UM7) 1987August31 (A L01Z0U,J.) INTHEMATTER OFARTICLE 146 OFTHE CONSTITUTION CHARALAMBOS KAPSOU, Applicant, v. THEREPUBLIC OF CYPRUS, THROUGH THEPUBUC SERVICE COMMISSION, Respondent. (Case No. 548/84). Act*ordecisionsinthesense ofArt.146.1 oftheConstitution—An actcannot be mode the subject ofarecourse,if, though atone timeexecutory, haslostits executory character. Executoryact—Merger orembodiment inanew actissuedafterasubstantialnew inquiry—Firstactlooses itsexecutorycharacter. 5 Recourse forannulment—Practice —Withdrawalofrecourse'with reservationof rights» upon astatement mattherespondent intends tore-examine matter— Effectofsuch 'reservation ofrights»—Itcannotgo beyond theobligationof therespondent tore-examinethematterandissueanew executory decision. The applicant challenged the appointments made in 1981 tothe post of 10 AttacheintheMinistryofForeignAffairs.Asaresulttheappointmentofone oftheinterestedpartieswasannulledand,consequently,theCommissionreexaminedthematterandappointedtheapplicantasfrom1.6.84. Asaresulttheapplicant,whoacceptedhisappointmentwithreservationof rights, filed misrecourse, seekingtheannulment ofthe omission toappoint 1 5 himretrospectivelyasfrom1981. Atsomestageoftheproceedingscounselfortherespondentstatedthathe wouldadvisetheCommissiontore-examinethematter. Asaresulttheapplicantwithdrewthisrecoursewithreservationofrights. The Commission re-examined the matter and appointed the applicant 2 0 retrospectively, but mis decision was later annulled by this Court in ieronymkies and Omen v.TheRepublic
(1986)3 C.L.R.2424. 1034 3C.L.R. Kapsonv. Republic Following the said annulment the applicant sought and obtained the reinstatement ofthisrecourse.Thequestion nowiswhetherthe recourse has been deprived ofits subject-matter. 5 Held, dismissing therecourse:
(1)Anactordecision cannot be the subject of a recourse if though executory at one time it lost later its executory character. One of the reasons for loosing itsexecutory character is when the act is merged or embodied in another executory act. An instance when such a mergeroccursiswhen thenewactisissuedafter a substantial newinquiry. 10
(2)Inthiscasethere wasissueda newexecutorydecision.Thereservation ofapplicant'srightswhenhewithdrewtherecoursecouldnotgobeyondthe duty of the Commission to re-examine the issue, as indeed it did. This recourse hasbeen deprived ofitssubject-matter. Recoursedismissed. No orderastocosts. 15 Recourse. Recourse against the omission of the respondent to appoint applicant to the post of Attache" in the Foreign Service of the Republicwithretrospective effect asfrom 1stSeptember,
- 20 Applicantappeared inperson. R. Gavrielides. Senior Counsel of the Republic, for the respondent. Cur.adv. vult. A.LOIZOUJ. read the following judgment. In 1981 there was 25 a number of vacancies in the post of Attach^ in the Ministry of Foreign Affairs. The applicant was one of the candidates who applied for appointment to such post. Ashe wasunsuccessful he challenged the appointment of five successful candidates to the said post by means of a recourse - No. 356/
- The Supreme 30 Courtbyitsjudgmentreported asKapsou v. TheRepublic
(1983)3 C.L.R. 1336, annulled the decision of the respondent Commission with regard to the appointment of only one of the interested parties,namely EvripidesEvriviades,totheabove post witheffect from 1stSeptember1981. 35 On the 29th March 1984, the respondent Commission reconsideredthequestionofthefillingofthepostofAttach^which remained vacant, as a result of the annulling judgment of the SupremeCourtandselectedtheapplicantforappointmentandby 1035 A.LoizooJ. Kapsouv.Republic
(1987)letter dated the 3rd April 1984, offered him appointment tothe saidposton probation fortwoyears.Theapplicantaccepted the appointment but,atthesametime,herequestedthatitshouldbe givenretrospectiveeffect asfrom thedatewhentheappointment ofEvriviadeswasannulled, i.e.the 1stSeptember 1981.Healso 5 requested thattheperiodofhisprobationbe modified. The respondentCommission,afterobtainingtheadviceofthe Attorney-General, decided to reject both the request of the applicant for retrospective appointment and that for the modification of his probationary period and fixed the 1st June 10 1984asthedateofhisappointment. Theapplicantacceptedtheappointmentwithreservationofhis rights andonthe 12thOctober1984,hefiledthepresentrecourse prayingfor: «A. declaration of the Court that the omission of the 15 respondent Commission toappointtheapplicant tothepost of Attache in the Foreign Service of the Republic with retrospectiveeffectasfrom 1stSeptember, 1981asitoughtto have done, following the partial annulling decision of the CourtinthecaseofKapsou v.TheRepublic
(1983)3C.L.R. 20 1336,isnullandvoidandwhateverhasbeen omittedought tohavebeen performed. B.AdeclarationoftheCourtthattheactand/oromissionof the respondent Commission to appoint the applicant on probation fortwoyearswithouttakingintoconsiderationthe 25 probationserviceoftheapplicantinanotherfirstentrypostis null and void and whateverhasbeen omittedoughttohave been performed. C. A declaration of the Court that the omission of the respondent to reinstate theapplicant totheadvancement in 30 the service which he would have, had it not been for the intervention of (A)above, and taking into consideration his service which would have been reckoned on the basisof recognition of service for a post-graduate degree of the applicant, is null and void and whatever has been omitted 35 oughttohavebeen performed.» The applicant's written address wastiledon the 12th March,
- On the 22nd May, 1985, however, counsel for the reepondent Commission made astatement tothe effect thathe 1036 3 C.L.R. Kapsouv.Republic A.Loizou J. intended toadvise therespondent Commission tore-examine the matter and appoint the applicant to the post of Attacho in the foreign service of the Republic as from the 1st September
- Furthermore that he would advise the Commission to examine 5 after such appointment thepossibility of promoting the applicant to the post of Secretary and take steps for his full retroactive reinstatement. Thereupon the applicant stated orally and in writinginCourtandalsofiledastatementinwritingthatinviewof thestatement ofcounselfortheRepublichewithdrewhisrecourse 10 «with full reservation of his rights». He then expressed his appreciation for the waythe case had been handled. Indeedtherespondent Commission obviouslyinthelightofthe adviceofcounselre-examinedthematteratitsmeetingofthe29th May 1985 and decided that the applicant's appointment to the 15 post of Attacho should take effect retrospectively as from the 1st September
- This latter decision was challenged by other persons claiming legitimateinterestinthematterand.waseventuallyannulledbythe Supreme Court on the 22nd December 1986, by itsjudgment in 20 the case of leronymides and Others v. The Republic, Recourse No.843/85 (judgment asyet unreported)*. Following the annulment of hisretrospective appointment the applicant sought reinstatement of the present recourse to which counsel for the respondent did not object and same was 25 reinstated onthe 19th February
- Learned counsel for the respondent in hiswritten address put forward a singlesubmission, namely «thatthe recourse should be dismissed as lacking subject matter. The prayer of the recourse was satisfied by the respondent if later for other reasons the 30 relevantdecision ofthe PublicServiceCommission was annulled bythe Court itisirrelevant.» On the other hand the applicant who handled his case personally, in reply to the above submission mainly contended that by hisnon-appointment as from 1stSeptember 1981 he has 35 suffered and continues suffering detriment because he has been deprived oftheproperseniorityand asa resulthisseniorityinthe service isprejudicially affected. It is a well established principle of Administrative Law that an administrative act or decision cannot be thesubject of a recourse •Reportedin
(1986)3C.L.R.2424. 1037 A.LoftzcmΛ. Kapsouτ.Republic
(1987)ifthoughexecutoryatonetimeitlostlaterforanumberofreasons its executory character.Oneofthose reasons iswhere thereis a merger or the executory actor decision haslost its executory characterbybeing embodiedinanotherexecutory act.Thereare several instances thatbring aboutthismerger oneofthemisby 5 being embodiedinasubsequent actissuedafter asubstantialnew inquiryofthecase onthesamesubject matter.Inthiswaythe act against which either a hierarchical recourse or generally a recourse for a relief or remedy has been made it has been embodiedafter anewinquiryofthecaseinanewactdulyissued. 10 (SeeCaseLawoftheGreekCouncilofState1929-1959pp.241242 andthedecisionsreferred tothereininteralia801/53 1388/ 53.) In the present case the full reservation of his rights bythe applicant, were madeinrespect oftheobligation undertakenby 15 counsel for the respondentCommission toproceed intoanew inquiry andonproperlegal advice arrive atanew decision.This obligation soundertakenwasduly discharged. Anewexecutory decision was issued, in fact favourable to the applicantand therefore theolddecision subject matterofthepresentrecourse , 20 merged intothenew oneandlostitsexecutory character. Hence this recourse being without subject matter. The applicant's reservationofrightscouldnotgobeyondthedischargeoftheduty of the respondent Commission tore-examine andissue anew executory decision. 25 Forallthe above reasons thisrecourse isdismissedbut in the circumstancestherewillbenoorderastocosts. Recoursedismissed. Noorderastocosts. 1038