Recourse dismissed because a subsequent letter was merely confirmatory of an earlier executory decision.

[*685] 1970 July 21

(TRIAXTAFTLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Photis Kelpis,

Applicant,

and

The Republic of Cyprus, through

the Director of Personnel,

Respondent.

(Case No. 167/68).

Time - Article 146(3) of the Constitution.

Administrative and Constitutional Law - Subsequent act confirmatory of a previous executory decision - No new inquiry on the basis of new factors intervening between the two -No recourse can be made against latter act.

Administrative Law - Executory

decision - Confirmatory act - Re-examination from the legal aspect only of a matter in relation to which an executory decision has already been reached, does not amount to a new inquiry resulting in a new executory decision, but results only in a confirmatory act.

L. Clerides, for the Applicant.

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

JUDGMENT

The following judgment was delivered by:

TRIANTAFYLLIDES. J.: At the commencement of the hearing of this recourse,which was filed, on the 21st May, [*686] under Article 146 of the Constitution, against the refusal to pay to the applicant education grants in relation to the studies, in Greece, of his two sons - Theodoros and Andreas

- counsel for the respondent objected that the recourse was out of time, under Article 146(3), because it was not filed within seventy-five days after the applicant came to know of the last executory decision in the matter, by means

of letters dated the 21st October, 1967 and the 7th November, 1967 (exhibits 3 and 5, respectively); he, furthermore, objected that the recourse

could not be made, under Article 146, against the refusal of the grants, as set out in a letter dated the 13th May, 1968 (exhibit 7), because such refusal was an act merely confirmatory of the earlier decision in the matter, which had already been communicated, as aforesaid, to the applicant. Counsel for the applicant did not dispute that the recourse was out of time in so far as what had been communicated to the applicant by the said 1967 letters was concerned; and, actually, this recourse, as it appears from the motion for relief, was made only in respect of the letter of the 13th May, 1968, which, according to the submission of counsel for the applicant, did not amount to a merely confirmatory act, but it communicated to the applicant a decision of an executory nature.

The history of events in this case is as follows:-

The applicant applied in the appropriate form, on the 6th September, 1967, for education grants in relation to the studies of his two sons; one of such applications has been produced by way of a specimen (exhibit 1). [*687]

On the 27th September, 1967, the applicant was informed, by letter of the Accountant-General, that an education grant, in respect of his son Theodoros, for the academic year 1966/1967, had been approved; and he was sent a cheque of £60 for the purpose (see exhibit 2) .

On the 21st October, 1967, he received a letter from the Accountant-General (referring to his applications, of the 6th September, 1967, for education grants in relation to both his sons) whereby he was informed that the aforementioned payment of £60 had been made to him through an oversight, without the applicant being entitled to it, because when he was promoted from the post of Foreman, 2nd grade, to that of Foreman, 1st grade, on the 1st December, 1963, the offer made to him by the Public Service Commission stated expressly that in case he accepted the promotion he would not be entitled to an education grant; he was, therefore, requested to refund the amount of £60 by the 27th October, 1967 (see exhibit 3).

To this letter the applicant replied on the 2nd November, 1967, stating that, in the meantime, he had spent the amount of £60, in connection with the studies of his son - Theodoros - and that it was, thus, impossible for him to refund it. He went on to contend that according to Article 192(l) of the Constitution he had a vested right in relation to the education grant and that the Public Service Commission was not entitled to deprive him of such right; and he concluded by stating that, in view of the [*688] letter of the Accountant-General (dated the 21st October, 1967) which informed him that he was not entitled to an education grant, he intended to take the case to the "Constitutional Court", and that the refund of the £60 would depend on the decision of the Court (see exhibit 4).

Yet, though by letter dated the 7th November, 1967, the applicant was informed by the Accountant-General - in answer to his said letter of the 2nd November, 1967 - that, because of

his refusal to refund the £60, there would be deducted from his salary an amount of £5 per month for twelve months (see exhibit 5). the

applicant did not, eventually, take any legal proceedings.

About six months later, on the 29th April, 1968, counsel for the applicant wrote to the Accountant-General’s Office (in the Ministry of Finance). After referring to the past correspondence in the matter, he proceeded to state that he had advised the applicant that he was entitled to education grants in respect of both his sons and that the fact that the applicant, on promotion, had signed a statement declaring that he would not be entitled to an education grant, did not affect his relevant right; counsel for the applicant relied in this respect on the first instance decision of this Court in Constantinides and The Republic (1967, 7/8 J.S.C. 972). In conclusion, counsel complained that there had been a failure to reply to the application of his client dated the "8/8/1967", and stated that proceedings would be instituted unless his 25 client’s claim was satisfied (see exhibit 6). [*689]

No relevant application of the applicant dated the "8/8/1967" has been produced by applicant's side during the proceedings before me. As a matter of fact in paragraph 2 of the recourse it is stated that the applicant applied for the education grants, in respect of his sons, on the "3.8.1967"; but no such application has been produced, either, before this Court, Perhaps the applicant did apply early in August, 1967, and different dates were given, as to when he applied, through a clerical error either in preparing the recourse or in writing the letter of the 29th April, 1968. It does not, however, matter which is the correct date, because there can be no doubt that any earlier informal application of the applicant merged, eventually, together with the formal applications for education grants which he made, as stated before in this judgment, on the 6th September, 1.967 (see exhibit 1).

By a reply dated the 13th May, 1968, the Director of Personnel (who, like the Accountant-General, comes under the Ministry of Finance) confirmed the contents of the letlet already addressed to the applicant by the Accountant- General's Office on the 21st October, 1967 (exhibit 3),to the effect that the applicant was not entitled to an education grant; he, furthermore, pointed out that the Constantinides case (supra) did not resolve the issue of the loss or not, on promotion, of the applicant’s entitlement to an education grant; and I might, observe, while I am on this point, that the Director of Personnel was right in this respect, because in the said case such issue was left open (see at p.981 of the report in 1967 7/8 J.S.C. ). [*690]

The fate of this recourse, from the point of view of whether or not it was possible under Article 146, depends on the nature of the administrative action set out in the letter of the 13th May, 1968, against which the recourse has been made; in other words, whether such action is of an executory or of a confirmatory nature.

That a recourse, under Article 146, can be made only against an act or decision which is of an executory nature, and that a confirmatory act lacks executory nature, was not in issue between learned counsel at the hearing before me; and correctly so, in view of the relevant administrative law principles ( see Conclusions from Decisions of the Greek Council of State, 1929-1959 at p. 237 and p. 240; Kolokassides and The Republic( 1965) 6 J.S.C. 674 and, on appeal, (1965) 11 J.S.C. 1128; Ktena and The Republic (1966) 1 J.S.C. 74, and, on appeal, (1966) 12 J.S.C. 1202; Cyprus Flour Mills Co. Ltd, and The Republic (1970) 2 J. S.C. 195).

Once the decision communicated to the applicant by means of the letter of the 21st October, 1967 - in relation to which this recourse would undoubtedly be found to be out of time - is the same as that set out in the letter of the 13th May, 1968, the latter would have to be treated as being confirmatory of the former, unless the letter of the 13th May, 1968, were written after a new inquiry into the matter in question on the basis of new factors. The relevant principle, governing this point, is to be found in, inter alia, the Conclusions from the Decisions of the Greek Council of State, 1929-1959, p. 241 and it has been, also, expounded in the Ktena case (supra). [*691]

There is nothing to show that, regarding the decision that the applicant was not entitled to an education grant, there has taken place any new inquiry on the basis of new factors between the letter dated the 21st October, 1967 and that dated the 13th May, 1968. The maximum that could be said in this respect might be that - in view of the fact that counsel for the applicant relied expressly, in his letter of the 29th April, 1968, on the Constantinides case (supra) and the Personnel Officer dwelt upon the effect of such case in his reply of the 13th May, 1968 - to a very minor and immaterial extent the matter was dealt with from the legal point of view; and I said to a very minor and immaterial extent because there was no question of the Constantinides case (which was decided and published before the letter of the 21st October, 1967, was written) having laid down a rule and a

decision having to be reached whether that rule applied to the particular instance; all that took place is that counsel for the applicant relied on that case as establishing the continued entitlement of his client to an education grant, notwithstanding his acceptance, on promotion, to relinquish his right to such a grant, and the Director of Personnel replied - and quite rightly so - that in the Constcaitinides case there had not been resolved that particular issue.

In any case, it is quite clearly established in administrative law that the re-examination from the legal aspect only of a matter, in relation to which an executory decision has already been reached, does not amount to a new [*692] inquiry resulting in a new executory decision, but results only in a confirmatory act: and this is so even in cases in which, in relation to the legal aspect, there has been sought by the administration legal advice or the matter has been referred for the purpose to an appropriate organ, such as the State Legal Council in Greece (see the decisions of the Greek Council of State in cases 345(35), 5(37), 229(38), 439(38), 34(54), 479(66), 1013(66) and 752(30) in which even the inclusion in a subsequent decision of a further legal ground in support of a decision already reached previously in the same matter was not held sufficient to render the later decision anything more than confirmatory of the earlier one).

In the light of all the material before me I have no doubt, indeed, that the letter of the 13th May, 1968, is nothing more than a confirmatory act, deprived of exe cutory nature; and against it no recourse under Article 146 could be made. It is not at all the product of a new enquiry on the basis of new factors. It is a reply confirming the earlier executory decision which had been communicated by the letter of the 21st October, 1967; the position is clearly the same as that in a great number of cases in which it was found by the Greek Council of State that subsequent administrative action was confirmatory of a previous executory decision, in that there had not intervened between the two a new inquiry (see, inter alia, case 21(66)).

Also, I do not find any substance in the complaint, contained in the letter of the 29th April, 1968, to the effect [*693] that the applicant had not received a reply to his application for education grants; by the letter written on the 21st October, 1967, such a reply was given, with express reference to the relevant formal applications of the applicant dated the 6th September, 1967, and that reply was, also, duly reasoned.

On the basis of the foregoing this recourse fails, as it has been made against an act which could not be the subject-matter of a recourse under Article 146.

Of course, in this judgment I am leaving entirely open, as it is not necessary to decide it, the issue as to whether or not the respondent refused validly to the applicant the education grants for the reason stated in the letter of the 21st October, 1967.

I trust that if in future, in another case, it is found that this reason is an invalid one, then the appropriate authority will not fail to redress the position and proceed to deal with the case of the applicant on the proper basis.

In the result the recourse is dismissed; but there shall be no order as to costs.

Application dismissed;

no order as to costs.