clr/1988/1988_3_2235.pdf

(1965)3C.L.R. 542; ' · i · . Varnava v.TheRepublic

(1968)3C.L.R.566; Kyprianides v.TheRepublic

(1982)3C.L.R.

1. Recourse. Recourseagainst therefusal of therespondents toemplace applicanton salary scaleB.
2. . 2235 Kampouris v. ES.C.

(1988)L. Clerides,for theapplicant. N. Charalambous, Senior Counsel of the Republic,for there­ spondents. Cur. adv. vult. STYLIANIDES J.read thefollowingjudgment. Theapplicant is an Engineer Instructor,a post which carries salary in the new scales A8-A

1. 5 On 25th May, 1979, heapplied totherespondent Commission to be emplaced in the then scale Β
2. His such application was rejected by the Respondents on 22nd December, 1979, having taken intoconsideration all thefacts anddocumentsbefore them. ™ He, being aggrieved, filed Recourse No. 6/80 seeking thean­ nulment of thatdecision. Therecourse was dismissed by a Judge of this Court (loannis Kampouris v. The Educational Service Committee

(1983)3 C.L.R. 1165). Revisional Appeal 351 was taken against this first instance Judgment. The appeal was withdrawn and dismissed by the Full Bench. The following state­ ments were made before theFullBench: ^ "Mr.Clerides:Ihave thefollowing statementtomake:As it appears from paragraph 4 of theOpposition of therespondent 20 theQualifications Assessment Committeeinformed therespon­ dent thatif applicant secures anopinion from the Department of Education and Science in the United Kingdom this would assisttheCommitteeinreexamining thematterandthattheap­ plicant should be asked to secure such an opinion.The appli- 25 cant on the 5th April 1984, after judgment was delivered by the trial Judge, secured such opinion which is favourable for him and he intends to apply afresh to the respondent for re­ examination of his case on thebasisof the said opinion. Underthese circumstances Iapply for leave toabandon this appeal without prejudice tomy client's rights. 2236 30 3 C.L.R. Kampouris v. E.S.C. Stylianides J. Mr.Charalambous: I havenothingtostate.Thisisa matter for the appropriateauthority.·",.• -. < 5 10 15 20 On 13thSeptember, 1985,counselfor the applicantappliedto the Ministry ofEducationinforming themthathehadsecuredon 5thApril, 1984, acertificate from theDepartmentof Education and Scienceof the UnitedKingdomthathis H.N.D. in Mechani­ calandProductionEngineeringof the CentralLondon Polytech­ nic was equivalent topassdegree ofB.Sc, andrequested the em­ placementof his clientin scaleΒ

1. , TherespondentCommission dealt with this application atits meeting of 2ndApril, 1986,andinareasoned decision rejected such request. Oneof thereasons was theabolition of suchpost by Law 61/81 and the non-inclusion of same in all subsequent Budgets andtheapproval of new schemeof servicein 1982.By letter dated 5th April, 1986, counsel for the applicant was in­ formed of suchdecision andthe reasonsthereof. On 6th February; 1987,counsel for theapplicant revertedto the samematter.He recountedthe historyof the caseof hisclient and asked"the examinationof the requestof hisclientina spirit ofjustice". . ' , , > . <j Inthatletterhementioned,also,thatotherswereemplacedby the CommissioninscaleB12 before itsabolitionandflagrant in­ justice is being done to his client due to theabolition of scale B
2. · - " . , . . / , · 25 30 On 16thFebruary, 1987,theRespondentsdealtwith this peti­ tionanddecidedthatthere was nonew elementjustifying the re^ visionof theirdecisionof 2nd April, 1986,communicatedto Mr. Cleridesby letterof the Commissiondated5thApril, 1986: On 24th March, 1987, the same counsel requested thereexaminationof the matter,allegingthaterroneously the Commis­ sion held thattherewas nonew elementand statedthat the new elementwas theviolation of Article 28of the Constitutionof the 2237 Stylianides J. Kampouris v. E.S.C.

(1988)Republic.He setdown the names of five persons whowere emplaced inscaleB12on 1stJanuary, 1981anda sixthoneon 15th March,

1. This last request was considered by the Commission on 7th April, 1987,and on 8th April, 1987,they replied toMr.derides 5 as follows: "I refer to your letter dated 24/3/87, with regard to your clientIoannisKampouris andIinform you the following: Inaddition towhat is statedinourletterof 5/4/86, theEducationalist, whom you mentioned inyoursuch letter,had been 10 emplaced in vacant post of Technologist by decisions of the Commission dated 5/1/81 and 7/4/81, in accordance with the lawand theschemeof serviceobtaining atthattime." Shortly later thisrecourse wasfiled, whereby he seekstheannulmentof thedecisions of theCommission contained inthe lettersof 17thFebruary, 1987 and 8th April,
2. 15 Counsel for the Respondents raised thepreliminary objection that thesubjudice decisions areconfirmatory actsand, therefore, notjusticiable. Itiswell settled that aconfirmatory actlacksexecutory nature 20 and, therefore, itcannot bemadethesubject-matter of arecourse, underArticle 146of theConstitution. Aconfirmatory actordecision isanact or decision of the administration which repeats the contents of aprevious executory act and signifies the adherence oftheadministration toacourse already adopted. Itisnotinitself 25 executory, because itdoes notitself determine thelegal position of an individual case, and thisis thereason it cannot bethe subjectofarecourse. An act which contains a confirmation of an earlier one, may, however, be executory and, therefore, subject to a recourse for annulment, ifithasbeen madeafter anewinquiryintothe matter 2238 30 <3 C.L.R. ..Λ.**..",Kampouris v. E.S.C. .7.Stylianides>J· ,γ},(Nicos Kolokassidestv. The Republic-of''Cyprus* through the .tMinister of'Firmnce{1965)yC.L.R.,542; ChrjstakisLrVar.nava v..Republic (District OfficeriyNicosia,and Another^

(1968)3 C.L.R.566; Kyprianidestv. Republic

(1982)3 C.L:R..61;1). 5 πι InKyprianides y\}Republic (supra),at ρρ.619τ620, it was said thataccording toTsatsos Application for Annulment, 3rd-.edition, pp. 132-133, for anact tobeconfirmatory thefollowing elements Λ .-arerequired: , .,->*v ^ ύ _ '•:'•·, ίί ' * trii"" (a)Identityof theissuing authority; 10 ; υ, . a'(b)Identity,of,thepersonorpersons towhom'itrelates;). (c)Identityof theprocedure; T ' ' J--·. .(d)Identityof thereasoning; and - t : (e)Identity"of thVoider."Further down it was said:Jl 15 20 25 ^ }. i ' . . Λ\' l ·.r.Y - * Ί V,J '"'^ ^ J >' * "When does a new inquiry exist? The answer is given by ' Stassinopoulos in the Law of Administrative Disputes, 1964, 1 4th eHitibn^at'p. 176, a passage which was adopted andap­ plied by thisCourtin anumberof cases: "When does a new inquiry exist, is a question of fact. In general, it is considered to be a new inquiry, the taking into consideration of new substantive legal orfactual elements, and the used new material is strictly considered, because he who haslost thetimelimitfor thepurposeof attacking anexecutory act, should notbe allowed tocircumvent such a time limit by thecreationof anew act,which has been issued formally after a new inquiry, but in substance on the basis of the same ele­ ments. So, it is not considered as a new inquiry, when the case is referred afresh toaCouncilfor examinationexclusively on its legal aspect, or when referred to theLegal Council for its opinionor when anotherlegal provision otherthan the one on which theoriginal actwas based is relied uponif thereisno reference toadditionalnew factual elements.Thereis anewin^2239 StylianidesJ. Kampourisv.E.S.C.

(1988)quiryparticularly when,beforetheissueofthesubsequentact, aninvestigation takesplaceofnewlyemergedelementsoralthoughpreexisting wereunknown atthetimewhicharetaken into consideration in addition to theothers,butfor the first time.Similarly,itconstitutesnewinquirythecarryingoutofa 5 localinspection orthecollectionof additionalinformation in thematterunderconsideration."' Inthiscaseallthefacts werebeforetheAdministration before 2ndApril, 1986.Withregard totheallegationofcontravention ofArticle28oftheConstitutionthispreexistedandwasknownto JQ theRespondents.Thesubjudicedecisionshaveallthecharacteristicsofaconfirmatory act Thesubjudicedecisions areconfirmatory acts.Theyarenot executoryandtheycannotbethesubjectofarecourse. Fortheforegoing, thisrecourse is hereby dismissed with no 15 orderastocosts. Recoursedismissed. Noorderastocosts. 2240