3C.L.R. 1986January11 [TRIANTAFYLLIDES. P.] INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION IOANNIS SIEKKERIS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH
- THEMINISTEROFFOREIGNAFFAIRS,
- THEMINISTER OFFINANCE, Respondents. (CaseNo. 52/83). 5 10 Executoryact—Confirmatoryact—TheScheme madepursuanttoReg.15ofthe ForeignService oftheRepublic (SpecialProvisions)Regulations 1968-1975 —Rejectionofapplicationforeducationalallowanceinrespectofapplicant's son tor a particular school year — Rejection of a similar applicationfora subsequent schoolyear — Thenew decisionis,inthe lightofpara8 ofthe scheme, a confirmatoryone ofthefirstdecision—Recourse outoftime. Relying on the Scheme made under Reg 15of the aforesaid Regulations theapplicantapplied foreducationalallowance inrespectofhisson'sstudies at •TheJunior School» for the school year 1979-1980.Theapplication was turneddown.Theapplicantdidnotfilearecourse. Asimilar application for theschoolyear 1980-81was.also, turned down. Applicant's recourse was dismissed (Siekkeris v. The Republic {1985) 3 C.L.R. 1218), on the ground that the decision was confirmatory of the decision forthepreviousyear. 15 20 By means of this recourse applicant impugns the validity of the decision wherebyasimilarapplicationsubmittedbyhiminrespectoftheyear 1982-83 was rejected. Counsel for applicant argued that since the decision concerns a year different fromtheoneinrespectofwhichthefirstdecisionwastaken,itcannot beconfirmatory of suchfirst decision. Held,dismissing therecourse:
(1)Paragraph8oftheSchemeisapplicable for a second or any subsequent school year only after the approval of an 1833 Shlekkeri· v. Republic
(1987)educational allowance for theinitialschoolyear, anditisnotapplicable after a refusal of the application for the said initial school year (Siekkens ν The Republic,supra followed)
(2)Itfollows that the sub judice decision is confirmatory of the decision reached inrespect of theschool year 1979-1980 Therecourse isoutof time as regards such earlier decision 5
(3)Inany event, theapplicantlacks legitimate interestas he had failed to comply with the requirementof para 2
(1)of theScheme Recoursedismissed No orderas to costs 10 Casesreferred to Siekensv TheRepublic{1985)3 C L R 1218, Asaadv TheRepublic{1984)3 C LR 1529, Constantmides ν TheRepublic
(1985)3 C LR 644 Recourse. 15 Recourse against the refusal of the respondents to grant to applicanteducationalallowance inrespectof thestudies ofhisson attheJuniorSchool,Nicosia. P. Ioannides withN.Papaefstathiou,for theapplicant M.Photiou, for the respondents 20 Cur adv.vult. TRIANTAFYLL1DES P.read thefollowingjudgment By means of thepresent recourse theapplicant challenges therefusal of the respondents to grant to him educational allowance in respect of the studies of his son at «The Junior School», Nicosia, for the 25 school year 1982-
- The facts of thiscase, as they may be derived from thematenal before theCourt, appear tobe as follows: The applicant was holding, at the material time, the post of Commercial Assistant, 2nd Grade, in the Ministry of Commerce "^0 and Industry. As on 1st July 1974 he was posted attheCyprus Commercial CentreInLondon and moved there with hiswife and son, Athos, 1834 3 C.L.R. Shlekkerisv. Republic Triantafyllide· P. whowas then threeyears old Dunngtheirstay.η London,until20 July 1979 thesonoftheapplicantwas apupilarEnglish schools When thefamily returned toCyprus the applicant enrolledhis son asfrom 1September 1979 attheJunior School Nicosia 5 On22October 1979 hesubmitted anapplicationtotheMinister of ForeignAffairs forthegrant tohimofan educational allowance for the school year 1979-1980 pursuant toaScheme whichhad been made under regulation 15 of the Foreign Service ofthe Republic {Special Provisions) Regulations 1968 to
- and 10 approved bytheCouncilofMinisterson 11September 1975 (see its decision No 14 271) On 28 June 1980 the applicant was informed that the circumstances of hiscase were such that theMinister of Foreign Affairs could notapprove hisapplication 15 Theapplicant objected against this decision on 16July 1980 and sought areconsideration ofhis case On 9 September 1980hewasinformed thatthere wasnothing tobeadded to the previous decision inthematter The aoplicant submitted a new application on 3 September 20 1980 for the grant to himof an educational allowance forthe school year 1980-1981 Thisapplication ofthe applicantwasalso refused on 1November 1980forthe same reasons forwhichhis earlier application had been refused Againsttherejection ofhisapplication dated3September1980 25 theapplicantfiled, on2January 1981.recourse No 22/81,which was dismissed on21 June 1985(seeSiekkens ν The Republic,
(1985)3 CLR 1218)mainly ontheground that the sub judice decision wasconfirmatory ofthe decision forthe previous school year and,therefore,itcouldnotbechallenged byarecourseunder 30 Article 146oftheConstitution Dunngthependency oftheSiekkens case,supra,theapplicant applied,on 2September 1981, for an educationalallowance for the schoolyear 1981-1982 and hisapplication was,onceagain, refused on27November1981 35 The applicant reverted,again,on23August 1982,andsought once more an educational allowance for the school year 19821983.Theapplication was,also,rejected on27November 1982. 1835 TriantafyOldes P. Shlckkeri· v.RepubUc
(1987)and itisagainstthislastrefusal thatthepresent recourse hasbeen filed. Iwilldealfirst withpreliminary objections raised bycounsel for the respondents: It has been submitted by him that, in view of the earlier 5 administrative decisions in this matter of 28 June 1980 and 1 November 1980, the applicant did not possess a legitimate interest, inthe sense ofArticle 146.2 of the Constitution, entitling himto proceed with hispresent recourse. Further, he has argued that the sub judice decision cannot be 10 challenged by his recourse because it is out of time as it is confirmatory of the earlier decision dated 28 June 1980, and of the subsequent one dated 27 November 1981,which were not challenged bya recourse. Itiswellsettledinouradministrativelawthatonlyexecutoryacts 15 or decisions may be subjected to judicial control and that confirmatory actsordecisionscannotbechallengedbyarecourse under Article 146of theConstitution (see,interalia,the Siekkens case, supra, Asaad v. TheRepublic,
(1984)3 C.L.R.1529,1531, 1532 and Constantinides v. The Republic,
(1985)3 C.L.R.644, 20 650,651). Counsel for the applicant had submitted that, on a correct interpretation of paragraph 8 of the Scheme concerned, a decision reached bytheMinisterof Foreign Affairs for aparticular schoolyearisanewexecutorydecision andmaybechallengedby a recourse,as on everysuch occasion the decision isthe product of a newexercise of hisdiscretion on thepartof the Minister. ThesameargumentwasraisedintheSiekkens case,supra, and was rejected (seepp. 1224,1225 of the report of that case) andI agree with the reason given inthisrespect inthejudgment in the Siekkens case, namely that paragraph 8 of the Scheme is applicable for a second or anysubsequent school yearonly after theapprovalofaneducationalallowancefortheinitialschoolyear and thatitisnotapplicableafter arefusal oftheapplication forthe saidinitialschool year. It follows, therefore, in the light of the foregoing, that the sub judice decision has to be treated as being confirmatory of the decisionreached fortheinitialschoolyear1979-1980,on28June 1980,againstwhichnorecourse wasmadebytheapplicant; and, 1836 3CUR. SbJekkeris v.Republic TrUntafylllde· P. consequently, the present recourse has to be dismissed on the ground thatitcould nothave been madeagainstthe confirmatory sub judice decision and because it is out of time as regards the initialdecision of 28June 1980. 5 Ithas,also/been pointed out thattheapplicantfailed, when he submitted his first application, to complywith paragraph 2
(1)of the Scheme, in that he enrolled his son at the Junior School without having first obtained the approval of the Minister of Foreign Affairs. 10 So, in any event, because of the non-compliance by the applicant with the requirement in paragraph 2
(1)of the Scheme he did not have, atany material time,a legitimate interest, under Article 146.2 of the Constitution, enabling him to challenge the subjudice decision bymeans ofa recourse. 15 Inviewof allthe foregoing inthisjudgment there isno need to pronounce on anyother pointraised bycounsel forthe applicant and the present recourse fails and is dismissed accordingly; but with no orderastoitscosts. Recourse dismissed. No orderastocosts. 1837