|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 17
1988 May 11
[PAPADOPOULOS, J.]
RENOS KYRIAKIDES AND OTHERS,
Applicants,
v.
THE EDUCATIONAL SERVICE COMMISSION AND ANOTHER.
Respondents.
(Cases Nos 331/84, 349/84, 409/84. 485/84)
Misconception of Law and fact -Promotion of 12 persons in the Public Educational Service, whereas the vacant posts were only eleven -Annulled.
The reason why the Court annulled the sub-judice promotions, which had been in any event revoked, appears in the hereinabove note. The Court had earlier decided that the Recourse was not abated by reason of the revocation.
Sub Judice promotions annulled.
No order as to costs.
Cases referred to:
Pierides v. Republic (1969) 3 C.L.R. 247,
Andreou v. Republic (1978) 3 C.L.R. 85,
Constantinou v. Republic (1969) 3 C.L.R. 90,
Poyadjis v. Republic (1975) 3 C.L.R. 378,
Ioannou v. Republic (1985) 3 C.L.R. 31,
Kyriacou v. Republic (1985) 3 CL.R. 2414,
Tryfonos v. Republic (1985) 3 CL.R. 2555.
Recourses.
Recourses against the decision of the respondents No.1 to promote the interested parties to the post of Headmaster Secondary Education in preference and instead of the applicants.
F. Valiantis, for the Applicants in cases 331/84. 349/84. 485 /84.
A. S. Angelides, for the Applicant in case 409/84.
R. Petridou, for the Respondents.
Cur adv. vult.
PAPADOPOULOS, J. read the following judgment. The applicants in the present applications are challenging the decision of the Educational Service Commission, respondents No. 1 in these proceedings, which they reached on the 6th June, 1984. By this decision the Educational Service Commission promoted to the post of Headmaster Secondary Education twelve of their colleagues and not them.
Among other reasons, the applicants challenge the validity of the above decision on the ground that it was based on a misconception of Law and facts. More concretely, when the respondents promoted the interested parties to the post of Headmaster there existed only eleven posts but the Educational Committee acting under an erroneous misconception of facts and Law, increased the number of the vacant posts to twelve and proceeded to the promotion of twelve persons to the post of the Headmaster.
There is no dispute as to the above facts. In fact, the lawyer acting for the respondents, when she realized this fact, submitted a suggestion to the respondents for the cancellation of their decision of the 6/6/84.
As a matter of fact, on the 9/2/85 the Educational ServiceCommission was convened to examine the matter and had this to say with regard to the sub judice decision, which they eventually revoked:
"Ενόψει της διαπίστωσης ότι η μια θέση Διευθυντή που είχε κενωθεί ύστερα από την εν λόγω ακυρωτική απόφαση του Ανωτάτου Δικαστηρίου έπρεπε κανονικά να πληρωθεί αναδρομικά από 1.9.80 (που ίσχυε η ακυρωθείσα προαγωγή) με βάση το νομικό και πραγματικό καθεστώς που ίσχυε στις 30.8.80 η Επιτροπή αποφασίζει να ανακαλέσει την απόφαση της με ημερ. 6.6.84 για την προαγωγή 12 Βοηθών Διευθυντών στη θέση Διευθυντή και να επανεξετάσει το όλο θέμα εξ υπαρχής."
It must be noted that the respondents had submitted to the Court at an earlier stage that after the revocation of the sub judice decision by the Educational Service Commission, the right of the applicants to pursue their recourses had been abated as they had been deprived of their subject matter and in consequence, had no legitimate interest entitling them to pursue their recourses any further.
The applicants opposed the submission of the respondents and insisted that they were entitled to have the recourses determined in accordance with Article 146(4) of the Constitution in order to become entitled, if successful, to claim damages under Article 146(6) of the Constitution.
It was decided by the Court that the recourses had not been abated by the revocation of the sub judice decision.
The only issue before the Court is whether the applicants are entitled to the remedy prayed for in their application against the sub judice decision on the facts as above stated and which were admitted by both sides.
There is no doubt that the Educational Service Commission when examining the case and deciding on the 6/6/84, were acting under a misconception of law and fact. There is a great number of authorities supporting that the decision taken under a misconception of law and fact cannot stand and it has to be annulled. (See Pierides v. Republic (1969) 3 C.L.R. 247,Andreou v. Republic (1978) 3 C.L.R. 85, Constantinou v.Republic(1969) 3 C.L.R. 190. Poyiadjis v. Republic(1975) 3C.L.R. 378. Ioannou v. Republic (1985) 3 C.L.R. 31.Kyriacou v. Republic (1985) 3 C.L.R. 2414 and Tryfonos v.Republic (1985) 3 C.L.R. 2555).
In the light of the above, the sub judice decision is hereby declared null and void and of no effect and in the circumstances I make no order as to costs.
Sub judice promotions annulled.
No order as to costs.