(1988)1988November2 [BOYADJIS,J.l INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION. LEONIDASLEONIDOU, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH 1. THEMINISTRY OFCOMMERCE &INDUSTRY, 2.THECO-OPERATIVE DEVELOPMENTDEPT., 3.THEREGISTRAR OFCOOPERATIVE DEVELOPMENT, Respondents. (CaseNo. 628/84). Public Officers—Salary—increments—Educational leave without pay— Placing applicant,uponhisreturntowork,atthesamepoint inthescaleat which he was, when heleftfor hisstudies—Request that hebeplaced ata point he would have reached,if he had not obtained such leave, turned down on ground ofpolicy based onthefact that hehad not completed his , studies—Complaint that such reflection was without legal justification— Had theapplicant beenonscholarship,hiscasewouldhavebeengoverned by Circular 266 of 7.2.1972, para. (C) (Hi)—Applicant's casefalls within Circular 542 of 15.7.1980, Regs. 1and 2—Therefore, thepolicy invoked had a legal basis—Reason for thenon-completion of thestudies (e.g. un~ . « reasonable refusal ofadministrationtograntextensionoftheleave) irrelevant. Presumption ofregularity—Omniapresumunturrite esseact—Burdenofproving lackofcorrectascertainmentoffacts restsonapplicant'sshoulders. Misconception offact—Burden ofproof—Lies onapplicant. Reasoning ofanadministrativeact—Principlesapplicable—Shortanalysisof. 2010 ._ 3 C.L.R. Leonidou v. Republic Reasoningof anadministrativeact—Evenif theactcannotbesustainedbythe legalreasonthatwasinfact invoked,suchactwillbe upheld, ifitis validin , lawfor some other reason—Failure to mentionthespecificprovisionthat couldinfact justify theact—As siichprovisionleft nodiscretion tothead ministration todootherwise,thesubjudice actwillbeupheld. ' »• Public Officers—Salary—Increments—Educational leave without pay— Refusaltoextendperiodofleave—Failuretochallengesuchrefusalbyare course to this Court—Refusal toplace applicant at apoint in the scale, which hewould havereached,hadhenotobtainedtheleave—Submission thattheprinciples of goodadministrationrequired thattheAdministration shouldhavetakenintoaccountthefact thattherefusaltoextendtheperiod ofleavewasunreasonable—Rejected. Thefactsof thiscaseappearsufficiently from thejudgmentof theCourt. - ; -' * · ' · · - ' ' ' ' Recoursedismissed. Noorder as tocosts. . Casesreferredto: Lordos andOthers v.TheRepublic
(1974)3C.L.R. 447; TheRepublic v.Ekkeshis
(1975)3C.L.R.548; Korai v.TheCyprus Broadcasting Corporation
(1973)3 C.L.R.546; 'Georghiadesv. TheRepublic
(1967)3G.L.R. 653; • Papadopoulos v. TheRepublic
(1968)3p.L.R.662; Pikis v.TheRepublic
(1967)3 C.L.R.562; Papadopoulos v. TheRepublic
(1968)3C.L.R. 662; Spyrou v. TheRepublic
(1973)3.C.L.R. 478., '•''!• ι * · . • - . 2011 <,t .
(1988)Leonidouv. Republic Recourse. Recourseagainsttherefusal oftherespondentstoplaceapplicant at the point of his salary scale to which he would have reachediftheeducationalleavehadnotbeengrantedtohim. Ph.Valiantis,fortheapplicant. 5 St.loannidou (Mrs.),for themspondents. Cur. adv. vult. BOYADJISJ.readthefollowingjudgment.BythepresentrecoursetheapplicantseeksadeclarationoftheCourtthattheactor . decision of the respondents communicated to the applicant by theirletterdated 15th September 1984,wherebytheyrefused to place the applicant at thepoint of his salary scale to which he wouldhavereachediftheeducational leavehadnotbeengranted tohim,isnullandvoidandofnolegaleffect whatsoever. Thefactual background tothe present recourse is briefly as follows: ^ ^ On29December 1979,accedingtoarequestmadebytheapplicant,therespondentsgrantedtohimeducationalleavewithout payoriginally for oneyearendingon28December 1980forthe purposeofenablinghimtoproceed toWestGermany andstudy 20 economics at theuniversity of Bonn,oncondition that hesigns the prescribed written agreement on Form Gen. 108,which he did.Itwasthereby,interalia,providedthat,ifatanytimeduring thecourseof studyit appearstotheGovernment thatanyreport orreportsregardingthestudent'sconduct,industryorprogressis 25 orarein anyway unsatisfactory, it shall belawful for theGovernment todetermine theaforesaid agreementfor allintentsand purposes.The applicant wasthenholding thepost of Assistant Co-operative Officer. As a result of the subsequent reoraginsation ofhisDepartment asfrom1 January 1981,hispost 30 wasrenamed "Co-operativeOfficer 2ndGrade".Thesalaryscale 2012 3 C.L.R. Leonidou v.Republic Boyadjis J. of thispost,which theapplicant holds until today,isA.7. 5 10 ,<- 2^ y~ 35 Pursuanttotheabove,theapplicantproceeded toWest Germanyandcommenced his studies.On9 October 1980,theapplicant addressed a letter to therespondents requesting extension of his educational leave without pay for a further period of two years "for the completion of his studies and the obtaining on his degree".Therespondents examined applicant'srequest and,having evidently satisfied themselvesof his satisfactory progress during the first year of his studies, they wrote to him a letter dated 31 December 1980, whereby they.informed him that, on condition that hesigns asimilarcontract intermsof FormGen. 108,which theapplicantdid,hiseducational leave without pay would beextended for only one more year ending on 29 December 1981.It wasstated inthe same letter thatanyfurther extension of hiseducational leave shalldepend on theacademicprogressof theapplicant. On 8 December 1981,the educational leave of the applicant waslikewise extended for onemore year,being thethird year,at the,expiry of which the two.years' period mentioned in applicant'sletterdated 9October 1980,had been completed. On2December 1982,theapplicant wrote another letter tothe respondents whereby he was praying for a further extension of hiseducational leaveofabsencewithout pay without defining this timetheextent thereof.In answer-totheapplicant's last aforementioned application respondent No.3addressed tohimaletterdated 27May 1983,reminding him thathisleaveof absence,having been renewed for a further period of two years, had expired on 29December 1982,andinforming him that they have reluctantly recommended the grant of leave of absence for one more year endingon29December 1983.Inthesameletter itwasstated that, though theGovernment appears willingtorenew hisleaveofabsence until 29 December 1983,therejare serious difficulties for any further renewal thereof beyond 29 December 1983,when a total period of four years' leave of absence would.be granted to him. In conclusion the applicant was being asked toinform the -2013 Boyadjis J. Leonidou v. Republic
(1988)respondents whether, inview of theabove,heproposed toreturn tohis work and toresume hisdutiesfrom30December 1983onwards. In reply, the applicant informed the respondents by his letterdated 6June 1983,that, being acivil servant, hehadnointention tocause any difficulties to hisDepartment or todisobey 5 their directions and that he, therefore, proposed to return to his work andresume hisdutieson 30December 1983.Infact theapplicant returned toCyprus andresumed hisdutieson 1November
- It is pertinent toremark at this stage that,on receiving therespondents' aforesaid letter dated 27 May 1983,the applicant did not pursue further and did not insist on his application dated 2 December 1982, either by defining the period of the additional leave of absence which hewasprayingfor, orbyprotesting toor answering theinnuendocontained intherespondents'lastletter to him dated 27 May 1983, that his progress was not satisfactory sinceheneeded much longerperiod than theperiod of two years stated in his letter dated 9 October 1980,tocomplete his studies and get hisdiploma. Instead, itseems that hetreated, wronglyin my opinion, therespondents' letterdated 27 May 1983as a definite andfinalrefusal of therespondents togrant tohimany leave of absence after 29 Decemb^
- It should be added at this juncture that, subsequently tohis letterdated 2December 1982, and prior totherespondents' letterdated 27May 1983,theapplicant had submitted to the respondents acertificate issued on 30 January 1983,bytheuniversityofBonn totheeffect that (i) hewas studying in the university uninterruptedly since his registration inOctober 1980; (ii)hehadfulfilled therequirements forhisparticipation in the intermediateexaminations; (iii) though the minimum period of studies in thefield of NationalEconomy intheuniversity is,according totheRegulations,eight half-yearly terms,for thesuccessful completion of the studies an average student needs twelve half2014 10 15 20 25 3 C.L.R. Leonidou v. Republic BoyadjisJ. yearly terms; therefore, the applicant is not expected to complete hisstudies before
- . On 21 February 1984, the applicant addressed aletter tothe ActingDirectorofPublic Administration andPersonnel through 5 Respondent No.3,stating thathewas orally informed thathehad been placed asfrom1stNovember 1983, atthepointofthesalary scaleat which hewason29December 1979, i.e. thedate when hiseducational leaveofabsence without pay hadcommenced.He added that,because thesalary increments which hadaccrued dur10 ing the period of his,leave of absence had not been granted to him,hebeggedthatthematterbere-examined andthathebein formed accordingly. Respondent No.3passed over applicant's letter to theDepartmentofPublic Administration and Personnel andaskedfor theiradviceonthematter.Actingontheadvice and/ ,c orinstructions oftheDirector oftheaforesaid Department,Re spondent No.3addressed totheapplicant theletterdated 15Sep-. tember 1984, (Reference Π.Φ.206), Exh. 14before me, commu nicating tohim thesub-judice decision dismissing applicant's claim thattheaforesaid salaryincrements be granted tohim.The letteris inthefollowingterms: 20 / /Κύριο Λεωνίδα Κ. Λεωνίδου, ΣυνεργατικόΛειτουργό, 2ηςτάξης, Έ χ ω οδηγίεςΥ<* αναφερθώ,στηνεπιστολή σαςπροςτον Αν. ΔιευθυντήΥπηρεσίας Δημόσιας Διοικήσεως και Προσωπικού μεημ.21.2.1984,σχετικά μετοθέματηςμισθοδο σίας σας,και.σαςπληροφορήσω ότι μεβάσηταγεγονότα τηςπεριστάσεως σας,δεν μπορεί νατοποθετηθείτε στοση μείο της κλίμακας που θαφτάνατεαν δε σας είχε παρα χωρηθεί ησχετική εκπαιδευτικήάδεια.Δεδομένου ότι δεν , έχετε αποκτήσει πανεπιστημιακό δίπλωμα ή ισοδύνατο αναγνωρισμένοπροσόν μεβάση τουςόρουςτουσυμβολαίτ ουτηςεκπαιδευτικήςάδειαςπουείχετε υπογράψειθαπρέΥ πει,σύμφωνα μετηνπολιτικήπουακολουβείταιστοθέμα * αυτό, να τοποθετηθείτε απότην ημερομηνία πουαναλά.βάτετακαθήκοντασας,δηλ. την 1ηΝοεμβρίου 1983, στο \ 2 5 30 35 2015 Boyadjis J. Leonidou v. Republic
(1988)σημείο τηςκλίμακας στο οποίοβρισκόσαστεπριν αναχω ρήσετεμεεκπαιδευτικήάδεια. (Υπ.) Ε.Α. ΧΛΩΡΑΚΙΩΤΗΣ Διοικητής ΣυνεργατικήςΑναπτύξεως" 5 TranslatedinEnglish itreads asfollows: "I have instructions torefer toyour lettertotheActing Di rectorof theDepartment of PublicAdministration and Person neldated21.2.1984concerning thematterof your salary, and Idoinform you thatonthebasisof thecircumstances of your 10 case, you cannotbe placed at thepoint of the salary scale to which you would havereached,butfor thegrant toyou ofthe relevant educationalleave. Inviewof thefact thatyou havenot * obtainedauniversity diplomaorarecognised equivalent quali fication as per thetermsof theagreement for theeducational 15 leave which you have signed, you must,in accordance with the policy thatis being followed on this matter,be placed as . from 1st November 1983, at the point of the salary scale at which you hadbeenbefore the commencementof youreduca tionalleave." Feeling aggrieved with the aforesaid decision, the applicant seekstohave it annulledthroughthepresentrecoursefiled on17 November 1984, onthefollowing four legal grounds: 1.Therespondents actedwithouttheauthorityof anylawand/ orthesub-judice actordecision is notbased onany legalprovi- 25 sion. 2.Therespondents actedunderamisconception as tothe facts inthat(a)they ignored thefact thattherespondents themselves had obliged theapplicanttointerrupthis studies by theirrefusal torenew or extend the educational leave granted tohim, 2016 30 20 3 C.L.R. Leonidou v. Republic Boyadjis J. r when they knew or they ought to have known that theap- 5 plicant needed one year tolearn theGerman language and that theaverage student needs 12halfyearly periods toobtain thedegreeof theUniversity of Bonn on thesubject of National Economy: (b)they failed tomake afull enquiry of all thefacts pertaining tothecaseoftheapplicant; 10 15 20 (c)they purported to have followed apolicy which, however, wasnever given anypublicity and/orisnotprovided for in . ·,any legal provision. , ' ,, 3.The sub-judice decision or actis notreasoned fully orduly oratall and/orthereason stated isillegalorwasgivenincircumstancesof misconception astothelaworfacts. 4.The sub-judice decision or actamounts toanexpression of unfavourable discernment inthe treatmentof theapplicant and/or violates theprinciples ofgood administration because therespondentshad unjustifiably obliged theapplicanttointerrupt his studies by their refusal to grant to him further educational leave and they now base their denial of the applicant's-rights on their own aforesaid unreasonable action. ,, , , Intheirnotice ofopposition therespodentsdeny all the aforesaidcontentionsof theapplicantandallegethatt (i)the sub-judice act and/ordecision waslegally and correctly 25 30 taken inaccordance with theprovisionsof the Constitution and the relevant Laws after due enquiry and proper exer.ciseof theirdiscretion by therespondents after taking into -consideration all relevant facts,and circumstances of the case; ; ,· (ii)thesub-judice actand/ordecisionjs fully andproperly reasoned and it wasnottaken inexcessorabuseof power. 2017 Boyadjis J. Leonidou v. Republic
(1988)Thehearingof thecasewas completed before anotherjudgeof this Court andjudgment was reserved after- (i)counsel for the applicant hadfiled his written address insupportof therecourse, (ii) counsel for therespondents hadfiled herwritten address in support of theopposition, and(iii) counsel for theapplicant had 5 filed his address in reply. Noevidence hadbeen adducedeither oral orby way of affidavit. Thecase was first brought before meon 7 September 1988. Counselthenstated thattheyadoptthe contentsof their respective written addresses already filedandrequested theCourttoadjourn JQ the case so as to prepare themselves for further oral addresses and/orfurther oral arguments orclarifications. On24 September 1988,1 had the benefit of hearing further oral arguments from bothcounsel.Myjudgment was thereafter reserved untiltoday. Iproposetodealseparately with eachof thefour legalgrounds 15 relied uponby the applicantintheorderinwhich they appearin the Application. Thefirst ground concerns theallegation thattherespondents acted without any legalauthorityand/orthatthesub-judice deci sion is notbased ontheprovisions of anyLaw. Inhis written ad- 20 dress counsel for theapplicantreferred toExh. 14containingthe sub-judice decision anddirectedhisattacktotheallegation of the respondents set outthereinthatthey tooktheirdecision pursuant to apolicy without mentioningatthesametimetheorigin orthe legalbasisof suchpolicy. Itisonthefact of theabsence ofrefer- «ς enceintheirletter, Exh. 14, toany specific legalprovision pursu anttowhich therespondents have formulated andfollowedtheir alleged policy thattheapplicantrelies togroundhiscomplaintthat the respondents acted without any legal authority in taking the sub-judice decision. Inherwritten address counselfor therespondents failed to an swer this submission of theapplicants by referring toany Law, Regulation or Administrative Circular onthebasisof which the respondentshadformulated theirpolicy relied upon, otherthatthe 2018 3 C.L.R. Leonidouv.Republic Boyadjis J. Circular No. 26d\issued by theDirectorofthe Department of· Personnel on 7 September 1972, Exh. 13 before me,para,(γ)" (iii)of whichreadsasfollows: · . . .• . "(γ)ΗΕγκύκλιοςυπ'αρ.1229 της26ης Νοεμβρίου 1954 του'Establishment Secretary' αναφορικώς.προς τηνπαρα- χώρησινπροσαυξήσεωςειςτουςυποτρόφουςεξακολουθεί να ισχύη.Αύτηδιαλαμβάνειτα εξής . 'ν; (iii) Εάνο υπότροφος εις τον οποίονδεν εδόθησαν οι προσαυξήσειςβάσειτηςυποπαραγράφου (ϋ)ανωτέρω επι' στρέψηειςτηνθέσιντηνοποίακατείχεπροτηςαναχωρή σεωςτουδιάτηνυποτροφίαν,ούτοςδέονόπως τοποθετηθή εις την βαθμίδα της κλίμακος εις την οποίαν θα έφτανεν εάνδεν του είχε χορηγηθήηυποτροφία, καινα διατήρησητηνημερομηνίαπροσαυξήσεωςτοΰ." TranslatedinEnglish theaboveparagraphreadsasfollows: "(γ)The Circular No. 1229 of 26 November, 1954 by the 'Establishment Secretary' concerning.thegrantof increments • toholdersof scholarships continuestobein"force. Itcontains thefollowing: ..··., , (iii)If theholderof scholarshiptowhomtheincrements un der sub-paragraph (ii)abovehave notbeen granted,returns to the post which he held before his departure for the scholar ship,heshall be placed atthepointof the salary scalewhich hewouldreachif thescholarship hadnot beengrantedto him ' andshallkeephisincrementaldate." ' ' v . ;. . • - - • • ' · . . · * -*'J "' ' Itisobviousthatthelastaforementioned circularappliesonly toholdersof scholarship anddoes-notgovern the positionofthe present applicant to whom leave of absence without pay was granted toenable himtostudy abroad at his own expense.The reason, as I understand it, for which?counsel forrespondents madereference inherwritten address tothis circular was todis tinguish between theholdersof scholarships ontheonehand and 2019 Boyadjis J. Leonidou v.Republic
(1988)persons in the position of theapplicant on the other hand and to base on this distinction her argument that, since the applicant is not the holder of a scholarship, he is not entitled to the benefits concerning increments to which holders of scholarship are entitled. She had resorted to this argument since other provisions in 5 force directly governing thecaseof thepresent applicant had not crossed hermind and her attention was notdrawn tothem bythe persons who were supposed tohave relied on them in reaching theirdecision now underfire bythe applicant. Be that as it may, in her subsequent oral address before me, JQ counsel for the respondents referred to theGeneral Order III/1.5 which readsas follows: "An increment is an increase of salary by a specified amount which, provided certain conditions are satisfied, is granted in accordance withtheconditionsof appointment ofan 15 officer until a maximum isreached. The principal condition which must be satisfied forthegrant of anincrement isthe efficient, diligent and faithful dischargeof anofficer's duties.A headof department is,therefore, required underColonial Regulation 42 to sign acertificate (Form F. 154) totheeffect that -n theofficer 'hasdischarged hisduties withefficiency, diligence and fidelity' before granting an increment. This certificate should not be signed unless the officer's conduct and work during the preceding twelve months have been entirely satisfactory." Counsel for therespondents alsoreferred tothecircular, Exh. 17, issued by the Director of the Department of Pesonnel on 15 July 1980, under the heading: Leave of absence without pay Yearly increments,which aimed attheadoption of ageneralpolicy governing the grant of yearly salary increments to civil ser- ™ vants, whetherpermanent ornot,towhomleaveof absencewithout pay is granted, and to the relevant Regulations which are attached tothat Circular, andshealleged thatRegulations 1 and2 recited hereinbelow provide the lawful basis of the "policy" referred toin the sub-judice decision,Exh.
- 35 2020 25 3 C.L.R. Leonidou v. Republic Regulation 1 reads: 5 Boyadjis J. . . ! 'Τηρουμένων των εν ισχύϊ προϋποθέσεωντωνδιεπσυσών τηνχορήγησιν ετησίωνπροσαυξήσεων,διανα δικαι ούται υπάλληλος ειςτηνχορήγησιντης ετησίαςαυτούπροσαυξήσεως ούτος δέον όπως συμπλήρωσηδωδεκάμηνον υπηρεσίαν μετ' απολαβών." Translated inEnglishRegulation 1 reads:· 10 "
- Subject to theconditions in force that govern the grant of yearly increments, to be entitled to the grant to him of his yearly increment, the civil servant must complete twelve months' service with pay." Regulation 2reads as follows:1 - I* • "2.Leave of absence without pay granted toacivil servant -for atotalperiod exceeding 15days within theyear of service, .does*not count as service for thepurposes of increments,and. in such a case the date on which theyearly incrementof the civil servant is being postponed accordingly, i.e. for a period of timeequal tothetotal period of his leaveof absence without pay." · <, ^ 20 ,t 25 30 Relying on the aforesaid General Order and Regulations, counsel for therespondents abandoned her submission set outin the noticeof opposition and in her written address to the effect that therespondents correctly reached the sub-judice decision in theproperexercise of theirdiscretion andthat,in thecircumstances of theapplicant's case, it was reasonably open to themto take such decision. She submitted, instead, thattheapplicant, notbe ing theholder of a scholarship and having failed toobtain aunivesity diploma, is covered by theaforesaid provisions of General Order III/1.5 and Regulations 1and 2, Exh. 17,invoked by her, albeit belatedly, which provisions impose on therespondents the obligation to refuse applicant's claim for the increments which might have accrued but for his absencefrom work following the 202-1 Boyadjis J. Leonidou v.Republic
(1988)granting tohimof hiseducational leave. In answer tothe new stand taken by counsel for respondents, counsel for theapplicant submitted thatRegulations 1and2here inabove set out do not apply to thecircumstances of the present case because, whereas we are now concerned with increments which accrued during the period of theeducational leave of ab sence without pay granted to theapplicant, Regulations 1and 2, govern cases of leave of absence without pay in general and no specific reference toeducational leaveis madetherein. 5 Ido notaccepttheabove argument in this respect. Itis clear to 10 me that, the applicant not being the holder of a scholarship in which case he would come within theexception specifically pro vided by paragraph (γ)(ΐϋ) of theCircular No. 266, dated 7 Sep tember 1972, Exh. 13, his case falls squarely underGeneralOr der III/1.5, Exh. 16, and Regulations 1and 2 which form part of 15 the Circular No.542 of 15 July 1980, Exh. 17,which afford the necessary authority upon which the policy invoked in the subjudice decision, Exh. 14, was formulated and followed, and which enabled therespondents,in fact bound therespondents,to take thedecision now challenged by theapplicant. 2n Leaving at present aside the question whether the sub-judice decision is vitiated so as to be annulled by the fact that no refer ence is madeeither in thetext of the sub-judice decision orinthe official records placed before theCourttothe aforesaid General Order and Regulations, Exhs. 16 and 17 respectively, belatedly relied upon by therespondents as afording the necessary lawful basis of the policy mentioned in their decision, which question, though raised in thecontext of ground 1,is moreclosely connec ted with theallegation of lack of duereasoning set outinground 3 of the Application and which question Iconsider more conve nient todeal with when Ishall examine ground 3of the Applica tion, I am otherwise satisfied that ground 1of theApplication is not avalid ground andit,therefore, fails. Ground 2 of the Application concerns the allegation that,in 2022 «s 3 C.L.R. Leonidou v.Republic Boyadjis J. takingthesub-judice.decision therespondents acted under amisconception as tothe facts pertaining tothe caseof the applicant. Thisallegation isbasedon threedistinctreasons. 5 10 ,c 20 25 30 : 35 The first reason upon which Ground 2 of the Application's -based refers to the allegation that by their letter dated 27 May 1983; the respondents have refused torenew applicant's educational leave after 29 December 1983, and the applicant's complaint in this respect is that, inreaching the sub-judice decision, the respondents have failed to take into account that, by their aforesaid refusal, they had forced the applicant to interrupt his studies. Ido not think that thisreason isa valid one.All thecorrespondence and documents regarding the commencement, the end andtheresultsof theapplicant'seducational leave of absence without pay to which I have hitherto referred, were in the applicam's file in the possession of therespondents at the time when the sub-judice decision was taken andthereisnothing tosuggest that they overlooked any part thereof.There is,however, another obstacle in the way of theapplicant blocking the way leading to the success of the Application on the first reason of Ground 2. -Even if,, applicant's allegations to the effect that - (i) by their .aforesaid letterdated 27..May.1983,therespondents left nochoice to,theapplicant other than theinterruption of hisstudies,and (ii) in taking the sub-judice,decision, the respondents had ignored thatfact, wereboth correct,theapplicantagaincannotsucceedon thisreason,'inasmuch asthefact allegedly ignored isnot amaterialfact that could-possibly:influence therespondents to accede-to applicant's demand for increments accrued during the period of his leave of absence without pay. Neither under General Order III/1.5, nor underRegulations 1and 2 of Circular No.542 dated .15July 1980, which govern thecase of the applicant; the matter allegedly ignored.by. the respondents is in'any way relevant. Equally irrelevant is thereason orreasons whythe applicant has failed toobtain theuniversity diploma which wastheobject-of his studies duringhiseducational leaveofabsencewithout pay. v*As-I havesalready stated, the respondents.were bound under theaforesaid General Orderandcircularto takeinthecaseof the 2023 Boyadjis J. Leonidou v.Republic
(1988)applicant thesub-judice decision which they havetaken,irrespectiveof whether the non-completion of theapplicant's studies was due to the unreasonable refusal of therespondent torenew applicant's leave of absence after 29 December 1983,or to the applicant's own fault. Imight add in thisrespect that morethan neces- 5 sary was said by both sides on the validity, the reasonableness and the effect of the contents of therespondents' letter dated 27 May 1983,which were notand could nothave been thesubject of scrutiny in thepresent recourse. If theapplicant believed that he had been aggrieved by the contents of the aforesaid letter or that ,Q thelettercontained adecision thatcouldbechallenged underarticle 146 of the Constitution, he ought to have filed a recourse within 75daysfrom receipt thereof. I shall next deal with the secondreason on which Ground 2of the Application isbased which refers toan allegation thatthere- 1e spondents failed tocarry out a full investigation into all the facts which wererelevant tothecaseoftheapplicant.The allegation is too general and vague. No reference wasmade bycounsel in his argument which are therelevant facts which he had in mind and which might haveinfluenced therespondentsin takingadecision different than the one which they have taken had they come into light through a proper and full investigation by the respondents. No evidence or allegation have been adduced as tothe existence of any such facts otherthan theinterruption ofapplicant's studies already dealt with which remainedconcealedduetothefaulty in- 25 vestigation ortothelack of anyinvestigation bytherespondents. In Paraskevas Lordos and others v. The Republic
(1974)3 C.L.R. 447, it was held that, in the absence of any concrete evidence establishing lack of a correct ascertainment of relevant facts, the presumption of regularity - "omnia presumuntur rite esse acta" applies and the conclusion to bedrawn is that the ad- ™ ministrative decision wasreached after proper ascertainement of facts. See also The Republic of Cyprus (through the Council of Ministers v. Nicolas Ekkeshis
(1975)3 C.L.R. 548, where it was held that "the burden of establishing that an administrative 35 decision wasreached on thebasisofamisconception aboutama2024 3{C.L.R. Boyadjis J.1 Leonidou v. Republic terial fact lies on theperson challenging thevalidity of suchdeci sion onthisground". . . • ι . >., •• ' . . ' ' • The applicant in this case has failed to discharge theburden cast upon him.,',. 5 Ishall lastly refer tothethirdreason putforward by theappli cant and which is in essence a repetition of the contents of Ground 1,which Ihave already ruled to be not a valid ground. Thereis nothingIwish toadd towhat Ihave already stated above concerning the policy followed by the respondents, a policy which, as Ihave already found, had alawful .basis. 10 For all the above reasons Ground 2 of the Application also fails. .·' •'' Ground 3 of the.Application has two legs.Thefirst leg refers to theallegation that therespondents failed to state the required reasons for theirdecision. Thesecond leg refers tothealternative 15 allegation that thereasons,given by the Respondents are illegal. Counsel did notelaborate specifically onthelatterleg of Ground 3.Thereasoning of administrative decisions is rendered illegal in. case of either vagueness or of misconception. Counsel did not . complain thatthereasoning in thepresent case is vague. Miscon-. 20 ception was raised as a separate ground, i.e. Ground 2 above which I have already examined,and dismissed. What remains, therefore, tobe determinedis whetherrespondentshave statedthe required reasons for theirdecision or not. .· .;i jDue reasoning is asine qua nonfor thevalidity of administra25 tive decisions. Theobject of'this rule is twofold. First, to enable 1 ·"·* all persons affected'by the decision, especially those whose rights, as they understandthem, have been taken away,curtailed or notrecognised tounderstandthereasons behindsuch decision.' Secondly, to enable this Courton review tojudge in each case 30 whether the decision is well founded in fact and in law. The above object of therulecanonly be achieved if thereasons given are adequate, if they are expressed i n clear and unambiguous 2025 Boyadjis J. Leonidou v.Republic
(1988)terms in a manner that reasonable people affected thereby would understand them, and if they are statedeither in thedecision itself or atleast intherelevantofficial records which areput before the Court. The adequacy of the reasoning is a question of fact depending upon the nature of the decision concerned. The above 5 principles are born out of a long line of cases decided by this Court including ElliKorai v.TheCyprusBroadcastingCorporation
(1973)3C.L.R. 546,Georghiades v.TheRepublic
(1967)3 C.L.R. 653,and Papadopoulos v.TheRepublic
(1968)3 C.L.R. With the above principles in mind I now tum to examine the reasons given by the respondents for their sub-judice decision. There is nosuggestion that anyreasonsadditional tothose found in thedecision itself aretobefound in theofficial records which have been placed before me.In myview thenatureof thepresent <e decision did not require any further reasons to be stated than those actually given which Iconsider asreasonably adequate. It is, however, common ground that the General Orders, Exh. 16, and Circular No. 542 and the Regulations attached thereto,Exh. 17, upon which the policy relied upon by the respondents was founded, are not mentioned at all in the sub-judice decision or anywhere else. It is also true that in her written address counsel for the respondents seeks tojustify therespondents' decision by reference to another circular which has no direct bearing on the facts of theinstant case.In thecircumstances,themaximum that canpossibly besaidagainst thesub-judice decision withregard to ^5 its reasoning is that the decision cannot be validly based on the reasons oflaw stated therein. The question, therefore, that poses for determination iswhether thisdefect canvitiatethedecision or not. The answer to it is in the negative. In Costas Pikis v. The Republic
(1967)3 C.L.R. 562, Triantafyllides, J. (as he then 30 was) said thefollowing atpp. 575and 576: "Even ifan actordecision couldnot bevalidly basedon the reasons of law actually given in support thereof, but it is neverthelessvalidinlaw for someotherreason,therelevant Administrative lawjurisprudence hasgone sofar asto lay down 2026 35 3 C.L.R. .'Leonidou v. Republic .Boyadjis J. thatsuch actordecision should bejudicially upheld.InitsDe cision 2122/1956 (vol..1956 Γ,p. 1028 atp. 1030) the Greek ,.Councilof Statehas stated: 5 10 15 20 25 ·· 30 'Νομίμως, όθεν,απερρίφθη, ει και επ'άλλη αιτιολογία ηως άνωαίτησιςαναθεωρήσεως τουπροσφεύγοντος,δια της προσβαλλομένης αποφάσεως, και κατ' ακολουθίαν απορριπτέα αποβαίνει ως'νόμωαβάσιμοςηυπόκρίσινέν δικος αίτησις...' ' Ν (There has lawfully, therefore, been rejected, by means of · the decision challenged, even though for other.reasoning, the .said applicationof theApplicant for areview,andthusthe sub judice recourse has tobe rejected as unfounded in law"). -. So, even if all,the reasons given in the letter exhibit 2; in i- support of the sub judice decision;were not correct in law, I would still be prepared to find that,in thecircumstances;the RespondentCouncilof Ministerscould nothave lawfully done otherwise thanto turndown Applicant's request, containedin f*.exhibit 1."- < - f'· .· Reference may also bemadetoMiltiades Papadopoulosv.The Republic'
(1968)3 C.L.R. 662, where, adopting Kynakopoulos on GreekAdministrative Law, L.Loizou,J',said thefollowing at p. 674:· • ' . •' · ι' f 1 [ Γ ·' > · ! ... ·' ν · t' 1 "According toKynakopoulos onGreekAdministrative Law • ' vol. Β atp. 387, wrong legal reasoning does notlead to annul. mentif thedecision canhave otherlegal'support. Tothe same -: ..effect are>alsotheDecisionsof theCouncilof State 666/1936 , reported in voh.A.II of 1936 atp. 618,1606/1950 reportedin " vol. Βof 4950 at-p. 128 arid 1850/1950 reported in vol. Β of ,-1950 at p.321."V- . , · . " ι Finally it is useful torefer toSavvasSpyrouv. The Republic
(1973)3.C.L.R: 478, where Triantafyllides, P. said atp. 484:. 2027 Boyadjis J. Leonidou v.Republic
(1988)"It is,however, open to an administrativejudge -and Iam dealing with these cases in suchacapacity -touphold thevalidityof anadministrativedecisiononthebasisofalawful reasoning therefor even though such reasoning is different from thereasoning given bytheadministration for reachingsuchde- ^ cision and even if thereasoning given by theadministration is legally defective (see, inter alia, the decisions of the Greek Council of State in Cases48/1968, 132/1969,2134/1969 and 2238/1970)." There doesexist, as Ihave already said,lawful reasoning sup- JQ porting the sub-judice decision, i.e.theGeneral Orders,Exh. 16, and theCircularNo. 542,Exh. 17,andeven if thereasoning given by the respondents in their decision isdefective in the sense that noreference istherein made toExh. 16and 17justifying the policy which they had followed and towhich they had expressly ,c referred, Iwould still dismiss Ground 3of theApplication asnot · being avalidreason for annulment of thesub-judice decision. Ground 4of theApplication isthelastgroundthatremains to be examined. This groundrefers rather tothe alleged unreasonable refusal by the respondents to renew applicant's educational «o leaveof absenceafter 29December 1983communicated totheapplicant by the letter dated 27 May 1983.1have hereinbefore expressed my views about applicant's complaint against the contents of this letter. Irepeat that if those contents amounted toan administrative decision, theapplicant could havechallenged itin time. This recourse is too late a stage for theapplicant to allege that the respondents acted in 1983 unreasonably or unlawfully. What the applicant demands in essence is that the respondents ought to have reflected ontheirdecision torefuse further educational leavetotheapplicantinMay 1983,admitthattheyhad then 30 acted unreasonably and unjustifiably, consider themselves solely responsible for the interruption of applicant's studies and for his non-obtaining the university diploma, and with allthesein mind in September 1984 when examining his application for increments which had accrued whilst he was absent from his work 35 studying abroad, toexercise adiscretion which theydo not pos2028 3 C.L.R. 5 IQ Leonidou v.Republic Boyadjis J. sessand toplacehimatahigherpoint of hissalary scalecontrary to the General Orders, circulars and regulations governing the matter. Their failure todo this amounts, according to the applicant, to an expression of unfavourable discernment against him and offends therulesof good administration. Neither the respondents nor this Court can subscribe to this line of thinking or demand of theapplicant.'Ground 4of theApplication alsofails. • In view of theforegoing Irule that the recourse of the applicant cannot succeed and, therefore, itisdismissed accordingly. I donot, however,propose tomake anorder for costs against him havinginmind allrelevantconsiderations. Application dismissed. No orderastocosts. 2029