(1984)1984 July 19 [SAVVTOES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION MARIGO MICHAELIDOU-DEMETRIOU, Applicant, v, THE REPUBLIC OF CYPRUS, THROUGH
- THE EDUCATIONAL SERVICE COMMITTEE,
- THE COUNCIL OF MINISTERS, Respondents. (Case No. 484/80). Timewithin which tojile arecourse-—Article 146.3oj the Constitution —Time beginsto run jrom date the personconcerned acquires knowledge oj thesubjudiceact—Though exact time when applicantacquired knowledge oj thesubjudiceactnotknown nor the manner in which suchknowledge was acquired, she came toknow 5 oj the sub judice decision and complained to the respondents by letter within a timemore than75 daysjrom thefiling oj the recourse—Therefore therecourse, which wasjiledoutside theperiod of 75 daysprescribed by the aboveArticle oj the Constitution, dismissed as jiled out oj time. 10 On the 4th September, 1980the Council of Ministers decided that there should be renewed all the contracts of school masters who were servingon contract during the school-year 1979-1980; andasa result ofthisdecisiontherespondent on 10.9.80decided to renew all such contracts. Byher letter of 27.9.80 which was 15 addressed to the respondent Commission the applicant referred to the above decision of the Council of Ministers and to the renewal oftheabovecontracts bythe Commission,inpursuance ofsuchdecision,and invitedtheCommissiontoappointhertothe post ofschool master. TheCommission rejected her requestby 20 its letter dated the 10th October, 1980 and hence this recourse which was filed on the 22nd December
- Though the question whether the recourse was filed within 888 > · 3 C.L.R. Demetriou v. Republic thetime-limit of 75daysprescribed byArticle 146.3ofthe Con-' stitution wasnot raised in the opposition the Court examined it ex proprio motu and: 5 10 15 20 25 30 Held, that it isa principleofadministrative lawthat incaseof individual administrative acts time begins to run from the date the person concerned acquires knowledge thereof; that though the exact time when applicant acquired knowledge of the sub judice decision is not known neither the manner in which such knowledge was acquired, it is a fact evidenced by her above letter of 27.9.80, that she knew, by that date, both of the sub judicedecision aswellasthedecisionoftheCouncilofMinisters and her consequential non-appointment; that, therefore, the time prescribed by Article 146 of the Constitution has started running the latest since the 27th September, 1980, the date by which the applicant must have acquired knowledge of such decision, whereas the present recourse was filed on the 22nd December, 1980,outside the period of 75daysprescribed bythe Constitution; accordingly the recourse must be dismissed as filed out of time. Application dismissed. Cases referred to: Pissas(No. 1) r. E.A.C.
(1966)3 C.L.R. 634; Papakyriacou v. Republic
(1982)3 C.L.R. 1151;and on appeal
(1983)3 C.L.R. 870 at pp. 881-882; Christodoulouv. Republic
(1983)3 C.L.R.
- Recourse. Recourse against the omission of respondent 1 to appoint applicant as a master of Secondary Education during the school year 1980-
- A. S. Angelides with D. Michaelidou (Mrs.), for the applicant. M. Photiou, for the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant 35 prays for a declaration that: "
- The omission of respondent No. 1 toappoint the apphcant as a master in schools of Secondary Education during the school year 1980-1981 is void, being contrary to the 889 Savvides J. Demetriou v. Republic
(1984)provisions of the Constitution and/or the Law and/or as being made in abuse and/or excess of power, and/or
- The omission ofrespondent No.1 toproceedtothefilling of the vacant posts and/or one of the vacant posts of master in English Literature by appointing the applicant 5 tosuchpost, ontheexcusethattherenewaloftheapointment of those school masters serving on contract was made after a decision taken by respondent No.2,isvoid and of noeffect whatsowever, beingcontrary to theprovisions of the Consitution and/or the Law and/or in that 10 it was made in excess or abuse of power; and/or
- The act and/or decision of respondent No.l totake and/ or follow orders and/or interventions byan incompetent organ, which led to the non-appointment of applicant byrespondent No.1,isvoidandofnolegaleffect whatso- 15 ever, beingcontrary totheprovisionsof the Constitution and/or the Law and/or in that it was taken in excess or abuse of power; and/or
- The decision of respondent No. 1 not to appoint the applicant to one ofthe vacant posts ofmaster in English 20 Literature, communicated to the apphcant personally and/or through her counsel by letter dated the 10th October, 1980,is void and of no legal effect whatsoever; and/or
- The intervention of respondent 2in the duties and com- 25 petences ofrespondent 1 and/or theappointment byitof school master for the schoolyear 1980- 1981wasavoid act and/or decision, and/or of no legal effect whatsoever beingcontrary to the provisions of the Constitution and/ or the Law and/or outside the powers and competences 30 ofrespondent No.2and/or in that it wasmade inexcess and/or abuse of power and such intervention and/or order should therefore have been ignored by respondent 1; and/or
- Anyactand/ordecisionofrespondent2withregard tothe 35 appointment of school masters wasvoid and of no effect whatsoever, beingcontrary tothe provisions of theConstitution and/or the Law and/or in that it was taken in excess or abuse of power." 890 3 C.L.R. Demetriou v. Republic Savrides J. Inshort,whattheapplicant prays for isa declaration thatthe actordecisionofrespondent 1, dated 10.9.80bywhichitapproved the decision of respondent 2 to renew the contractual appointments of the schoolmasters serving on a contractual basis 5 duringtheprevious year(1979- 1980),omittingthus toappoint the apphcant who was not so employed during the previous year, as being absent abroad, is null and void and of no legal effect whatsoever and that respondent 2 was an incompetent organ to take such a decision. 10 The facts of the case are briefly as follows:- Theapplicant possessesa diploma in English Literature from Athens University which she obtained in
- In 1975-1976 she was appointed on several occasions as a substitute in replacement ofothei schoolmasters whowereabsentduringthose 15 periods. She was then appointed on a contractual basis from 8.10.76 - 31.8.77 and then again from 23.9.77 - 31.8.
- On the 22nd July, 1978, the Educational Service Committee (E.S.C.) offered to the applicant a renewal of her contract until 31.8.
- The applicant informed the E.S.C. by letter dated 20 12.8.78 that he was unable to accept such appointment for at least 1 or2yearsbecauseshewasgoingabroadfor post-graduate studies, and asked that her priority on the list of appointeesbe kept. Asa result the decision of the E.S.C. for the renewalof applicant's contractual appointment was revoked. 25 Applicantreturned from herpost-graduate studiesin England in 1980 and applied for appointment. At the time, she was appearing on the list of masters of English Literature eligible for appointment, under serial number
- On the 4th September, 1980, the Council of Ministers (re30 spondent2intherecourse)tookdecisionNo. 19.509bywhichit decidedthatthereshouldberenewed allthecontractsofschoolmasters who were serving on contract during the school-year 1979-
- Asa resultof such decision,the Director-General oftheMinistry of Education requested the E.S.C.toproceed to 35 therenewal of suchcontracts,as from 1.9.
- TheE.S.C.then proceeded at its meeting of 10.9.80,to renew such contractual appointments"inviewoftheletteroftheDirector-Generalofthe Ministry of Education No. 197/69 dated 8.9.80." 891 Savvides J. Demetriou v. Republic (ISM) Theapphcant thenaddressed, on27.9.80,throughhercounsel, the following letter to the Chairman of the E.S.C. (attached to the application as Appendix 'C'). "I have been instructed bymyclient Mrs. Marigo Michaelidou-Demetriou of Limasol, master in English Language, whoservedinschoolsofSecondaryEducationfrom31.10.75 - 31.8.78,torefer tothematter ofhernon-appointment and non-renewal ofhercontract for theschoolyear 1980-
- 5 Asyoushould knowmyclient wentto England for postgraduate studies for the Diploma of Education in the 10 Institute of Education of London University. Before her departure from Cyprus she was given the assurance of the Ministry of Education that upon her return to Cyprus she was to be appointed and/or her contract be renewed and that her priority for appointment would not bechanged in 15 any way prejudicial to her. However, after the relevant decision of the Council of Ministers for the renewal of the contracts of masters in• Secondary General and Technical Education who served during 1979 - 1980 for one more year, my client, though 20 she is senior to many of them, as you may verify from the material before you, has not been appointed or employed in contravention of the relevant laws and/or Regulations and other related provisions concerning the Educational Service. 25 You are therefore invited to reconsider thewholematter once again and proceed immediately-to the employment and/or appointment ofmyclient asa schoolmaster, otherwise she will haveto file a recoursein the Supreme Court against you for your unlawful omission to effect such 30 employment and/or appointment. I request a relevant replyto the abovematter within the legally prescribed time". The Chairman replied byletter dated the 10th October, 1980 as follows (Appendix *B* to the application). "I refer to your letter dated 27.9.80, regarding your client Marigo Demetriou and inform you the following: The renewal of the appointments of schoolmasters who 892 35 3 C.L.R. 5 Demetriou v. Republic Savvides J. were serving on contract during the school year 1979- 1980 was made after a decision of the Council of Ministers. Sincethereissurplus ofmasters in English, nonew appointment isforeseen, at the present stage, in this specialisation. Thecase of Mrs. Demetriou will beexamined as soon asthe possibility arises." The applicant filed, on the 22nd December, the present recourse. Several grounds of law have been advanced by counsel for the apphcant to the effect that the decision of the E.S.C. is 10 invalid in that the Committee failed to exercise its discretion underthe Lawand approved thedecision taken byanother organ (the Council of Ministers) which had no competence to take such a decision and that if the proper procedure was followed then her client should have been appointed as having priority on 15 the hst of persons eligible for appointment to the post of master in English language. Counsel for the respondent raised in opposition the following grounds of law: 20
(1)The omissions complained of are not omissions of any legal duty and are, therefore, outside the ambit of Article 146.
(2)The decision of the Council of Ministers is not a decision within the ambit of Article 146. 25
(3)No existing legitimate interest of the applicant has been affected. And in the alternative,
(4)The sub judice decision was lawfully taken. Irrespective of the above grounds of law, I have decided to examine first, ex proprio motu, another point which has not 30 been raised, that of time, that is, whether the present recourse was filed within the time limit of 75 days prescribed by Article 146 of the Constitution (See Pissas (No. 1) v. The Electricity Authority of Cyprus
(1966)3 C.L.R. 634, 636). It is a principle of administrative law that in the case of in35 dividual administrative acts time beginsto run from the date the person concerned acquires knowledge thereof. In the present casethe subjudice decision was taken by the E.S.C. on the 10th 893 Sanides J. Demetriou v. Republic
(1984)September,
- The exact time when apphcant acquired knowledge of same is not known, neither the manner in which such knowledge wasacquired. It is,however, a fact evidenced bythe letter of applicant's counsel to the E.S.C, dated 27.9.80, that the applicant knew, by that date, both of the sub judice 5 decision as well as the decision of the Council of Ministersand her consequential non-appointment. Reference to the full contents of such letter has already been made earlier in this judgment. I need only refer to the first paragraph thereof, which reads: 10 "I have been instructed to refer to the matter of her non appointment and non renewal of her contract for the school year 1980 - 1981". It isclear from thecontentsofsuchparagraph that theapplicant knew of the decision of the E.S.C.not to appoint her, the 15 latest by 27.9.
- With regard to the decision of the Council of Ministers(which was simply confirmed by the E.S.C. at its meeting of 10.9.80). I make reference to thethird paragraph ofthe above letter, which leaves no room for doubt that, at the time when 20 such letter was written, the apphcant had knowledge about the acts or decisions complained of. The time prescribed by Article 146 of the Constitution has therefore started running the latest since the 27th September, 1980, the date by which the apphcant must have acquired 25 knowledge of such decision, whereas the present recourse was filed onthe22nd December, 1980,outsidetheperiod of75 days prescribed by the Constitution. With regard to the letter of the Chairman of the E.S.C. to applicant'scounseldated 10.10.80(referencetowhichhasahead- 30 dy been made) which, presumably, has been treated bycounsel for applicant as settingthetimeinmotion, Ineed only saythat it isobvious from its contents that it does not contain anyexecutoryactorindeedanyactatall,butismerelyofaninformatory character and, therefore, non executory. 35 The recourse must, therefore, be dismissed as being filed out of time. Having reached such conclusion, I find it unnecessary to 894 3 C.L.R, Demetriou v. Republic Savvides J. examine in detail the substance of the case. Nevertheless, I feel that I should mentionthat similar legalissues were raised in two recent cases before this Court, Cases Nos 453/80,Papakyriacou v. The Republic
(1982)3 C.L.R. 1151, and 72/81, Christodoulou 5 v. TheRepublic
(1983)3 C.L.R. 668, in which the same decision of the E.S.C. and the same decision of the Council of Ministers, as in the present recourse, were challenged. The trial Judge dismissed the first one (Papakyriacou) on the substance of the case and the second one (Christodoulou) as being filed out of 10 time. The two judgments were appealed from, but the appeal on the Christodoulou case was later abandoned. The Full Bench of this Court in Revisional Jurisdiction Appeal No. 293 reversed the judgment of the trial Judge and found that the Council,of Ministers was not the competent organ to decide 15 who should be appointed and that the decision of the E.S.C. was also invalid as by adopting the decision of the Council of Ministers theE.S.C. failed toexercise its own discretion as towho should be appointed. See Papakyriacouv. TheRepublic
(1983)3 C.L.R. 870, where it was said at pp. 881 - 882 that: 20 25 "We are unable to support the view of the trial Judge that the Council of Ministers had power under s.27(l) of Law 10/69 to decide who should be appointed be it by renewal of contract. Their powers were confined to deciding the mode of filling a vacant post by permanent, temporary, or by appointment on contract and not the selection of the candidate for the post thus to be filled. This is manifest from the plain provision of s.27(l): 30 35 Ά permanent post is filled either on a permanent or temporary basis or by contractfor a specified period of time or from month to month as the Council of Mini sters might decide.' Therefore the Council of Ministers in deciding who should be appointed exceeded their powers. Their sugges tion for filling the post by the renewal of existing contracts ought to be disregarded by the respondents. Far from disregarding them, the respondents approved the recom mendation of the Council of Ministers in this respect and appointed officers who were serving during the preceding year on a contractual basis. They acted contrary to the 895 Savvides J. Demetriou v. Republic
(1984)provisions of the law, notably s.5(l), making them in the absence of provision to the contrary the solejudges of who should be appointed. This duty they failed to carry out completely. They failed to exercise any discretion in the matter. They merely rubber stamped the decision of the Council of Ministers." 5 The Court, however, left open the question,,of priority among candidates and whether a candidate whorefuses appointment on contract in one year forfeits his priority vis a vis others who accept appointment with regard to a future appointment. 10 (See p. 882 of Papakyriacou case supra). As a consequence of theabove judgment in Papakyriacou case, the acts or decisions complained of by this recourse have been annulled, soit is upto the E.S.C. to reconsider the position in the Ught of the abovejudgment, irrespective of the fact that 15 this recourse fails, on another point. In the result, this recourse fails as beingfiled out of time and is therefore dismissed, with no order as to costs. Recoursedismissed. No orderas to costs. «n*