THEMISTOCLEOUS ν. REPUBLIC (1987) 3 CLR 705

Administrative Law-General Principles-Delegated legislation - Educational Officers-The Educational Officers (Teaching Staff) (Appointments. Emplacements, Transfers, Promotions and Related Matters.) Regulations 1972-Regs. 5 and 10(2)-The list compiled under Reg. 5-Reg. 10(2) clearly sets out rules of priority-Sub judice decision taken before the decision in Savva v. The Republic (1986) 3 C.L.R. 445 where by Regulations 5 and 10(2) were declared ultra vires the enabling law-The respondents were not entitled to disregard the said Regulations.

Legitimate interest-Appointments on contract in disregard of the rules of priority (Regs. 5 and 10(2) of the Educational Officers (Teaching Staff) (Appointments, Emplacements, Transfers, Promotions and Related Matters) Regulations. 1972)-Had there been strict compliance with the rules of priority applicants 2 and 3 would not have been appointed and applicant I would not have been appointed except in the place of one of the interested parties-Application of applicants 2and3 dismissed- Application of applicant 1 succeeds in part as against such interested party.

In making appointments on contract for the school-year. 1983- 1984: the respondent Commission did not follow the order of priority in the list compiled in virtue of the aforesaid Regulation 5.

However, in view of the places in the said list of the applicants and the interested parties, if the Commission had applied the list, applicants 2 and 3 would not have been appointed whereas applicant I would have beenappointed in the place of interested party Nicos Christodoulou.

Held, annulling in part the sub judice decision: (1) Reg. 10(2) of the aforesaid Regulations sets out clearly the rules of priority. The case law of this Court shows that the respondent Commission was not entitled to desregard the provisions of Reg. 10(2) which at the time of taking of the sub judice decision were still in force. The Court in this case is concerned with the legality of the act at the time it was taken and for this reason the decision in Savva v. The Republic (1986) 3 C.L.R. 445, which was delivered after the sub judce decision and whereby Regs. 5 and 10(2) of the said Regulations were declared ultra vires the enabling law, does not affect the position in this case.

(2) Compliance with the order of priority would have led to the following appointments that is of Applicant 1, Interested party Paraskevopoylos, interested party Kousparou. interested party Gavrielides and interested party Mylonas. Consequently the application of applicants 2 and 3 cannot succeed and the application of applicant 1 can only succeed as against interested party Nicos Christodoulou.

Recourse dismissed to the extent

indicated above. Appointment

of interested party Christodoulou

annulled. No order as to costs.

Cases referred to:

Psara-Kronidou v. The Republic (1985) 3 C.L.R. 1900;

Kyriakidou v. Educational Service Commission (1986) 3 C.L.R. 913;

Kouis and Others v. The Republic (1986) 3 C.L.R. 1874;

Sarris v. The Republic (1987) 3 C.L.R. 186;

Sarris v. The Republic (1987) 3 C.L.R. 229;

Savva v. The Republic (1986) 3 C.L.R. 445;

Kapsos v. The Republic (1983) 3 C.L.R. 1336.

Recourse.

Recourse against the decision of the respondents to appoint the interested parties as school-master of Physics on contract for the. Schoolyear 1983-1984 in preference and instead of the applicants.

Th. Montis, for the applicant.

M. Florentzos, Senior Counsel of the Republic for the respondents.

Th. loannides, for interested party No. 1:

A. Markides, for interested party No. 2.

N. Panayiotou. for interested party No. 4.

No appearance for interested parties Nos. 3 and 5.

Cur. adv. vult.

A. LOIZOU J. read the following judgment. By the present recourse the three applicants seek:-

(a) declaration of the Court that the act and/or decision of the respondent Commission, by which they appointed Andreas Paraskevopoulos, AndroullaKousparou. AchilleasGavrielides, PhotiosMylona, and Nicos Christodoulou to the post of school-master of Physics (Φυσιογνωστική). on contract, for the year 1983-1984. instead of the applicants, is null and void and with no legal effect.

(b) Declaration of the Court that the refusal and/or omission of the respondent Commission to appoint the applicants as school-masters of Physics, in strict compliance with the order of priority of the List of candidates, for appointment is null and void and with no legal effect and what was omitted ought to be done retrospectively.

(c) Declaration of the Court that the suggestion and/or submission and/or order of another authority and especially of the Council of Ministers-respondents 2.-to appoint the aforesaid interested parties instead of the applicants is contrary to Law and in abuse of the powers given by the Public Educational Service Law 1969. (Law No. 1O of 1969).

The three applicants were placed on the List of candidates for appointment as school-masters of Physics in the following order. Applicant 1, Themistocleous under serial No. 4. Applicant No. 2. Loizidou, under serial No. 25, and applicant No. 3. Panayi under serial No. 26. The five interested parties were appointed under serial numbers, 15, 16, 20, 24 and 37.

The said list of candidates was prepared by virtue of the provisions of Regulation 5 of the Educational Officers (Teaching Staff) (Appointments, Emplacements. Transfers. Promotions andRelated Matters) Regulations 1972, as amended.

Under the provisions of Regulation 10(2) thereof «appointments on contract are made in order of priority from the relevant lists of persons to be appointed». The reasons for the respondent Commission, not following the order of priority under the aforesaid Regulation appear in paragraph 4 of its minutes of the 12th September, 1983, (Appendix «A»), attached to the opposition. It states that the strict observance of the order of priority of the new List of candidates for appointment offends the constitutionally safeguarded principle of equality and it would be unfair for those appointed earlier to remain without appointment as on the basis of the established practice those appointed on contract had the conviction that they were obtaining a permanent post and that the manner of their appointment was a mere procedural formality, that is they considered themselves in a sense permanent and on the basis of this factor they created obligations, family, social, financial and on many occasions left their previous employment.

In the case of Psara-Kronidou v. The Republic (1985) 3 C.L.R. 1900 it was held that the respondent Commission could not disregard the provisions of the aforementioned Regulation 10(2), which for all intents and purposes at the time of taking the sub judice decision was in force. This principle was followed in the cases of LoukiaKynakidou v. The Educational Service Commission, Recourse No. 785/85, judgment delivered on the 4th Jun, 1986; Kouis and Others v. The Republic, Recourse No. 34/85, judgment delivered on the 25th September 1986, and also in Georghios S. Sarris v. The Educational Service Commission, Recourse No. 940/85, judgment delivered on the 27th January, 1987;-both judgments as yet unreported-where extensive reference is made to the relevant Case Law of this Court.

This approach was followed by me in the case of Georghios Sarris v. The Republic, Case No. 242/83, judgment delivered on the 5th February, 1987. I find no reason whatsoever to depart from the approach of my learned brethren in the recourses just referred to and which I followed in the Sarris case (supra). The said Regulation sets out clearly the rules of priority which had to beobserved in appointing on contract educational officers and which were indeed in force at the time the sub judice decisions were taken. As lam concerned in the present case with the legality of the act at the time it was taken and not with the consequences brought about by the subsequently delivered judgment of the Supreme Court in EfstathiosSavva v. The Republic (1986) 3 C.L.R. 445, what was held in Kapsos v. The Republic (1983) 3 C.L.R. 1336 has no application.

A comparison, however, of the order of priority of the three applicants with the five interested parties shows that those that had to be appointed in compliance with the order of priority set out in the List of candidates were applicant 1, The mistocleous, interested party 1, Paraskevopoulos, interested party 2, Kousparou, interested party 3, Gavrielides, and interested party 4. Mylonas. Consequently the application of applicants 2 and 3 could not succeed and the application of applicant 1, could not succeed except only as against interested party NicosChristodolou.

The recourse therefore is dismissed to the extent stated above and it succeeds only as regards that part of the application of applicant 1, that challenges the appointment of interested party 5. Nicos Christodoulou.

In the result order is made accordingly with no order as to costs.

Order accordingly.

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