Constitutional recourse dismissed as out of time because the omission was non-continuing and terminated by re-examination.

[*1122] 1973 September 10

(A. IOZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Lefki Papasarva,

Applicant,

and

The Republic of Cyprus, through

The Commander of Police,

Respondent.

(Case No. 433/72).

Time - Within which to file a recourse - Article 146.3 of the Constitution - Omission of a "continuing" or "non-continuing" nature - It is a prerequisite to the non-commencement of the running of the time provided by the said Article 146.3 that the omission be of a continuing nature - Otherwise the period commences to run from the date that a noncontinuing omission, or when a re-examination takes place, comes to the knowledge of the person making the recourse Termination of continuing nature of omission by re-examination of the matter And communication of the decision ,taken upon re-examination, to applicant’s counsel - Recourse out of time as filed more than 75 days after such communication - Fact that applicant proceeded in the wrong forum by a civil action does not suspend the running of time under the aforesaid Article.

Constitutional Law - Article 146.3 of the Constitution - Time within which to file a recourse - See, also, under "Time".

Omission - Of a "continuing" or "non-continuing" nature - See, under "Time".

A. Pandelides, for the Applicant.

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

JUDGMENT

The following judgment was delivered by:-

A. LOIZOU, J.: The applicant joined the [*1123] Cyprus Police Force in 1961 as a female Police Constable. In 1965 she was appointed as an acting

sergeant in pursuance to a policy decision according to which a female acting sergeant should be in charge of the female Police Constables in each Police Division. At the time the applicant was posted in Nicosia, whereas in Limassol, Vrisiis Georghiadou held the corresponding post. When the latter was transferred to Nicosia, the Chief of the Police asked the Divisional Police Commander, of Nicosia, to state whether the acting appointments of the applicant or of the said female acting sergeant Vrisiis Georghiadou should be terminated. The Divisional Police Commander replied that there were no duties in the Nicosia Police Division that either of them could perform in the capacity of sergeant and both acting appointments thereupon were terminated. This decision was successfully challenged by the applicant in Recourse No. 21/69 (exhibit l) the judgment thereof reported under her then name, Lefki Nicolaou and The Republic (1970) 3 J.S.C. p.255·

In January, 1969 it was discovered that the non existence of any female acting sergeant in the Nicosia Police Division was contrary to the abovementioned policy, as a result of which the acting appointment of the applicant and of Georghiadou were originally made and as from the 21st January, 1969 female Police Constable Georghiadou was reappointed as acting sergeant. The aforesaid recourse No. 21/69 had been filed prior to the said decision,and the validity of the reappointment of Georghiadou had not been challenged thereby, or afterwards. [*1124]

The ground of annulment of the

decision for the determination of the acting appointment of the applicant is to be found, at pages 257 and 258 of the report (supra) where Mr. Justice Triantafyllides, J., as he then was, said: -

"It is quite clear, from the foregoing, that such termination was made in ignorance of the existence of the relevant policy regarding female acting sergeants and that, therefore, the sub judice decision was reached under a misconception as to a material consideration, thus being rendered the product of a defective exercise of the relevant powers. Had the matter been decided, on the proper basis and in its correct context then no doubt there would have been examined who of the two - the Applicant or Georghiadou - was the most suitable and consequently there would not have been terminated the acting appointments of both, as being unnecessary, (seo exhibit 3)

In the circumstances, there is no other alternative open to me than to declare the sub judice decision as being null and void and of no effect whatsoever. It is up to the appropriate authority in the Police to decide as to whether the acting appointment of the Applicant should be terminated, or, whether or not, in the light of existing requirements, the implementations [*1125] of the spirit of the relevant policy renders it proper in the interests of the service - which are a primary consideration - to keep two female acting sergeants in the Nicosia Police Division, one of them being the Applicant".

This judgment was delivered on the 28th November, 1969 and the Chief of the Police received a copy thereof on the 30th March, 1970. On the 1st Hay, 1970 the Chief of the Police wrote to the Divisional Police Commanders Nicosia (exhibit 3) the following:-

"Re: Woman P.C. 1690 Lefki Papasavva.

(1) Attached I forward copy of the decision of the Supreme Court in Case 21/69 in relation to the recourse of the aforesaid woman Police Constable for the termination of her appointment as an acting sergeant.

(2) In view of the decision of the Supreme Court and the existing needs of the Force, I do not intend to appoint a woman police constable to the rank of acting sergeant at your Police Division, as there is already a woman sergeant, female Police Sergeant 718 Vrisiis Georghiadou who fulfils the requirements of your Police Division.

(Sgd.) Chief of Police". [*1126]

The applicant, through her then counsel, addressed to the Chief of Police letter dated the 24th July, 1970 asking that in the light of the judgment of the Supreme Court in Recourse No. 21/69

for the payment of her allowance as an acting sergeant and the return to her of the insignia of the rank of the acting sergeant in

view of the annulment of the decision terminating same. On the 3rd August, 1970 the following letter (to he found in a bundle of documents forming exhibit 5) was addressed to applicant's then counsel:

"Woman/Police Constable 1690 Lefki Nicolaou,

Supreme Court Case No. 21/69

(1) Your letter under No. B.B. 57 dated the 24th July, 1970 on the aforesaid subject is relevant.

(2) In view of the fact that the appointment of your client as an acting sergeant was terminated as from the 1st January, 1969 and considering that she has not since acted in the capacity of acting sergeant, there is no question of payment to her of an allowance for an acting appointment and consequently I cannot order the payment of such allowance.

(3) In so far as the insignia you refer, your client stopped performing the duties of acting sergeant as from the 1st January, 1969, such insignia cannot be given to her since the post to which she was originally appointed has [*1127] been filled and her appointment as an acting sergeant is not considered as necessary".

This letter was produced in the Nicosia District Court Action No. 5645/70 as exhibit 4. The said action was filed on the 17th October, 1370 and the applicant as plaintiff was thereby claiming -

"(a) Damages for the damage she suffered on account of the act and/or decision of the Chief of Police which was annulled and/or declared null and void by the decision of the Supreme Court of Cyprus in Recourse No. 21/69 on the 28th November, 1969.

(b) Order of the Court ordering the defendant and/or the Chief of Police to comply with the aforesaid judgment and reinstate the plaintiff to the rank of acting sergeant.

(c) Further or other relief.

(d) Legal interest.

(e) Costs".

The writ of summons, the pleadings, as well as other relevant documents from the file of the said action have been produced as exhibit 5.

The claim for the order for compliance with the decision of the Supreme Court was abandoned in the course of the address of counsel for the applicant on the 3rd November, 1972 (vide exhibit 5A). [*1128]

On the 16th November, 1972 the applicant filed the present recourse claiming -

"(1) Judgment and/or declaration of the Court that the continuing omission of the respondents to comply with the judgment of the Supreme Court in Case No, 21/69 which was delivered on 28.11.69 is null and/or that the said omission should not have occurred and/or that the respondents should have complied with the said decision retrospectively from its issue.

(2) Decision and/or declaration of the Court that the continuing omission of the respondents to issue the necessary administrative acts for compliance with the aforesaid judgment and for the reinstatement of the applicant to the rank of acting sergeant which she held before her demotion was declared void, is void and/or the said omission should not have occurred and/or the said administrative acts should have been issued retrospectively from the issue of the said decision.

Alternatively, declaration of the Court that by the aforesaid judgment of the Supreme Court (21/69) the applicant was reinstated automatically to the rank which it had before its termination on the 1st January, 1969 of her appointment as an acting sergeant". [*1129]

The first objection raised by the respondents is that - "the recourse is out of time as the applicant became aware of the stand of the administration on the delivery of the judgment of the Supreme Court in Recourse No. 21/69 and in any event in May, 1970 the applicant received knowledge of the concrete decision of the Chief of Police that she would not continue serving as an acting sergeant after the said judgment".

On this question of the recourse being out of time, learned counsel for the applicant has argued that the non compliance with the decision of the Supreme Court is an omission of a continuing nature. Therefore, this objection should be dismissed. Reliance in this respect is placed in the case of Hassan Mustafa and The Republic of Cyprus,

1 R.S.C.C. p. where at page 47 C it was stated -

"Leaving aside ‘decisions’ or ’acts', with which the Court is not concerned in this case and dealing only with 'omissions', a distinction must be made between a non-continuing omission (e.g. the failure of a competent authority to issue a permit in respect of something to be done on a particular date) and an omission which is of a continuing nature ...

With regard to the second submission of the counsel for the respondent referred to above, once the Court has come to the

conclusion that the alleged omission in question could be [*1130] said to have continued up to the date of the hearings there cannot be any question of the application being filed out of time under paragraph 3 of Article 146".

It is a prerequisite, therefore, to the noncommencement of the running of the time provided for by Article 146

(3) of the Constitution as enunciated in the aforementioned judgment of the Supreme Constitutional Court, that the omission be of a continuing nature. Otherwise the period commences to run from the date that a non-continuing Omission or when a re-examination takes place comes to the knowledge of the person making the recourse.

It appears, however, that the present case is one where by the re-examination of the matter the continuing nature of the omission was terminated. This was done by the decision taken by the Chief of Police in the light of the judgment of the Supreme Court in Recourse No.21/69 by the 1st May, 1970 and as a result of which exhibit 3 hereinabove set out, was addressed to the Nicosia Divisional Commander of Police. The reasons given therein for non-reappointing the applicant to the rank of acting sergeant, being that the post in respect of which she was given acting appointment had already been permanently filled and the requirements of that Police Division were satisfied and there was no longer need for a female acting police sergeant.

This decision came to the knowledge of the applicant by the letter of the 3rd August, 1970 – received [*1131] by her counsel on the 6th August according to a note appearing thereon. This communication was a complete one, as a comparison between the letter, exhibit 3, and the letter of the 3rd August, 1970, shows that the latter contained the full reasoning for the

decision and so it can be considered as sufficient communication in law to set the period under Article 146(3) of the Constitution in motion. (Vide Decision of the Greek Council of State 701/48).

In fact, in view of what was stated therein, the applicant filed the said civil action claiming, inter alia, ah order of the Court for compliance with the judgment of the Supreme Court given in her favour. It may be pointed out here, that the communication of a decision to counsel acting on behalf of a person amounts to communication to the person concerned. (Vide Decisions of the Greek Council of State, 1133/57 and 182/50).

In the light of the above, the present recourse having been filed on the 16th November, 1972, is considered as being out of time. The fact that the applicant proceeded in the wrong forum by civil action, hence the withdrawal of that relief (see exhibit 5A), did not in my view, suspend the running of the time under Article l46(3) of the Constitution.

In the circumstances, this recourse is dismissed with no order as to costs.

Application dismissed.

No order as to costs.