|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 522
1989 April 27
[A. LOIZOY, P.]
IN THE MATRER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS PAPAMICHAEL,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL
SERVICE COMMISSION AND ANOTHER,
Respondents.
Case No. 914/87)
Executory act - Informatory act - Appointment to the Educational Service - Letter informing the applicant of the provisions of the Law and why he had not been appointed-The letter does not constitute an executory act.
Time within which to file a recourse - Constitution, Art. 146.3 - A continuing omission as opposed to a negative decision - Composite administrative process leading to a post in the Educational Service - Time begins to run as from such appointment.
The respondent Commission effected appointments in the Educational Service in virtue of Law 161/85. The appointments were published on 3 October 1986. The applicant was not included in the lists, which had been submitted under the said Law to the Commission and, as a result, the applicant was not appointed.
On 9 October, 1987 the applicant requested an appointment under the said Law. By letter dated 31 October 1987 the Commission informed the applicants that the appointments in question under the said Law had been made on the basis of the lists which had been prepared by the Director General of the Ministry of Education to the Commission, in which the applicant was not included.
Hence the present recourse.
The Court dismissed the recourse on two grounds, namely that the sub 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 had been a continuing omission, the time began to run as from the publication of the appointments in question.
Recourse dismissed. No order as to
costs.
Recourse.
Recourse against the omission of the respondents to consider applicant as a candidate for promotion to the post of Teacher Secondary Education.
A. S. Angelides, for the Applicant.
R. Petridou (Mrs), Counsel of the Republic B, for the Respondents.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. By the present recourse which was taken over by me on the 25th May, 1988, after the retirement of a fellow Judge of this Court, the applicant seeks the following reliefs:-
(a) A declaration of the Court that the continuing omission and/or refusal of the respondent Commission not to consider him as a candidate for promotion to the post of teacher of Secondary Education, by virtue of the Education Officers on Contract (Appointment to Posts in the Public Educational Service) Law, 1985 (Law No. 161 of 1985), is null and void and of no legal effect whatsoever. And
(b) A declaration of the Court that the omission of respondent 2, to include the applicant in the list compiled by the Director General of the Ministry of Education in accordance with Section 3(2) of the law is null and void and of no legal effect whatsoever.
The applicant who is a teacher in Commerce, Secondary Education, was appointed in the Public Educational Service on contract on the 21st September 1981. On the 3rd May, 1982 he submitted his resignation for health reasons which was accepted by the respondent Commission at its meeting of the 7th May, 1982. At the same meeting it also decided to revoke its decision 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 resignation because, as he alleged, his letter of resignation had been written while he was ill, suffering from a depressive illness and not being in full control of himself.
The respondent Commission decided on the 28th May, 1982, that it could not review its above decision, as in accordance with 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 in this case was on the 7th May, 1982 - or before the date of its corning into effect - in this instance on the 3rd May, 1982, - and it informed the applicant accordingly.
Nevertheless, later on, the respondent Commission decided to reappoint the applicant on contract as from the 11th October 1982, such contract being renewed until the 1st September 1987, on which date he was appointed 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 1987, Law No. 180 of 1987.
Meanwhile by virtue of Section 3(2) of Law No. 161 of 1985, the respondent Commission effected appointments in the Educational Service to corresponding organic posts, of educational officers serving in a temporary capacity, provided they satisfied the requirements for appointment as provided by the Public Educational Service Laws, 1969 to 1985, and in accordance with the lists submitted by the Director General of the Ministry of Education to the respondent Commission.
Such appointments were published in the Official Gazette of the Republic of the 3rd October 1986.
The applicant was not included in the aforesaid lists and was not so appointed.
On the 9th October, 1987, counsel for the applicant wrote on his client's behalf to the respondent Commission, inter alia as follows.
"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 end to your omission to appoint him in accordance with the provisions of Section 3(2) thereof...."
In reply the respondent Commission informed the applicant by letter to his counsel dated 31st October 1987, that:
"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 to the Commission'. In these lists your above client was not included."
The applicant filed the present recourse on the 12th November 1987, as against the omission or refusal of the respondent Commission to consider the applicant as a candidate for promotion by virtue of Law No. 161 of 1985, and the act or omission of respondent 2, to include the applicant in the lists of candidates for promotion.
It was contended on behalf of the applicant that the respondent Commission failed to appoint him to a permanent post on the suggestion of two Inspectors of Education to postpone such appointment for a later date, acting thus contrary to the express provisions of the Law, under which and in particular Section 3(2) thereof, the respondent Commission had no such discretion but since he satisfied the only requirement set down by the Law, that is, he was serving on contract on the 1st December 1985, it was obliged to so include 'him in the list and appoint him.
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 an executory decision but is merely informatory of the respondent's decision not to appoint him, as published on the 3rd October 1986.
Secondly it was submitted that the recourse was filed out of the seventy-five days time limit which is prescribed by Article 146(3) of the Constitution, as time began to run from the date he is deemed to have acquired "knowledge" of the act, that is the 3rd October 1986, the date of publication in the Official Gazette of the Republic of the names of those appointed.
As rightly submitted on behalf of the respondent, Commission, the letter of the respondent does not amount to an executory decision but I consider that it is of an informatory nature, merely stating therein the provisions of the Law and why the applicant was not so appointed. The decision not to appoint the applicant was neither reached as a result of the applicant's letter of the 9th October 1987, nor was it communicated to him 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 executory decision.
Dealing next with the question of time, I consider that the decision not to appoint the applicant as from the 1st September 1986 to such permanent post by virtue of Law No. 161 of 1985, is not a continuing omission, as alleged, but a composite decision in which the non placing of the applicant of the list of candidates merged into the decision not to so appoint him, therefore, time must have began to run as from the date of the publication of the list of officers so appointed by means of such decision in the Official Gazette, that is the 3rd October 1986, and the letter written by his counsel does not in my view alter the nature of the act from a negative decision into an omission.
But even if it were an omission time would have began to run from his having acquired knowledge of such omission, this being well outside the seventy-five days time 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 a fifteen working days period from the 1st September 1986, onwards which the applicant had signed without 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 contractual basis.
In view of the above I find therefore that the present recourse was filed beyond the seventy-five days time limit provided by Article 146(3) of the Constitution and for this reason it cannot, assuming it were filed as against an executory decision be entertained as such provisions as to time are mandatory.
Having arrived this result I find it unnecessary to deal with the rest of the grounds of law relied upon by the applicant.
For the above reasons this recourse fails.
In the circumstances, however, there will be no order as to costs.
Recourse dismissed No order as
to costs.