(1989)1989April 27 [A.LOIZOY, P.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION ANDREAS PAPAMICHAEL, Applicant, v. THE REPUBLIC OF CYPRUS,THROUGH THE EDUCATIONAL SERVICE COMMISSION AND ANOTHER, Respondents. (CoseNo.914/87) Executory act — Informatory act — Appointment to the Educational Service — Letter informing theapplicantof theprovisions of the Law and whyhe hadnot been appointed— Theletter doesnot constitutean executory act, 5 Time within which to Tilea recourse — Constitution, Art. 146.3— A continuing omission as opposed to a negative decision— Composite administrativeprocess leadingto a post in the Educational Service — Time beginstorun asfrom such appointment, 10 The respondent Commission effected appointments in the Educational Service in virtue of Law 161/
- The appointments were published on 3October
- Theapplicant wasnot includedinthelists, which hadbeen submitted underthesaid Lawtothe Commission and,as a result, theapplicant was not appointed. 15 On 9 October, 1987 the applicant requested an appointment under thesaid Law. Byletter dated31October 1987theCommission informed the applicants that the appointments in question under thesaid Lawhad been made on the basis of the lists which had been prepared by the 2 0 Director General of the Ministry of Education to the Commission, in which theapplicant wasnot included. 522 • * * \ 3C.L.R. Papamichael v. Republic &Another Hencethepresent recourse. 5 TheCourt dismissedtherecourseontwogrounds,namelythatthesub judice act (letter dated 31 October 1987) was of an informatory nature and that the recourse was out of time. The decision not to include the applicant in the list was a negative decision. In this case, there was no continuing omission. In any event, even if there hadbeen a continuing omission, the time began to run as from the publication of the appointments in question. 10 Recourse dismissed. No order as to costs. Recourse. 15 Recourseagainsttheomissionoftherespondentstoconsider applicant asacandidatefor promotion to thepost ofTeacher, SecondaryEducation. 20 A.S.Angdides,fortheApplicant. R. Petridou(Mrs),Counsel of the Republic B, for the Respondents. 25 Cur.adv. vult. A.LOIZOU,P.readthefollowingjudgment.Bythepresent recourse whichwastaken over bymeon the25th May,1988, aftertheretirementofafellowJudgeofthisCourt,theapplicant 30 seeksthefollowingreliefs:- 35 (a) Adeclaration oftheCourtthatthecontinuingomission and/or refusal of the respondent Commission not to considerhimasacandidateforpromotiontothepostof teacher of Secondary Education, by virtue of the Education Officers on Contract (Appointment toPosts in thePublic Educational Service) Law, 1985(LawNo. 161 of 1985), is null and void and of no legal effect whatsoever. And 40 (b) A declaration of the Court that the omission of respondent2,toincludetheapplicantinthelistcompiled 523 A.Loizou, P. Papamichael v.Republic & Another
(1989)by the Director General of the Ministry of Education in accordance with Section 3
(2)of the law isnull and void and of no legal effect whatsoever. The applicant who is a teacher in Commerce, Secondary 5 Education, was appointed inthe Public Educational Service on contract on the21st September 1981. On the3rdMay, 1982he submitted hisresignation for health reasons whichwasaccepted by the respondent Commission at its meeting of the 7th May, 1982.At thesamemeeting italso decidedtorevoke itsdecision 10 of the 13th April 1982, for the permanent (on probation) appointment of the applicant. On the 24th May, 1982, the applicant requested the respondent Commission to revoke its decision to accept his 15 resignation because, as he alleged, his letter of resignation had been written while hewas ill,suffering from a depressive illness and not being in full control ofhimself. Therespondent Commission decidedonthe28th May, 1982, 20 that itcouldnot review itsabovedecision,asinaccordancewith Regulation 33
(2), of the Educational Officers (Teaching Staff), (Appointments, Postings, Transfers, Promotions and related matters), Regulations 1972-1974, a resignation may be withdrawn before its acceptance -which inthis casewason the 25 7th May, 1982-or before the date of its coming into effect -in this instance on the 3rd May, 1982, - and it informed the applicant accordingly. Nevertheless, later on, the respondent Commission decided 30 to reappoint theapplicant oncontract asfrom the 11th October 1982,suchcontract beingreneweduntilthe 1stSeptember 1987, on which date hewasappointed on probation to the permanent post of teacher of Secondary Education, by virtue of Section 5 of the Public Educational Service (Amendment) (No. 4) Law 35 1987, Law No. 180of 1987. Meanwhilebyvirtue ofSection 3
(2)of LawNo. 161of 1985, the respondent Commission effected appointments in the Educational Service to corresponding organic posts, of 40 educational officers serving in atemporary capacity, provided they satisfied the requirements for appointment asprovided by 524 3 C.L.R. Papamichael v. Republic &Another A. Loizou, P. the Public Educational Service Laws, 1969 to 1985, and in accordance with the lists submitted by the Director General of the Ministry of Education tothe respondent Commission. 5 Such appointments were published inthe Official Gazette of theRepublic ofthe 3rdOctober 1986. The applicant was not included in the aforesaid listsandwas not so appointed. 10 Onthe9thOctober, 1987,counsel for theapplicant wroteon his client's behalf to the respondent Commission, inter alia as follows. 15 "I have been instructed by my above client who is continuously serving on contract in Secondary Education as from 1981-1982, to request you on the basis of Law 161/85 to put an endto youromission to appoint him in accordance with the provisions of Section 3
(2)thereof " 20 In reply the respondent Commission informed the applicant by letter to hiscounsel dated 31st October 1987,that: 25 "In accordance with Section 3
(2)of Law 161/85, the Commission appoints 'in a suitable post in the Public Educational Service.... on the basis of the lists which were prepared and will be submitted by the Director General of the Ministry of Education totheCommission'. Intheselists your above client wasnot included." 30 The applicant filed the present recourse on the 12th November 1987, as against the omission or refusal of the respondent Commission toconsidertheapplicant asacandidate for promotion byvirtue of Law No. 16*1 of 1985,andtheact or 35 omission of respondent 2,to includetheapplicant inthe listsof candidates for promotion. It was contended on behalf of the applicant that the respondent Commission failed to appoint him to a permanent 40 post on the suggestion of two Inspectors of Education to postponesuchappointment for alaterdate,actingthuscontrary to the express provisions of the Law, under which and in 525 A. Loizou,P. Papamichael v.Republic & Another
(1989)particularSection 3
(2)thereof,therespondentCommissionhad nosuchdiscretionbutsincehesatisfiedtheonlyrequirementset downbytheLaw,thatis,hewasservingoncontract onthe1st December 1985,it wasobligedtosoincludehiminthelistand appoint him. 5 Counsel for the respondent Commission submitted a preliminary objection to the effect that the letter of the respondent Commission of the 31st October 1987, does not contain anexecutory decisionbut ismerelyinformatory ofthe 10 respondent's decision not to appoint him, aspublished on the 3rdOctober 1986. Secondly itwassubmittedthat therecoursewasfiled outof the seventy-five daystime limit which isprescribedby Article 15 146
(3)ofthe Constitution,astimebeganto runfrom thedate heisdeemedtohaveacquired"knowledge"oftheact,thatisthe 3rdOctober 1986,thedateofpublicationintheOfficial Gazette oftheRepublicofthenamesofthoseappointed. 20 As rightly submitted on behalf of the respondent, Commission,theletteroftherespondentdoesnotamounttoan executory decision but I consider that it is of an informatory nature,merelystatingthereintheprovisionsoftheLawandwhy theapplicantwasnotsoappointed. Thedecisionnottoappoint 25 the applicant wasneither reached asaresult of the applicant's letterofthe9thOctober 1987,norwasitcommunicatedtohim by means of the reply of the respondent of the 31st October 1987. For this reason I have come to the conclusion that the recourse must fail as not having been filed as against an 30 executory decision. Dealing next with the question of time, I consider that the decisionnottoappointtheapplicantasfrom the 1stSeptember 1986tosuchpermanentpostbyvirtueofLawNo.161 of 1985, 35 is not a continuing omission, as alleged, but a composite decision in which thenon placingoftheapplicant ofthelistof candidates merged into the decision not to so appoint him, therefore, timemusthavebegantorun asfrom thedateofthe publication ofthelistofofficers soappointedbymeansofsuch 40 decisionintheOfficial Gazette,thatisthe3rdOctober 1986,and the letter written byhiscounsel doesnot inmyview alterthe 526 3C.L.R. Papamichael v.Republic & Another A.Loizou,P. nature ofthe act from anegative decision intoan omission. But even if it were an omission, time would have began to run from his having acquired knowledge of such omission, this 5· being.well outside theseventy-five daystime limit. From a perusal of his personal file which is before me, it appears'that there is a series of contracts of appointment each for afifteen working daysperiod from the 1stSeptember 1986, 10 onwards whichtheapplicanthadsignedwithout reservation and which coupled with the publication in the Official Gazette in which his name was not included, ought to have put him into inquiry as to why the respondent instead of offering him a permanent appointment offered further appointments on a 15 contractual basis. InviewoftheaboveIfindthereforethatthepresent recourse was filed beyond the seventy-five days time limit provided by Article 146
(3)of the Constitution andfor this reason it cannot, 20 assuming it were filed as against an, executory decision, be entertained assuch provisions astotime are mandatory. HavingarrivedatthisresultIfinditunnecessary to dealwith the rest of thegrounds oflawreliedupon bythe applicant. 25 For the above reasons thisrecourse fails.. In the circumstances, however, there will be no order as to costs. 30 Recourse dismissed. No orderas tocosts. 527