(1981) 3 CLR 309
[*309] 1981 September 11
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
IOANNA PANAYIOTOU HADJICHARALAMBOUS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTRY OF EDUCATION AND/OR
THE MINISTER OF EDUCATION,
Respondents.
(Case No. 412/80).
Administrative Law-Misconception-Public Officers-Appointments-Applicant not appointed not because of a comparison of her merits and qualifications with those of other candidates-But because of a misconception by respondents of a memorandum of agreement relating to the appointments-Said misconception renders sub judice decision contrary to the general principles of administrative law and thus contrary to law-Sub judice decision annulled.
This recourse was directed against the decision of the respondents not to appoint the applicant to the post of instructress in goldsmithing and silversmithing and their decision to appoint the interested party to the said post in preference and instead of the applicant. The selection of the interested party was made not because of a comparison of her respective merits and qualifications with those of the applicant but because of a misconception as to the effect of an agreement between the professional Organizations of Secondary School-teachers and the Government, which was approved by the Council of Ministers.
Held, that the said misconception makes the sub judice decision contrary to the general principles of administrative law and thus contrary to law; that, therefore, the engagement of the interested party instead of the applicant is null and void examined [*310] in connection with the decision of the respondents not to engage the applicant, for the reasons that they did so and which decision is also null and void and of no effect.
Sub judice decision annulled.
Recourse.
Recourse against the decision of the respondents to appoint on contract Christina Markidou to the post of Instructress in goldsmithing and silversmithing at the Technical School of Nicosia.
A. S. Angelides with K. Pamballis, for the, applicant.
G. Constantinou (Miss), Counsel of the Republic, for the respondents.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By the present recourse the applicant seeks (a) A declaration of the Court that the refusal and/or omission of the respondents to appoint her on contract to the post of Instructress in goldsmithing and silversmitbing is null and void and of no effect whatsoever and that what was omitted ought to be done; (b) A declaration of the Court that the act and/or decision of the respondents to appoint as from the 23rd October, 1980, on contract Christina. Markidou, hereinafter called “the interested party” instead of the applicant, is null and void and of no effect whatsoever.
The facts of the case are as follows: The applicant between the years 1964-1973, did at first her apprenticeship and then worked as a goldsmith, silversmith, at the work-shop of Mr. Constantinides in Nicosia, and between the years 1973-1976 she worked on her own. From September 1966 to June 1970 she attended a cycle of lessons of the apprenticeship Scheme organized by the Ministry of Labour and Social Insurance and upon its successful completion she was awarded a certificate of specialization in silversmithing/goldsmithing.
The applicant was appointed on a special contract to the post of instructress in goldsmithing / silversmithing at the Technical School of Nicosia for eight periods per week as from the 6th October 1976 and at the Professional School Larnaca with ten periods per week as from the 28th February 1977. This special contract of the applicant was renewed successively for full [*311] engagement as from3rd October 1977to the 31st August 1978, from 19th October 1978 to 31st July1979, and from 2nd October 1979 till.31st August 1980.
On the 6th June 1980, an agreement was reached between the professional Organizations of Secondary School-teachers OELMEK and the Teachers of Technical Education OLTEK on the one band, and the Government, which included a term that “for professional and other reasons as maintained by O.L.T.E.K.” it was not proper to continue the engagement of instructors on scales B.1-B.2 (new scales A.4, A.6), and asked that thereafter the engagement be for the higher scales of instructors where higher academic qualifications are required. (See exhibit 1 blue 50). This agreement was approved by decision No. 19.254 of the Council of Ministers, dated the 26th June 1980 which reads as follows:
“The Council decided that (a) approve the agreement reached with the Educational “Organizations OELMEK and. OLTEK with regard to the plan for evaluation and restructuring of the post of Secondary and Technical Education and their emplacement in the new Salary scales of the Public Service as well as other special relevant matters as they are set out in the memorandum of agreement attached to the submission, and (b) authorized the Minister of Finance to take, all necessary measures for the realization of the aforesaid agreement”.
This decision, however, does not appear to have been fully implemented as it appears from the contents of exhibit 6, which is a letter addressed, by the Director-General of the Ministry of Education to the Attorney General of the Republic, which says inter alia that up to the present moment there is nothing to abolish the engagement of instructors to scales B.1, B. 2. The non-implimentation of this has been conceded by counsel for the respondents.
The Council of Ministers by its decision 19.509 dated 4th September 1980 decided the following:
“In this respect the Council decided to renew the contracts of the School Masters of Secondary General, and Technical Education who were serving during the School Year 1979/ 80 but did not accept the suggestion about reduction of the teaching periods by one per week”. [*312]
This appears to be a decision overriding the non-implemented previous one of the. 26th June, 1980, and it is on the basis of this decision that the applicant claims that her contract ought to have been renewed alongside with the contracts of all other school-masters of Secondary, General and Technical Education. The respondents, however, appear to have overlooked or misconstrued this decision with regard to the applicant. The following minute under No.5 is to be found in exhibit 1, dated 16th October, 1980, and addressed to the Director-General of the Ministry of Education:-
“Mrs. loanna Panayiotou HadjiCharalambous served as Instructress in godlsmithing with special contract from 6th October, 1976 to 31st August, 1980. For the school year 1980-1981 she has not, as yet, been appointed and the post of Instructor in goldsmithing remains vacant.
On the basis of her qualifications Mrs. HadjiCharalambous cannot be appointed by the. Educational Service Committee (she belongs to Scale B. 1) as there is a candidate who belongs to Scale B. 3 on the one hand and on the other, because the Committee cannot offer appointments any longer (after a demand of OLTEK in Scale B. 1 and agreement with the Government.
The Committee before proceeding to the filling of the post requests you to examine whether the decision of the Council of Ministers for renewal of the appointments of all who served on contract for the school year 1979-1980 covers this case.
If the answer is in the affirmative she has to be offered a special contract, if not, we request the matter to be sent to the Committee for appointment of the only candidate for the post”.
The reply to this by the Director-General dated 20th October, 1980, Minute No. 6, is as follows:
“Note (5): My view is that the decision does not cover case”.
Upon that the interested party was appointed to the post instead of the applicant.
It appears from the aforesaid and in particular from the fact [*313] that the agreement not to engage Educational Officers on Scales B. 1 and B.2 and instead engage to the higher scales where higher academic qualifications were demanded, was not put into force that the only course in this case open to the respon5 dents was to comply with the aforementioned Decision No. 19.509 of the Council of Ministers dated 14th September, 1980, whereby, it had decided to .renew the contracts of all school-masters of Secondary, General and Technical Education who were serving on contract during the previous year. If this decision was followed then, the applicant would have been engaged on contract. That was not done, obviously through a misconception as to the effect of the memorandum of agreement and its approval by the Minister by its decision of the 26th June, 1980.
No doubt the interested party has higher qualifications than the applicant and her qualifications entitle her to emplacement in Scale B.3. Her selection, however, for engagement was made not because of a comparison of the respective merits and qualifications of these two candidates, but because of the exclusion of the applicant as a result of the misconception referred to earlier in this judgment, which makes it contrary to the general principles of Administrative Law and thus contrary to Law. That being so, the engagement of the interested party instead of the applicant is null and void examined in connection with the decision of the respondents not to engage the applicant, for the reasons that they did so, and which decision is also null and void and of no effect.
For all the above reasons this recourse succeeds, the sub judice decisions are annulled, but in the circumstances I make no order as to costs.
Sub judice decision annulled.
No order as to costs.
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