(1978)1978 August 31 [TRIANTAFYLUDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MICHAEL ECONOMIDES AND OTHERS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Cases Nos. 22AP7, 225/77, 227/77 and 228/77). Administrative Law—Executory act or decision—Act or decision against which there has been lodged an objection, under the provisions of a law—Ceases to be of an executory nature, because it becomes incorporated in the subsequent decision determining the objection—And it can no longer be made by itself the subject 5 matter of anxadministrative recourse. The respondent Committee, acting in the exercise of powers undei the Educational Officers (Teaching Staff) (Appointments, Postings, Tranfers, Promotions and related matters). Regulations of 1972 to (No. 2) of 1974, prepaied and published a list 10 of those eligible for promotion to the post of Assistant Headmaster in Secondary Education. The applicants objected in writing to the respondent as regards their positionion the list;and their objections,which were lodged under regulation 28
(6)* of the above Regulations, were rejected by the respondent. 15 By means of these recourses applicants sought: (A) A declaration that the preparation and publication of the said list was invalid and (B) a declaration that theii placing at the position in such list at which they weie placed was erroneous. * Quoted at p. 233 post. 230 20 \ 3 C.L.R. 5 10 15 20 25 30 ._ . Δ{ EcoDomides & Others v. Republic ', At the commencementof the hearing of the recourses counsel for the respondent raised the preliminary objection that the recourses ought to be dismissed inasmuch as they have not been made against thefinal decisions of the respondent concerning their subject matter, but only against earlier decisions, in this respect, of therespondent, which have oQised to bein force,in thesensethatthey arenolonger ofanexecutorynature. Held,
(1)that, though the decisions rejecting the objections of the applicants, are executory andcan be made the subject of a recourse under Article 146of the Constitution,it is awell established principleofadministrative lawthatanactordecision against which there has been lodged an objection, underthe provisions ofaLaw,ceases to beofanexecutory nature,because it becomes incorporated inthesubsequent decision determining thesaid objection and, therefore, it cannolonger be madeby itself the subject matter of an administrative recourse. (See decisions of the Council of State in Greecein,interalia.Cases •628/1963, 2550/1965); that, accordingly, it was notopen inlaw to theapplicants inthe present recourses tochallenge solelythe initial decisions of therespondent Committee placing themat their respective positions inthe lists of those eligible forpromo tion tothepost of Assistant Headmaster in Secondary Educa tion; and that, consequently, theapplicants arenotentitledto the relief claimed by paragraph Β above in each one of the four recourses nowbefore this Court. (Question whether or not the decisions rejecting the objections may be treated as being challenged, also, by meansof the piesent recourses, eventhough this is not stated tobeso insuch recourses (seeinteralia, Case No. 444/69 of the Greek Counci of State) left open as the Court heard no argument on thepoint).
(2)That the right of the applicants to seek the relief in paragraph A above is notaffected by thelodgment by themof their aforementioned objections andtheir determination bythe respondent Committee, because what appears to be involved in relation tothe said paragraph Ais the validity of the process of prepaiing lists of those eligible for protnotion under the relevant aforesaid Regulations and his is a matter which was not raised at all by theobjections lodged by theapplicants as regards their respective positions on'such lists. Order accordingly. 231 \ EcoDomides & Others v. Republic
(1978)Cases leferred to* Pehdes ν The Republic and Another, 3 R S.C.C. 13 at p. 17, Petrolma Ltd., v. The Municipal Committee of Famagusta
(1971)3 C.L R. 420 at p. 424, Pankyprios Syntechma Dimosion Ypallilon and Others ν The Municipality of Nicosia
(1978)3 C L R . 117 at ρ 133, 5 Ktenas and Another (No. 1) v. The Republic
(1966)3 C L R 64 at p. 73, Varnava v. The Republic
(1968)3 C L.R. 566 at ρ 574; Kelpis v. The Republic
(1970)3 C L.R. 196 at p. 202, 10 Decisions of the Greek Council of State- Nos. 628/1963, 2550/ 1965, 564/1968, 145/1966, 889/1969, 2872/1969, 883/1970 and 444/1969 Preliminary objection. Preliminary objection, raised by Counsel for the respondent, 15 that the recourses ought to be dismissed as they are not made against the final decisions of the respondent but only against earlier decisions which have ceased to be in force. Ε Lemonans, for the applicants. A S. Angeltdes, for the respondent. 20 Cur. adv vult The following decision was read by; TRIANTAFYLLIDES P . : At the commencement of the hearing of these four recourses, which are being heard together in view of their nature, counsel for the respondent raised the preliminary 25 objection, in accordance with ground of law 1 in the Opposi tions, that the recourses ought to be dismissed inasmuch as they are not made against the final decisions of the respondent concerning their subject matter, but only against earlier decisieas, at this rtspect, of the respondent, which have ceased to 30 be in force, in the sense that they are no longer of an executory nature. ' By means of the motion for relief in each one of these re courses ihe applicant concerned seeks, in effect, first (see para graph A), a declaration that the preparation and publication by the respondent of a list of those eligible for promotion to the post of Assistant Headmaster in Secondary Education is invalid, and, secondly (see paragraph B), that the placing of 232 35 3 C.L.R. Economides & Others τ. Republic Triantafyllides P. the applicant at the position in such list at which he was placed is erroneous. In these proceedings we are concerned with three such lists, one in relation to schoolmasters teaching Mathematics, in 5 which there is to be found as number 5 the applicant in Case 228/77, another in relation to schoolmasters teaching Physics, in which thereare to be found as numbers 8and 14, respectively, the applicants .in Cases 224/77 and 225/77, and another in relation to schoolmasters teaching English, in which there is to 10 be found as number 18 the applicant in Case 227/77. The said lists were prepared by the respondent Committee at its meeting of June 29, 1977 (see its minutes exhibit 1), in the exercise of its powers under the Educational Officers (Tea ching Staff) (Appointments, Postings, Transfers, Promotions 15 and related matters) Regulations of 1972 to (No. 2) of 1974. 20 Each one of the applicants has objected in writing to the respondent early in July 1977 (see exhibits 2a-2d) as regards his position on the list concerned, and the respondent examined such objections at its meeting of July 12, 1977 (see its minutes exhibit 4). The objections of the applicants were lodged under regulation 28
(6)of the aforesaid Regulations, which reads as follows :- 25 30 35 "
(6)Παςεκπαιδευτικός λειτουργός δύναται, εντός δέκα ήμε ρων άπό της ήμΕρομηνίαςτης αναρτήσεως των πινάκων,νά ύποβάλη προς τήυ Έπιτροπήν εγγραφον και δεόντωςήτιολογημένηυ ενστασιυ, ήτις εξετάζεται ύπό της 'Επιτροπής τό ταχύτερον δυνατόν, έν περιπτώσει δέ αποδοχής αυτής τό Ονομα τοΰ ενδιαφερομένου εκπαιδευτικού λειτουργού κατα τάσσεται είς του οίκεϊον πίνακα είς οΐαν σειράνή'Επιτροπή ήθελεν αποφασίσει βάσει των εν τή παραγράφω
(2)όριζομέμένων στοιχείων". ("
(6)Every educational officer may, within ten days from the date of the hanging up of the lists, submit to the Com mittee a written and duly reasoned objection, which is examined by the Committee as soon as possible, and in case it is accepted, the name of the affected educational officer is placed on the list concerned at such position as the Committee might decide on the basis of the factors specified in paragraph
(2)"). 233 Triantafyllides P. Economides & Others τ. Republic
(1978)The objections of all the applicants were rejected by the respondent, together with twenty-two other similar objections by other schoolmasters, whereas three other such objections were accepted as being well-founded and the necessary correc tions were effected to the lists in question. 5 The decisions of the respondent concerning the objections of the applicants were communicated to them by means of letters dated July 13, 1977 (see exhibits 3a-3d). The present recourses were all filed subsequently on August 17, 1977. 10 I am of the opinion that though the procedure prescribed by means of regulation 28
(6), above, provides for a review by a body of administrative nature, such review is not, however, made "by way of confirmation or completion" of the lists of those eligible for promotion, in which case no recourse 15 under Article 146 of the Constitution would be possible until such confirmation or completion had taken place (see, inter alia, Pelides v. The Republic and Another, 3 R.S.C.C. 13, 17, Petrolina Ltd. v. The Municipal Committee of Famagusta,
(1971)3 C.L.R. 420, 424, and Pankyprios Syntechnia Dimosion Ypallilon 20 and Others v. The Municipality of Nicosia,
(1978)3 C.L.R. 117, 133). Moreover, having perused the relevant minutes of the re spondent Committee, I have reached the conclusion that the decisions rejecting the objections of the applicants are not of 25 merely confirmatory nature, but that they were taken as a result of a new inquiry, and that they are, therefore, executory (see, inter alia, Ktenas and Another (No. 1) v. The Republic,
(1966)3 C.L.R. 64, 73, Varnava v. TheRepublic,
(1968)3 C.L.R. 566, 574 and Kelpis v. The Republic,
(1970)3 C.L.R. 196, 202), 30 with the result that recourses under Article 146 of the Con stitution could be made against them. As a matter of fact, however, in the recourses now before me the aforementioned decisions of the respondent, on the objections lodged by the applicants, are neither challenged nor mentioned, and what are challenged are only the initial deci sions of the respondent by virtue of which the applicants were placed at their respective positions on the lists of those eligible for promotion; and the question that has to be answered, in 234 35 3 C.L.R. 5 Economldes & Others v. Republic Triantafyllides P. view of the preliminary objection raised by counsel for the respondent, is whether such initial decisions are still of an executory nature, so as to be possible to attack them by means of the present recourses notwithstanding the fact that there have supervened the subsequent decisions of the respondent rejecting the objections of the applicants. It appears to be a well established principle of administrative law that an act or decision against which there has been lodged an objection, under the provisions of a Law, ceases to be of 10 an executory nature, because it becomes incorporated in the subsequent decision determining the said objection and, there fore, it can no longer be made by itself the subject matter of an administrative recourse. Useful reference may be made, in this respect, to the decisions of the Council of State in Greece 15 in Cases 628/1963, 2550/1965, 1564/1968, 145/1966, 889/1969, 2872/1969 and 883/1970; it is to be noted that in each of the last four of the above referred to cases the objection was deter mined, as in the present instance, by the same organ which had reached the initial decision against which the objection was 20 lodged. I am, therefore, of the opinion that it was not open in law to the applicants in the present recourses to challenge solely the initial decisions of the respondent Committee placing them at their respective positions in the lists of those eligible for promo25 tion to the post of Assistant Headmaster in Secondary Educa tion and that, consequently, the applicants are not entitled to the relief claimed by paragraph Β in the motion for relief in each oneof the four recourses now before me. Ileave, however, entirely open, because I have heard no argument on this point 30 at all, the question of whether or not the later decisions re jecting the objections of the applicants may be treated as being challenged, also, by means of the present recourses, even though this is not stated to be so in such recourses (see, inter alia, in this respect, the Digest of the Case-Law of the Council of 35 State in Greece (Εύρετήριον Νομολογίας Συμβουλίου τής Επικρατείας) 1961-1970, pp. 308, 309, as well as the decision of the said Council in Case 444/1969); and I may have to give a Ruling on this point after Ihave heard counsel for the parties in this connection. 40 As regards, on the other hand, paragraph A of the motion 235 Triantafyllides P. Ecooomides &Others v. Republic
(1978)for relief ineach oneofthesefour recourses,Iamoftheopinion that the right of the applicants to seek that relief isnot affected by the lodgement by them of their aforementioned objections and their determination by the respondent Committee, because what appears to be involved in relation to the said paragraph 5 Aisthevalidity oftheprocessofpreparinglistsofthoseeligible for promotion under the relevant aforesaid Regulations and this is a matter which was not raised at all by the objections lodged by the applicants as regards their respective positions on such lists. These recourses are to proceed to further hearing in the light of my above Decision on the preliminary objection raised by counsel for the respondent. Order accordingly. 236 10