Supreme Court annuls non-appointment decision due to wrong legal basis regarding schoolteacher grading regulations.

[*115] 1968 February 3

(TRIANTAFYLLIDES,J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Iouliani Christodoulidou,

Applicant,

and

The Republic of Cyprus, through

1. The Minister of Education,

2. The Attorney-General of the Republic, as

successor to the Greek Communal Chamber,

Respondents.

(Case No. 98/67).

Elementary schoolteachers - Appointments - Non-appointment of Applicant as elementary schoolteacher - Wrong legal basis of relevant decision - Applicability of the Regulations governing the grading of the work of schoolmasters to Applicant - The Schoolteachers of Elementary Communal School Law, 1963 (Greek Communal Law No. 7 of 1963), sections 32 and 34(2).

D. Papachrysostomou, for the Applicant.

G. Tornaritis, for the Respondents.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES,J.: In this recourse the Applicant complains, in effect, against a decision of the Educational Service Committee in the Ministry of Education (referred to in this Judgment as "the Committee") by virtue of which she was refused appointment as a schoolteacher; such decision was communicated to the Applicant by a letter of the 20th March, 196? (see exhibit 1). [*116]

A rather long and complicated history of administrative steps and judicial proceedings has led up to the subject-matter of this recourse; such history is to he found set out in the Judgment of this Court in Christodoulidou and The Republic, 1966 12 J.S.C., p. 1286 - a previous recourse by the same Applicant in the same matter - and need not be repeated herein all over again.

After, and as a result of, the said Judgment, the Committee reconsidered the case of the Applicant and reached the decision complained of in the present proceedings.

The reasons given for the sub judice decision appear to be set out in full in the letter exhibit 1. and they are, in substance, that the Committee took the view that no appointment could be offered to the Applicant because her past service, during one of the material past schoolyears, was not satisfactory, as required under section 34(2) of The Schoolteachers of Elementary Communal Schools Law, 1963 (Greek Communal Law 7/63); such view is stated to have been based on the Regulations governing, inter alia, the grading of the work of schoolteachers (διδασκάλων).

It is common ground that the Regulations on which the Committee relied are, in fact, the Regulations governing the grading of the work of schoolmasters (καθηγητών) - see exhibit

3 - which were adopted by the Selection and Administration Committee of the Greek Communal Chamber on the 17th May, 1962 (see its decision exhibit 6). According to the minutes of. a meeting, on the 9th August, 1963, of the Appointments Committee in the Education Office of the Greek Communal Chamber - (such Appointments Committee being the [*117] predecessor of the Educational Service Committee in the Ministry of Education) - the said Regulations were taken as

being applicable to schoolteachers, too (see exhibit 2): it is stated in such minutes that the Appointments Committee was

informed, on that occasion, by its Chairman, that the Committee of Administration of the Greek Communal Chamber - (as the Committee of Selection and Administration of the Chamber came to be known later) - had decided on the previous day, the 8th August, 1963, that an earlier decision thereof, of the 21st January? 1963, concerning the characterization of the work of schoolmasters, was applicable, also, to schoolteachers, and that, as a result, the Regulations governing the grading of the work of schoolmasters were "obviously” applicable to schoolteachers, too.

During the present proceedings it has transpired that the aforementioned decision of the 21st January, 1963 was, in fact, a decision of the Administration Committee taken on the 17th January, 1963 (see exhibit 7,) but no decision of the Administration Committee, dated the 8th August, 1963, and rendering either the decision of the 17th January, 1963, or the relevant Regulations applicable to schoolteachers, existed.

Under section 32 of Greek Communal Law 7/63, the grading of the work of schoolteachers is to be governed by Regulations made by the Committee of Administration; no such Regulations appear ever to have been made, independently of the Regulations (exhibit 3) made in relation to schoolmasters. [*118]

It follows, therefore, that the Educational Service Committee, in view of 'the aforementioned minutes of the Appointments Committee, for the 9th August, 1963 (see exhibit 2), was misled into thinking that the Regulations governing the grading of the work of schoolmasters had been rendered applicable to a schoolteacher, too, such as the Applicant - by decision of the· Administration Committee - and it proceeded to apply them accordingly in reaching its sub judice decision; in view, however, of the provisions of section 32 of Greek Communal Law 7/63 and the absence of a

decision of the Administration Committee to that effect - (and none was produced as having been taken at any time) - the said Regulations were not applicable at che material time to the Applicant. The Committee, thus, has acted in the matter without proper legal basis and under the misconception that it was bound by the specific criteria laid down in such Regulations; therefore, its decision, which is the subjectmatter of these proceedings, has to be annulled.

Counsel for Respondents has submitted that, though the aforesaid Regulations were not put into force regarding schoolteachers, the Educational Service Committee was, nevertheless, entitled to decide to adopt them as a matter of practice.

In the present instance, however, no question of such a course having been followed by the Committee could be said to arise, because the. Committee did not, actually, decide to adopt the said Regulations as practice, and it could not have so decided once it was labouring under the wrong impression that they were already legally in force in [*119] relation to schoolteachers

- in view of what is stated in the minutes of the meeting? on the 9th August, 1963,(exhibit 2), of the previously existing Appointments Committee.

Before concluding this Judgment I should point out that in the previous recourse, in the same matter/by this Applicant (Christodoulidou and The Republic, supra) this question, of whether the Regulations? exhibit 3, were applicable to her, was not raised? and, therefore, no opportunity was afforded to decide it. All that was in issue therein was the correct application of the rules for the characterization of the work of schoolmasters, as contained in the aforementioned decision of the Administration Committee of the 17th January, 1963, which at that time were assumed - on the strength of the minutes of the Appointments Committee of the 9th August, 1963 (exhibit 2) - to be applicable to schoolteachers, too; and as it has been discovered in the present proceedings this is not so, because no decision to that effect was taken by the said Administration Committee,

In the result the sub judice decision is hereby declared to be null and void and of no effect whatsoever. The matter has now to be reconsidered in its correct context.

There shall also be an order of costs for £20 in favour of the Applicants.

Sub judice decision annulled.

£20.- costs in Applicant’s

favour.