Constitutional appeal dismissed as filed 75 days late; administrative refusal to re-examine is confirmatory, not executory.

[*1105] 1968 October 4

(HADJIANASTASSIOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Christakis L. Varnava,

Applicant,

and

The Republic of Cyprus, through

1. The District Officer as Chairman of

The Improvement Boards of Nicosia,

2. The Ministry of Interior,

Respondent,

(Case No. 196/67).

Constitutional Law - Time - Article 116.3 of the Constitution Recourse

filed after the lapse of 75 days from the date the decision complained of was

communicated to applicant - Out of time, Because of the mandatory provisions of

Article 116.3 of the Constitution, which have to be given effect in the Public

Interest.

Time - See under Constitutional Law above.

Administrative Law - Confirmatory Act or Decision - Refusal of the

Administration not to re-examine the case of the applicant with a view to

revoking or withdrawing their previous decision or act, is not an act or

decision of an executory nature, but only a confirmatory one, which is not

executory, and therefore it cannot become the subject of an administrative

recourse under Article 146 of the Constitution.

Administrative Law - Gnission - In the absence of legislation there can

be no question of an omission when the administration has no duty to discharge.

Administrative Law - New enquiry - When does a new enquiry exist -

Confirmation by Administration of previous executory act after a new enquiry -

Act or decision after a new enquiry although of a confirmatory nature can be

considered as being of an executory nature.

L. Clerides, for the Applicant.

K. Michaelides, for Respondent 1. [*1106]

JUDGMENT

The following Judgment was delivered by:

HADJIANASTASSIOU, J.: In this recourse, the

short question

between the parties, being a preliminary point of law, is whether this

Application has been filed in the court B within time i.e. before the lapse of

75 days as provided for in paragraph 3 of Article 146.

The undisputed facts are in Brief as follows:

The Applicant was appointed on July 1, 1959, as a clerk of certain

Improvement Boards; but later on, on October 1, 1963, he was re-appointed to

serve all the Improvement Boards of Nicosia District, at a salary scale of

£308-596 plus cost of living allowance, payable by monthly instalments. The

period of appointment was renewed from year to year, unless either party terminated

the contract of service by giving two months notice in advance, prior to the

expiration of the period of service. Although the post to which Applicant was

appointed was permanent but not pensionable, on March 18,1966, he was informed

in writing by the District Officer that the said post was made pensionable.

On June 9, 1966, the Applicant addressed a letter to the District

Officer, exhibit 7, in which he says:

“ Λαμβάνω την τιμήν να σας πληροφορήσω ότι προσφάτως απεδέχθην διορισμόν παρά τη Εταιρεία “ΧΙΛΤΟΝ” εις θέσιν την οποίαν κρίνω σημαντικώς συμφερωτέραν δι' εμέ, θα κληθώ δε όπως αναλάβω τα νέα μου καθήκοντα περί ή κατά την

1ην Σεπτεμβρίου, 1966.” [*1107]

“ Όθεν παρακαλώ όπως δεχθήτε την παραίτησιν μου εκ της θέσεως του Γραμματέως

των Συμβουλίων Βελτιώσεως της Επαρχίας Λευκωσίας από της ως άνω ημερομηνίας,

θέσιν την οποίαν κατέχω από της 1ης Ιουλίου, 1559.”

“ Δράττομαι της ευκαιρίας ταύτης να εκφράσω εγκαρδίως τας ευχαριστίας

μου πρός Υμάς δια την μεγίστην βοήθειαν, πατρικήν καθοδήγησιν και πλήρη

κατανόησιν την οποίαν επεδείξατε προς εμέ κατά την διάρκειαν της υπηρεσίας μου

εις το Υμέτερον γραφείον. Παρακαλώ όπως διαβιβάσητε και προς πάντας τους υφιστα­μένους

Υμών τα αισθήματα μου και τας ευχαριστίας μου δια την ευγένειαν, βοήθειαν και

κατανόησιν την οποίαν επεδείξαντο ωσαύτως προς εμέ. Διαβεβαιώ δε Υμάς ότι η

παρά τω Υμετέρω γραφείον υπηρεσία μου θα παραμείνη εις εμέ αλησμόνητος.”

“ Περαιτέρω επιθυμώ όπως υποβάλω προς Υμάς την ύστατην μου παράκλησιν

ίνα μεριμνήσητε ώστε να μου καταβληθή το σχετικόν φιλοδώρημα, ως ηθέλατε κρίνη

συμφερώτερον δι' εμέ.”

On September 24, 1966, the Applicant before receiving a reply, wrote

another letter to the District Officer informing him, that he was definitely

retiring from his post on October 31, 1966; and that he requested his leave

before his retirement.

It would be observed, that in both these letters the Applicant had

never raised a point or in any way made a reservation that his resignation was

conditional on receiving [*1108] his gratuity. On the contrary one reading his

first letter would he inclined to take the view, that his resignation was due

to the fact that the Applicant had secured a much better job.

On October 6, 1965, the District Officer, who under the law is the

Chairman of all the Improvement Boards of Nicosia District, replied to the

Applicant by letter exhibit 1

It reads:

“Επιθυμώ να αναφερθώ εις τας επιστολάς σας ημερομηνίας 9ης Ιουνίου και

24ης Σεπτεμβρίου,1966, δια των οποίων υποβάλλετε παραίτησιν εκ της θέσεως σας,

ως Γραφέως των Συμβουλίων Βελτιώσεως Λευκωσίας και να σας πληροφορήσω ότι τα

Συμβούλια Βελτιώσεως Λευκωσίας ενέκριναν την παραίτησιν σας από της 1ης

Νοεμβρίου, 1966.

2. Παραχωρείται εις υμάς άδεια απουσίας από της 8ης Οκτωβρίου, 1966,

μέχρι της 31ης Οκτωβρίου, 1966.

3. Οσον αφορά την παροχήν φιλοδωρήματος μετά λύπης μου σας πληροφορώ

ότι κατόπιν

εξετάσεως απεδείχθη ότι συμφώνως των υφισταμένων

Κανονισμών των Συμβουλίων δεν δικαιούσθε εις την παροχήν οιουδήποτε

φιλοδωρήματος.

4. Εν τέλει επιθυμώ να σας ευχαριστήσω, τόσον εκ μέρους των Συμβουλίων

όσον και εμού προσωπικώς δια τον ζήλον και ενδιαφέρον το οποίον επεδείξατε κατά

την υπέρ 7ετη υπηρεσίαν σας εις τα Συμβούλια βελτιώσεως, και να σας ευχηθώ τα

βέλτιστα εις την νέαν σας σταδιοδρομίαν.” [*1109]

As a result of this letter the Applicant invoked. the support of the Trade

Unions, SEE and PEO, who jointly addressed a letter, exhibit 2, to the

District Officer, dated October 21, 1966. It reads:

“Δι' επιστολής σας ημερομηνίας 6/10/1966

απευθυνομένη προς τον υπάλληλον των Συμβουλίων Βελτιώσεως κ. Χριστάκην Βαρνάβαν

όστις απεχώρησε οικειοθελώς εκ της υπηρεσίας τον πληροφορείτε ότι δεν

δικαιούται την πληρωμή φιλοδωρήματος αφυπηρετήσεως.

Λαμβανομένου υπόψιν των υφισταμένων κανονισμών επί του προκειμένου,

καθώς και την γνωμάτευσιν του νομικού των Συμβουλίων, ως επίσης προηγουμένων

παρομοίων περιπτώσεων όπου πληρώθη φιλοδώρημα, αφυπηρετήσεως, έχουμε την γνώμη

όπως χορηγήσετε στον εν λόγω υπάλληλον το υπό των κανονισμών προνοούμενο ποσό.”

It is clear that in this letter, exhibit 2, the Applicant through the

Unions, put forward the issue of discrimination, because as it has been alleged

in other similar circumstances gratuity had been paid by the Improvement Boards

to four other persons on the date of their retirement. It is pertinent, I think to remark

that once again the Applicant has never alleged that he has accepted to resign

- as his counsel put it - on condition that he will get a gratuity benefit.

On November 22, 1966, the District Officer

replied to

the Secretaries of the Trade Unions, informing them that the Applicant resigned his post

voluntarily and that in [*1110] accordance with the existing Regulations of the Improvement Boards he

was not entitled to the payment of any gratuity.

Nothing more was done or heard from the Applicant to show that the

decision of the Improvement Board not to pay him a gratuity was not considered

by him as an act of a final nature; however, on September 4, 1967, nearly one

year later, his counsel wrote to the District Officer a letter exhibit 4,

requesting, inter alia, (a) re-examination of the question of gratuity of the

Applicant; (b) to be given a duly reasoned reply stating under which Regulation

or Regulations he was precluded from receiving the gratuity prayed for; and (c)

to be

informed on what basis in four other cases such a gratuity had been paid.

Furthermore Applicant’s counsel had alleged that the Applicant accepted

to resign because he was aware of the decision of the Improvement Boards to pay

him a gratuity benefit.

It is not in dispute that the Improvement Boards of Nicosia District

had accepted the resignation of the Applicant at their separate meetings in

July, 1966; furthermore they had reached a decision to pay the Applicant a

gratuity after receiving the opinion of their legal adviser that the Applicant

was entitled to such gratuity. Although the opinion of the legal adviser was in

the affirmative, the decision of the

Boards relating to the payment of gratuity was never

communicated to the Applicant. It is well-established principle of

administrative law, that only through communication lawful results of an act

are created and, it follows, that the administration can frustrate the act or

decision before it reaches [*1111]

the person to whom it is addressed. See Kyriakopoulos on

Greek Administrative Law vol. B at p.398; see also the Decision of the Greek

Council of State 452/l933 See further Stassinopoulos on Lessons of

Administrative Law at pp.249 and 250 and the cases cited at note 4 at p.249.

On October 5, 1967, counsel for the Respondents replied to Applicant’s

counsel, referring them to the previous correspondence of the District Officer

addressed to his client on October 6, 1966, and to the Trace Unions of PEO and

SEK. The Applicant feeling aggrieved, filed a recourse on October 21, 1967,

seeking a declaration (a) that the decision of the Respondents and/or either of

them communicated to Applicant s counsel on October 5, 1967, is null and void

and of no effect whatsoever; and (h) that the omission of Respondents and/or

either of them to examine Applicant’s complaint as embodied in the letter of

his counsel dated September I4, 1967, ought not to have been made.

In the Opposition dated December 12, 1967, counsel for the Respondents

raised three preliminary objections (a) that the recourse is out of time and,

therefore, in view of paragraph 3 of Article 146 of the Constitution it cannot

be entertained by this Court; (b) Respondents’ counsel’s letter of 5. 10. 1967

does not contain any decision of the Respondents and, therefore, no recourse

lies against such a letter; (c) Respondents omission to examine Applicant’s

complaint embodied in Applicant’s counsel’s letter of 14.7.1967 is not an

executory administrative act but a confirmatory act and, therefore, no recourse

lies against such an omission. [*1112]

On the first date of the hearing the case against Respondent 2 was

withdrawn and dismissed; and counsel agreed that these legal issues he tried

first by the court. I find it convenient to deal first with the second preliminary

point of law argued by counsel before me.

Counsel for the Respondent has contended that the letter dated October

5, 1967 exhibit 5. does not contain an executory administrative act or

decision and, therefore, it cannot he made the subject of a recourse in this

court. I am in agreement with the submission of counsel for the Respondent on

this point. It is obvious, in my view, that the said q letter is a mere repetition or confirmation of a previous

letter of the District Officer in the same matter. It is a well-settled

principle of administrative Law, and according to Stassinopoulos on the Law of

Administrative Disputes, both ed., at p.17 a confirmatory act is one which

repeats the contents of a previous executory act and signifies the adherence of

the administration to a course already adopted; but when the administration

confirms a previous executory act after a new inquiry, then the resulting new

act or decision is itself executory, too. Confirmatory acts or decisions are

further dealt with, inter alia, in the Conclusions from the Jurisprudence of

the Greek Council of State 1929--1959 at

p.240. From these decisions it is clear that a

confirmatory act is not executory; and, therefore, it cannot be the subject of

an administrative recourse in Greece. Furthermore it becomes clear from the

decisions of our Court that a non-executory act cannot be made the subject of a

similar administrative recourse in Cyprus, under Article 146, and this is [*1113] clearly laid down in the

case of Colocassiaes and The Republic, 1965, 6 J.S.C. 674 and 11

J.S.C. p. 1128, See also Ktenas and Another and The Republic,

1966? 1 J.S.C. 74 at p. 79

However, even counsel for the Applicant has conceded, during the

hearing of this preliminary point of law, that the said letter, exhibit 5

did not contain a decision of an executory nature, and made it quite clear that

the recourse was based only on omission.

Now, with regard to the first point raised by counsel for the

Respondent, that the Application is out of time, it is evident in my view, that

this recourse was made C long after the lapse of 75 days; and as the decision

of the Respondent complained of, was communicated to the Applicant by a letter

dated October 6, 1966, I find myself in agreement with counsel for the

Respondent that this Application is out of time; and it has to be dismissed,

because of the provisions of para, 3 of Article 1 ip6 of the Constitution, which are mandatory

and have to be given effect to in the public interest in all cases. See John

Moran and The.Republic (Attorney- General and Minister

of Interior), 1 R.S.C.C., 10. Also the Holy See of Kitium and The

Municipal Council of Limassol, 1 R. S.C.C. 1,5; and Joyce Marcoullides

and The Greek Communal Chamber (Director of Greek Education), b

R.S.C.C., 7 But counsel for the Applicant has argued that because there has

been an omission on the part of the Respondent to re-examine Applicant’s case,

the recourse he submitted, is not out of

time. [*1114] The question, therefore, is: Is there an omission on the part of the Respondent to

re-examine the case of the Applicant

In my view, in the absence of legislation regulating such matter, there

can be no question of an omission on the part of the Respondent, because the

administration had no duty to discharge; and because it has decided long ago

that the Applicant was not entitled to a gratuity benefit. Furthermore, the

refusal of the administration not to reexamine the case of the Applicant, with

a view to revoking or withdrawing their previous administrative decision or

act, is not

an act or decision of an executory nature, but only a confirmatory one and,

therefore, it cannot become the subject of a recourse under Article 146 of the

Constitution. See Kyriakopoulos on Greek Administrative Law vol.F at p.96. See

also the case No.37/1937 reported in the Decisions of the Greek Council of

State in 1937 vol.A.1, p.814 at p.815. See further the Conclusions from the

Jurisprudence of the Greek Council of State at p.240, and the cases cited under

note ’9’.

Of course, it would have been a different matter, if the administration

before replying to the letter of Applicant* s counsel, had embarked on a new

inquiry into the case of the Applicant. That act or decision although of a confirmatory

nature, it can be considered as being of an executory nature. See Stasinopoulos

on the Law of Administrative Disputes at p. 175.

Although, of course, this is not the case, I would like to pose this

question for the guidance of the Administration: When does exist a new inquiry?

On this point, I would [*1115] like to quote, from the same textbook of Stasinopoulos from p.176. It reads:

“Πότε υπάρχει νέα έρευνα, είναι ζήτημα πραγματικόν. Θεωρείται όμως

γενικώς νέα ερευνά η λήψις υπ' όψιν νέων ουσιωδών νομικών ή πραγματικών

στοιχείων, κρί­νεται δε αυστηρώς το χρησιμοποιηθέν νέον υλικόν, διότι δεν

πρέπει ο απολέσας την προθεσμίαν δια την προσβολήν μιας εκτελεστής πράξεως, να δύναται να

καταστρατηγή την προθεσμίαν ταύτην δια της δημιουρ­γίας νέας πράξεως, η οποία

εξεδόθη κατ' επίφασιν μεν κατόπιν νέας ερεύνης, κατ' ουσίαν όμως επί τη βάσει των αυτών

στοιχείων.”

“Νέα ερευνά υπάρχει ιδίως εάν, πρό

της έκδόσεως της νεωτέρας πράξεως, λαμβάνη χώραν εξέτασις στοιχείων κρίσεως

νεωστί προκυπτόντων ή προϋπαρχόντων μεν αλλά τέως αγνώστων, άτινα νυν

λαμβάνονται προσθέτως δια πρώτην φοράν υπ' όψιν. Ομοίως, νέαν έρευναν συνιστά η

διενέργεια αυτοψίας ή η συλλογή συμπληρωματικών επί της υποθέσεως πληροφοριών.”

See also the Conclusions from the Jurisprudence of the Greek Council

of State p. 241 and the case No.758/1938.

See also the English translation prepared by the Registry of this

Court:

“When does a new enquiry

exist, is a question of fact: In general, it is considered to be a new enquiry

the taking into consideration of new„ [*1116] substantive legal or real material,

and the new material is meticulously considered, for he who has been out of

time in attacking an executory act, should not circumvent such a time limit by

the creation of a new act, which it was issued nominally after a new enquiry,

but in substance on the basis of the same material”.

“…………………………………………………………………………

“Especially there does exist a new enquiry where, before the issue of

the subsequent act, there takes place consideration of newly produced material

or pre-existing but unknown, which are now taken into ^ consideration in

addition, but for the first time. Similarly, it constitutes a new enquiry the

carrying out of a local inspection or the collection of additional information

in the matter under consideration.”

I would further add that no new material was placed before the

Respondent, because the question of discrimination was already before them and

from the tenor of the whole correspondence written by the Applicant and on his

behalf by the trade unions - as I said earlier - it became clear that the Applicant

tendered his resignation because he found a better job.

In the circumstances and in view of the reasons I have advanced, I would dismiss

the Application.

Application dismissed.