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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1292
1987 October 30
[LORIS. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
1. STELIOS STYLIANOU,
2. KYRIACOS MATSENTIDES
Applicants,
v.
THE EDUCATIONAL SERVICE COMMISSION,
Respondent.
(Case No. 967/85).
Administrative Law - General principles - Subsidiary legislation - Once enacted by the competent organ, it has to be complied with, until repealed or declared by a judicial decision to be ultra vires the law.
Administrative Law - General principles - Legality of an administrative act - Governed by the legislation in force at the time it was made.
By means of this recourse the applicants challenged the appointment on contract for the period of 1.9.85-30.11.85 of the interested parties as Schoolmasters of Gymnastics.
The sub judice appointments were made in contravention of the list of priorities, compiled in virtue of Reg. 5 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations, 1972, as amended in 1974. The relevant decision was taken before the decision in Savva v. Republic(1986) 3 C.L.R. 445, whereby Regs. 5 and 10 of such regulations were declared ultra vire5 the enabling law.
Held, annulling the sub judice decision that regulations made by the competent organ have to be complied with until recalled by the organ itself or declared ultra vires by a judicial decision; as the legality of an administrative act is governed by the legislation in force at the time it was made, the sub judice decision must be annulled.
Sub judice decision annulled.
No order as to costs.[*1293]
Cases referred to:
Kissonerghis v. E.S.C. (1987)3 C.L.R. 312;
Savva v. Republic (1986)3 C.L.R. 445;
Kapsou v. Republic (1983)3 C.L.R. 1336;
Lordou and Others v. Republic (1968)3 C.L.R. 427;
Kyriakidou v. Republic (1986)3 C.L.R. 913.
Recourse.
Recourse against the decision of the respondent to appoint the interested parties to the post of Schoolmaster of Gymnastics in preference and instead of the applicants.
P. Angelides, for applicants.
R. Vrahimi-Petrides (Mrs.), for respondent.
E. Efstathiou, for interested party No. 4.
S. Mamantopoulos, for interested party No. 15.
Cur. adv; vult.
LORIS J. read the following judgment. Both applicants impugn by means of the present recourse the decision of the Respondent Commission published in the daily press on 1.9.85, whereby the seventeen interested parties, set out in the Appendix attached to the recourse, were appointed on contract to the post of Schoolmaster of Gymnastics in preference to and instead, of the applicants, for a period of three months i.e. from 1.9.1985- 30.11.1985.
Both applicants duly qualified Schoolmasters of Gymnastics were emplaced on the table of priorities prepared by the Ministry of Education pursuant to regulation 5 of the Educational Officers (Teaching Staff) (Emplacements, Transfers, Promotions and Related Matters) Regulations 1972 as amended on 209.74 (Κ.Δ.Π.. 250/74) in a prior serial order to that of the 17 interested parties in the present recourse.
The complaint of the applicants is to the effect that the interested parties aforesaid were appointed on a contractual basis as Schoolmasters of Gymnastics by the respondent for a period of three months i.e. 1.9.85-30.11.85 in breach of the right of the applicants to prior appointment safeguarded by the table of priorities as aforesaid.
The present recourse was opposed by the Respondent Commission; all the interested parties, with the exception of interested party No. 12 namely EleftheriaHjiStefanou, were duly served; fourteen of them did not appear whilst interested parties 4 and 15 appeared through counsel and opposed the present recourse.
As interested party No. 12 was not served as late as the 10th September 1986, recourse against her was withdrawn and dismissed on 10.9.86.
At the hearing of this case learned counsel appearing for the respondent conceded that the sub-judice decision was wrong in principle as the priority tables, which were in force at the time the sub-judice decision was reached, were not followed. Counsel cited the case of Kissonerghis v. E.S.C. decided by this Court on 30.3.87 (Case No. 903/85 - judgment delivered on 30.3.87 - still unreported) and invited the Court on the same principles to annul the sub-judice decision in this case as well, stating at the same time, that in this case, the departure of the Respondent Commission from the order of priorities was not due to the recommendations of the Ministry of Education.
Counsel appearing for the interested parties No. 4 and 15, adopted the stand taken by learned counsel appearing for the respondent and conceded that in view of the fact that the priority tables, which were in force at the time of the sub-judice decision was reached by the respondent, were not followed and in view of the decision in Kissonerghis case (supra) the sub-judice decision could not stand.
It is abundantly clear that the sub-judice decision was reached on 1.9.85 when the aforesaid regulations fixing the order of priorities were still in force; the case of Savvav. Republic (1986)3 C.L.R. 445 whereby regulations 5 and 10 were declared ultra vires the enabling enactment (Law 10/69) was decided subsequently i.e. on 8.3.86; and as the regulations in question were made by the competent organ they had to be complied with until recalled by the organ itself, or declared ultra vires by a judicial decision (KapsoUv. Republic(1983) 3 C.L.R. 1336).
Once the aforesaid regulations were in force at the time of the sub-judice decision, they constituted the law applicable to this case as the legality of administrative acts is governed by the legislation in force at the time they were made (Lordou& Others v. Republic (1968)3 C.L.R. 427, Kyriakidou v. Republic (1 986) 3 C.L.R. 913).
Therefore the sub-judice decision has to be annulled on the ground that the respondent did not follow the relevant regulations which were valid and in force at the time such decision was reached by the respondent Commission.
In the result the sub-judice decisions is hereby annulled in respect of all the interested parties with the exception of interested party No. 12 namely Eleftheria I-ljiStefanou, against whom the present recourse was withdrawn and dismissed as stated earlier on in the present judgment.
Let there be no order as to costs.
Sub judice decisionannulled.
No order as to costs.