Cyprus Supreme Court dismisses public officer's recourse for education grant due to lack of existing legitimate interest at filing time.

[*167] 1972 February 1

(TRIANTAFYLLIDES , P., L. LOIZOU, HADJIANASTASSIOU, A. LOIZOU, JJ.)

APPELLATE JURISDICTION

The Republic of Cyprus, through

The Minister of Finance,

Appellant,

and

Savvas Pericleous,

Respondent.

(Revisional Jurisdiction Appeal No. 82).

Constitutional Law - Existing legitimate interest - Article 146.2 of the Constitution - Public Officer - Recourse against refusal to pay him education grant - Legal situation existing at time of filing of recourse such as to afford him a right to such grant - Judicially held subsequently (vide Constantinides and The Republic (1969) 12 J.S.C. 1452) that this was not so - Therefore when applicant filed his recourse he did not possess an existing legitimate interest, in relation to the grant claimed by him, which was adversely and directly affected by the sub judice decision and he could not thus validly challenge such decision by a recourse.

Public Officer - Education grant - Existing legitimate interest- Article 146.2 of the Constitution - See under "Constitutional Law".

L. Loucaides, Senior Counsel of the Republic, for the Appellant.

M. Christophides, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P.: This is an appeal from the judgment* of a judge of this Court, in recourse No. 61/68, [*168] by means of which there was annulled an administrative decision not to pay to the respondent an education grant in respect of the university studies of his son in Greece during the academic year 1966/1967.

The respondent, who is a public officer, applied for the said grant on the 7th November, 1967, and by letter dated the 13th December, 1967, he was informed that he was not entitled to an education grant because he had accepted an offer of promotion containing a term that he would not be entitled to such a grant.

It is common ground that the respondent, who has been in the public service since before the establishment of the Republic on the 16th August, 1960, was, prior to his promotion - in 1962

- entitled to an education grant under the relevant scheme (see Circular No.

1286, dated the 6th December, 1955); his right there to having been safeguarded by Article 192 of the Constitution. What

has been in dispute is whether he has been deprived of such right in view of the inclusion of the aforementioned term in the offer of promotion which was made to him on the 22nd June, 1962, and was accepted by him on the 28th June, 1962.

When the respondent applied, in November, 1967, for an education grant there was in force Circular No.123, dated the 18th August, 1967, by virtue of which education grants became payable

to entitled public officers ("δικαιούχους δημοσίους υπαλλήλους") in respect of studies of

[*169] their children in Greece during the academic year 1966/1967.

There is no doubt at all in our minds that when the respondent submitted his application and when such application was examined by the administration, as well as when Circular No. 123 was issued, both the respondent and the administration were acting on the basis of the view that the correct legal position was that which had resulted from the adaptations effected - in view of "the general framework" of the Constitution - to the scheme for education grants (viz. the said Circular Nod 286 of the 6th December;, 1955) by the judgment in Loizides and The Republic, 1 R.S.C.C. 107, at pp. 111-112; by virtue of such judgment the scheme was adapted by "the substitution for the expressions 'United Kingdom' and 'Commonwealth country’, as the case may be, of Greece and Turkey, respectively, depending on whether the member of the public service concerned is a Greek or a Turk".

On the 26th February, 1968, the respondent filed recourse No. 6l/68 against the refusal to pay him an education grant. While the matter was sub judice and before there was given the first instance decision thereon, from which the present appeal was made, the following developments ensued:-

First, there was issued a Circular, No. 183, dated the 5th May, 1969, by means of which education grants became payable to entitled public officers in respect of studies in Greece of their children from the academic year [*170] 1960/1961 onwards; it can hardly be doubted that this Circular was (like Circular No. 123) an administrative measure taken in conformity with the legal position shaped by the judgment in the Loizides case (supra).

Secondly, on the 9th December, 1969, it was held, on appeal, in Constantinides and The Republic, (1969) 12 J.S.C. 1452, that the adaptations made to the scheme for education grants in the Loizides case were not necessary and that the correct legal position concerning such grants was as laid down prior to the coming into operation of the Constitution; the Constantinides case (supra) was followed, on appeal, in Vrahimis and The Republic, (1971) 4 J.S.C. 496.

Thirdly, after the Constantinides case the scheme for education grants, which, once the aforesaid adaptations made in the Loizides case were found in the Constantinides case to be constitutionally unnecessary, had ceased to be applicable to studies in Greece, was extended so as to apply once again to such studies, at first by Circular No. 229, dated the 18th January, 1971, and later by Circular No.230, dated the 11th February, 1971; the latter Circular is the one in force at present, but both these Circulars incorporated by reference, and thus continued in force, the provisions of the aforementioned Circulars Nos. 123 and 183 concerning education grants for studies in Greece. It is quite clear that the extension of the scheme so as to apply to studies in Greece, as effected by Circulars Nos.229 and 230, was not made by way of administrative implementation [*171] of the legal position laid down in the Loizides case - which had already been reversed in the Constantinides case - but as a result of a policy decision of the Government (see, also, in this connection the observations of Hadjianastassiou, J. in the Constantinides case at p . 1494).

In the appealed from judgment, which was given on the 10th May, 1971, the learned trial judge dealt only with the issue of the continuance or not of the right of the respondent to an education grant after his promotion and he decided it in his favour; in doing so he has proceeded on the basis of the assumption that the respondent was entitled, in every other respect, to the education grant claimed by him.

This Court in dealing with an appeal of this nature has to decide whether or not there ought to succeed the recourse in which the judgment appealed from was given; because it is a recourse which, though made to the Court as a whole under Article 146 of the Constitution, was, in view of the provisions of section 11(2) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64), determined, at first instance, by only one of the judges of the Court (see The Republic and Vassiliades,

(1967) 1 J.S.C. 103, Pikis and The Republic, (1968) 6 J.S.C. 611, and the Constantinides case, supra).

As provided by Article 146(2) of the

Constitution a person making a recourse must be one whose an "existing legitimate interest" is "adversely and directly

affected" [*172] by the decision, act or omission which is challenged by the recourse; an analogous provision is to be found in section 48 of Law 3713/1928 in Greece; and case-law has established that the said legitimate interest should exist at the time when the recourse is made (see Neophytou and The Republic, 1964 C.L.R. 280, at p.292).

In view of the fact that when the respondent filed his recourse it was regarded judicially (see the Loizides case), and consequently administratively also (see Circulars Nos. 123 and 183), that there existed a legal situation affording him a right to an education grant for studies of his son in Greece, but it was subsequently held (see the Constantinides case) that there did not exist, at the material time, such a situation, it follows - (and see in this connection ground No.4 in the notice of appeal) - that when the respondent filed his recourse he did not possess an existing legitimate interest, in relation to the education grant claimed by him, which was adversely and directly affected by the sub judice decision; and, therefore, he could not validly challenge such decision by a recourse.

In this appeal we are concerned only with that particular administrative decision and not generally with the right of the respondent to an education grant. For this reason we are leaving open the question whether by virtue of Circular No.230 - (by means of which the administration has extended, after the Constantinides case and thus independently of the Loizides case, the scope of the relevant [*173] scheme so as to render it also applicable to studies in Greece of children of entitled officers) - the respondent has become entitled to the education grant which was, earlier, refused to him by the administration. Also, as it was not necessary to pronounce on it for the purposes of this appeal, we are not dealing in this judgment with the issue of the continuance of the right of the respondent to an education grant after he was promoted in 1962 on the basis of an offer of promotion which contained a term to the contrary effect.

In the light of the foregoing this appeal succeed the decision appealed from is set aside and the recourse of the respondent fails and is dismissed accordingly; but, in view of all relevant considerations, we have decided not to make any order as to costs in relation to these proceedings either at first instance or on appeal.

Appeal allowed; no order

as to costs.

* Published in

(1971) 5 J.S.C. 755.