3 C.L.R. 1983 October 6 [PIKIS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION STELIOS PHYLACTIDES, Applicant, v. THE REPUBLIC OF CYPRUS, AND/OR 1. THE EDUCATIONAL SERVICE COMMISSION, 2. COUNCIL OF MINISTERS, AND/OR • 3. THE MINISTER OF EDUCATION, Respondents. (Case No. 477/82). 5 Administrative Law—Administrativeacts or decisions—Executoryact—Confirmatory act—Informative act—Salaryscales created by the Public EducationalService Law, 1981 (Law 12/80— Emplacement of applicanton one such scale—Letter informing him of such emplacement—Is of an informativecharacter and cannot be made the subject of a recourse. Public EducationalService Law, 1981 (Law 12/81)—Construction of section 4{
- b)of the Law. 10 15 20 Educational Officers—Salary scales—Emplacement on—Section 4(
- b)of the Public EducationalService Law, 1981 (Law 12/81)— Construction. The applicant was at the time of the enactment of the Public Educational Service Law, 1981 (Law 12/81) holding a post in the educational service on scale B6 on the combined establishment of scales B3-B6. Following the enactment of this Law, the provisions of which envisaged automatic repositioning by conferring a right to educationalists to beemplaced onnew scales applicant was emplaced on scale A7 of the combined establishment A5-A7. Under section 4(
- b)of this Law the holders of posts on the combined establishment of B3-B6 who . possessed the special academic qualifications, envisaged by the old scheme for promotion to scale BIO. were eligible for 957 ΡhyIaelides v. Republic
(1938)emplacement on scale A8-A10-A11 provided that they had served at the top scale of B6 for at least one year. By this recourse the applicant pursued two alternative remedies.
(1)A declaration seemingly directed against a positive ac l allegedlyembodiedin aletterof therespondents addressed to the applicant dated 26.8.1982 and, 5
(2)a declaration challenging a continuing omission arising from failure of therespondents togive effect to the provi sions of Law 12/81 in breach or defiance of the duty 10 imposed by s.4(b) and emplace him on scale A8-A10All. Held,
(1)that to theextent that the recourse is directed against a positive act, it is patently unsustainable because the act chal lenged is not onanyviewanexecutory act. Theletterdisclosing 15 the decision complained of, does no morethansignify adherence of the administration to the course taken long ago shortly after the enactment of Law 12/81,in May 1981,when they emplaced the applicant on scale A7 of thecombined establishment A5-A7. From that perspective, it is a confirmatory act. But, more 20 accurately, the letter does no more than inform the applicant of the existing position without in any way purporting to incorporate any decision taken. The letter was essentially of an informative character and, therefore, non justiciable.
(2)That since applicant did not possess all the qualifications 25 necessary for promotionto old scale BIObecause he hadneither reached the top of scale B6nor served at that point for a period of a year at the time of the enactment of Law 12/81; and that as, by virtue of section 4(b) of the Law, possession of theneces sary qualifications under the old schemes for promotion to 30 BIOwas a necessary prerequisite to regrading at scale A8-A10All, he had no right to be positioned at that grade; that, there fore, the Educational Service Commission owed him no duty they omitted to discharge; and that, on the contrary, they regraded him as provided by Law and far from omitting to carry 35 our their duties under the Law, they gave effect to them in compliance thereto; accordingly the recourse must fail. Application dismissed. Cases referred to: Paphitis v. Republic
(1983)3 C.L.R. 255. 40 958 3 C.L.R. Phylacttdes v. Republic Recourse. Recourse against the refusal of the respondents to give effect to the provisions of the Public Educational Service Law, 1981 (Law No. 12 of 1981). 5 A. S. Angettdes, for the applicant. R. Vrahimi(Mrs.), for the respondents. Cur.adv.vult. PIKIS J. read the following judgment. Resolution of the recourse turns exclusively on the interpretation of s.4(b) of the Public Educational Service Law - 12/81, for the reorganisation of the service, salary and otherwise and, its applicability to the circumstances of the applicant. The law aimed to restructure the service and alter the hierarchy by the establishment of new gradesintheeducational service. Newgradeswerecreated and provision was made for the repositioning of educationalists to new scales, in correlation to the position held, under the replaced schemes, at the time of the enactment of the law. The restructuring was, it seems, designed to elevate the position of educationalists, salary and status wise. The legislative scheme envisaged automatic repositioning by conferring a right to educationalists to be emplaced on new scales,whilecasting aduty onthe EducationalServiceCommission, responsible under the lawfor themanning and grading of theservice,to implement thenew schemeandmakethenecessary adjustments. By his recourse the applicant pursues two alternative remedies:- 30
(1)A declaration seemingly directed against a positive act allegedlyembodiedinaletteroftherespondentsaddressed to the applicant dated 26.8.82 and,
(2)a declaration challenging a continuing omission arising from failure of the respondents to giveeffect to the provisions of Law 12/81 in breach or defiance of the duty imposed by s.4(b). 35 Totheextentthat therecourseisdirected againsta positiveact, it ispatently unsustainable becausethe act challenged isnot on any view an executory act. The letter disclosing the decision complained of, does no more than signify adherence of the 959 Pikls J. PhylactMes v. Republic
(1983)administration to the course taken long ago shortly after the enactment of Law 12/81, in May 1981,when they enplaced the applicant on scale A7 of the combined establishment A5 -A7. From that perspective, it is a confirmatory act. But, more accurately, theletter does nomorethan inform theapplicant of 5 the existing position without in any way purporting to incorporate any decision taken. The letter was essentially of an informative character and, therefore, non justiciable. The alternative ground discloses, on the face of the recourse, an omission amenable to judicial review for it charges the ad- 10 ministration withfailure tocarry out amandatory duty imposed by a statute, viz. s.4(
- b)- Law 12/81. Omission to carry oul a positive statutory duty vests in the subject a correlative right to demand the discontinuance of the omission. A statute casting a positiveduty on theadministration may becontrasted with an 15 empowering enactment that may beinvoked at thediscretion of the authority empowered thereby. Inaction in the latter case does not constitute an actionable omission. The time-bar set up by Article 146.3 for judicial review, is inapplicable in the caseofacontinuingomissiontocarryoutadutyimposedbylaw. 20 The complaint respecting the omission is that respondents failed to regrade the applicant in accordance with their duty under s.4(
- b)of the Law. In particular, that they omitted to place him on the appropriate scale of the combined establishment ofA8-A10-AIL Farfrom admitting omission ofduty, 25 respondents contended in theopposition and argued before me, that they carried out their duty to the full; consequently, the recourseoughttobedismissed. Notonly,Mrs.Vrahimiargued, theyapplied the lawintherightperspective,but addedthat they gaveeffect to it in the spirit of the agreement that preceeded it, 30 between Government and theTrade Union of secondary school teachers, recorded in the memorandum of 20.1.81. In Paphitis And Othersv. Republic
(1983)3 C.L.R. 255, I had occasion to review the implications of a collective agreement in the domain of public law. It has no impact. It creates neither rights nor 35 liabilities at public law. I hasten to add, it is no aid for the interpretation of legislation notwithstanding that it may purport to reproduce it. The letter and language of a section of a law are our guideto itsmeaning asmay bedepicted inthecon- 960 3 C.L.R. Pbylactides v. Republic Pikis J. text of thepurposes of theenactment,discernible from a reading of the statute as a whole. Consequently, neither prima facie coincidence nor prima facie divergence between the provisions of thememorandum andthoseof Law 12/81areof any relevance 5 to the interpretation to the provisions of the law. 10 15 20 25 30 35 40 In thecase of s.4(b), the interpretationof the law presentsno extraordinary complication. The fact that s.4(
- b)is expressed without economy of language does not obscure its meaning. Lack of concision does not in this case hide legislative intent. Mr. Angelides argued in effect that,thefirst part of s.4(
- b)isthe only relevant provision respecting the entitlement of holders of the posts B3 -B6, under the old scaling to emplacementonthe new scale A8 - A10 -All. Itprovides thattheholders of posts on the combined establishment of B3 - B6 who possessed the special academic qualification envisaged by the old scheme for promotion to scale BIO,are eligible for emplacement on scale A8 - A10 - All. Had the law ended there, the case for the applicant would have been ironcast. However, the afore mentioned qualifications arenottheonly qualifications required for emplacementonthenew grade A8 -A10 - Al L, As thelaw lays down, regrading on scale A8 - A10 - All is specifically subject toadditionalqualifications-''δικαιούνται, τηρουμένωντών λοιπών προυττοθέσεων..."(are entitled,subject totheremaining prerequisites ). The qualifications are those required under the old scheme for promotion from the establishment B3 - B6 to the post BIO. Oneof these qualifications was service at the top scale of B6for at least oneyear before becoming eligible for promotion to BIO. Mr. Angelides submitted that the indi stinguishable reference in the first part of s.4(
- b)to the holders of thecombined establishment B3 -B6,signifies an intentionto do way with qualifications peculiarly connectedwith holders of the post B6. This argument overlooks that reference to scale B3 - B6 is made in a descriptive sense without any intentionof blunting existing difference between officers at different rungs of theladder or equating themfor purposes of regrading underthe new scheme. The applicant possessed some but not all the qualifications necessary for promotion to BIO (old scale). He had neitherreachedthetopof scale B6 nor served at thatpoint for a period of a year. On 1.9.80he reached the top of scale B3 and climbed the ladder as from that day to B6. That was > 961 Pfkis J. Phylactides v. Republic
(1983)the position heheld at the time of theenactment of Law 12/81. And inasmuch as possession of the necessary qualifications under the old schemes for promotion to BIO was a necessary prerequisite to regrading at scale A8 - A10 - All, he had no rightto bepositioned at that grade. Certainly the Educational 5 Service Commission owed him no duty they omitted to discharge. On thecontrary they regraded him asprovided bylaw. The inescapable conclusion is that respondents, far from omitting to carry out their duties under the law,they gave effect to them in compliance thereto. The recourse is dismissed. 10 I must record it is with reluctance I refrain from adjudging the applicant to pay costs. Thelaw wasclear. Applicant had every opportunity to advise himself correctly about his rights. Intheresult, theapplication isdismissed. Lettherebenoorder as to costs. Recourse dismissed with no order as to costs. 962 15