clr/1983/1983_3_883.pdf

(2)of the Public Educational Service Law, 1969 (Law 10/69). Public Educational Service Law, 1969 (Law 10/69)—Hierarchical application in section 5

(2)of the Law. 20 On 27.8.1968 the respondent Committee decided to appoint theapplicant to thepost of Metal Work InstructorClass" C " , on probation as from 1.9.1968. It,also, decided that on appoint883 Goullcbnos r. Republic

(1983)ment to the permanent establishment applicant would be emplaced on the starting point of the salary scale and his incremental date would be the 1st of September commencing from the year following his appointment. Applicant accepted the offer of appointment, embodying the above decision, on 12.

1. 5 1968 without lodging any complaint or making any reservation. On 18.3.1970 the applicant addressed to theChairman of the respondent Committee a letter complaining that he did not receive any increments. The Committee turned down his complaint by letter dated 28.3.1970 wherein it was stated that 10 on his appointment to the permanent establishment on 1.9.1968 he was emplaced on the starting point of the salary scale of his post, his previous "educational service from 15.3.1966—15.
2. 1966and 15.I0.I966-31.8.1968 having been calcualated towards the technical experience required for appointment for the purpo- 15 sesofthethenlegislationinforce"; andthat hisfirstincremental date was the 1.9.1969 and that the aforesaid increment was already paid to him. The applicant upon receiving the letter of 28.3.1970 did not take any steps either by meansof a recourse or otherwise. On 20 25.2.1982, having been confirmed in the post of Instructor"C" on 9.10.1970and promoted to instructor *'B" on 11.3.1975, he addressed a letter to theCommission reverting to the "subject of the three increments which were calculated as technical experience for his appointment on a permanent basis on 25 1.9.
3. The Commission turned down the complaint of the applicant and informed him of its decision by letter dated 16.3.
4. Hence this recourse. Respondents raised a preliminary objection that the sub judice decision lacks executory character and that the recourse 30 wasfiledout of time. They, also, alleged in their address that the applicant possessed no existing legitimate interest because on 12.10.1968 he accepted unreservedly the administrative decision of the respondents. Held,that an administrative act is only amenable within a 35 competence, such as of this Court under Article 146 of the Constitution if it is executory; that a confirmatory decision of the administration is not of an executory nature and cannot be made the subject-matter of a recourse but when the admi884 3 C.L.R. 5 10 15 20 25 Gouliehnos v. Republic nistration confirms a previous executory act after a new enquiry then the resulting new act or decision is itself executory too, and therefore justiciable; that in taking the sub judice decision the respondent Commission did not carry out a new inquiry because no new facts were placed before it by the applicant; and that, therefore, the sub judice decision was not of any executory character but merely confirmatory of the decision of 27.8.1968; accordingly it cannot be made the subject of a recourse. Held, further, on the question whether there is continuing omission by the administration in the senseof Article 146.1 of the Constitution: That an omission, in the sense of paragraph 1 of Article 146 of the Constitution, means an omission to do something required by Law, as distinct from the non-doing of a particular act or the non-taking of a particular course as a result of the exercise of discretionary powers; that where the omission is of a continuingnature and has continued up to the date of the hearing the Court has jurisdiction to'adjudicate on a recourse and there can be no question of the recourse beingfiled out of time under Article 146.3 of theConstitution; that the facts of this case do not establish an "omission" or a "continuing omission" because the respondent Commission has exercised its powers according toLaw and hasnever flinched from exercising its duty; and that since there is no continuing omission the recourse is out of time. Held, further,

(1)that the applicant has no legitimate interest envisaged by Article 146.2 of the Constitution having freely and unreservedly accepted the executory and valid decision of the respondent as early as 12.10.1968. 30 35 40

(2)That section 5

(2)of Law 10/69 allows a re-examination of its decision by the Educational Service Commission on an application to it not in the sense of" ένδικοφανήξ Ιεραρχική προσφυγή" as envisaged by the Greek Administrative Law but in the sense of "χαριατική προσφυγή" or "αίτησις 6εpcrrreias" or "απλή Ιεραρχικήπροσφυγή", in which case the decision on such an application definitely lacks executory character being of a confirmatory nature. Cases referred to: Constantinidou and Others v. Republic

(1974)3 C.L.R. 416 at p. 418; 885 Goulielmos v. Republic

(1983)Holy See of Kitium v. Municipal Council of Limassol, 1 R.S.CC. 15; Piperisv. Republic

(1967)3 C.L.R. 295; Myrianthis v. Republic

(1977)3 C.L.R. 165; Kolokassides v. Republic

(1965)3 C.L.R. 542 at p. 551; 5 Ioannou v. Republic

(1982)3 C.L.R. 1002; Kelpis v. Republic

(1970)3 C.L.R. 196 ; Miliatos v. Republic

(1982)3 C.L.R. 1161; HjiAnastassiouv. Republic

(1982)3 C.L.R. 1173; Cy^rwj Tannery v. Republic

(1980)3 C.L.R. 405; 10 Λ>//«* Association v. Republic

(1972)3 C.L.R. 1; Mustafa v. Republic, 1 R.S.CC. 44 at p. 47. Recourse. Recourse against the refusal of the respondents to grant applicant increments retrospectively as from 1968 on the basis of his particular service on contract in the educational service. 15 A.S. Angelides, for applicant. R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. LORIS J. read the following judgment. The applicant in the 20 present case served on contract as Metal Work Instructor— Class C—(Technical Education) for the following periods: 15.3.1966 up to 15.7.1966 and from 1.9.1966 up to 31.8.1968. On 27.8.1968 the Educational Service Committee decided to appoint applicant to the permanent post of Metal Work 25 Instructor—Class C—on probation, as from 1.9.1968; extract of the relevant minutes of the Educational Service Committee dated 27.8.1968appear inappendix A attachedto theopposition. The aforesaid decision of the Educational Service Committee was communicated to the applicant by means of a letter dated 30 1.10.1968 (vide blue 29 in the personal file of the applicant which is exh. " X " before nie.) Applicant accepted his said appointment in writing on 12.10.1968 (vide blue 32 in exh. "X"). In connection with the said decision of the E.S.C. (appendix A), the relevant offer communicated to the applicant 35 886 3 CX.R. Goulielmos v. Republic Loris J. (blue 29) and the acceptance of the applicant (blue 32) it is significant to note the following: 5 K* (

1. a)The decision provided and it was so communicated to the applicant in clear and unambiguous words in the offer, that on appointment to the permanent establishment he would be emplaced on the starting point of the salary scale and his incremental date would be the 1st of September commencing from the, year following his appointment, (
2. b)The applicant when accepting the said offer for appointmenton 12.10.1968 didnotlodgeanycomplaint ormakeanyreservation; heacceptedtheoffer embody­ ing the decision of the E.S.C. unreservedly. About two years later, on 18.3.1970 applicant addressed to 15 the Chairman of the E.S.C. a letter (vide appendix Βattached to the opposition) complainting that he did not receive any increments in spite of thefact thathe is "working for 4 years". On 28.3.1970 the Chairman of the E.S.C, obviously acting onbehalf,andconveying theviews,of the Committee,addressed 20 a letter to the applicant in reply (vide appendix "Γ" to the opposition) informing the latter that: 25 30 (
3. a)on his appointment to the permanent establishment on 1.9.1968 he was emplaced on the starting point of the salary scale of his post,his previous "educational service from 15.3.1966-15.7.1966 and 15.10.196631.8.1968 having beencalculated towards thetechnical experience required for appointment for the purposes of the then legislation in force". (
4. b)His first incremental date was the 1.9.1969 and that the aforesaid increment was already paid to him. . The applicant having received the said letter on 28.3.1970 did not take any steps whatever either by means of a recourse or otherwise; he slept over thematter for a period of 12 whole years and it was only as late as 25.2.1982 (having been,(
5. a)con35 firmed in the post of Instructor " C " on 9.10.1970—blue 43— and (
6. b)promoted to Instructor "B" on 11.3.1975—blue 86— in themeantime), when he decided to address to theChairman 887 Loris J. Goulielmos v. Republic

(1983)of the E.S.C.a letter(appendix "Δ" to theopposition) reverting on what he termed as "the subject of the three increments which were calculated as technical experience for his appoint­ ment on a permanent basis" on 1.9.

1. The E.S.C. examined the said application at its meeting of 5 15.3.1982 and turned down the said complaint of the applicant (vide minutes of the meeting in appendix Ε to the opposition) informing applicant accordingly by letter dated 16.3.1982 (vide appendix "ΣΤ" to the opposition). The applicant impugnes this latter decision of the E.S.C. 10 (communicated to him by the said letter of 16.3.1982)by means of the present recourse praying for: "
2. Declaration of the Courtto the effect thatthe actand/or decision of Respondent No. 1dated 16.3.1982, by virtue of which the claim of the applicant for increments on 15 the basis of the actual totality of his service was turned down, is unlawful, void and of no legal effect.
3. Declarationof the Courtto theeffect thatthecontinuous omission of the respondents to accept the granting to the applicant as from 1968 when he was appointed 20 as permanent educationalist, and/or their refusal to pay to the applicant increments retrospectively as from 1968 on the basis of his particular service on contract in the educational service, is void, illegal and whatever was omitted ought to be done. 25
4. The reply of respondent No. 1dated 16.3.1982 substant­ ially omits to answer the claim of the applicant as sub­ mitted on 25.2.1982, for this reason such an omission ought to be declared void by order of the Court and what was omitted ought to be done." 30 The respondents in their opposition raised two preliminary objections to the effect:
5. That the impugned decision of Respondent No. 1dated 16.3.1982 is not of an executory character.
6. That the present recourse for annulment is out of time 35 as the decision of Respondent No. 1 dated 16.3.1982 888 3 C.L.R. Goullefanos *• Republic Loris J. is confirmatory of an earlier decision of the respondent dated 28.3.
7. In the alternative the respondents allege that they acted correctly and lawfully after having correctly exercised their 5 discretionary power and carrying due inquiry into all relevant matters in this case. Pursuant to the directions of this Court the parties filed writtenaddressesandhadtheopportunitytoclarify on31.3.1983 vivavocecertain points; on this latter occasion the respondents 10 producedthepersonalfileoftheapplicant,whichismarked "X". The applicant relies on 6 grounds of Law set out in his recourse whilst the respondents by their express preliminary objections setoutintheopposition plungedeeplyintothesphere of the jurisdiction of this Court by alleging that the decision 15 impugnedlacksexecutorycharacterandthatthepresentrecourse was filed out of time. I say express preliminary objections set out in the recourse because in their written address they indirectly raise another point notably absence of existing legitimate interest in the applicant who has accepted unreservedly 20 on 12.10.1968 the administrative decision of the respondents; in this respect it may be added that "as litigationunderArticle 146of the Constitution is a matter of Public Law, thepresence of an existing legitimate interest has to be inquired into by an administrative Court even acting ex propriomotu" {Constanti25 nidou &Others v. TheRepublic.

(1974)3 C.L.R. 416 at p.418). As my primary duty is to see that the recourse wasfiledin time {HolySeeof Kitium v. The MunicipalCouncilofLimassol, 1 R.S.CC. 15) I intend to examine first the objections raised in the opposition together with the interconnected topic of 30 "continuous omission" raised by the applicant. On 27.8.1968the Educational ServiceCommittee (established under s. 7

(2)of Law 12/65) decided to appoint applicant to the permanent post of MetalWork Instructor—Class C—on probation as from 1.9.1968. 35 The then relevant legislation was Law 10/63 of the Greek Communal Chambers as amended by Laws 2/64 G.C.C., Law 24/66 and Law 4/68 (the latter with effect as from 1.9.1967). 889 Loris J. Goulielmos v. Republic

(1983)The qualifications of Instructor of Technical School—Class C—were set out in s. ll

(3)(iii)(

1. b)of Law 10/63 G.C.C. which reads as follows: "άπολυτήριον Μέσης Τεχνική? Σχολής και διετή τουλάχιστον τεχνικήν πεϊραν είς τον τομέα τή$ είδικότητος τήν όττοίαν 5 προορίζονται να διδάξουν και δντες κάτοχοι είδικοϋ πιστο­ ποιητικοί/ αποκτωμένου έν τω έξωτερικώ ή έν Κύπρω μετά παρακολούθησιν παιδαγωγικών μαθημάτων καΐ εγκρινο­ μένου υπό του Γραφείου Παιδείας". ("school leaving certificate of a Secondary Technical School and at least two years' technical experience in the field of his specialization which they are intended to teach and being the holders of a special certificate obtained abroad or in Cyprus after following paedagogic lessons and approved by the Education Office"). 10 15 Technical experience was thus defined in s. 2 of Law 10/63 G.C.C. " Τεχνική πείρα' σημαίνει πεϊραν κτηθεϊσαν προ ή κατά τήν διάρκειαν τών οπουδών ή μετά τήν άποπεράτωσιν των σπουδών τοΟ καθηγητού διά τακτκής KCI πλήρους 20 απασχολήσεως προσηκόντως βεβαιούμενης καΐ άποδεικνυομένης ώς Ικανοποιητικής είς ανάλογους τής είδικότητος αύτοϋ τεχνικός εργασίας και αποτελούσαν πρόσθετον προσόν διά τόν κοηέχοντα ταυτην καθηγητήν: Νοείται δτι πεΐρα κτηθεϊσα κατά τήν διάρκειαν των σπουδών σημαίνει πεϊραν 25 μή αποτελούσαν μέρος τών προς άπόκτησιν τοΰ πτυχίου σπουδών τοΰκαθηγητού". (** 'Technical experience' means experience acquired before or during the studies or after the conclusion of the studies of the school master by regular and full occupation duly 30 certified and proved as satisfactory in analogous to his specialization technical jobs and constituting additional qualification for the schoolmaster possessing it: Provided that experience acquired during the studies means experience not being part of the studies for obtaining the degree by 35 the schoolmaster"). With the marginal note "Recognition of technical experience for purposes of increments" in s. 20 of the same Law we read: 890 3 C.L.R. 5 Goullelmos v. Republic Loris J. "20. Είς καθηγητάς το πρώτον διοριζόμενους είς Τεχνικός, Γεωργικός ή *Επαγγελματικός Σχολάς δύναται ναπαρέχεται μία πλήρης προσαύξησις δι' εκαστον τών δύο πρώτων ετών τεχνικής πείρας, ήν κέκτηνται, ημίσεια δε προσαυξησις δι* εκαστον τών υπολοίπων ετών τοιούτης πείρας, αλλ" έν πάση περιπτώσει ουχί πέραν τών 6 προσαυξήσεων έν συνόλω: Νοεϊτα· δτι τά απαιτούμενα διά τόν διορισμάν καΐ τήν κατάταξιν ετη τεχνικής πείρας δέν λαμβάνονται ΰπ' όψιν διά σκοπούς προσαυξήσεων". 10 15 20 ("20. To schoolmasters appointed for the first time in Technical, Agricultural or Professional Schools may be granted a full increment for each of the first two years of technical experience, which they possess, and half an increment for every one of the rest of such experience, but in any case not more than six increments in all: Provided that the required for appointment and classi­ fication years of technical experience are not taken into consideration for the purpose of increments"). It is crystal clear from the relevant provisions of the law in force at the time the decision of the E.S.C. was taken, that an instructor of Technical School-Class C—required the follow­ ing qualifications: (
2. a)Certificate of graduation of a Secondary Education Technical School. 25 (
3. b)At least 2 years "technical experience" as defined in the law. (
4. c)Special certificate as regards "Paedagogical" lessons. 30 35 As regards increments the E.S.C. had a discretion, exercisable on first appointment, to grant to an appointee increments for technical experience as envisaged by s. 20 of the Law subject to the express restriction that the required technical experience qualifying for appointment could not be calculated for incre­ mental purposes. Having in mind the requisites envisaged by the law at the time of such appointment let us now proceed to examine the relevant decision of the E.S.C. as it emerges from the minutes of the proceedings at themeeting of the E.S.C. held on 27.8.1968, 891 Loris J. Goulielmos v. Republic

(1983)in connection with the said appointment of the applicant (Appendix Ά ' attached to the opposition). Thefirstobservation is that all five members of the Educa­ tional Service Committee envisaged by s.7

(2)of Law 12/65 were present; and in the absence of any indication to the 5 contrary it can be presumed that the decision was unanimous. The qualifications of the applicant taken into consideration were: (a) Certificate of graduation of the Technical School of Nicosia

(1964). 10 (

1. b)The technical experience of the applicant taken into consideration was as follows: (
2. i)For the period (
3. ii)" " " (iii) " " " 1. 7.64—25.8.64 15. 3.66—15.7.66 and 15.10.66—31.8.68 15 i.e. the whole period during which the applicant was serving on contract with the Technical Education as Metal Work Instructor—Class C—was taken into consideration. In this respect it must be emphasized that it is abundantly clear from the personal file of the applicant that the above 20 mentioned technical experience was theonly technical experience allegedly possessed by the applicant at the time. The E.S.C. bearing in mind (
4. a)that the applicant had the aforesaid technical experience which hardly exceeds 28 months (
5. b)the provisions of s. lI(3Xiii)(
6. b)which require as a necessary 25 qualification for appointment at least two years technical experience, proceeded to appoint the applicant in the per­ manent establishment of Instructor—Class C—on probation, as from 1.9.1968 calculating his aforesaid technical experience as technical experience qualifying for his appointment pursuant 30 to the provisions of s. ll

(3)(iii)(b) of the Law and made it abundantly clear that such technical experience could not be calculated for incremental purposes pursuant to the proviso of s.20 of thesame Law by emplacing theapplicant onthe start­ ing pointof thesalaryscaleofthepost of Instructor—Class C—. 35 892 3 C.L.R. Goulielmos v. Republic Loris J. Under thecircumstances it was reasonably open to theE.S.C. to reach their aforesaid decision which was communicated to the applicant on 1.10.1968 (blue 29) who accepted same freely and unreservedly on 12.10.1968 (blue 32). This decision of 5 the administration was never challenged by the applicant; on thecontraryas stated above it was accepted by him unreservedly on 12.10.1968; and it is well settled that a person who expressly or impliedly accepts an act or decision of the administration is deprived because of such acceptance of a legitimate interest 10 entitling him to make an administrative recourse for theannul· ment of such act or decision (Piperis v. The Republic

(1967)3 C.L.R. 295, Myrianthis v. The Republic

(1977)3 C.L.R. 165, Conclusions of The GreekCouncil of State 1929-1959 p. 261). 15 About 2 years after this final decision of the E.S.C. the applicant addressed to the Educational Service Committee a letter dated 18.3.1970 (appendix "B" to the opposition) complaining that he did not receive any increments "so far"; on 28.3.1970 a letter emanating from the E.S.C. was sent to 20 the applicant in reply (appendix " C " to the opposition); in _this connection 1feel it my duty to state, with respect, that the letter of 28.3.1970 cannot be, as alleged by learned counsel of applicant, "a personal informative act of the Chairman of theE.S.C.";theletter is headed ontop"Theoffice of theEduca25 tional Service Committee" and it is signed underneath by the Chairman of E.S.C. in the same way letter of 16.3.1982 (appendix) "ΣΤ" to the opposition) is headed and signed. According to the presumption of regularity the letter of 28.

1. 70 emanates from the E.S.C. and expresses the views of the 30 Committee and not only those of its Chairman. From the contents thereof-it is clear that a sort of enquiry was carried out by theE.S.C.and a decision was taken;without any enquiry the E.S.C. would not be in a position to point out to the applicant that his increment of 1.9.1969 was already paid to 35 him; and without acquainting themselves with the facts of this particular case arid deciding on the matter, they would not be in a position to signify their adherence to a course already adopted by their decision of 27.8.
2. I feel that I should not deal any further with the decision of the E.S.C. contained 40 in their letter of 28.3.1970 addressed to the applicant; suffice 893 Loris J. Goulielmos v. Republic

(1983)it to say that the applicant did never challenge by recourse or otherwise the decision in question which signified as already stated,theadherenceof the E.S.C.totheirdecision of 27.8.

1. In order to complete the picture it may be stated as well that the applicant was confirmed by the E.S.C. in the post of 5 Instructor " C " on 9.10.1970 (vide blue 43 in the file) and promoted to Instructor "B" on 11.3.1975 (blue 86). Onnone of these occasions did he challenge the relevant decisions of the E.S.C. or raise any claim to "retrospective increments" as from
2. On 25.2.1982, that is about 14 years after the final and con­ clusivedecision of theE.S.C. of 27.8.1968, theapplicantaddress­ ed a letter (appendix "Δ" to the opposition) to theChairman of the E.S.C. reverting on "the subject of these increments which were calculated as technical experience for his appoint- 15 ment on a permanent basis" on 1.9.
3. The E.S.C. examined the aforesaid application at its meeting of 15.3.1982 and rejected the said complaint of the applicant informing applicant accordingly by a letter dated 16.3.1982 (appendix "ΣΤ" to the opposition) signifying therein its 20 adherence to its decision of 27.8.
4. In considering this decision of the E.S.C. 1must decide in thefirstplace whether this decision is of an executory character or not. In this connection I consider it pertinent to deal as briefly 25 as possible with thelegal aspect on this matter before indulging into the factual aspect. As early as 1965 the Full Bench of this Court in the case of Kolokassides v. TheRepublic

(1965)3C.L.R. 542 at p. 551 held, affirming thedecision of thelearned trial Judge (Triantafyllides 30 J., as he then was) that: "An administrative act (anddecision also) is only amenable within a competence, such as of this Court under Article 146, if it is executory (εκτελεστή); in other words it must beanactby meansof which the"will'' of theadministrative 35 organ concerned has been made known in a givenmatter, anactwhich isaimedatproducingalegal situationconcern894 10 3 CUR. Goulielmos v. Republic Loris J. ing the citizen affected and which entails its execution by administrative means (see Conclusions from the Juris­ prudence of the Council of State in Greece 1929-1959, pp. 236-237)". 5 it is also an established principle of Administrative Law that a confirmatory decision of the administration is not of an executory nature and therefore it cannot be made the subjectmatter of a recourse. According to Stassinopoulos on the Law of Administrative Disputes, 4th ed. at p. 175 a confirmatory 10 act or decision is one which repeats the contents of a previous executory act and signifies the adherence of the administration to a course already adopted; but when the administration confirms a previous executory act after a new enquiry then the resulting new .act or decision is itself executory too, and 15 therefore justiciable. (Vide loannou v. The Republic

(1982)3 C.L.R. 1002). As to the question when does a new enquiry exist Stassino­ poulos (supra) at p. 176 states the following: 20 . 25 30 "When does a new enquiry exist, is a question of fact: in general, it is considered to be a new inquiry the taking into consideration of new substantive legal or real material™". Further there is authority for the proposition that mere re­ examination of an administrative decision from the legal aspect only does not amount to a new enquiry (vide Kelpis v. The Republic

(1970)3 C.L.R. 196 and the Decisions of the Greek Council of State 1929-1959 p. 241). The requisites of a confirmatory act or decision of the admi­ nistration are set out in the text-book of Professor Th. Tsatsos "The Application for Annulment before the Council of State" 3rd ed. at p. 132. They read as follows: " ΕΙδικώτερον απαιτείται δια να είναι νεωτέρα πρδξις βεβαιωτική προγενεστέρας: 35 (α) Ταυτότης τη? Ικδούσης άμφοτέρας τάς πράξεις αρχής ή Ιεραρχική έξάρτησις της έκδούσης τήν προγενεστέραν πρδξιν άπ6 τήν έκδούσαν τήν νεωτέραν έκτος έάν πρό­ κειται περίπτωσις μεταβιβάσεως λόγω' τυπικής Ιεραρ^ 895 Lorts J. Goulielmos v. Republic

(1983)χικής προσφυγής της αρμοδιότητος της έκδούσης τήν πρώτην πραξιν αρχής είς τήν έκδοΰσαν τήν δευτέραν. (β) Ταυτότης τοΰ προσώπου ή τών προσώπων εϊς δ αϊ πράξεις άφορώσι. (γ) Ταυτότης της νομίμου διαδικασίας. 5 (δ) Ταυτότης ιής πραγματικής αίτιολογίας αμφοτέρων τών πράξεων. (ε) Ταυτότης τοΰ διατακτικοΰ-" (** Particularly for a later act to be confirmatory of a previous one it is required that: (

1. a)Identity of the issuing authority of both acts or hier­ archical dependence of the issuing authority of the previous act on the authority issuing the later act unless it is a case of transfer due to simple hierarchical recourse in the competence of the authority issuing the first act to the issuing authority of the second. 10 15 (
2. b)Identity of the person or persons to whom the acts refer. (
3. c)Identity of the legal procedure. (
4. d)Identity of the actual reasoning of both acts. 20 (
5. e)Identity of the order"). Reverting now to the facts of this case; it is of utmost import­ ance to note that the applicant in his application of 25.2.1982 to the E.S.C. did not place any new facts before the Committee other than those already before the E.S.C. on 27.8.68 when the 25 relevant decision was taken; to be more succinct I must say that the applicant on 25.2.1982 was not placing any facts before the E.S.C; he was simply voicing his opinion to the effect that the E.S.C. by deciding on 27.8.1968 to emplace him on the starting point of the salary scale "were causing injustice 30 to him". In this connection it must be stated that the 2 certificates for "technical experience" referred to by learned Counsel for applicant in his written address and appended thereto (The one from Cyprus Sulpher and Copper Company Ltd., dated 35 896 3 C.L.R. Goolielmos r. Republic Loris J. 11.6.1982 andtheother from D.O.M.S.dated 13.9.1982, were never placed before theE.S.C.either on27.8.1968or 15.3.1982. Thisisabundantlyclear(a)from therelevantdatesofthereports in question(11.6.1982 and 13.9.1982)andthedateofthepresent 5 recourse which was filed on 31.3.1982, (
6. b)from the cor­ respondence exchanged between counsel for applicant and the E.S.C. after thefilingofthepresent recourseasitappears from the personal file of theapplicant. It is apparent from theminutes of 15.3.1982 (appendix" E " 10 to theopposition) andtheletter of 16.3.1982 (appendix "ΣΤ" that the E.S.C. on 15.3.1982 having no new facts before it went through the personalfileof the applicant and taking into consideration the qualifications required by the existing legislation at thetime of the appointmentof the applicanton 15 probation, in the post of Instructor—Class C— (27.8.1968), confirmed thedecision ofthe E.S.C.of 27.8.1968 and informed the applicant accordingly signifying its decision to adhere to the decision of the E.S.C. of 27.8.1968. Thus thedecision of the E.S.C. of 15.3.1983communicated 20 totheapplicant on 16.3.1982wasnotof anexecutory character but merely confirmatory of the decision of 27.8.1968. Before concluding on this point 1feel duty bound to deal specifically with two submissions (apart from those already dealt with) advanced by learned counsel for applicant incon25 nectionwith hisstandthatthedecisionoftheE.S.C.of15.3.1983 could not be of a confirmatory nature. Learned counsel relying mainly onthetext-book of Professor Tsatsos "The Application for Annulment before the Council of State" (supra) on the question of the requisites of acon30 firmatory actor decision of the Administration submittedthe following: 35 A. Thedecision of the E.S.C. of 27.8.1968 andthedecision of the E.S.C. of 15.3.1982 were notemanating from the same administrative organ; intheformer case,hesubmitted the administrative organ was the one established under law 12/65, a law providing for thetransfer of the exercise of the powers of theGreek Communal Chamber, which has ceased tofunction and wasbased onthelawofneces897 LoHs J . Goulielmos v. Republic

(1983)sity, whilst the administrative organ which gave its decision on 15.3.1982 was a completely different organ created by law 10/69. Elaborating on this submission counsel of applicant relied mainly on the case of Miliatos v. The Republic

(1982)3 C.L.R. 1161 and 5 HjiAnastassiou v. The Republic

(1982)3 C.L.R. 1173. In both aforesaid cited cases (decided by the learned President of this Court) the sole issue was whether in view of the provisions of Article 124.6 of the Constitution, section 4

(5)of the Public Service Law 1967 (Law 33/67) 10 wasvalidly enacted; it istrue that intheaforesaid decisions the learned President stated that "The Public ServiceCommission which was created by Law 33/67 is not the Commission which was set up pursuant to Article 124 of the Constitution;" this statement refers obviously to the 15 composition of the P.S.C. and was made as a result of the comparison of the qualifications of the Chairman and members of the P.S.C. envisaged by Law 33/67, vis-a-vis the relevant provisions of the Constitution. In the present case no question of comparison arises 20 vis-a-vis the provisions of the Constitution as E.S.C. was the special creation of Law 12/65. The composition and functions of the Educational Service Committee established under Law 12/65 are set out in section 7(subsections 2-7); these sub-sections were repealed by Law 25 10/69 (vide s. 77) and similar provisions were re-enacted by Law 10/69 (vide sections 4 to 18inclusive); it is a fact that the enactment of 1969in respect of the E.S.C. ismore detailed than the enactment of 1965 but the composition and functions of the E.S.C. remain substantially the same; 30 in particular the competence of the Committee as set out in s. 7

(3)of Law 12/65 is identical with the competence of the E.S.C. envisaged by s. 5

(1)of Law 10/69; therefore I have no difficulty in holding that the E.S.C. envisaged by Law 10/69 is the same administrative organ created 35 by Law 12/65. B. The second submission of counsel for applicant in support of his stand that the decision of the E.S.C. of 15.3.1983 could not be of a confirmatory character, is rather complicated; it may be thus summarised; 898 40 3 C.L.R. Goulielmos v. Republic Loris J. (i) Section 5

(2)of Law 10/69 has created a hierarchical recourse. 5 (

1. ii)The application of the applicant dated 25.2.1982 (appendix " Δ " to the opposition) addressed to the E.S.C. was a hierarchical recourse. (iii) Every decision taken on a hierarchical recourse is of an executory nature. 10 (
2. iv)The decision of the E.S.C. taken on 15.3.1982 being a decision on the said hierarchical recourse is a decision of executory nature. Section 5

(2)of Law 10/69 reads as follows; 15 "

(2)Ουδέν τών έν τω έδαφίω

(1)τοΰ παρόντος άρθρου διαλαμβανομένων κωλύει τήν Έτπτροττήν δπως επανεξέταση οίανδήποτε άπόφασιν αΰτης έπ! Ιεραρχική αΙτήσει προς αυτήν". ("

(2)Nothing in subsection

(1)of this section contained prevents the Committee to re-examine any of its decision on a hierarchical application to it"). 20 The first observation is that the sub-section provides for hierarchical application (ίεραρχικήν αϊτησιν) and not for a hierarchical recourse (ίεραρχικήν προσφυγήν) as submitted by countel for applicant. Before examining the nature and effect of theabove mentioned "hierarchical application" I consider iv pertinent to deal very 25 briefly with this topic in the light of the Greek Administrative Law from which it is apparent that the above definition was transplanted. 30 35 According to the provisions of the Greek Constitution every citizen of the Greek State has a right to apply individually or jointly with others to public authorities. (Similar provision is to be found in Article 29 of our Constitution). These appli­ cations are divided in two broad categories (a) "άπλαΐ διοικη­ τικοί πρόσφυγα!" (simple administrative recourses (b) "ένδικοφανεΐξ προσφυγαί"(Vide "Manual of Administrative Law" by Spiliotopoulos 2nd ed. pp. 189, 190). The simple administrative recourses are subdivided again 899 Loris J. Goulielmos v. Republic

(1983)into several categories but as some of the text-book writers differ on naming same I shall confine myself in mentioning. 1. Χαριστική προσφυγή 2. Αίτησις θεραπείας 3. 'Απλή 'Ιεραρχικήπροσφυγή. 5 The first two applications are directed to the same admini­ strative organ which has given the original decision, whilst in the third occasion the applications are submitted to the superior hierarchically organ in order to impugn the original decision of the inferior organ. 10 These recourses have the following common characteristics: (

1. a)No time limit is provided by law (
2. b)No procedure for the submission thereof is envisaged by the relevant law. Applications of this nature may be submitted when the relevant Law is silent or where the relevant Law allows applica­ tions of this nature, but not when the relevant Law expressly prohibits them. 15 The hierarchical recourse which is specifically envisaged by the relevant Law which regulates also the time within which 20 it must be submitted as well as other matters of pro­ cedure is called "ένδικοφανής Ιεραρχική προσφυγή" (vide Lessons of Administrative Law by Stassinopoulos 1957 ed. p. 152, Tsoutsos on Administration and Law 1979 ed. p. 63, Dagtoglou General Administrative Law Vol. A pp. 222, 223, 25 Tsatsos on Application for Redress as Administrative Recourse 2nd ed. p. 16 et seq.) The decisions given in "simple administrative recourses" have no executory character, if they are not issued after new substantial inquiry of the case (vide Manual of Administrative 30 Law by Spiliotopoulos 2nd ed. p. 190). Decisions given in cases of " ένδικοφανούς ίεραρχικης προσφυγής" are generally speaking of executory cha­ racter because by means of such an administrative recourse "the re-examination of the substance of the case is made pos- 35 sible, that is a new inquiry, and a different assessment of the 900 3 C.L.R. Goulielmos v. Republic Lorls J. actual circumstances" (vide Manual of Administrative Law by Spiliotopoulos 2nd ed. at p. 191. From the above brief reference to the Greek Administrative Law itisclear thatthesimplehierarchicalrecourseiscompletely 5 different recourse from "Ινδικοφανής" hierarchical recourse; in theformer case therecourse may be allowed by theLaw but no timelimit or other proceduralmatters are regulated in same in which case the decision given is merely confirmatory whilst in the latter case (ένδικοφανής)the relevant Law provides 10 time limit, the hierarchically superior organ to which it must be addressed (fixing thus competency) the procedure to be followed etc.; in this latter occasion the decision of the hier­ archically superior organ is executory. Reverting now to section 5

(2)of Law 10/69: 1have already 15 observed that it provides for a "hierarchical application" and not for a "hierarchical recourse"; the 2nd observation is that it does not make the "hierarchical application" compulsory; the sub-section provides that nothing in sub-section

(1)"prevents" the Committee from re-examining anyone of its 20 decisions;furthermore itdoesnotprovide eitherthetimewithin which such application is to be submitted nor does it envisage the procedure to be followed. Finally it does not name the hierarchically superior orgiufto .which the application is to be submitted; on the contrary it provides "έττΐ Ιεραρχική 25 σΐτήσει προς αυτήν"; but once the application will have to be submitted to the Committee itself what is the use of the word "hierarchical"? I hold the view that this sub­ section, which is unhappily worded I must say, allows a re­ examination of its decision by the E.S.C. on an application to 30 it not in the sense of "ένδικοφανής Ιεραρχική προσφυγή" as envisaged by the Greek Administrative Law but in the sense of "χαριστικήπροσφυγή" or "αίτησις θεραπείας" or "όπτλή Ιεραρχική προσφυγή". In which case the decision on such an application definitely lacks executory character being of a 35 confirmatory natureas Ihavealready found. Having dealt with the preliminary objections taken by'the defence I shall now proceedto examine theissueof "continuing omission"' raised by the applicant an issue interwoven with the matter of time within which the present recourse ought to 4" have been filed. 901 Lorts J. Goulielmos v. Republic

(1983)An omission, in the sense of paragraph 1 of Article 146 of the Constitution, means an omission to do something required by Law, as distinct from the non-doing of a particular act or the non-taking of a particular course as a result of the exercise of discretionary powers (Cyprus Tannery v. The Republic

(1980)3 C.L.R. 405). 5 Omission in the sense of Article 146.1 "presupposes that no action has been taken by the administration in the matter in question". (Police Association v. The Republic

(1972)3 C.L.R. 1). The leading case on "continuing omission" is the case of Hassan Mustafa v. The Republic, 1 R.S.CC. 44 where it was held by the then Supreme Constitutional Court (at p. 47 of the report) that "Where the omission ___ is of a continuing nature the Court hasjurisdiction to adjudicate on a recourse 15 concerning such a continuing omission notwithstanding that the omission originally commenced prior to the 16th August 1960 - Once the Court has come to the conclusion that the alleged omission in question could be said to have continued up to the date of the hearing there can be no question of the 20 application being filed out of time under para. 3 of Article 146 of the Constitution". This is very briefly the legal position as regards "omission" (in the sense of paragraph I of Article 146 of the Constitution) and "continuing omission". And the question which falls 25 for determination is: do the facts of the present case establish an "omission" and in particular "a continuing omission" rendering the present recourse justiciable? The answer is positively in the negative. The facts of this case, stated at length earlier on in the presentjudgment, indicate 30 that the E.S.C. exercised its powers according to Law never flinching from exercising its duty; thus the E.S.C. decided after proper inquiry the matter on 27.8.1968 and despite the fact that its said executory decision became final and conclusive by the acceptance of same by applicant freely and without any 35 reservation on 12.10.1968, did not flinch from re-examining the case and give its confirmatory decision on 28.3.1970, a 902 10 3 C.L.R. Goulielmos v. Repuhlic Loris J. decision which was never challenged by the applicant. Finally as late as 15.3.1982 (14 whole years after the decision of 27. 8.1968) the E.S.C. indulged into the application of 25.2.1982 and confirming its original decision informed the applicant 5 accordingly on 16.3.1982 by means of a letter (vide appendix "ΣΤ") which signified therein its adherence to the original decision. It is crystal clear to my mind'that on no occasion did the E.S.C. fail to take any action in thematter in question. In the light of the above 1hold the view that the sub judice 10 decision of the Educational Service Committee contained in their letter of 16.3.1982 addressed to the applicant is not a decision of executory character but merely a confirmatory decision of the executory decision of the same organ given on 27.8.1968 which was unreservedly accepted by the applicant 15 on 12.10.1968 thus depriving him of a legitimate interest in the matter; furthermore, thereis noquestion of any "omission" let alone a continuous one. As the decision of 16.3.1982 lacks executory character, the present recourse is not justiciable and as I have already held 20 that there is no continuous omission the present recourse is out of time and therefore is doomed to failure; further acting ex proprio motu (Constantinidou & others v. Republic

(1974)3 C.L.R.416at p.418)Ifindthattheapplicanthasnolegitimate interest envisaged by Article 146.2 of the Constitution having 25 freely andunreservedly acceptedtheexecutory andvalid decision of the E.S.C. as early as 12.10.1968. For all the above reasons the present recourse fails and it is accordingly dismissed. Applicant will pay the costs of the respondents to be assessed by the Registrar of this Court. 30 Recourse dismissed with costs against theapplicant. •903