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(1984)1984 February 9 [A. Loizou. J.] Ν THE MATTER OF ARTICLE 146 OF THE CONSTITUTION KYPRIANOS SAVVA, , Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MfNISTER OF FINANCE, Respondent. (Case j\'o. 266/81). administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—Rejection of applicant's claim concerning his pensionableservice—No recourseagainst rejection—Applicant applyingfor reconsideration but placing no new facts before the administration justifying holding of a new inquiry—Decision rejecting his claim a confirmatory one of the previous executory decision and cannot be made the subject of a recourse under Article 146.1 of the Constitution—Recourse against this latter decision out of time, 5 In June, 1962 the applicant, an educationalist, applied to the 10 Greek Communal Chamber and requested that the period bet­ ween 26.11.1956 to the 31.8.1959, during which he had been out of the service on account of his own resignation, be recognized as pensionable service and his request was turned down. In January, 1968 he applied to the Minister of 15 Education asking for re-examination of his case and again his request was rejected but hefiledno recourse against the rejection. Γη February, 1970 he applied to the Minister of Finance for recognition of the above period as pensionable invoking the same grounds as before and once again his request was turned 20 down in April, 1970 and no recourse was filed by him. In January. 1981 he applied to the Minister of Finance asking for re -examination of his case and when his application was refused in June. 1981. he filed the present recourse. In support of his 20 3 C.L.R. S a n a \. Republic last application applicant relied on the material he had already placed before the respondent and not on any new facts. On the preliminaiy objection thai the sub /udicc decision was a confirmatory one and cannot be made the subject of a recourse: 5 10 Held, that there has been no new executory act as no new facts were placed before the respondent to justify the holding of a new inquiry; that, therefore, the sub iiidice act isa confirmatory one of the previous decision and as such it cannot be made the subject of a lecourse. accordingly the present recourse hus to be dismissed as being out of time. Appiiiation dismissed. Cases referred to: Morangos Ltd. \. Miuiicipa/it\ of nnnagusta
(1979)3 C.L.R.. 73. Evonomides v. RepuMU
(1980)3 C.L.R.
  1. 15 Recourse. Recourse against the refusal of the respondent to recognize as pensionable service the period between 26.11.1956 to 31.
  2. 1959 during which the applicant had been out of the service on account of his resignation. 20 P. Petrides. for the applicant. M. Photiou. for the respondent. Cur. adv. vidi. 25 30 A. Loizou J. read the following judgment. By the present recourse the applicant challenges the validity of the decision of the respondents dated 3.6.1981 which was communicated to him by letter of even date (enclosure 1 attached to the application) by which the respondents refused to recognize as pensionable service the period between the 26.11.1956 to the 31.S.
  3. during which the applicant had been out of the service on account of his own resignation. The applicant was a School Teacher in the Go\ernnient Service when on the 20th September, 1954, he was granted one year study leave starting in October 1954 in order to proceed to Sir John Cass College in London to read for a B.Sc. Degree 21 - Loizou J. Sa»ia λ. Republic
(1984)τ the conditions set out in the letter of the Director of Educaon dated 20th September. 1954 (enclosure 2). On the 21st September.
  1. theDirectorof Educationin•rmed the applicant (enclosure 3) that he had recommended • the Government that he be granted three years study leave 5 ith pay, as requested, and that the decision would be commucated to him as soon as possible, expressing therein also his easure at seeing that the applicant had been accepted at the oresaid College. On the 24th November, 1955, the Colonial fficeinformed him (enclosure No. 4), on directions from the 10 len Colonial Secretary Mr. Lennox-Boyd that the Governor ' Cyprus advised that he was granted an extension of study ave for one year without pay and on condition that he made he usual deposit". Such deposit would probably be a sum .fficient to cover the estimated cost of his course, but the matter 15 JS left to the Director of Education to advise him on this >int. It was added that in theevent he would not be accepting ich condition, he would be required to return to Cyprus forthith. On the 6th November, 1956, the following letter (enclosure <was addres-ud to the applicant:- 20 "In n Ictcr 66/52/47 dated 19th October, 1956, I drew you .mention i.> para. 5 of my letter 66/52/47 dated 4th September 19:6 This rea ν,ηι must, therefore, report for duty in Cyprus at once. I may remind you that you can then app:y at the next award of Scholarships, provided you are eligible*. Unless I hear from you by 30th November, 1956, that you intend to comply with this order, your employment as an Elementary School Master will be terminated. 25 30 I attach a copy of my letter dated 19th October,
  2. (Sgd) C. B. Gordon, Director of Education". There followed a letter to the applicant dated 10th November, '56 (enclosure No. 6) which stated clearly to him that he had thcr to return or resign and by a letter dated the 26th 22 35 3 C.I..R. 5 S*.ma v. Republic A. Loizou ,J. November, 1956 (enclusure No. 7), the applicant was informed that the Directorof Education accepted his resignation contained in his letter dated 15th November, 1956 (exhibit 1, red 1), from his employment as an Elementary School Master with effect from the 26th November.
  3. The applicant claims that he was compelled to this situation as he was at the time in the third year of his studies and he wanted to complete same, but 1shall be dealing with this alle­ gation when I deal with the legal aspect of the case. 10 The applicant returned to Cyprus and applied on the 23rd November, 1959 for registration and/or licence as a Secondai\ School Teacher under the Secondary Education Regulations 1948, regulation
  4. and his qualifications, apart from his Teachcher's Training College Certificate, included his B.Sc. Special 15 Chemistry Part Iof London University. A professional Licence to leach in a Secondary School was granted on the 28th No­ vember, 1959 (see blues 4 and 5 respectively in exhibit 2). He was re-engaged as a School Master at the Technical School Nicosia as from the 1.9.59 and after serving in various posts in 20 .the Government Service. he retired as an Analyst. Class I. Department of Medical Services, on the 1st June.
  5. As it has been raised by way of preliminary objection that the sub judicc decision is a confirmatory one and therefore could not be the subject of a recourse under Article 146 of the Con25 stitution reference has to be made to the necessary factual background upon which this objection is based. The applicant on the 30th June. 1962 (exhibit I - red
  7. 7) applied to the President of the Greek Communal Chamber revoking hU resignation which he had submitted to the Education Office on 30 the 15th November. 1956, in incumstances which he wa·. de­ scribing therein and requested th.it hi·--erviccs to the said Ofllcbe considered as continuous as Iron the year 1947 until that date. Hegives therein the sequente of events, the circumstances of his resignation, his allegations that the contents of the letter 35 of the Director of the Department of Education o. the 6th November, 1956 (enclosure 5) were of a t aieniiv naiurc and that he was compelled to resign and tint he d'd ^o be! eving absolutely that by the struggle of ΕΟ Κ \ the Brit sh sove­ reignty in Cyprus would come to an end and at the . ο > I<sion o\' 40 the struggle he would again serve the Education of the Island 23 Λ. Loizou J . Sa\ta v. Republic
(1984)with a certainty that his negative answer would help the passive resistance of the Cyprus people and so he followed the example of the numerous Greek Policemen of Cyprus and submitted his resignation. He attached thereto several documents, to which already reference has been made in this judgment, and also 5 copies of two documents regarding students'activities inLondon in his students' days and his letter of resignation of the 15th November. 1956 (exhibit 1 - red 6 - 1). In a reply dated the 8th September, 1962, the applicant was informed that the question of the recognition of his previous 10 service for the purposes of pension could only be done under the relevant Pensions Law which regarding Secondary School Teachers had not, until then, been enacted. It was thought, however, pertinent to stress to him that the revocation of the act of acceptance of his resignation so that his service could be 15 considered continuous as from 1947, was improbable as it created a bad precedent with serious consequences. It was however pointed out that for the reasons he was invoking in his said letter, hecould maintain a case on thebasis of the Dismissed Public Officers Reinstatement Law, 1961 (Law No. 48 of 1961) 20 and that he could act towards that direction. It seems, however, that the applicant took no steps in that direction but on the 9th January, 1968. heapplied to theMinister of Education (exhibit 1-red 13) for re-examination of his case. He did so in view of the enactment of the Pensions (Secondary 25 School Teachers) Law, 1967 (Law No. 56 of 1967), which made provision for the pension of secondary school-teachers and that tht; problem of his compulsion to resignation be re-examined on the basis of section 6(
  1. d)of the said Law in conjunction with section 50 of the Elementary Education Law, Cap. 166 which 30 was in force at the time of his resignation from the Elementary Education. He was claiming that on the basis of the aforesaid provisions his service should be considered as a continuous one because (
  2. a)in accordance with section 6(
  3. b)of Law 56 of 1967 his pensionable "service which could be considered as pensionable 35 by virtue of any other law, regulating the granting of pension from the Consolidate Fund of the Republic, if such service precedes immediately pensionable service by virtue of this Law or interrupts same" and (b)in accordancewith section 50of Cap. 166 "service in respect of which pension or gratuity may be 40 24 3 CL.lt. Sa*va \. Republic A. Loizou J. granted must be unbroken except in cases where the service has been interrupted by any temporary suspension of employment as teacher not arising from misconduct, voluntary resignation or refusal to accept a post to which a teacher has been duly ap5 pointed under this Law." He further raised therein the circumstances of his resignation and that they amounted to compulsion, both because he was in the third year and he could have been left to complete his University education and also that there were political reasons on 10 account of his stand against the then British policy in Cyprus. The said application is a thickly typed document of two and a half pages and attached thereto werea copy of hispetition to the President of the Greek Communal Chamber of the 30th June, 1962, to which already reference has been made, the answer 15 thereto by the Administrative Officer of the Chamber, a minute regardingthe applicant, thelettersofthe 6th and 10th November. 1956, two documents regarding the activities of a preparatory Committee for Association of Cypriot Students and another letter dated the 15th November, 1956, i.e. his own resignation. 20 The Director-General of the Ministry of Education summed up the position in a lengthy document addressed to the Director of the Department of Personnel dated the 14th February, 1968 (exhibit 1- red 15- 14) which was received by the said Departmenton the 16th February. On the 25th April, 1968,a reminder 25 was addressed to the said Director requesting information (exhibit I - red 16)as to the stage at which the matter was at the time and finally on the 15th June, 1968, (exhibit 1- red 18) a decision was reached by the Minister of Finance that by virtue of the second proviso to section 7
(1)of the Pensions Law 1967, 30 the interruption of the service of the applicant from the 26th November to the 1st September, 1959,cannot beconsidered as interrupting the continuity of his service but that the said period of non-employment on account of resignation would not count for pension purposes. The applicant was informed about it by 35 letter dated the 2nd July, 1968 (exhibit 1 - red 21, exhibit 2 blue 136. No recourse was filed against the said decision. On the 19th February, 1970, the applicant applied once more to the Minister of Finance (exhibit 1 - red 23) for recognition of the period 26.11.56 to 31.8.59 as pensionable for the same 40 grounds as before, the gist of which was compulsion for political 25 Λ. loizou J. Sat\a v. Republic
(1984)reasons. He referred in the said letter to his letters of the 8th September, 1962 and 9th January, I96S, and reply thereto was given to him on the 6th April, 1970 (exhibit 1- red 24) that his request could not be approved and that the said period of interruption did not fall within any of the provisions of section 5 2
(1)of tlic Pensions (Secondary School Teachers) Law, as amended by the Pensions (Secondary School Teachers) (Amend­ ment) Law 1970, (Law No. 1 of 1970). Apparently the said petition had been submitted soon after the enactment of the said amending law. Again no recourse was filed by him against 10 this decision. The matter was left al that until the 26th January. 1981, when the applicant applied again (exhibit 1 - reds 29, 28. 27) and asked for re-examination of their decision of the 6th April. 1970 (red 24) claiming that he was supplying the re­ spondents with new information. For that purpose the appli- 15 cant attaciicd to his said application the following documents: (
  1. a)A certificate from Gcorghios Christodoulides, The Director of the Higher Technological Institute, dated the'21st January. 1981 (red 26). (
  2. b)A certificate from Mr. Elias Ipsarides dated 20.1.SI regarding the activities of the applicant as a student (red 25). 20 (
  3. c)Photocopy of the letter of the Administrative Officer of the Greek Communal Chamber of the i>.9.62. (
  4. d)Copy of his letter to the President of the Communal Chamber dated 30.6.62. 25 (
  5. c)A copy of acceptance by the Sir John Cass CoIlope. It is obvious from the contents of his lengthy petition and the documents attached thereto that nothing new had been placed before the Minister of Finance so that the examination of the 30 new petition would amount to a nuw inquiry. Except that there was a certification oThis activities as a student, to which ho already referred in his previous petition, nothing new was said. ίίιο reply to the aforesaid petition of the applicant is contained ih the letter of the 3.6.81 upon the receipt of which the applicant 35 tiled the present recourse. To my mind there has been no new executory act as no new facts were placed before the respondents to justify the holding 26 3 C.L.R. Sa»\a v. Republic Λ. l.oi/oii J. of a new inquiry. There was nothing but a repetition of the allegations, legal arguments and circumstances relied upon that had been placed repeatedly before therespondents and in respect of which a decision was taken. In the light of well established authorities (see, inter alia. MarangosLtd. v. The Municipalityot Fomagusta
(1979)3 C.L.R. 73, and Ecortomkles v. TheRepublic
(1980)3 C.L.R. 219) theprescnt recourse has to be dismissed as being out of time. I intend, however, to examine the recourse on its merils in case I am found to be wrong on my approach regarding Ilie nature of the sub judice act. It is clear from the facts and ciicumstanccs of this case that the applicant was placed in a dilemma as to whether he would return to Cyprus and resume his duties as an Elementary School Teacher or resign and complete his studies in England. No doubt it was a hard decision for the applicant to reach, but there was no element in law of compulsion which in any event could afleet the question in issue now in this case, namely, whether the said years could be counted for the purpose of pension. More so as thedecision of resignation and its acceptance referred to a period prior to thecoming into operation of theConstitution and could not at the time be challenged by judicial process. To what extent the applicant could take advantage of the Dis­ missed Public Officers Re-instatement Law. 1961 (Law No.48 of 196!) ! need not pronounce as the applicant himself had taken no steps under that law. The applicant invoked the provisions of sections 49 and 50 of the Elementary Education Law, Cap. 166, which have been repealed the first by section 6 of Law No. 19 of 1967 and the second by section 5 of Law No.38 of 1981. The first one even before its repeal could not help the applicant as no where it provides that a teacher who has been out of the service as a result of his own resignation was not to be considered as inter­ rupting his service for pension purposes. The second one, which spoke of the necessity of unbroken service, has been affected by the new section 50 to theextent that the period of his service before the 26.11.56 which could not be recognized because of the requirement of continuity, was removed and as already stated, the applicant's previous service has been re­ cognized for purposes of pension (see exhibit I- red 18). Final27 \ . Loizou J. Sawa *. Republic
(1984)ly the Pensions (Amendment) Law 1979 (Law No. 38 of 1979) and regulation 17 made thereunder which isinvoked by counsel for the applicant in his written address, does not assist the applicant also as regulation 17 applies only to leave without pay, if such leave is "educational leave" granted in the circum- 5 stances specified therein which clearly is not the case for the period between the applicant's resignation and his re-engagement in 1959. This recourse would also have been dismissed on its merits. For all the above reasons the recourse is dismissed, but in the circumstances I make no order as to costs. 10 Recourse dismissed with no order as to costs. 28

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