Constitutional recourse dismissed as it was filed over 75 days late, violating Article 146(3).

[*1117] 1968 October 8

(LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Elli Megalemou

Applicant,

And

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 109/66)

Constitutional Law - Time - Article 146,3 of the Constitution - Recourse out of time as it has beer: filed more than 75 days from the date of the decision complained of.

Time - Court is bound to consider the time factor even though not raised in the opposition.

L. Clerides, for the Applicant.

K. Talarides, Senior Counsel of the Republic, for the Respondent.

JUDGMENT

The following Judgment was delivered by: -

LOIZOU. J.: The Applicant, who held a post under the Greek Communal Chamber until its dissolution in 1965, by this recourse complains that the Respondents, the Public Service Commission, acted in breach of the provisions of section 16(2) of Law 12/65 in emplacing her to the post of Clerical Assistant in the General Clerical Staff instead of to the post of a Stenographer, and seeks a declaration that the said decision is null and void and of no effect. [*1118]

At the commencement of the hearing of this case learned counsel for the Respondents raised the issue of whether the Application was filed within the time limited by paragraph (3) of Article 146 of the Constitution and applied that this issue he determined in the first instance; out as this Was a comparatively short case, and for the sake of. convenience, the Court heard argument both on this issue and on the substance of the case on the understanding, of course, that the preliminary point should be considered and determined first, for quite obviously if it were to be decided against the applicant, then the recourse would be bound to fail and there would be no need to go into the substance of the case, I, therefore, propose to deal with the time limit issue first.

This issue was notraised in theOpposition, but it has not been disputed and in fact it is well settled in the light of the authorities, that the Court is bound to consider the time factor even though it is not raised in the Opposition. See for instance John Moran v. The Republic, 1 R. S. C.C., p. 10 at p.13 and T6 (Το Ένδικον Μέσον της Αιτήσεως Ακυρώσεως) by Tsatsos at p. 48, paragraph 22.

The uncontested, facts of this case which are relevant for the determination of this preliminary issue are as follows: -

The Applicant was first appointed in the service of the then Colonial Government in 1957. In 1960 she was appointed as a Clerical Assistant in the Greek Communal Chamber. On the 15th October, 1964, the Committee of Administration of the Greek Communal Chamber, on the recommendation of the Commissioner of Co-operative Development, decided to include [*1119] in the Budget of the Chamber for the year 1965, a post for a Stenographer, which would be filled in as from the 1st January, 1965, by the appointment of the Applicant who had, it would appear, been already performing the duties of a Shorthandtypist.

The Greek Communal Chamber was dissolved by Law 12/65 on the 31st March, 1965.

On the 13th January, 1966, the Commissioner of Cooperative Development, Mr. Azinas, addressed a letter exhibit 4, to the Chairman, Public Service Commission, informing him of the decision of the Committee of Administration of the 15th October, 196h, and enclosing a copy thereof; in that same letter the Chairman of the Public Service Commission was also informed by the Commissioner of Co-operative Development that provision had been made in the budget for the post of a Stenographer both for the years 1965 and 1966; that the Applicant had already been performing the duties of a Secretary and Stenographer and he was requested that she be promoted and appointed as a Stenographer on a permanent basis in the Department of Co-operative Development.

At a meeting of the Public Service Commission held on the 26th January, 1966, the Commission, acting under section 16 of Law 12/65, dealt with the question of the emplacement of a number of officers, including the Applicant, who had been employed in the service of the Greek Communal Chamber as Typists and unanimously decided that the functions of that post were analogous to the functions of the post of Clerical Assistant, General Clerical Staff, and accordingly decided, again unanimously, that the officers concerned be emplaced in the post [*1120] of Clerical Assistant, General Clerical Staff with effect from the 1st February, 1966.

The Applicant was informed by the Public Service Commission of the above decision by a letter dated 3rd February, 1966 (exhibit 1).

On the 14th February, 1966, the Applicant acting under section 16(3) of the same Law (12/65) wrote to the Accountant-General and referring to the letter addressed to her by the Public Service Commission, copy of which had been also forwarded to the Accountant-General, informed him that she elected to refund the money collected by her upon the termination of her service with the Greek Communal Chamber, so that her service in the Government would be

considered as continuous. This letter has been produced in evidence and is exhibit 2 in this case. Copy of this letter was sent, inter alia, to the Chairman, Public

Service Commission. It may be stated at this stage that this is the only document emanating from the Applicant herself, which has been produced as an exhibit in this case.

On the 24th February, 1966, the Commissioner of Co-operative Development wrote to the Chairman, Public Service Commission the letter exhibit 5 and referring to the latter’s letter to the Applicant (exhibit 1) went on: “I wish to refer to my letter under No.26/65 dated 13th January, 1966, addressed to you and to repeat my recommendation for the promotion of Mrs. Megalemou and her appointment to the post of a permanent Stenographer in this Department. A decision to this effect has already been taken by the Committee of Administration of the Greek Communal Chamber of Cyprus copy of which has been [*1121] forwarded to you together with my letter dated 13th January, 1966”. Then the writer goes on to repeat the fact that the Applicant had already been performing the duties of a Secretary and Stenographer satisfactorily and repeats his request that she be promoted and be appointed to the post of Stenographer with effect from the 1st January, 1965. Copy of a decision of the Committee of Administration of the Greek Communal Chamber under No.273, dated 4th November, 1963 (exhibit 9) was attached to this letter for information.

In answer to the above letter (exhibit 5) the Chairman, Public Service Commission, wrote to the Commissioner of Co-operative Development the letter P.6606 dated 8th March, 1966, which is exhibit 6, informing him that vacant posts of Stenographers 2nd Grade, are published in the Gazette before such posts are filled and that, therefore, the Applicant is urged to submit an application when such vacant posts are published in which case her application will be considered together with the applications of all other candidates.

On the 22nd March, 1966, the Commissioner of Cooperative Development wrote yet another letter to the Chairman, Public Service Commission (exhibit 7) in answer to the latter’s letter exhibit 6; in this last letter the Commissioner after referring to his previous letters of the 13th January, 1966 (exhibit 4) and the 24th February, 1966 (exhibit 5) repeats his request that the Applicant be appointed to the post of a Stenographer, 2nd grade, in his Department. “In my opinion”, he goes on to say "by virtue of the decision of the Greek Communal Chamber of the 15th October, 1964, copy of which has [*1122] already "been forwarded to you together with my letter dated A the 13th January, 1966, Government is hound by virtue of Law 12/65 to appoint Mrs. Megalemou to the above post for which provision has been made in the budget for the years 1965 and 1966;” and in the last paragraph of the letter the writer informs the Chairman, Public Service Commission, that under the provisions of Law 12/65 the Applicant had already refunded the sum of £23.584 mils, which was paid to her, so that her service should be considered as continuous. Two days later, on the 2dth March, 1966, the Commissioner of Co-operative Development received a reply (exhibit 8) to his last letter which reads as follows:

" Ενετάλην όπως αναφερθώ εις την υμετέραν επιστολήν υπ' αρ. Π.10- και ημερομηνίαν 22αν Μαρτίου,

1966, εν σχέσει με προηγουμένην

σύστασιν σας περί διορισμού της κ. Έλλης Μεγαλέμου Βοηθού Γραφέως, εις την θέσιν Στενογράφου, 2ας τάξεως, και να πληροφορήσω υμάς ότι ουδέν δύναται να

προστεθή εις το

περιεχόμενον της ημετέρας επιστολής υπ' αρ. Π.6606 και ημερομηνίαν 8ην Μαρτίου,

1966."

As a result the present recourse was filed on the 13th May, 1966.

There is no doubt that the decision to emplace the g Applicant in the post of Clerical Assistant, General Clerical Staff (exhibit 10) was taken on the 26th January, 1966 and that it was communicated to her by the letter exhibit 1 dated the 3rd February, 1966. It is equally clearthat on the 14th February, 1966, the Applicant acknowledged receipt of the [*1123] letter exhibit 1, without any oh Section, and made her election under section 16(3) of Law 12/65 (exhibit 2).

In the recourse itself the relief claimed by the Applicant is a declaration that the decision communicated to her on the8th March, 1966 (i.e. exhibit 6) is null and void and of no effect. (This letter was in fact written to the Commissioner of Co-operative Development by the Chairman, Public Service Commission). In the particulars filed by the Applicant on the 18th November, 1966, it is contended that the decision communicated to the Applicant on the 3rd February, 1966.exhibit

1. only finalized on the 24th March, 1966 (presumably this is the letter exhibit 8 quoted above) and, therefore, the period of 75 days should run as from the latter date. In the same particulars it is also contended, in the alternative, that by the letters dated 1hth February, 1966 (exhibit 2),2hth February, 1966 (exhibit 5) and 22nd March, 1966 (exhibit 7) new material was placed before the Commission and since a new reply had been received from the Respondents there has been a re-examinationof Applicant's case on the basis of this new material and a new decision was taken both on the 8th March, 1966 (exhibit 6) and the 22nd March, 1966 (exhibit 7). This last exhibit is a letter addressed by the Commissioner of Co-operative Development to the Chairman of the Public Service Commission and I think that there is a mistake here and that the intention was to refer to the letter dated 2hth March, 1966, exhibit 8, instead.

In the course of his address before this Court learned counsel for the Applicant has submitted that the new material placed before the Respondents was contained in exhibits 5, 6,

7 and 8 and he produced the

decision No.273 referred to in the [*1124] last paragraph of exhibit 5. This decision is exhibit

9. Here again there must be some mistake because exhibits 6 and j$ are letters addressed by the Respondents to the Applicant’s Head of Department and can hardly be said to contain any new material placed before the Respondents on the basis of which they took a new decision.

Learned counsel for the Respondents on his part contended that the

decision was communicated to the Applicant on the 3rd February, 1966, by the letter exhibit 1. that the correspondence that followed adds nothing new and that the recourse is out of time.

The question, therefore, that falls for consideration in so far as this issue is concerned is whether, after the original decision, there Was a new

decision taken upon a new inquiry and in the light of either new material or old but unknown to the Commission at the time of the original decision in which case such new decision is executory and a recourse would lie, or, whether the new act or decision is merely confirmatory of the original decision in which case no recourse would lie. See “Δίκαιον Διοικητικών Διαφορών” by Stassinopoulos

at pp. 175-176 and “Πορίσματα Νομολογίας του Συμβουλίου Επικρατείας” 1929-1959 at

p. 240 et seq. A thorough exposition of the law on this subject is also to be found in the very lucid Judgment in Ktenas and The Republic reported in 1966, 1 J.S.C. at p. 74, in which this question is fully dealt with with very helpful references to the relevant authorities.

Let us now see what new'' material, if any, was placed before the Respondents or came to their knowledge subsequent to their decision of the 26th January, 1966 (exhibit 10), [*1125] which as stated earlier on was communicated to the Applicant "by the letter exhibit

1 dated 3rd February, 1966.

The first and only communication from the Applicant herself to the Respondents is a copy of her letter to the Accountant-General dated 14th February, 1966 (exhibit 2) in which she acknowledges receipt of the letter exhibit 1 communicating to her the decision of the Public Service Commission to emplace her in the post of Clerical Assistant and in which she states that she elects to refund the benefit received by her so that her service should be considered as continuous. It has not been suggested that this letter contains any new material upon which a new decision could be based.

Then follows the letter exhibit 3 dated 24th February, 1966, addressed by the Head of Applicant’s Department to the Chairman, Public Service Commission. In the first two paragraphs of this letter the writer repeats the contents and the request made in his letter to the Chairman, Public Service Commission dated 13th January, 1960, i.e. before the original decision was taken. In the third paragraph of the letter reference is made to a decision of the Greek Communal Chamber under No. 273 dated the Lth November, 1963 (exhibit 9) By this

decision a Selection Committee is set up consisting of five persons for the filling of vacant posts in the Clerical Staff and directions are given with regard to the procedure to be followed. In my view this circular letter has no possible relevance to the issue under consideration.

The next letter to the Respondents is dated 22nd March, 1966 (exhibit 7). which, like the previous one, is written by the Head of the Applicant’s Department to the [*1126] Chairman, Public Service Commission and. he again refers to his letter of the 13th January, 1960 (exhibit 4) and in addition to his second letter of the 24-th February, 1966, exhibit and repeats the contents of those letters and makes the same request. In the last paragraph of this letter he informs the Respondents that the Applicant has already refunded to Government the sum of £23.584mils so that her service should be considered as continuous. Here again I cannot see how it can be said that this letter contains any new material upon which the Respondents could have acted or based a new decision or which could possibly affect the issue.

I am of the opinion that none of the above letters contains any material relevant to the issue which was not already before the Respondents when they took their

decision on the 26th January, 1966.

In the circumstances, even if I were to assume for a moment that the letters of the 8th March, 1966, and the 24th March, 1966, which are exhibits

6 and 8 respectively, are “decisions” at all - which I, to say the least, consider very doubtful - such decisions can only be confirmatory of the decision taken on the 2oth January, 1966 and can in no way be treated as amounting to a new decision or decisions in the matter, after a new inquiry; therefore, they cannot g become the subject of a recourse and, in effect, this recourse is made against the decision of the 26th January, 1966, which was communicated to the Applicant on the 3rd February, 1966, "by exhibit 1 and is, therefore, quite clearly, out of time as it was filed more than 75 days after the 3rd February, i960, contrary to Article 146(3) of the Constitution. [*1127]

Having reached this conclusion I do not consider it necessary to deal with the substance of the case as the recourse has to he dismissed on this preliminary issue,

In all the circumstances I have decided to make no order as to costs.

Recourse dismissed.

No order as to costs.