Recourse dismissed as out of time; claim based on prior decision and no new inquiry.

[*375] 1972 April 27

(L. LOTZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article l46 of the Constitution

Anastasios Kefalas,

Applicant,

and

The Republic of Cyprus, through

The Minister of Finance,

Respondent.

(Case No. 293/69).

Constitutional Law - Time within which to file recourse - Article 146.3 of the Constitution - Public Officer, already aware of Respondent's stand regarding his claim for acting allowance, through letters addressed to him earlier - Renewing his claim therefor through his counsel - Counsel basing claim solely on a judgment of this Court and not putting forward for consideration either any new fact or any other fact that the Respondent did not have in mind when taking the original decision - No new inquiry taking place - Respondent’s reply to counsel, which is challenged - by this recourse, is not an act or decision in the sense of Article 146 of the Constitution nor is it an omission of a continuing nature - Moreover it is not the product of a new inquiry on the basis of any new material but only confirmatory of the earlier executory decisions communicated to the Applicant and as such it is deprived of an executory nature and cannot be the subject of a recourse - Therefore the present recourse, filed after 75 days from the date of the original decision, is out of time.

Constitutional Law - Omission - Continuing Omission - Decision of the Council of Ministers, communicated to Applicant by circular letter, to the effect that no acting allowance should be paid to public officers in accordance with the General Orders - And an earlier letter to him to the same effect - Held to be express and positive decisions in the sense of Article 146 of the Constitution which Applicant could have challenged by recourse and they cannot be treated as omissions and more so as continuing omissions.

D. Papachrysostomou, for the Applicant.

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

JUDGMENT

The following judgment was delivered by:-

L. LOIZOU. J. : By this recourse the Applicant challenges the validity of the decision and/or the omission of the [*376] Respondent to pay to him acting allowance as from the 21st December, 1963.

The facts of the case so far as relevant for the purpose of these proceedings are as follows:

At all material times the Applicant held the substantive post of Administrative Assistant, 1st Grade. At various periods between the 30th June, 1961 and the l4th November, 1963, the Applicant was appointed to act as Director- General to the Ministry of Justice. On the 14th November, 1963, his acting appointment came to an end but he was reappointted to act as Director-General again as from the 21st December, 1963. For the periods of his acting appointment up to the end of 1962 he was paid acting allowance as provided by the General Orders. As from the 1st January, 1963, no provision was made in the budget for the payment of acting allowance generally and no acting allowance was paid to the Applicant. As a result of representations made by the then Minister of Justice (letter dated 1tth June, 1963, exhibit 4) the Respondent agreed to pay to the Applicant responsibility allowance at the rate of £25 per month as from the 1st January, 1963. This decision was communicated to the Applicant by letter dated 19th June, 1963, exhibit 5. By his letter dated 21st June, 1963, exhibit 6, Applicant insisted that he was entitled to acting allowance and requested reconsideration of his case. In reply he was informed by letter dated 5th July, 1963, exhibit 7, that in view of the Council of Ministers'

decision to the effect that no acting allowance should be paid and of [*377] the absence of any provision for acting allowance in the 1963 budget his request could not be approved. Eventually the Applicant by his letter dated 8th July, 1963, exhibit 8. accepted the payment to him of a responsibility allowance in lieu of acting allowance under protest and without prejudice to his rights. Responsibility allowance was paid to the Applicant up to the l4th November, 1963, when his acting appointment came to an end. As from the 21st December, 1963, when he was reappointed neither acting nor responsibility allowance was paid to him.

On the 27th February, 1964 the Council of Ministers by its decision No. 3697, exhibit 9, decided, inter alia, that no acting allowance should be paid in accordance with the General Orders. This decision was by circular letter dated 17th March, 1964, exhibit 10, communicated amongst others to all Directors-General to the Ministries including the Applicant.

The next move in this matter was not made until the 18th June, 1969, when counsel for the Applicant wrote the letter, exhibit 1 . to the Respondent raising the question of the acting allowance once more and drawing attention to the decision of this Court in the case of Frangides and The Republic (1966) 2 J.S.C. p. 289, which was decided more than three years earlier, on February 24th, 1966. In reply to this letter the Director-General, Ministry of Finance, wrote to the Applicant's counsel the letter dated 12th July, 1969, exhibit 2, which reads as follows: [*378]

*"Ενετάλην όπως αναφερθώ εις την

επιστολήν σας υπό ημερομηνίαν 18 Ιουνίου, 1969, επί του θέματος της πληρωμής

επιδόματος αναπληρωματικού διορισμού εις τον κ. Av. Κεφάλαν Διοικητικόν

Λειτουργόν, 1ης τάξεως και σας πληροφορώ ότι το θέμα της πληρωμής επιδομάτων

αναπληρωματικού διορισμού ευρίσκεται ενώπιον της Μικτής Επιτροπής Προσωπικού

προς εξέτασιν. Όταν εγκριθούν τα κριτήρια, βάσει των οποίων θα πληρώνονται

τοιαύτα επιδόματα, θα εξετασθή και το αίτημα δια την πληρωμήν τοιούτου επιδόματος

εις τον κ. Κεφάλαν".

A few days later, on the 28th July, 1969, counsel for the Applicant wrote yet another letter to the Director- General, Ministry of Finance. In this letter, exhibit 3, he again cited the case of Frangldes and The Republic and gave notice that unless he had a reply by the 30th August, 1969, he would file a recourse. There was no reply to this letter by the 10th September, 1969, and as a result the present recourse was filed.

By the Opposition it is alleged, inter alia, that the recourse is out of time and on the joint application of the parties the question of time-limit was argued as a preliminary issue.

It was contended on the part of the Applicant that the letter, exhibit 2, is an administrative act within the scope of Article 146 of the Constitution; and also that in administrative law it amounts to a refusal. In support of [*379] this latter contention learned counsel cited the case of Charalambos Boyiatzis and The Republic, 1964 C.L.R., p.367. It was further argued that any decision by which the Respondent has refused to pay acting allowance to the Applicant in the past has no bearing on the present case because such decision has not been challenged and that the only way in which any previous decision could affect the time issue is by rendering the letter exhibit 2 merely confirmatory of such decision. Finally learned counsel submitted that the failure on the part of the Respondent to pay Applicant acting allowance and the fact that he was made aware of this since 1964- does not affect the issue of time-limit because such omission was a continuous one. In support of this he cited Hassan Mustafa and The Republic, 1 R.S.C.C. p. 44,

On the other hand it was submitted by learned counsel for the Respondent that the Applicant had all along in mind the

decision of the Council of Ministers contained in exhibit 9 and also the omission on the part of the Respondent to pay to him acting allowance as from the 21st December, 1963, and he, nevertheless, failed to challenge such decisions and omission within the time limited by Article 146.3 and, therefore, the present recourse is out of time.

Dealing with the last point made by counsel for the Applicant first I have no difficulty in holding that no question of a continuing omission arises, in the present case which, in my view, is clearly distinguishable from the case of Hassan Mustafa and The Republic, (supra). That [380] was a case in which unknown persons set fire to Applicant s sheepfold in November, 1956, destroying his sheep and other property. In January, 1957, the District Officer of Nicosia confirmed the list prepared by the mukhtar in accordance with the Recovery of Compensation for Injury to Property Law, Cap. 84 (now repealed by Law 57/62) but up to the date of the hearing of the case no warrant was issued under section 4. of the Tax Collection Law, Cap. 329 (now repealed). The Applicant filed a recourse in November, 1960, praying for a declaration that the omission of the Chief Revenue Officer to collect the sums due should never have happened and that such omission was void. The Respondent raised the preliminary objection that the Court had no jurisdiction to adjudicate in cases where the decision, act or omission complained of took place before the coming into force of the Constitution and also that the Application was made out of time, because it was filed more than 75 days after the omission became final.

In dealing with these issues the Supreme Constitutional Court held that the omission complained of was of a continuing nature and, therefore, it continued after the coming into operation of the Constitution and that, it could be made the subject of a recourse; and that, for the same reason, the Application could not be regarded as being out of time.

Unlike the case cited, in the present case exhibit 10 (as well as exhibit 7 which relates to the period prior to [*381] the 21st December, 1963) are express and positive decisions in the· sense of Article 146 of the Constitution which the Applicant could have challenged by recourse and they cannot be treated as omissions and more so as continuing omissions.

Coming now to the letter of the 12th duly, 1969, (exhibit 2 supra) against which this recourse is really directed, it is pertinent to consider, in the first instance, Whether it amounts to an act or decision of an executory nature; whether, in other words, it is an act or decision by means of which the "will" of the administrative organ concerned has been made known and which, in itself, preduces any legal result or situation consisting in the creation, modification or abolition of any legal right or obligation concerning the citizen affected; because it is only against acts or decisions of this nature that a recourse for annulment may lie (see, inter alia, Conclusions from the Jurisprudence of the Greek Council of State 1929-1959, p. 236-237; Kyriakopoulos on Greek Administrative Law, 4th ed. vol.Γ , p. 92; Philippou and Others v. The Republic (1970) 5 J.S.C. p. 478 and Kolokassides and The Republic (1965) 3 C.L.R. p. 542.

Having given the matter due consideration I am of the view that it is quite clear from the wording thereof that the said letter, obviously an interim reply, is merely of an informative nature and is devoid of an executory character.

But even if I were to assume that the letter in question amounts to a decision at all the question would then arise whether such decision is a new one, taken upon [*382] a new inquiry and. in the light of either new material or old but unknown to the Respondent at the time of the original decision material, in which case such new decision would he executory and a recourse would lie or, whether, it is merely confirmatory of the original decision in which case no recourse would lie.

The letter exhibit 2 which is the subject of this recourse was a reply to the letter of Applicant’s counsel dated 18th June, 1969 (exhibit 1). consider it useful to set out this last-mentioned letter in full; it reads as follows:

*"Κατ' εντολήν του εκ Λευκωσίας πελάτου μου κ. Αναστασίου Κεφάλα,

αναφέρομαι εις τας επανειλημμένας αιτήσεις του δια την πληρωμήν εις αυτόν του

επιδόματος καθήκοντος (acting allowance) από 21.12.63 μέχρι σήμερον

δια την διαφοράν μισθού της θέσεως του Διοικητικού Λειτουργού Αης Τάξεως και

της θέσεως του Γενικού Διευθυντού του Υπουργείου Δικαιοσύνης και να παρατηρήσω

ότι μέχρι σήμερον ουδεμιάς απαντήσεως έτυχεν.

Το όλον θέμα καταβολής επιδόματος

καθήκοντος έχει ήδη αποφασισθή στην υπόθεσιν του Ι. Φραγγίδη ν. Δημοκρατίας

108/1965, ούτως ώστε ουδεμία, δικαιο- λογία καθυστερήσεως πληρωμής του επιδόματος να υφίσταται.

Λίαν θα υποχρεωθώ όπως τύχω συντόμου απαντήσεως σας". [*383]

It may be added that the above letter was the only communication between the Applicant and the Respondent since the original decisions rejecting Applicant's request for acting allowance were communicated to him by exhibits 7 and 10.

It clearly appears from the above-quoted letter that learned counsel acting on behalf of the Applicant was basing his claim solely on the judgment of this Court therein cited and did not put forward for consideration either any new fact or any other fact that the Respondent did not have in mind when taking the -original decision. What is more, there is nothing to show that a new inquiry took place; on the contrary from exhibit 2 one may reasonably assume that no such inquiry took place.

But, be that as it may, there is authority for the proposition that in administrative law re-examination from the legal aspect only of a matter in respect of which an executory decision has already been taken does not amount to a new inquiry resulting in a new executory decision but only to a confirmatory act. (See Conclusions from the Jurisprudence of the Greek Council of State 1929-1959, p. 241 Decisions of the Greek Council of State 439(38), 229(38) and 5(37). On the point also is the case of Kelpis and The Republic (1970), 7 J.S.C. p. 685).

In the light of the foregoing I am of the view that the letter of the 12th July, 1969, challenged by this recourse, is not an act or decision in the sense of Article 146 of the [*384] Constitution nor is it an omission of a continuing nature; that in any case it cannot he considered to be the product of a new inquiry on the basis of any new material but only confirmatory of the earlier executory decisions communicated to the Applicant by exhibits 7 and 10; and that as such it is deprived of an executory nature and cannot be the subject of a recourse.

In the result I find that this recourse is out of time and must, therefore, fail.

In the circumstances I consider it just that there should be no order as to costs.

Recourse dismissed.

No order as to costs.

TRANSLATION

This is an English translation of the Greek text appearing at p. 378 ante as prepared by the Registry.

"I have been directed to refer to your letter dated 18th June, 1969, on the subject of payment of acting allowance to Mr. An, Kef alas, Administrative Officer, 1st Grade and to inform you that the question of payment of acting allowances is being considered by the Joint Staff Committee. When the criteria, upon which such allowances will be paid, are approved, the claim for payment of such allowance to Mr. Kefalas will be considered also". [*385]

TRANSLATION

This is an English translation of the Greek text appearing at p. 382 ante, as prepared by the Registry.

"I am instructed by my client Mr. Anastassios Kefalas of Nicosia, to refer to his repeated applications for the payment of acting allowance to him, from 21.12.63 until to-day, in order to cover the difference between the salary of the post of Administrative Officer 1st Grade and the post of Director-General Ministry of Justice and to observe that he has not been furnished with a reply till now.

The whole question of payment of acting allowance has already been decided in the case of I. Frangides v. Republic (108/1965) "so that no justification at all for the "delay in paying the allowance exists.

"I shall be much obliged to be furnished with an, early reply".

* An English translation of this text appears at p. 384 post.

* An English translation of this text appears at p.385 post.