clr/1979/1979_3_499.pdf

3 C.L.R. 1973 November 6 [STAVRINIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THE MINOR CHRISTOS MICHAEL, THROUGH HIS FATHER AND NATURAL GUARDIAN SOFOCLES MICHAEL, Applicant, and THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF EDUCATION, Respondent. (Case No. 27/73). 5 10 15 20 Administrative Law—Unlawful administrative acts—Revocation— Principles applicable—Registration of pupil in the third form instead of in the second by mistake of the school staff—Time that elapsed since registration not such as to preclude respondent from revoking it—Revocation of registration made lawfully. The applicant attended the second form of the First Limassol Gymnasium in the school year 1971-72 at the end of which he failed to pass the mathematics examination and was referred for re-examination in the following September. He was r e examined and, havingfailed again, had to repeat the second form. Through somemistake on the school side hewas admitted to the third form. The mistake was discovered some time before the 19th of the following December when the School Head called the applicant's father and told him of it and further informed him that the applicant had to be moved back to the second form. Hence this recourse. Held, that unlawful administrative acts which have created a state of things favourable to the citizen are revocable but not after the lapse of a long period of time, but within a reasonable time, unless that unlawful administrative act was brought about by fraudulent action of the person benefited by it; that what period of time is reasonable depends on the special circumstances of each case; that the evidence clearly established that the admis499 Michael v. Republic <1979) sion oftheapplicant tothethird form ofthenewgymnasiumwas due to a mistake on the part of the school staff; that the time that elapsed since theregistration isnot such asto precludethe respondent from revoking it; that, therefore, the respondent could revoke theregistration; andthat, accordingly, theapplica- 5 tion must be dismissed. Application dismissed. Recourse. Recourse against the decision of the respondent whereby the applicant wasplaced in the second form of the Fourth Gymna- ]0 sium of Limassol, instead of the third form, to which he had been promoted through some mistake. L. N. derides, for the applicant. G. C. Tornaritis, for the respondent. Cur. adv. vult. \$ STAVRINIDES J. read the following judgment. In the school year 1971-72 the applicant attended the second form of the First Limassol Gymnasium. Beginning from the next school year a new gymnasium, to be known as the Fourth Limassol Gymnasium, wasto function inthat town, andtheapplicant was 20 among thepupils who,if they wereto continue their gymnasium schooling, had to attend the newschool. Having failed to pass the mathematics examination at the end of the school year he was referred for re-examination in the following September. He wasre-examined and,having failed again, had to repeat the 25 second form. Through some mistake on theschool side hewas admitted to the third form. The mistake was not discovered until the following December—some time before the 19th;and on that date the School Head called the pupil's father and told him of it, adding that the boy had to be moved back to the 30 second form. Hewasso moved, and this application isfor a " Declaration of the Court that the act and/or decision of the respondents and/or their organs or representatives whereby the applicant is placed in the second form of the Fourth Gymnasium of Limassol from January 13, 35 1973, instead of the third, towhich hehad been promoted, and which he had attended down to theabove date, is null and void and of no legal effect whatever." The law of the subject is clearly stated in several books on 500 3 C.L.R. Michael v. Republic Stavrinldes J. administrative law. I propose referring to only one, Stasinopoulos's Law of Administrative Disputes, where, at p. 230, there is this: 5 10 " The lawful administrative acts which have given rise to rights in the citizen are not revocable. The unlawful administrative acts which have created a state of things favourable to the citizen are revocable but not after the lapse of a long period of time,but within a reasonable time, unless that unlawful administrative act was brought about by fraudulent action of the person benefited by it, in which case because of such fraud the act is revocable no matter how long a period has elapsed." This must be read together with the following passage from pp. 232, 233: 15 20 25 30 35 " What period of time is reasonable cannot, of course, be determined by a single principle, because its length varies and depends on the special circumstances of each case But for lapse of a reasonable time to create a situation precluding the revocation of an unlawful administrative act one more condition is necessary, viz.