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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 490
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
EFTYCHIOS YIOUTANIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS THROUGH
THE EDUCATIONAL SERVICE COMMISSION,
Respondent.
(Case No. 58/85).
Educational Officers - Promotions - Due inquiry - Personal and confidential files of all candidates examined on previous occasions - Doubt whether applicant's were examined for the purpose of sub judice decision - Ground for annulment.
The administrative act challenged by this recourse is the same as that challenged by recourse 495/85 (see Papaioannou v. The Republic (1987) 3 C.L.R. 474). The facts are the same.
The Court reiterated for the purposes of this recourse the judgment in the above case in respect of the grounds which were raised in both recourses and then examined two grounds, which were raised in this recourse, but not in Recourse 495/85.
These two grounds are (a) That the sub judice decision is the result of lack of due inquiry in that it does not appear anywhere in the minutes of the respondent who wire the candidates considered for promotion and whether the applicant was so considered, and
(b) that the recommendations submitted by the Head of the Department were not those of the Department.
It must be noted that in the minutes of the respondent dated 2.1.85 it is stated that «The Educational Service Commission studies personal and confidential files of candidates for the above posts. It is noted that the Educational Service Commission had recently dealt with the filling of other poets of Headmaster A and Headmaster of Schools of Elementary Education (see minutes of 30.11.84 and 5.12.84), when it had the opportunity to examine in detail the files of all candidates».
Held, annulling the sub judice decision: (1) It is apparent from the extract of the minutes cited above that the respondent examined the personal and confidential files of all the candidates on previous occasions. This is however a separate and distinct administrative act and has to be viewed as such. It transpired from the wording of the said extract that the respondent did not examine the files of all candidates on the present occasion and since no list appears of the candidates whose files were examined, it cannot be said without any doubt, that the file of the applicant was considered for the 'purposes of the sub judice decision. It follows that the sub judice decision has to be annulled for lack of due inquiry.
(2) It is clear from the minutes that the views expressed by the Head of the Department were not his own, but those of his Department.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Papaioannou v. The Republic (1987) 3 C.L.R. 474.
Recourse.
Recourse against the decision .of the respondent to promote the interested parties to the post of Headmaster A in the Elementary Education in preference and instead of the applicant.
A.S. Angelides, for the applicant.
M. Florentzos, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
SAVVIDES J. read the following judgment. The applicant challenges by this recourse the decision of the respondent dated 3.1.1385 whereby the interested parties, namely. 1) Klitos Leonidou, 2) Panays M. Panayides, 3) loannis N. Stylianou, 4) Fryne Charalambous, 5) Andreas Poyiadzis and 6) Marios Nicolaides, were promoted to the post of Headmaster A in the Elementary Education instead of and in preference to him.
The administrative act challenged by this recourse is the same as that challenged by recourse No. 497/85 in which judgment was delivered by me on 3.4.1987. The facts are also the same and I will only make a brief reference to them.
The Minister of Education requested, by letter dated 17.12.1984 the filling of 7 posts of Headmaster A in the Elementary Education (promotion posts) which were to become vacant on 31.12.1984. The applicant and the interested parties were holding at the time, the immediately lower post of Headmaster. On the 2nd January, 1985, the recommendations of the Department of Elementary Education were submitted through its Director to the respondent, which met on the following day and took the sub judice decision, promoting seven candidates to the vacant posts, amongst whom the six interested parties, as from 1.1.1985.
The legal grounds raised are again similar to those raised in recourse No. 495/85 and are the following:
1. The respondent acted contrary to sections 26(3) and 35(2) of the Educational Service Law (Law No: 10/69), as amended by Law No: 53/79.
2. The previous approval of the Minister of Finance for the filling of the vacant posts was not obtained.
3. The procedure for the filling of the posts had commenced before the posts became vacant.
4. The sub judice decision is the result of lack of due inquiry in that it does not appear anywhere in. the minutes of the respondent who were the candidates considered for promotion and whether the applicant was so considered.
5. The recommendations submitted by the Head of the Department were not those of the Department, as provided by section 35(3), and were, in any event, incomplete and defective.
Grounds 1, 2 and 3 have been dealt with by me in my judgment in Case No. 495/85, Niovi Papaioannou v. Republic (in which judgment was delivered on 3.4.1987) (not yet reported). These grounds are dismissed for the reason explained, in my said judgment, which I adopt for the purposes of the present recourse and I need not repeat them.
I will now proceed to examine ground 4, that is, whether the applicant in the present recourse was considered for promotion by the respondents, in view of the fact that nothing appears in the minutes of the respondent or anywhere in the records before me to that effect.
It is stated in the minutes of the meeting of the respondent dated 2.1.1985, that -
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(«The Educational Service Commission studies personal and confidential files of candidates for the above posts. It is noted that the Educational Service Commission had recently dealt with the filling of other posts of Headmaster A' and Headmaster of Schools of Elementary Education (see minutes of 31.11.84 and 5.12.84), when it had the opportunity to examine in detail the files of all candidates».
It is apparent from the extract of the minutes cited above that the respondent examined the personal and confidential files of all the candidates on previous occasions. This is however a separate and distinct administrative act and has to be viewed as such. It transpires from the wording of the said extract that the respondent did not examine the files of all candidates on the present occasion and since no list appears of the candidates whose files were examined, it cannot be said, without any doubt, that the file of the applicant was considered for the purposes of the sub judice decision. It is stated, in the minutes of the respondent dated 3.1.1985, that the Commission studied the files of all candidates. Reference is made, however, in this respect, to the minutes of 2.1.1985 (cited earlier) which, as I said before, leave room for doubt whether the files of the applicant were considered for the promotion in question.
In the light of the above I have come to the conclusion that there was lack of due inquiry in this case and, therefore, the sub judice decision has to be annulled on this ground.
Before concluding I wish to mention that I find no merit in the fifth ground raised by counsel for applicant. It is clear from the minutes that the recommendations conveyed by the Head of the Department were not his own, but those of his Department which were made on the basis of his personal views, the views and recommendations of the relevant Inspectors of Education, the service reports and other material concerning the candidates.
In the result this recourse succeeds and the sub judice decision is hereby annulled with no order for costs.
Sub judice decision annulled.
No order as to costs.