(1987)1987Apnl3 [SAW1DES J] INTHEMATTER OF ARTICLE 146 OFTHE CONSTITUTION CEORGHIOS GEORGHIOU, Applicant, ν THE REPUBLIC O F CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondents (Case No 141/85) Recourse for annulment—Two distinctand independent of each other acts— Cannot be challenged by one and the same recourse—Pnnciple not applicable when the acts are not entirely independent of each other— Dismissalof appeal against disciplinarysentence of 'requirement toresign fromPoliceForce*followedbydismissalofapplicationforpension benefits— The two actsnot entirelyindependent of eachother Legitimate interest—Acceptance ofanadministrative act—Impliedacceptance in the exercite of applicant's freevolition—Depnves applicantof hislegitimate interest—Dismissalof applicant'sappeal againsthis disciplinarysentence of 'requirement to resign» from Police Force—Application for pension benefits—Amounts to impliedacceptance of the dismissalof the appeal 5 10 Time withinwhich to filearecourse—Letterposted on 21 11 84—Allegationthat it was received on 23 11 84—In the absence of evidence to the contrary, the allegation is well founded On 25 6 84 the applicant,amemberof thePolice Force,pleaded guilty to 15 a charge of corruption As a result theDisciplinary Committeesentencedhim todeferment of incrementuntil1 11 85,buttheMinisterof Intenor increased thesentence tothatof «requirement toresign» Theapplicantappealed tothe Council ofMinisters By letter dated 21 11 84 the applicant was informed that his appeal had 2 0 been dismissed On26 11 84 theapplicantapplied for hispensionandother retirementbenefits onthebasisof hisyears of service inthePoliceForce The Council of Ministers turned down the said application Hence the present recourse, which was filed on 42 85 and whereby the applicant challenges both decisions, thatis theonedismissing hisappeal andtheotherdtsmtssing 2 5 his application Counsel for the respondent raised a number of preliminary objections, namelythattherecourseis as regards prayerA outoftime,thattheapplicant has no legitimate interest to pursue prayer A and that the recourse cannot proceed as it challenges two unconnected and independent administrative acts 400 30 3 C.L.R. Georghiou v. Republic 5 Held,
(1)Even ifUisassumed thatthedecision dismissingtheappeal ofthe applicantwascommunicatedto thelatteron thedaywhen therelevant letter was posted, ιe on21 1184,again therecourse isnot outof time In any event and intheabsence of evidence lothe contrary applicant's allegation thathe received the letter on231184iswell founded 10
(2)Theapplicant,instead ofchallenging thedecision dismissinghis appeal, he applied for pension andretirement benefits Such conduct amountsto implied acceptance of such decision in the exercise of applicant's free volition It follows that the applicant has lost any legitimate interest to challenge suchdecision 15
(3)One cannot challenge two independent and unconnected administrative actsby oneandthesame recourse, butinthiscase thetwoacts inquestion arenotentirely independentofeachotherastheclaimforpension can only anse in case of retirement from the service Irrespective ofthe desirability that the two acts should have been challenged by different recourses, this formal defect is not enough to nullify the proceedings as regards PrayerΒ PrayerAofrecoursedismissed DirectionsthatPrayerΒofrecourse beheardon the ments 20 Recourse. Recourse against the decision ofthe respondenttoaffirm the decision of the Ministerof Interior imposing upon applicant the sentenceofrequirementtoresign andtherejectionofapplicant's 25 application for thepayment of pension and gratuity benefits in respectofhisservice inthePolice Force. L. Clerides, forthe applicant. A. Vladimirou, forthe respondents. Cur. adv vult. 30 SAWIDES J.readthe following decision.Theapplicantwas a policeconstablefrom 1973 tillthe6thSeptember, 1984 when,as a result of disciplinary proceedings against him thesentenceof requirementtoresign was imposed onhim.Thefactswhichledto hisconvictionarebriefly as follows: 35 Onthe22ndDecember, 1983theMinisterofInteriorappointed a Disciplinary Committeeunder Regulations 10Aand 32ofthe Police (Descipline)Regulationstotrydisciplinary charges against theapplicantconsistingof(a)abuse oftrust, 401 Sawides J. Georghloa v.Republic
(1987)(b)corruption and (c)improper conduct. Onthe25thJune, 1984after theapplicant pleaded guiltytothe chargeofcorruption theDisciplinaryCommitteesentencedhimto deferment of increment until the 1st November,
- The said 5 conviction was reviewed bythe Minister of Interior according to Regulation 36 of the Police (Discipline) Regulations, who increased the sentence to that of requirement to resign. The decision of the Minister of Interior dated 6.9.1984 was communicated to the applicant on 10.9.1984, who, then 10 appealed tothe Council ofMinisters. The applicant was informed by letter of the Minister of Interior that he could, if he wished, submit written representations in support of his appeal which he did by letter of his counsel. The applicant's appeal wasconsidered onthe 1stNovember, 1984by 15 the Council of Ministers which decided to affirm the sentence imposed bythe Ministerof Interiorand dismissed theappeal.The decision of the Council of Ministers was communicated to the applicant byletter dated 21stNovember,
- Aftersuchdecision wascommunicated totheapplicantcounsel 20 on his behalf, addressed a letter to the Minister of Interior dated 26.11.84, requesting the grant to the applicant of pension and retirementbenefits on thebasisofhisyearsofserviceinthePolice Force. The applicant's request was submitted by the Minister of InteriortotheCouncilofMinisterswhichexamineditatitsmeeting 25 of 17.1.1985 and decided to reject same. The decision of the Council of Ministerswas communicated totheapplicant by letter dated the 26th January,
- Asa result the applicant filed the present recourse whereby hechallenges (a)The decision of the Council of Ministers communicated to 30 the applicant by letter dated 21st November, 1984, whereby the councilofMinistersaffirmed thedecisionoftheMinisterofInterior imposing upon the applicant the sentence of requirement to resign. (b)The decision of the Council of Ministers communicated to 35 the applicant byletterdated 26thJanuary, 1985informing himof the rejection of his application for the payment of pension and gratuity benefits in respect of his 12yearsof service inthe Police Force. 402 3 C.L.R. Georuhlou v. Republic S a w i d e s J. Applicant prays for the annulment of the above said two decisions as being null and void and of no legal effect on the groundthattheyarenotdulyreasoned;thattheproposalsofthe Ministerof InteriortotheCouncilofMinistersinboth caseswere 5 prejudicialandunfavourable totheapplicant;thattheCouncilof Ministersacted under misconception of fact; that the Councilof Ministersviolatedtherulesofnaturaljusticeasitfailedtoaffordthe applicanttheopportunityofbeingheardorallybeforeit. Counsel for the respondent raised the following preliminary 10 objections. (a)The recourse cannot proceed as the applicant challenges two independent and unconnected administrative acts by one recourse. (b)Thefirstprayeroftheapplicantisoutoftime. 15 (c)TheapplicanthasnolegitimateinteresttopursueprayerAof hisrecourse astheprerequisites ofArticle 146arenot satisfied. Onthejointapplicationofbothcounseltheabovepointsoflaw were set down for hearing as preliminary to the hearing of the substanceofthecase. The arguments advanced by counsel for the respondent in support of the preliminary grounds raised by him are briefly as follows: The applicant could not challenge by the same recourse two independent and unconnected administrative acts.The decision 25 oftheCouncilofMinistersaffirmingthedecisionoftheMinisterof Interiortorequiretheapplicanttoresignwasbyitself acomplete andindependent administrative act. Thesecond decisionof the CouncilofMinisters,thatofdismissingtheapplicant'sapplication forthepaymenttohimofpensionandretirementbenefitsisagain 30 adifferent, completeandindependentadministrativeact.Onthe basis of the established administrative principles, counsel submitted, as emanating from the Greek authorities, when two unconnected administrative acts are being challenged by the same recourse, then, the prayer in respect of the second one 35 should fail and should automatically be dismissed and the court canonlydealwiththefirstactordecisioncomplained of. Dealing with the first prayer, counsel submitted that the recourseinrespectthereof wasfiledoutsidethe75daystimelimit 403 SavvtdesJ. GeorgbJouv. Republic
(1987)fixed by theConstitution.He further contendedthattheapplicant by having submitted an application for the payment to him of pension and retirement benefits without any reservation had impliedly acceptedthedecision forhisresignation and,therefore, hehas lostanylegitimate interesttochallenge such decision. 5 Counselfortheapplicant,ontheotherhand,submittedthattwo independent administrative acts may be challenged by the same recourse, if they are related to each other. Inthe present case, counsel submitted, the decision refusing the grant to him of pension and retirement benefits, is the consequence of the 10 disciplinary sentenceimposed upontheapplicantwhichledtohis retirementfromtheservice. Herejected thesubmission ofcounsel for the respondent thattherecourse was outof time concerning the first prayer, as the decision of the 1st November, 1984 was communicated to the applicant by letter dated 21.11.84 which 15 was received onthe23rd November, 1984 andthematerialtime isthetimewhenapersoncomestoknowaboutadecisiononthe matter.Astothecontentionotcounselfortherespondentthatthe applicantby having acceptedthesubjudice decision inPrayerA has deprived himself of his legitimate interest, counsel for 20 applicantinhiswrittenaddresshasnotadvancedanyargumentto the contrary. The only mention made by him is verbatim as follows: «Prayer Βcanonly proceedincase PrayerAshould fail.» «c Ishall deal firstwith therelief prayed underparagraph (A). The contentionof counsel for therespondentthatPrayerAisoutside the time limits prescribed under the Constitution, is untenable. The sub judice decision was communicated by letter dated the 21stNovember,1984 andonceitwas communicatedbypost,the allegation ofcounselforapplicantthatitwasreceived onthe23rd 30 November,1984is,intheabsenceofanyevidencetothecontrary wellfounded.Therecoursewasfiledonthe4thFebruary,1985.As fromthe23rdNovember,1984tillthe4thFebruary,1985thetime thatelapsed is73daysinwhichtheday ofthecommunication of thedecision andtheday ofthefilingoftherecourseareincluded. 35 Evenifweassumethatthedecisionwascommunicatedontheday ft was posted, again thewhole period is notoutside the75 days time limitprescribed by theConstitution. 404 3 C.L.R. Georghlou v.Republic S a w l d e s J. The next question which poses for consideration concerning PrayerAiswhethertheapplicanthaslosthislegitimateinterest to challenge thepresentrecourse. Itiswellsettledbyalineof casesofthiscourt thatanexpress or 5 implied acceptance of an-administrative act or decision without any reservation ofrights,provided itemanates out ofthe free will ofaparty,depriveshimofanylegitimateinteresttochallengesuch decision. In the present case the decision of the Council of Ministers was communicated to the applicant on the_23rd. 10 NovembetJ984. The applicant instead of challenging the said decisionfiledarfapplication totheCouncilofMinistersrequesting the grant to him of his pension and retirement benefits. The conductoftheapplicantamountstoaclearimpliedacceptanceby him of the decision of the Council of Ministers,in the exerciseof 15 hisfree volition. Itherefore acceptthesubmission ofcounsel forthe respondent in thisrespect and I find that the applicant has lostany legitimate interesttochallenge such decision. Icomenexttoconsiderthesecondprayeroftherecourseofthe 20 applicant. I agree with the argument advanced by counsel for the respondent that one cannot challenge two independent and unconnectedadministrativeactsbyoneandthesamerecourse.In the present case, however, the question which arises is whether 25 thetwoactsareentirelyindependent ofeachotherorwhetherthe one is related to the other in that the second cannot have any substance in case the first one succeeds and that the second is consequential of theresultofthe first. The claim of the applicant for pension and retirement benefits 30 could only arise in the case of his retirement from the service whether compulsorily orvoluntarily. Ihavetherefore cometo the conclusion that, irrespective of the desirabiblily that the two acts should have been challenged by different recourses and the second one should remain inabeyance pending the result of the 35 first, thisformal defect isnotenough to nullify the proceedingsin respect of prayer B.Ithasbeen held time and again bythiscourt thatformal defectsshouldnotbe allowedtobeusedasameansof defeatingaclaimwhichapartymayhaveagainstanadministrative actordecision. 40 Before concludingIoughttomentionthatcounselforapplicant 405 SavvtdesJ. Georghlou v. Republic
(1987)has filed, after judgment was reserved onthepreliminarypoints, an additional ground that the Police (Discipline) Regulations 1958-1983, onwhichtheapplicantwas convictedandsentenced torequirementtoresign,hadbeendeclaredvoidbytheSupreme Court.Thisground,however, goestothesubstance of prayerA, 5 which,asIhavealreadyfound,cannotproceed. In view of my findings as above, Prayer A of the recourse is hereby dismissed. Thepreliminaryobjection as tothevalidity of prayer B, however, fails and the recourse may proceed for the hearingof prayerΒonitsmerits.Therewillbenoorderforcosts 10 on thepreliminaryissues. Orderasabove. 406