Recourse dismissed as out of time; reply letter not a new decision under Article 146.3 of the Constitution.

[*951] 1967 August 17

(LOIZOU, J.)

REVISIONAL

JURISDICTION

In the matter of

Article 146 of the Constitution

Chrysanthos P.

Koudounaris,

Applicant,

and

The Republic of Cyprus, through

The Ministry of

Education,

Respondent.

(Case No. 325/66).

Elementary Education - School-teachers - Dismissals - Applicant's

dismissal under the. provisions of section 9 of the Teachers of Communal

Elementary Schools Law. 1963 (Greek Communal Law No. 7 of 1963) Respondent’s

reply rejecting Applicant’s application, made over a year later, for

re-employment - Not amounting to a new decision in the matter reached after a

fresh examination thereof - Applicant’s recourse dismissed as being out of

time, in view of Article 146.3 of the Constitution.

P. Laoutas, for the Applicant.

G. Tornaritis, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

LOIZOU, J.: The Applicant was an elementary

school-teacher on probation having been appointed in September, 1959. [*952]

On the 13th August, 1965, the committee of Educational Services of the

Ministry of Education acting under the provisions of section 9 of Law No.7/63

of the Greek Communal Chamber dismissed the Applicant from the service on the

ground that his work was not considered satisfactory. The Applicant did not challenge

the decision to dismiss him by recourse but instead he applied to the President

of the Republic requesting him to intervene in the matter.

Over a year later i.e. on the 5th September, 1966, the Applicant wrote

a letter to the committee requesting them to re-employ him to his former post.

This letter was forwarded to the committee by Applicant's counsel under cover

of a letter signed by him and bearing the same date. Both these letters have

been produced and are exhibit 2 in this case.

On the 29th September, 1966, the committee replied to the Applicant

rejecting his application and informing him that they could not re-employ him

to a post for which his services had already been considered unsatisfactory (exhibit

5).

On the 11th October, 1966 Applicant’s counsel, apparently unaware of

exhibit 5. wrote to the Respondents a letter (exhibit 3) which reads as

follows:

"Αντιλαμβάνομαι ότι υπάρχουν τώρα

αρκεταί κεναί θέσεις δημοδιδασκάλων ούτως ώστε να δύνασθε ευκόλως πλέον να

αναθεωρήσετε την προγενεστέραν σας απόφασιν περί τερματισμού των υπηρεσιών του

πελάτου μου κ. Χρυσάνθου Π. Κουδουνάρη τέως διδασκάλου.

2. Την 5/9/1966 απετάθην προς υμάς δια

τον επαναδιορισμόν του και δεν έτυχον απαντήσεως μέχρι σήμερον.

3. Όθεν καλείσθε όπως, εν όψει του

γεγονότος εις την παρα. 1 ανωτέρω επισπεύσετε την απάντησιν τακτοποιούντες το

ζήτημα".

To this letter the Respondents replied

on the 18th October, 1966. This letter is exhibit 4 and reads as follows:

"Εις απάντησιν της υπό

ημερομηνίαν 11 Οκτωβρίου 1966 επιστολής σας πληροφορείσθε ότι εις την αίτησιν

του κ. Χρ. Π. Κουδουνάρη δια διορισμόν εις την Στοιχειώδη Εκπαίδευσιν εδόθη

απάντησις την 29ην Σεπτεμβρίου, αντίγραφον της οποίας σας παραθέτω:

Εις απάντησιν της υπό ημερομηνίαν

5/9/66 επιστολής σας πληροφορείσθε ότι η Επιτροπή Εκπαιδευτικής Υπηρεσίας δεν

δύναται να σας προσφέρη διορισμόν εις θέσιν δια την οποίαν η υπηρεσία σας

εκρίθη ήδη ανεπαρκής". [*953]

As a result, on the 31st December, 1966, the Applicant filed the

present recourse praying "for a declaration of the court that the decision

of the Respondent communicated to Applicant's counsel on the 19th October,

1966, by letter dated 18th October, 1966, by which Applicant's counsel was

informed that the committee of Educational Services was not prepared to

re-employ Applicant as a school-teacher, is null and void and of no effect

whatsoever". [*954]

Counsel for the Respondents submitted that the recourse is out of time

and both counsel agreed that this preliminary point be determined first.

By virtue of Article 146.3 of the Constitution a recourse "shall

be made within 75 days of the date when the decision or act was published or if

not published and in the case of an omission, when it came to the knowledge of

the person making the recourse".

There is no question, indeed it is admitted, that the reply of the

Respondents to the Applicant dated 29th September, 1966, exhibit 5. was

communicated to the Applicant personally more than 75 days prior to the filing

of the recourse. Counsel for the Applicant has explained that the Applicant did

not show this letter to his counsel and submitted that the letter dated 18th

October, 1966, exhibit 4, which was received by counsel on the 19th

October, 1966 amounts to a new administrative act and that, therefore, the

recourse is within the time limit prescribed by the Constitution.

Having considered this matter carefully, in the light of the material

before me, I have come to the conclusion that the letter dated 18th October, 1966, exhibit

4, can in no way be treated as amounting to a new

decision in the matter reached after a fresh examination thereof. In my view the decision of the Respondent is contained exhibit 5

which was communicated to the Applicant more than 75 days prior to the filing

of the recourse and exhibit 4 is merely informatory. [*955]

Having reached this conclusion I must uphold the submission of counsel

for the Respondent that the recourse is out of time in view of Article 146.3 of

the Constitution.

The recourse is, therefore, dismissed with costs which I assess at £12.

Application dismissed

with £12.- costs.