber, approved by the Selection and Administrative Committee of the said Chamber-and after a favourable report of the Director of the Education Office-remain in the grade to which they had been promoted. Once the Complaints Committee found that regulation 4 (supra) was applicable to the case of the Applicant, it referred the matter to the appropriate organs of the Greek Communal Chamber for necessary action.
After several steps had been taken in that direction, the matter appears to have been closed by an entry in the relevant file of the 6th November, 1962, signed by Dr. Spyridakis, the then President of the Greek Communal Chamber, to the effect that the matter had lost its previous importance because the aforesaid Regulations regarding classification of schoolmasters had been "annulled" and "no classification was possible." What caused Dr. Spyridakis to take such view was the fact that in a recourse before the Supreme Constitutional Court, No. 15/62, regarding the classification of another schoolmaster, the following judgment had been given on the 15th October, 1962:
"In view of the invalidity of the relevant Regulations, which invalidity is alleged by the Applicant and conceded now by the Respondent, and in view of the fact that the decision, the subject matter of this recourse, was based on the said Regulations, the Court declares:
"The decision of Respondent concerning the classification of Applicant as a master, taken on the 28th December, 1961, is null and void and of no effect whatsoever".
As it can be clearly seen from the above-quoted judgment, it did not annul at all the Regulations concerned; it simply annulled the subject matter of the recourse in view of the fact that it was stated that the said Regulations were invalid; but no res judicata regarding the validity of such Regulations was created through that judgment.
Actually, the said Regulations were never expressly repealed by the Greek Communal Chamber, until the enactment of the Masters of Communal Secondary Schools Law, 1963 (Law of the Greek Communal Chamber No. 10 of 1963), which may be said to have repealed them by necessary implication, but which, at the same time, adopted them, indirectly, for the purposes of section 42 (a) thereof, to which reference is made later in the judgment of the Court in the present case.
In reply to repeated inquiries on behalf of the Applicant, the latter received a letter from the Administrative Officer of the Greek Communal Chamber dated the 24th July, 1964, by means of which he was for the first tune informed that, as the decision of the Complaints Committee of the 14th August, 1962 (supra) had been based on Regulations which had been decided to be invalid, the Applicant had, if so wished, to apply, again, in the light of the provisions of the new Law No. 10 of 1963 (supra).
Thus, the erroneous view that the said Regulations had been declared to be invalid was communicated to the Applicant, and it was, apparently, adopted by him, and, eventually, it even found its way to the application in the present recourse.
On the 19th September, 1964, the advocate for the Applicant applied to the Review Committee, which had replaced, under the provisions of the Masters, Teachers and Officers of Communal Schools (Exercise of Administrative Powers) Law, 1963, (Law of the Greek Communal Chamber No 8 of 1963), the aforesaid Complaints Committee. By that application it was requested that the Review Committee should examine the Applicant's case, and it was pointed out that as the aforesaid original decision of the Complaints Committee (supra) had been taken before the Regulations in question had been "declared to be invalid", such decision had to be regarded as being valid and that, in any case, any new decision in the matter ought to be based on the said Regulations No. 11/61, which were in force when the Applicant first objected to the Complaints Committee viz. on the 8th November, 1961 (supra), the judgment of the Supreme Constitutional Court thought to have invalidated the said Regulations having been delivered on the 15th October, 1962 (supra).
The decision of the Review Committee in the matter was communicated to the Applicant on the 19th February, 1965. In this decision, reference is made to the decision on the case of the Complaints Committee of the 14th August, 1962, (supra); it is stated, next, that before the appropriate organ could have taken action in the matter, the relevant Regulations "were annulled by the Constitutional Court", it is held, at the end of the decision, that, as the Applicant cannot be classified in Grade A, under the aforesaid Law No. 10 of 1963 (supra), he is only entitled, under section 42 (a) of such Law, to remain in Grade B, in accordance with the appointment last offered to him on the 15th January, 1962 (supra).
It is this decision of the Review Committee which forms the subject-matter of this recourse filed on the 27th March, 1965.
The Court in granting the application and annulling for three main reasons the decision complained of, and, also, declaring that there has been a wrongful omission to take the administrative action rendered necessary by the decision of the Complaints Committee, dated the 14th August, 1962 (supra):
Held, (1)(a) in my opinion the said decision of the Review Committee is, in the first place, invalid, in the sense that it is not a decision which the Committee was empowered or has competence by law to take.
(b) The competence of such Committee was laid down in section 5 (4) and (5) of the said Law No. 8 of 1963, supra, and it is quite clear that the Review Committee has no competence thereunder to deal with the matter laid before it by the Applicant's advocate on the 19th September, 1964 (supra).
(c) The mere fact that the Applicant had requested the Review Committee to consider the matter could by no means vest a competence in the said Committee, which it did not otherwise possess.
(2) Even if, however, the Review Committee had had competence to deal with the matter, its decision would still have to be annulled for the following reasons:
(a) First, because it was based on a material misconception of law to the effect that the said Regulations No. 11/61 had been declared to be invalid by the Supreme Constitutional Court. But those Regulations were never declared to be invalid as such by the Supreme Constitutional Court; their invalidity was only recognized by the parties and relied upon by the Court in recourse No. 15/62 on the 15th October, 1962 (supra) in relation to declaring void the administrative act, the subject-matter of that recourse but the validity, as such, of the Regulations in question was never the subject-matter of that recourse and no Order annulling them was, or could be, made in those proceedings.
(b) Secondly, the Review Committee erred in treating, in the circumstances of this case, the appointment given to the Applicant on the 15th January, 1962, (supra) as the last appointment envisaged under section 42 (a) of Law
No. 10 of 1963 (supra). At the time of the enactment of this Law, the aforesaid appointment was not a final act, but under reconsideration with a view to its finalization. Because the administrative action, set in motion by the decision of the Complaints Committee of the 14th August, 1962 (supra) was not completed at the time of the enactment of that Law No. 10 of 1963; and it had, therefore, to be completed so as to ascertain for the purposes of section 42 (a) of the said same Law, the exact nature of the appointment last offered to the Applicant; and in order to do so Regulations No. 11/61 (supra) had to be relied on, because it is clear that section 42 (a) treats as valid appointments made before its enactment under such Regulations.
(3) In the light of the foregoing the sub judice decision of the Review Committee has to be declared null and void and of no effect whatsoever, as being contrary to law and in excess and abuse of powers.
(4) Furthermore, there does exist, in the circumstances, a continuing wrongful omission to take the administrative action rendered necessary by the decision of the Complaints Committee dated the 14th August, 1962 (supra); and it is, therefore, hereby declared that such omission ought not to have been made and whatever has been omitted should be performed.
(5) Applicant awarded £18 towards his costs.
Decision complained of declared null and
void. Omission to be remedied as
aforesaid. Order for costs as aforesaid.
Recourse.
Recourse against the decision of the Respondents classifying Applicant in Grade B, instead of Grade A, as a Schoolmaster in Secondary education.
L. Clerides for the Applicant.
Chr. Mitsides and G. Tornaritis for Respondents.
Cur. adv. vult.
The following Judgment was delivered by:
TRIANTAFYLLIDES, J.: In this recourse the Applicant complains against a decision classifying him in Grade B, instead of Grade A, as a schoolmaster, which was communicated to him by letter dated the 19th February, 1965 (see exhibit 1). He, further, complains against an omission to classify him in grade A.
The Applicant is a permanently appointed schoolmaster, in secondary education, teaching religion and posted in Famagusta.
The relevant events, in this Case, appear, on the material before the Court, to have followed the following rather complicated course:
On the 12th May, 1961, the Famagusta School-Committee decided to classify Applicant, as a schoolmaster grade A, with retrospective effect as from the 1st September, 1960 (see exhibit 6). Till then he had been serving as a schoolmaster grade B. A letter announcing this decision of the School-Committee was addressed to the Applicant on the 15th May, 1961 (see exhibit 11).
On the 8th November, 1961, the Applicant-having received from the Greek Education Office an appointment dated the 21st September, 1961, and classifying him in grade B (see blue 16 in his personal file, exhibit 9)-objected against such appointment to the Complaints Committee, which was functioning at the time in the Greek Education Office under section 10 (3) of the Education Office Organic Law 1960 (Greek Communal Law 7/60) (see exhibit 5); he claimed, inter alia, that he was entitled to be classified in grade A and he relied, in this respect, on a certificate dated the 7th November, 1961, and issued by the Chairman of the Famagusta School-Committee, which confirmed his classification, by such Committee, in grade A, as aforesaid. (See blue 19 in exhibit 9).
In his said objection the Applicant raised also the question of his proper salary scale. Having been found, apparently, by the authorities, that the salary scale offered to him was, in any case, erroneous, a new appointment, again classifying him in grade B, but with an amended salary scale, was given to the Applicant on the 15th January, 1962, (see exhibit 4), before the Complaints Committee had come to deal with his objection against his classification.
The Complaints Committee-which in the meantime had been reconstituted by the Education Office (Amendment) Organic Law, 1962 (Greek Communal Law .6/62)-dealt with the case of the Applicant on the 14th August, 1962 (see its decision, exhibit 7). It held, inter alia, that his complaint regarding non-classification in grade A was covered by regulation 4 of the Regulations For The Classification Of Masters Of Greek Secondary Schools, which were made by the Greek Communal Chamber and published in the official Gazette on the 7th July, 1961, under Notification No. 11 (to be referred hereinafter as Regulations 11/61).
Regulation 4 provided that schoolmasters who had been promoted, after the 1st September, 1960, by a School-Committee, to an immediately higher grade, and possessed 15 years' service, might, by decision of the Education Committee of the Greek Communal Chamber, approved by the Selection and Administration Committee of the Chamber-after a favourable report of the Director of the Education Office-remain in the grade to which they had been promoted.
Once the Complaints Committee found that regulation 4 was applicable to the case of the Applicant, the matter was referred by it to the appropriate organs of the Chamber for necessary action.
As it appears from the confidential file on the Applicant (exhibit 8), the President of the Chamber on the 21st August, 1962, requested from the Director of the Education Office a report on Applicant's work and a statement in relation to his years of service, so that his case could be examined by the Education Committee of the Chamber (see blue 6). The years of service of the Applicant were certified to be in all 23 (see blue 7 in exhibit 8); but as an Inspector's report on his work was riot available it was directed that such a report should be prepared in the school-year 1962/1963, which was then commencing. Subsequently, after a satisfactory report in relation to the Applicant's work in lower forms had been received, and one for his work in higher forms was still required, an entry appears, to have been made in the confidential file on the Applicant (see blue 9 in exhibit 8) to the effect that the matter had lost its previous importance because the Regulations regarding classification of schoolmasters had been "annulled and "no classification was possible"; it was signed by the President of the Greek Communal Chamber, at the time, and now Minister of Education, Dr. Spyridakis, and dated the 6th November, 1962.
What caused Dr. Spyridakis to take such a view was the fact that in a recourse before the Supreme Constitutional Court, No. 15/62, regarding the classification of another school-master, the following Judgment had been given on the 15th October, 1962, (see blue 23 in exhibit 13):
"In view of the invalidity of the relevant Regulations, which invalidity is alleged by Applicant and conceded now by Respondent, and in view of the fact that the decision, the subject-matter of this Recourse, was based on the said Regulations, the Court declares:
"The decision of Respondent concerning the classification of Applicant as a master, taken on the 28th December, 1961, is null and void and of no effect whatsoever".
As it can be clearly seen from the above-quoted Judgment, it did not annul at all the Regulations concerned; it simply annulled the subject-matter of the recourse in view of the fact that it was stated that the said Regulations were invalid; but no res judicata regarding the validity of such Regulations was created through that Judgment.
Actually, the said Regulations were never expressly repealed by the Greek Communal Chamber, until the enactment of the Masters of Communal Secondary Schools, Law, 1963, (Greek Communal Law 10/63), which may be said to have repealed them by necessary implication, but which, at the same time, adopted them, indirectly, for the purposes of section 42 (a) thereof, to which reference will be made later on in this Judgment.
It appears that the Applicant was not informed of the developments regarding his objection to the Complaints Committee, (see in this respect, blue 40 of exhibit 9).
On the 9th December ,1963, the advocate for the Applicant requested to be informed of the outcome of the aforesaid objection of his client, but he received no reply. (See blue 49 in exhibit 9). After a reminder dated the 18th July, 1964, he received a reply from the Administrative Officer of the Greek Communal Chamber dated the 24th July, 1964 (see exhibit. 2), by means of which he was informed that, as the decision of the Complaints Committee had been based on Regulations which had been declared to be invalid, the Applicant had, if he so wished, to apply, again, in the light of the provisions of Law 10/63.
Thus, the erroneous view that the said Regulations had been declared to be invalid was communicated to Applicant, and it was apparently adopted by him, and, eventually, it even found its way to the Application in the present recourse.
On the 19th September, 1964, the advocate for the Applicant applied (see exhibit 3) to the Review Committee, which had replaced, under the provisions of the Masters, Teachers and Officers of Communal Schools (Exercise of Administrative Powers) Law 1963 (Greek Communal Law 8/63) the Complaints Committee. By such application-from which it, also, appears that the advocate for the Applicant must had received in the meantime certain information regarding the outcome of the case of his client before the Complaints Committee-it was requested that the case of the Applicant be examined by the Review Committee, and it was pointed out that as the decision of the Complaints Committee had been given before the Regulations in question had been "declared to be invalid" such decision had to be regarded as being valid and that, in any case, any new decision ought to be based on the said Regulations, which were in force when the Applicant objected to the Complaints Committee.
The matter came up before the Review Committee on the 13th October, 1964, (see blue 37 in exhibit 9).
The decision of the Review Committee was communicated to the Applicant on the 19th February, 1965, (see exhibit 1) having been approved by the President of the Greek Communal Chamber on the 17th February 1965, (see blue 44 in exhibit 9).
In such decision, reference is first made to the decision on the case of the Complaints Committee, dated the 14th August, 1962, (exhibit 7); it is stated, next, that before the appropriate organ could take action in the matter the relevant Regulations "were annulled by the Constitutional Court"; it is held, at the end of the decision, that as the Applicant cannot be classified in grade A, under Law 10/63, he is only entitled, under sections 42 (a) of such Law, to remain in grade B, in accordance with the appointment last offered" to him on the. 15th January, 1962, (exhibit 4). It is this decision of the Review Committee which forms the subject-matter of this recourse, which was filed on the 27th March, 1965.
In my opinion the said decision of the Review Committee is, in the first place, invalid, in the sense that it is not a decision which the Committee was empowered by law to take.
The competence of such Committee was laid down in sub-sections (4) and (5) of section 5 of Law 8/63, and it consisted of the competence to examine complaints against the decisions of the Committee of Appointments and of the Disciplinary Board-which were set up under the same Law-and of such other competence as might be conferred upon the Review Committee by any Communal Law or Regulations.
No new decision regarding the question of the classification of the Applicant had been taken by the Appointments Committee, since the matter had been dealt with by the Complaints Committee, which disposed of the objection of the Applicant made against his classification as per the appointment given to him in September, 1961. The said objection of the Applicant having been decided upon by the Complaints Committee in August, 1962, could no longer be said to be a pending matter which could be decided upon by the Review Committee. Also, no Law or Regulations empowered the Review Committee to review a decision of the Complaints Committee or to deal with the matter afresh.
The mere fact that the Applicant had requested consideration of the matter by the Review Committee could by no means vest a competence, in such Committee, which it did not otherwise possess.
Even if, however, the Review Committee had had competence to deal with the matter, its decision would still have to be annulled for the following reasons:
First, because it was based on a material misconception of law to the effect that Regulations 11/61 had been declared to be invalid by the Supreme Constitutional Court.
As already pointed out in this Judgment, the said Regulations were never declared to be invalid as such; their invalidity was only recognized by the parties and relied upon by the Court in recourse 15/62, on the 15th October, 1962, (see exhibit 13) in relation to declaring void the administrative act, the subject-matter of such recourse; but the validity, as such, of the Regulations in question was never the subject-matter of that recourse and no Order annulling them was, or could be, made in those proceedings.
Secondly, the Review Committee erred in treating, in the circumstances of this Case, the appointment given to the Applicant on the 15th January, 1962, as the last appointment envisaged under section 42 (a) of Law 10/63.
The said section provides that a schoolmaster, serving on the enactment of Law 10/63-such as the Applicant-may retain the classification which he had under the "last offered to him appointment", even if such classification is higher than the one to which he would be entitled under the provisions of Law 10/63. Such a provision was intended to safeguard to schoolmasters their vested rights existing on the enactment of Law 10/63 and it cannot have been intended, and cannot be applied, to deprive a schoolmaster, such as the Applicant, of the benefit of any already taken decision of the Complaints Committee in relation to the appointment last offered to him before the enactment of Law 10/63.
As it has been stated earlier in this Judgment, after an appointment was given to Applicant in September, 1961, classifying him in grade B, he objected against it, raising not only the question of his classification, but, also, in any case, the question of his salary scale; his salary scale was corrected administratively, without awaiting for a decision of the Complaints Committee, and, as a result, the appointment of the 15th January, 1962, (exhibit 4) was sent to the Applicant; the question of his objection regarding his classification remained open and was decided upon by the Complaints Committee on the 14th August, 1962, (see exhibit 7). After the said decision, which found that regulation 4 of Regulations 11/61 was applicable to the case of the Applicant (requiring thus reconsideration of his classification by the appropriate organs under the Chamber) the appointment already given to the Applicant ceased to be a final administrative act of binding, effect, and the exact nature of such appointment could only be properly finalized on completion of the administrative action rendered necessary by the decision of the Complaints Committee.
Such administrative action was not completed, because of the view taken by the President of the Greek Communal Chamber that the matter had "lost its importance", on the basis of the wrongly assumed annulment of the relevant Regulations. The situation, which arose on the enactment of Law 10/63, was that the aforesaid administrative action had to be completed, so as to ascertain for the purposes of section 42 (a) of Law 10/63 the exact nature of the appointment last offered to the Applicant; and in order to do so Regulations 11/61 had to be relied upon, because it is clear that section 42 (a) treats as valid appointments made before its enactment under such Regulations.
It follows, therefore, that the Review Committee in reaching its sub judice decision was not entitled to treat the appointment of the 15th January, 1962, (exhibit 4) as the last offered appointment envisaged by section 42 (a) of Law 10/63; it was not at the time a final act, but under reconsideration with a view to its finalization.
In the light of all the foregoing the sub judice decision of the Review Committee (exhibit 1) has to be declared to be null and void and of no effect whatsoever as being contrary to law and in excess and abuse of powers.
Furthermore, there does exist, in the circumstances, a continuing wrongful omission to take the administrative action rendered necessary by the decision of the Complaints Committee dated the 14th August, 1962; and it is, therefore, hereby declared that such omission ought not to have been made and whatever has been omitted should be performed.
It is, therefore, necessary to pursue to its proper conclusion the said administrative action so as to ascertain the appointment of Applicant material for the purposes of section 42 (a) of Law 10/63; such action-due to the dissolution of the Greek Communal Chamber in the meantime-would have to be taken by the organ or organs on to which the relevant competences, under regulation 4 of Regulations 11/61, have devolved.
Regarding costs I have decided to award to Applicant £ 18.-towards his costs.
Decision complained of
declared null and void.
Order for costs as aforesaid.