(1987) 3 CLR 1674
[*1674] 1987 September 17
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRYSOSTOMOS P. ROUSSIS AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE EDUCATIONAL SERVICE COMMISSION,
Respondent.
(Cases Nos. 411, 412, 413, 434, 443, 519
520, 668, 679, 685, 686, 687, 695/84).
Recourse for annulment - Practice - Same administrative act challenged by two recourses filed b9 the same applicant - Dismissal of second recourse as regards interested parties who are the same as the interested parties of the first recourse.
Educational Officers Appointments/Promotions - Request for filling of vacancies existing at the time of such request as well as of vacancies expected to occur by reason of impending promotions - Whether such course can be followed - In the circumstances, the question is answered in the affirmative.
Educational Officers - Promotions - Qualifications - Additional qualifications envisaged as an advantage in the scheme of service - Special reasons should be given for disregarding them.
Educational Officers - Appointments/Promotions First entry and promotion post - Decision to fill vacancies from within the service - Once such decision was taken the Commission had to apply the three criteria (Merit, Qualifications, Seniority) laid down by section 35 (2) of the Public Educational Service Law 10/69, as amended by section 5(6) of Law 53/79.
Educational Officers - Promotions - Seniority - Meaning of - Doubt raised whether there was confusion between seniority and overall length of service - Ground of annulment.
Administrative Law- General principles- Validity Of administrative act should be judged in accordance with the position prevailing at the time it was taken to the exclusion of subsequent events.[*1675]
The applicants challenge, by these recourses, the decision to promote to the post of Assistant Headmaster in the Secondary Education, the interested parties instead of and in preference to them.
By letter dated 3rd May, 1984, addressed to the respondent a request was made, by the Ministry of Education, for the filling as from 1.9.1984 of 15 vacancies in the post of Assistant Headmaster in the Secondary Education (a first entry and promotion post) as well as 11 consequential vacancies in the same post which were to result from the filling of an equal number of vacancies in the post of Headmaster.
The respondent met on 7.6.1984 and after considering the applications submitted and excluding those candidates not satisfying the necessary prerequisites, proceeded to group the prevailing candidates under five categories (according to their years of service, their qualifications and general assessment in the last two service reports).
The Commission then decided to invite the candidates included in the aforesaid categories to an interview. Finally, the Commission, after assessing the performance of the candidates at the interviews and hearing the recommendations of the Department proceeded to the selection of 22 candidates, amongst whom the interested parties, for promotion to the post of Assistant Headmaster as from 1.9.1984.
It must be noted that the scheme of service provides that an additional title of studies, with preference to Paedagogics or subjects relating to the administration and organisation of schools is considered an additional qualification.»
The Court, after dismissing some of the recourses either in whole or as regards certain interested parties on the ground that the sub judice act in each of such recourses had also been challenged as regards the same interested parties by another recourse by the same applicant, which was still pending.
Held, annulling the sub judice decision: (1) In the present case none of the applicants has been prejudicially affected by the fact that the procedure for the filling of the consequential vacancies had started before the posts became actually vacant. (Republic v. Pencleous and others (1984) 3 C.L.R. 577 and Iordanous v. The Public Service Commission (1985) 3 C.L.R. 2502 distinguished).
(2) Although the posts in question were first entry and promotion posts. It is obvious from the sub judice decision that the respondent decided to fill the posts from those candidates already in the service and proceeded as in the case of promotions. It follows that the Commission had to abide by the criteria laid down by Law (Section 35(2) of Law 10/69 as amended. i.e. Merit Qualifications, Seniority).[*1676]
(3) The five categories in which the candidates were separated were based on the years of service of the candidates, their assessment in the last two service reports and- their qualifications. The seniority however of- the candidates, does not appear to have been taken into consideration in preparing these lists and separating the candidates into the said categories. Neither does it appear later on, especially in the minutes-of 18.7.84, when the sub judice decision was taken, and the reasons given for selecting each one of the interested parties, whether the seniority of the candidates was duly considered as provided by the Law.
(4) Seniority has to be calculated as from the date the candidates were holding their last posts, grades or-scales and not from the date of entering the service (see s. 37 of the Law). In this case a doubt has been raised whether seniority in the aforesaid sense was confused in the minds of the members of the Commission with the length of service.
(5) Moreover certain applicants, were not treated as possessing additional qualifications on -the ground that their post graduate studies did not relate to Paedagogics or School Administration. Having regard to the wording of this provision any additional title of studies should be considered an advantage, but special preference should be given to those possessing titles in relation to the subjects mentioned therein. Special reasons should have been given by the respondent why such additional qualifications-were disregarded.
Sub judice decision annulled.
No order as to costs.
Cases-referred to:
Republic v. Pericleous and Others (1984) 3 C.L.R. 577;
Iordanous v. Public Service Commission (1985)3 C.L.R. 2502.
Papaioannou v. Republic (1987) 3C.L.R. 474.
Recourses.
Recourses against the decision of the respondent to promote the interested parties to the post of Assistant Headmaster in the Secondary Education in preference and instead of the applicants.
E. Efstathiou, for applicant in Case No. 411/84.
A. S. Angelides, for applicants in Cases -Nos. 412/84, 413/84, 434/84, 443/84, 679/84,686/84,695/84.
A. Markides, for applicants in Cases Nos. 5 19/84 and 520/84.
Ch. Ierides, for applicant in Case No. 685/84.[*1677]
Chr. Triantafyllides, for applicant in Case No. 668/84.
R. Petridou (Mrs.), for respondent.
Cur. adv. vult.
SAVVIDES J. read the following judgment. The applicants challenge, by these recourses, the decision of the respondent, dated 18.7.1984, to promote to the post of Assistant Headmaster in the Secondary Education, the interested parties instead of and in preference, to them.
The promotion of 15 interested parties is challenged in total, who, however vary from recourse to recourse. The 15 interested parties are as they appear on a list drawn up by counsel for the applicants, the following:
1 .Phaedra Papacosta
2. ElengoRangou
3. ElpidaHailou
4. ElladaConstantinidou
5. MakariosPapachristoforou
6. Maria Zavrou
7. Michael Karpasitis
8. George Theofilou
9. Michael Yerolemou
10. IoannisIoannides
11. Stavros Mestanas
12. EkatenniHadjiDemetriou
13. Vera Korfiotou
14. PetrosPetrou
15. GeoghiaMikellidou
All cases were heard together as presenting common questions of law and fact.
The facts which led to the sub judice decision are briefly as follows:
All parties were serving, at the material time, as teachers in the Secondary Education. By letter dated the 3rd May, 1984, addressed to the respondent a request was made, by the Ministry of Education, for the filling as from 1.9. 1984of 15 vacancies in the post of Assistant Headmaster in the Secondary Education (a first entry and promotion post) as well as 11 consequential vacancies[*1678]in the same post which were to result from the filling of an equal number of vacancies in the post of Headmaster. The vacancies were advertised in the official Gazette of the Republic on 11.5.1984 and the last date for submitting applications was fixed as the 26th May, 1984. The promotions to the post of Headmaster were effected on 6.6.1984.
The respondent met on 7.6.1984 and .after considering the applications submitted and excluding those candidates not satisfying the necessary prerequisites, proceeded to group the prevailing candidates under file categories (according to their years of service, their qualifications and general assessment in the last two service reports) and decided to invite them to personal interviews, held from the 18th to the 25th of June. By letters of the Ministry of Education dated 16.6.1984 and 16.7.1984, the vacancies to be finally filled were fixed to 22.
At its meeting of 2.7.1984, the respondent assessed the performance of the candidates at the interviews and postponed further consideration of the matter. On the 18th July, 1984, after the recommendations of the Departments of Secondary and Technical Education were submitted the respondent proceeded to the selection of 22 candidates, amongst whom the interested parties, for promotion to the post of Assistant Headmaster as from 1.9.1984. The promotions were advertised in the daily press on the following day, that is, the 19.7.1984.
Recourses Nos. 411, 412, 413, 434, 443, 519 and 520were filed against the above decision. In the meantime, one of the candidates to whom promotion was offered by the above decision did not accept such offer and as a result the respondent met again on 31.8.1984 and decided to offer promotion to Zoe Kanthou as form 1.9.1984 and to NitsaPapadopoulou as from 1.10.84 as Mrs. Kanthou was due to retire on such date. The promotions were finally advertised, in the official Gazette of the Republic dated 5.10.1984 as a result of which recourses Nos. 668, 679, 685, 686, 687 and 695/84 were filed.
Before proceeding any further I consider it pertinent to clarify the position of certain of the applicants in the above recourses.
Recourse No. 679/84 has been filed by six applicants, that is Andreas Papandreou, AlekosLeptos, ConstantinosYiangoullis, Andreas Georghiou, Anna Georghiou and Charalambos[*1679]Timotheou. Two of the above applicants that is A. Papandreou and C. Yiangoullis had already filed recourses Nos. 443 and 412/84 respectively, by which the same administrative act is challenged, also the relief sought is the same and the interested parties whose promotion is challenged are the same. The same administrative act cannot be challenged twice by the same applicant and, therefore, .1 consider Recourse No. 679/84 as violating the principle «no bisvexare pro eademcausa» and I dismiss same in so far as applicants Papandreou and Yiangoullis are concerned.
I come now to the position of applicant OuraniaProtopapa. This applicant challenged, originally’ the sub judice decision by recourse No. 413/84. After the publication of ‘the sub judice promotions in the official Gazette of the Republic on 5.10.1984, this applicant filed a new recourse, No. 687/84, challenging the same promotions, but with the addition of NitsaPapadopoulou in the list of interested parties to whom as explained earlier promotion was offered on 31.8.1984, ‘as from 1.10.1984, after one of the candidates to whom promotion was originally offered did not accept such offer. However, by a statement filed by all counsel for the applicants after the close of the hearing of the recourses which purported to eliminate the list of interested parties, the recourse against N. Papadopoulou was withdrawn. Since the remaining interested parties as well as the decision challenged are the same as in Case No. 413/841 consider recourse No. 687/84 as futile and I therefore dismiss same accordingly.
Applicant TheklaIoannidou first challenged the sub judice decision by recourse No. 434/84 and later on.’ when the promotions were advertised in the official Gazette of the Republic she filed recourse No. 686/84. Both recourses are directed against the same decision, that of 18.7.1984: also the promotion of the same interested party is challenged by both recourses. For the same reasons as explained above I dismiss the second recourse of this applicant, that is recourse No. 686/84.
Lastly, applicant GeorghiosStavrou, is challenging, by recourse No. 695/84, besides the promotion of certain of the interested parties who were promoted by the decision of 18.7.1984 (the sub judice decision) the- promotion of Zoe Kanthou and NitsaPapadopoulou, who were promoted by the decision of3l .8.1984, as stated above. Since, however, the names of these two interested parties were not finally included in the common[*1680]statement of counsel for the applicants eliminating the list of the interested parties, I consider this part Of the recourse as abandoned.
I will now proceed to consider the issues raised in the recourses.
The arguments of counsel may be separated in two groups for purposes of convenience. In the first group there ma, be included general and procedural grounds and in the second group all arguments regarding comparison of the parties. I shall begin with the first group.
The first ground to be considered is the filling of consequential vacancies As stated earlier, in the letter of the 3rd May, 1984, requesting the filling of the vacancies, only 15 out of the 26 posts to be filled were vacant on that date, the remaining being consequential vacancies, which became actually vacant on the 6th June, 1984, upon the promotion of a number of Assistant Headmasters to the post of Headmaster, that is, after the request for the filling of the vacancies in question was made and the expiry of the last date for the submission of. applications. Finally, however, only 22 vacancies were filled by the sub judice decision.
Counsel argued relying on the case of The Republic v. Pericleous and others (1984)3 C.L.R. 577, that the request for the filling of the consequential vacancies could not have been made before the posts became actually vacant and were advertised so as to enable other candidates who acquired the qualifications required by the scheme of service in the meantime, to submit applications. Further, counsel argued that the promotions to the post of Headmaster which were effected on 6.6.1984, were later revoked, on 9.2.1985, and since revocation acts retrospectively the promotions of seven of the interested parties were made to posts which were not vacant at the time of the sub judice decision.
The case of The Republic v. Pericleous (supra) sets down the date at which a candidate for appointment or promotion should possess the qualifications required by the scheme of service for the post. Thus in the case of first entry and promotion posts as it is the case here, such date is the one prescribed in the relevant advertisement for the submission of applications. The above case however, deals with normal and not consequential vacancies. There is provision in the law that no officer shall be promoted to any post unless a vacancy exits in. such post. There is no[*1681]provision, however, to the effect that the procedure for the filling of a post cannot be started earlier although a positive provision that it can be so started in the case of promotion posts which are to be vacated is to he found in Regulation 24 of the 1972 Regulations (now renumbered as Regulation 28 by paragraph 3 of the 1985 Regulations).
In the case of Iordanous v. The Public Service Commission (1985) 3 C.L.R. 2502, I annulled the promotion of the interested parties which was effected as a result of a consequential vacancy on the ground that the applicant who did not possess the qualifications of the scheme of service at the time the request for the filling of the posts was made, but acquired them later, before the filling of the posts was made, was wrongly not considered for promotion.
The present case should be differentiated both from the cases of Pericleous and Iordanous (supra). The former case did not set down any rule with regard to consequential vacancies and in the latter the applicant was not considered as qualified for promotion and thus his position was affected. In the present case none of the applicants has been prejudicially affected by the fact that the procedure for the filling of the consequential vacancies had started before the posts became actually vacant. (See also, in this respect, the case of Papaloannou v. The Republic (case No. 495/85, in which judgment was delivered by me on 3rd April, 1987, not yet reported).
As to the part of the argument of counsel referring to the subsequent revocation of the promotions to the post of Headmaster which were made on 6.6.1984 I find no merit in it. The validity of the sub judice decision should be judged in accordance with the position prevailing at the time it was taken, to the exclusion of any subsequent events. In any case, the promotions to the post of Headmaster were again reconsidered after their revocation, and effected again retrospectively, as from 6.6.1984 so that no gap was left. This ground is, therefore, dismissed.
The next argument of counsel for the applicant is that the sub judice decision was based on criteria outside the Law, in that the respondent defined categories of candidates on the basis of extraneous criteria.[*1682]
Although the posts in question were first entry and promotion posts, it is obvious from the sub judice decision that the respondent decided to fill the posts from those candidates already n the service and proceed as in the case of promotions.
Section 35(2) of the Law (No. 10/69) .as amended by section @@@(b) of Law 53/79, provides that:
«(2) κατά την εξέτασιν των διεκδικήσεων των εκπαιδευτικών λειτουργών προς προαγωγήν λαμβάνονται δεόντως υπ' όψιν η αξία, τα προσόντα και η αρχαιότης συμφώνως προς διαδικασίαν ήτις καθορίζεται.»
((2) In considering the claims of educational officers V for promotion the merit, qualifications and seniority of the candidates are duly taken into consideration in accordance with the prescribed procedure).
No procedure as contemplated by section 35(2) of the law had been prescribed by the time of the sub judice decision but evertheless the respondent had to abide by the three criteria laid down by the Law.
Having carefully considered the contents of the sub judice decision in the light of the minutes of the meetings that led to it wish to make the following observations.
Its is mentioned in the minutes of the meeting of 7.6.1984 under paragraph (c), p. 2, that «On the basis of merit, qualifications and @@@eniority, the Commission selects the candidates who appear in @@@e attached appendix who are considered as prevailing».
Then five categories appear, based on the years of service of the candidates, their assessment in the last two service reports and their qualifications. The seniority however of the candidates, does not appear to have been taken into consideration in preparing these lists and separating the candidates into the said categories. @@@either does it appear later on, especially in the minutes of 18.7.1984, when the sub judice decision was taken, and the reasons given for selecting each one of the interested parties, whether the seniority of the candidates was duly considered as provided by the Law. A doubt is, therefore, raised in this respect whether seniority in its legal definition and length of service were confused in the minds of the members of the respondent[*1683]Commission. Seniority has to be calculated as from the date the candidates were holding their last posts, grades or scales and no from the date of entering the service (see s. 37 of the Law). It seem from the comparable tables that certain of the applicants are senic to certain of the interested parties and all other factors being more or less equal they should have been preferred on account of the seniority.
It also appears that although certain applicants posses additional qualifications they were not treated as possessing same because, as counsel for the respondent stated, their post-graduate studies did not relate to Paedagogics or School Administration, e provided by the scheme of service. The scheme of service in the respect provides that <<an additional title of studies, with preference to Paedagogics or subjects relating to the administration an organization of schools, is considered an additional qualification Having regard to the wording of this provision any additional title of studies should be considered an advantage, but special preference should be given to those possessing titles in relation t the subjects mentioned therein. Amongst the interested partie there are persons who did not possess any additional titles while certain of the applicants possessed such titles. In thesecase special reasons should have been given by the respondent why such additional qualifications were disregarded.
For the above reasons the sub judice decision has to be annulled.
Having reached such conclusion I find it unnecessary to embar on the merits of each candidate compared to the others so as n@@@ to prejudice the outcome of the decision of the respondent whe@@@ re-examining the case and thus interfere with the free exercise c@@@ its discretion on the matter.
In the result recourse No. 679 so far as applicants I Papandreou and C. Yiangoullis are concerned, and recourse: Nos. 686 and 687/84 are dismissed. The remaining recourses, that is Nos. 411, 412,413,434, 443,519,520,668, 685,695 as well as: recourse No. 679, as far as it concerns applicants A. Leptos, A Georghiou, Anna Georghiou and Ch. Timotheou succeed and the[*1684]sub judice decision in so far as the interested parties hereinabove referred to are concerned is hereby annulled. There will be no order for costs.
Sub judice decision
annulled. No order
as to costs.
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