clr/1982/1982_3_611.pdf

(1982)that health reasonscompelled him to be absent from his s rvice and he would submit medical reports in due course. The respondent rejected applicant's claim and infoimed him of this decision by means ofa lettei dated 24.1.

1. No recouise was filed against this decision. By means of a letter dated 5 15.7.1981, and whilst he was on leave prioi to letiiement, the applicant applied foi thepayment of hissalary during the above peiiod because one of the reasons for his absence was his personalhealth. Tht respondent replied b>lettei dated 26.11.1981 informing applicant that his lequest to change his leave of 10 absence without pay to a sick-leave, which had already been rejected in the past, could not be acceded to; and that the ground foi rejecting his claim in the past continued to exist. Applicant lepeaud his lequest by lettei dated 21.12.81 and which wa&rejected by letter of the respondent dated 22.1.
2. 15 Hence this recourse. Counsel for the respondent raised the preliminary objection that the recourse is out of time* because the acts complained of are confirmatory of the decision of the administration dated 24.1.1976 and, theiefoie, they aie not of an executory nature 20 and not amenable to a lecouise under Article 146 of the Constitution. No new material was placed before the administration after 24.1.1976 and no new inquiry was carried out nor any decision taken. On the preliminary objection: Held, that a confiimatory act lacks executoiy nature and, therefore, it cannot be made the subject of a recourse undei Article 146 of the Constitution; that a letter which is merely of an informative nature and does not contain a decision creating a new legal situation is not of an executory nature; that 39 an act which contains a confirmation of an eailiei one, may, however, be executory and theiefore subject to a recourse for annulment ifit hasbeenmadeafter anewinquiiy; that whether a new inquiiy has taken place isa question of fact; that since in thij case all the material was in the hands of the admini- 35 * Article 146.3 of the Constitution provides: "
3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in thecaseof an omission, whenitcameto the knowledge of the person making the recourse". 612 25 3 C.L.R. Kyprianides τ. Republic stration before they reached the decision of 24.1.1976; that since eveiything was considered before that date; that since there is no diffeience between the reasoning given in 1976 and 1981 and 1982; and that since no new inquiiy was carried out '5 the letteis of 26.11.1981 and 22.1.1982 are of an infoimative \ nature and they contain only a confirmation of the 1976 deci\ sion and no more; accoidingly the lecourse is out of time, ι because it was filed aftei the lapse of 75 days from the 1976 decision, and cannot be entertained by this Court. 10 Application dismissed. Cases referred to: Moran v. Republic, 1 R.S.C.C. 10, at p. 13; Holy See of Kitium v. The Municipal Councilof Limassot, 1 R.S.C.C. 15, at p. 18; 15 Protopapas v. Republic

(1967)3 C.L.R. 411, at pp. 415-416; 20 25 Mahdesianv. Republic

(1966)3 C.L.R. 630 at p._633; Economides v. Republic

(1980)3 C.L.R. 219; Koudounaris v. Republic

(1967)3 C.L.R. 479 at p. 482; Lardis v. Republic <1970) 3 C.L.R. 356 at p. 359; HjiKyriacos and Sons Limited v. Republic

(1971)3 C.L.R. 286 at p. 290; Republic v. Demetriou

(1972)3 C.L.R. 219 at p. 223; Theodorou v. 77ie Attorney-General of the Republic

(1974)3 C.L.R. 213; HjiPanayi v. The Municipal Committee of Nicosia

(1974)3 C.L.R. 366 at p. 375; Kolokassidesv. The Republic

(1965)3 C.L.R. 542; KtenaandAnother (No. 1) v. 77ie Republic

(1966)3 C.L.R. 64; Varnavav. TheRepublic

(1968)3 C.L.R. 566 at p. 573. 30 Recourse. Recourse against the refusal of the respondent to vary applicant's leave of absence without remunerationfrom 1.9.1974 -5.10.1974 to a sick-leave. 35 Ch. lerides, for the applicant. R. Vrachimi-Karyda (Mrs.), for the respondent. Cur. adv. vult. STYLIANIDES J. read the following judgment. The applicant by this recourse seeks annulment of the refusal and/or omission 613 Stylianides J. Kyprianides v. Republic

(1982)of the respondent to vary his leave of absence without remuneration from 1.9.1974-5.10.1974 to a sick-leave. Preliminary objection was raised in the opposition that the recourse is out of time asthe act complained of is only a confirmatory one and not executory. The Court directed that the preliminary legal issue raised in the notice of opposition be heard first. 5 Paragraph 3 of Article 146 of the Constitution provides as follows:"3. Such a recourse shall be made within seventy-five 10 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". This provision is mandatory and has to be given effect to 15 in the public interest in all cases. Such view is in accordance with the interpretation of analogous provisions given by administrative tribunals in a number of European countries and also the view of authoritative writings on this subject. TheCourt mayon itsownmotionraisetheissueastowhether 20 or not a particular recourse is or is not out of time. (John Moronand The Republic, (The Attorney-General andAnother), 1 R.S.C.C. 10, at p. 13; The Holy See of KitiumandThe Municipal Council of Limassol, 1 R.S.C.C. 15,at p. 18; Protopapasand The Republic,

(1967)3 C.L.R. 411, at pp. 415-416; 25 Mahdesian and The Republic,

(1966)3 C.L.R. 630, at p. 633). The facts of this case are briefly as follows:The applicant is a retired teacher of religion who in 1974 was headmaster of a night Gymnasium of Nicosia. He was residing at Elenion Quarter of Nicosia. He was married with 30 three children—two daughters and a son. On 12.8.1974he notified byletter (Appendix A) the Ministry of Education that on 13.8.1974 he would depart for Athens to accompany his wife for medical treatment, and applied for leave of absence from 1-5 September,

1. On 26th August, 1974, he sent a long letter from Athens 614 35 3 C.L.R. Kyprianides τ. Republic Stylianides J. in which he stated that he had left Cyprus with his wife and son on the 13th August in order to accompany his wife to ; Greecefor medical treatment. As inthemeantime the invading Turkish forces advanced to all directions, during what is now 5 commonly known as the 'second Turkish invasion', he decided 1 to stay in Greece and take up employment with the Greek Ministry of Education in Athens. Heapplied for leave without remuneration for a whole year or for three months or even for 6-8 weeks until arrangements were made for his posting 10 at a school in Athens. The reason for his such decision to stay and take up employment in Greece was that his house was at Elenion and he was afraid lest his daughters would be in danger by any further advance of the Turkish forces. On 6.9.1974 he applied by cable for extension of his leave 15 until21.9.1974, pendingthesettlementof serious family matters. On 19.9.1974 he applied again by cable for extension of his leave of absence until 5.10.1974 due to urgent family matters. On 28.9.1974 he wrote from Lyon, France, informing the Ministry that one of the reasons that he had applied for 20 extension of his leave of absence was theplacing of one of his daughters at a college in England—which had been achieved the previous week—and the other ground was the betrothal of his elder daughter at Lyon which was happily officiated. On26.7.1974 theDirector-General of the Ministry of Finance 25 .by circular (exhibit Nc. 1) communicated to the Government services a decision to grant leave of absence to civil servants only in exceptional cases. Leave of absence without pay was granted to the applicant from 1.9.1974-5.10.
2. This was communicated to him 30 by letter Π.Μ.Π. 1088/2 dated 8.10.1974, received by the applicant on 15th October,
3. On the following day—16th October, 1974—the applicant by letter (Appendix H) raised objection to the grant of leave without pay as besides the serious family grounds, which he put forward for hif> absence, health reasons compelled him to 35 be absent from his service andhewould submit medical reports in due course. He applied in affect for the revision of the 615 Stylianides J. Kyprianides v. Republic

(1982)decision communicated tohim andpayment of his salary for the period in question. On 4.12.1974 he submitted three medical reports: One from a paediatrician from Limassol dated 13.8.1974 counter­ signed on 9.11.1974 by the then District Medical Officer of 5 Limassol, a medical certificate from a cardiologist of Athens dated 21.10.1974 and another onefrom a doctor in London dated 11.11.1974,andappliedforreviewof theprevious decision. On 20.12.1975 his thsn advocate addressed a letter tothe Director-General of the Ministry of Education whereby he 10 referred to the medical reports submitted by his client on 4.12.1974and herequested payment ofhis client's salary forthe period 1.9.1974-5.10.1974,asamongthe grounds forhis absence were personal health reasons. On 24.1.1976 the respondent sent a letter to applicant's 15 advocate informing him that, as it had already been explained to the applicant such claim could not be approved. The second paragraph thereof reads as follows:"Βάσει των είς τάς σχετικός αίτήσεις τοΰ κ. Κυπριανίδη στοιχείων 5έν εκρίθη δτι Θαήδύνατο νά δικαιολογηθώ 20 οίαδήποτε παρέκκλιση έκ της γενικής τακτικής, ή οποία έφηρμόσθη ύπότοΰ Υπουργείου τούτου κατά τάςαρχάς τοΰσχολικούέτους 1974/75, Οπότο φωςσχετικής αποφάσεως τής Κυβερνήσεως περί μήχορηγήσεως άδειωνή ανακλήσεως αυτών, συμφώνως προς τήν οποίαν ή έκ τοΰ καθήκοντος 25 απουσία εκπαιδευτικών λειτουργών Θα έλογίζετο ώςάδεια απουσίας άνευ απολαβών". ('On the basis of the material appearing inthe relevant applications of Mr. Kyprianides it was decided that a deviation from the general policy could not be justified, 30 which was applied by this Ministry at the beginning of theschool year 1974-75, inthelight ofthe relevant decision of the government for notgranting leave or their cancel­ lation,whereby theabsence fromduty ofeducational officers would count as leave of absence without pay"). 35 On 19.2.1976 the same advocate complained against the decision cf 24.1.1976 and requested an amicable settlement of thedispute. Noreply was given tothis letter andthematter remained at that for over five years. 616 3 C.L.R. Kyprianides v. Republic Stylianides J. On 15.7.81, whilst the applicant was on leave prior to retire­ ment, he addressed a long letter, repeating the history of his case and, relying on the medical reports submitted seven years earlier, he prayed for the payment of his salary, alleging that 5 one of the reasons of his absence was his personal health. In this letter we read at page 3:- 10 15 "Πρό της επιμόνου αρνήσεως τοΰ κ. Γενικού νά έγκρίνη τό αίτημα μου Οπό τό φώς των υποβληθέντων τριών πιστο­ ποιητικών ασθενείαςκαΐ συναφώνπρος αυτάλεπτομερειακών • επεξηγήσεων, ήναγκάσθην νά διακόψω τήν περαιτέρω δια­ πραγμάτευση". ("In view of the persistent refusal of the Director-General to approve my claim in the light of the submitted three sick certificates and the relevant thereto detailed explanations Iwas forced to discontinue any further negotiations"). The reply to the applicant's letter of 15.7.1981 is contained in Appendix ΙΓ dated 26.11.1981 No. Π.Μ.Π. 1088/2 whereby the applicant is informed that his request to change his leave of absence without pay to a sick-leave, which had already been 20 rejected in the past, could not be acceded to. In the second • paragraph thereof he is reminded that the ground for rejecting his claim in the past continued to exist. It is further clarified that before his departure from the country and during his absence he did not mention in any of the documents sub25 mitted by him anything about his own health. Such ground was first raised on 16.10.1974, after his return to Cyprus. This had been examined but could not have possibly been approved. 30 On 21.12.1981 this prolific teacherexpressed his dissatisfaction in writing—(see Appendix 1Δ)—for the contents of Appendix 1Γ and, inter alia, he wrote:" — καθότιουδέν νεώτερον αΐτιολογικόν στοιχεϊον προσθέτει αυτή είς •δσα προηγουμένως έπ! τοΰ θέματος αυτού μού άνεκοινώσατε". 35 (" because it adds no new ground of reasoning to what you had already communicated to me on the matter"). And in conclusion he made known his intention to resort to justice for vindication of his rights. 617 Stylianides J. Kyprianides v. Republic

(1982)The last letter of this correspondence, spread over the years, was sent on 22.1.1982 by the Acting Director-General of the Ministry of Education to the applicant. It is repeated therein that it is not possible to accede to his request as (

1. a)the policy of the Government after the coup and the invasion was, not 5 to grant leave of absence to civil servants, and in particular in relation to the educationalists who were abroad; leave of absence without remuneration was being granted to those who applied for, and such leave was granted to the applicant as he had applied for it; and (
2. b)he did not put forward health 10 reasons in any of his letters or telegrams during his absence. On the contrary, he was always lelying on family and other grounds. He first raised personal health reasons after his return home. All the grounds put forwaid by him had been examined in the past and a reply was given tohis advocate. 15 Such reply is no other than the letter of 24.1.1976, to which reference has already been made. It is the contention of learned counsel for the respondent that all such acts or decisions of the respondent are confirmatory of the decision of the administration of 24.1.1976 and, 20 therefore, theyarenot ofexecutorynatureandarenot amenable to a recourse under Article 146 of the Constitution. No new material was placed before the administration after 24.1.1976 and no new inquiry was carried out nor any decision taken. Counsel for the applicant maintained that a new inquiry 25 was carrisd out as reference to the medical reports appears for the first time in the letter of the respondent of 26.11.1981. The letter of 22.1.1982, which he is actually challenging, is the result of a newinquiry andthereasoning therein is different from that of 1976. 30 A confirmatory act or decision is an act or decision of the administrationwhichrepeatsthecontentsofapreviousexecutory act andsignifies the adherence of theadministration to a course already adopted; it is not in itself executory because it does not itself determine the legal position of an individual case, 35 and cannot, therefore, be the subject of a recourse. (Stassinopoulos, TheLawof Administrative Disputes, 4th edition, p. 175; Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959, pp. 240-241). 618 3 C.L.R. Kyprianides v. Republic Stylianides J. It iswellsettled that a confirmatory act lacks executoiy natuic and, therefore, it cannot be made the subject-matter of a recourse under Article 146 of the Constitution. (Tsatsos— Application for Annulment, 3rd edition, p. 131). For an act 5 to be confirmatory the following elements are required:(
3. a)Identity of the issuing authority; (
4. b)Identity of the person or persons to whom it relates; (
5. c)Identity of the procedure; (
6. d)Identity of the reasoning; and, 10 (
7. e)Identity of the order. (Tsatsos—op. cit, pp. 132-133). There is no quarrel that (a), (b), (
8. c)and (
9. e)are identical in the decision communicated to the applicant on 24.1.1976 and the letters of 26.11.1981 and 22.1.1982. 15 It iswellsettled that a letter, whichis merely of an informative nature and does not contain a decision creating a new legal situation, is not of an executory nature and, therefore, it cannot be made the subject-matter of a recourse under Art. 146. (Economides v. Republic,

(1980)3 C.L.R. 219; Koudounaris 20 v. TheRepublic,

(1967)3C.L.R. 479,482; Lardisv. TheRepublic,

(1970)3 C.L.R. 356, 359; HjiKyriacos and Sons Limited v. The Republic,

(1971)3 C.L.R. 286, 290; The Republicv. Demetriou,

(1972)3 C.L.R. 219, 223; Theo'dorou v. The Attorney -General of the Republic,

(1974)3 C.L.R. 213; HjiPanayi 25 v. The Municipal Committee of Nicosia,

(1974)3 C.L.R. 366, 375). An act which contains a confirmation of an earlier one, may, however, be executory and therefore subject to a recourse for annulment if it has been made after a new inquiry into the 30 matter. (Kolokassides v. The Republic,

(1965)3 C.L.R. 542; Ktena and Another (No. 1) v. The Republic,

(1966)3 C.L.R. 64; Varnavav. The Republic,

(1968)3 C.L.R. 566, at p. 573). When does a new inquiry exist? The answer is given by Stassinopoulos in The Law of Administrative Disputes, 1964, 35 4th edition, at p. 176, a passage which was adopted and applied by this Court in a number of cases:619 Stylianides J. Kyprianides v. Republic

(1982)"When doesa newinquiry exist, isa question offact. Ingeneral, it is considered to be a newenquiry,thetakinginto consideration of new substantive legal or factual elements, and the used new material is strictly considered, because he who has lost the timelimit for the purpose of attacking 5 an executory act, should not be allowed to circumvent such a time limit by the creation of a new act, which has been issued formally after a new enquiry, but in substance on the basisof thesameelements. So,it isnot considered as a new enquiry, when the case is referred afresh to a 10 Council for examination exclusively on its legal aspect, or when referred to the Legal Council for its opinion or when another legal provision other than the one on which the original act was based is relied upon if there is no reference to additional new factual elements. There 15 is a new enquiry particularly when, before the issue of the subsequent act, an investigation takes place of newly emerged elements or although preexisting were unknown at the time which are taken into consideration in addition totheothers,but for thefirsttime. Similarly,itconstitutes 20 new enquiry the carrying out of a local inspection or the collection of additional information in the matter under consideration". In the present case all the material, including the medical reports, was in the hands of the administration before they 25 reached the decision of 24.1.

1. Eveiything was considered before that date. I see no difference between the reasoning givenin 1976and 1981and
2. Indeed neither the applicant saw any difference at all and he grudgingly mentioned this in his letter of 21.12.
3. No new enquiry was carried out. 30 The letters of 26.11.1981 and 22.1.1982 are of an informative nature; they contain only a confirmation of the 1976 decision and no more. Counsel for the applicant invited the Court to follow the decision inEconomides case (supra). The facts in Economides 35 case are clearly distinguishable from the facts of the present case. The act/s or decision/s attacked by this recourse are no more than confirmatory of the executory act of 24.1.
4. 620 3 C.L.R. Kyprianides v. Republic Stylianides J. In view of the above this recourse is out of time and cannot be entertained by this Court. For these reasons this case is dismissed but in all the circumstances of the case no order as to costs is made. 5 Applicationdismissed. No order as to costs. 621