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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 323
1989 March 11
[STYLIANIDES, J]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
THOMAS KARAYIANNIDES,
Applicant,
v.
ELECTRICITY AUTHORITY OF CYPRUS,
Respondents,
(Case No. 302/85)
Abatement of recourse for annulment - In general the recourse cannot continue when. Its subject -matter has ceased to exist - A recourse is not abated, if the applicant suffered a detriment.
Executory act - Internal administrative measure-Not amenable to the Revisional Jurisdiction of the court under Art.146.1 of the Constitution.
The interested parties had been temporarily posted for a. limited period of time in the Generation Department of the respondents. The posting did not involve a betterment of status. At the time of the hearing of the recourse the sub judice decision ceased to exist.
The principles applied by the Court in dismissing the Recourse, sufficiently appeared in the hereinabove Headnotes.
Recourse dismissed. No order as to
costs.
Cases referred to:
Kyriakidou v. Republic (1984) 3 C.L.R. 122,
Kyriakides v. Republic (Minister of Interior, 1 R.S.C.C 66, [324] Constantinou as Administrator of the Estate of the Deceased Ekaterini Emmanuel v. Republic of Cyprus, through The Minister of Interior and Another (1966) 3 C.L.R. 572,
Andreou and Others v. Republic (Council of Ministers) (1975) 3 C.L.R. 108,
Irr. Division "Katzilos" v. Republic (1983) 3 C.L.R. 1068,
Avgoloupi v. Minister of Interior (1985) 3 C.L.R. 1525,
Kritiotis v. Municipality of Paphos and Others (1986) 3 C.L.R. 322.
Recourse.
Recourse against the emplacement of the interested parties in the Generation Department of the Authority in Nicosia.
L. Clerides, for the Applicant.
G. Cacoyanis, for the Respondents.
Cur. adv. vult.
STYLIANIDES, J. read the following judgment. The applicant by this recourse seeks the annulment of "the emplacement" of Andreas Papadopoulos and Andreas Loizides (the interested parties) in the Generation Department of the Authority at Nicosia.
The applicant and the interested parties are Shift Charge Engineers of the respondent Authority.
The interested parties were transferred temporarily to serve in the Generation Department at Nicosia - Papadopoulos as from 1st January, 1985, and Loizides as from 1st March, 1985. These transfers were of nine months duration. The posting of Papadopoulos in the Generation Department came to an end on 30th September, 1985 and that of Loizides on 31st December, 1985. At the end of the respective periods they returned to their post at Dhekelia Power Station. These transfers were not of permanent nature and the purpose thereof was to offer to the employees concerned training in the Generation Department.
As from 1st October, 1985, the applicant was temporarily transferred to the same Generation Department for the same purpose and for the same limited period.
Counsel for the Respondents submitted that this recourse could not proceed for, inter alia, the following reasons:-
(a) The challenged decision is not an administrative executory one.
(b) Applicant has no legitimate interest.
(c) The "transfers" came to an end and the applicant has suffered no damage during the posting of the interested parties in the Generation Department.
It is not in dispute that the applicant sustained any detriment during the nine months period, that each one of the interested parties served for training purpose in the Generation Department.
At the time of the hearing of the recourse the act challenged and/or complained of ceased to exist. It completely disappeared. The subject matter of the recourse was obliterated.
The temporary posting in the Generation Department did not involve a betterment of status of any employees of the Authority, but it was only effected for a limited period for training purposes. The only difference is that, when an employee of the Authority is posted in the Generation Department, he is working only on a daily basis, but this entails no difference in status or in any other respect.
The act complained of is an internal administrative measure. It is not an executory act amenable to the Revisional Jurisdiction of this Court, under Article 146 of the Constitution - (Case-Law of the Greek Council of State (1929-1959), p. 238, Kyriakidou v. Republic (1984) 3 C.L.R. 122).
Even if it were an executory act, has the recourse been abated?
A recourse may be abated as a result of events which take place subsequent to the filing and before the conclusion of the hearing of such recourse. A recourse, in general, cannot continue when its subject-matter has ceased to exist.
The aim of a recourse is the judicial review and annulment of an administrative act and the erasing of all its consequences, or the legal results that it produced. Therefore, if the applicant did suffer a detriment whilst the administrative act was still operative, and before it ceased to exist, the recourse is not abated. If, however, an applicant has suffered any damages from the sub judice administrative act, though it ceased to exist after the filing of the recourse, he is entitled to have the recourse determined as a judgment of this Court under paragraph 4 of Article 146 is a sine qua non to a claim for damages, under Article 146:6 before the appropriate Court. (Phedias Kyriakides and The Republic (Minister of Interior) 1 R.S.C.C., 66, 74) (See, inter alia, Ntinos constantinou as Administrator of the Estate of the Deceased Ekaterini Emmanuel and The Republic of cyprus, through 1. The Minister of Interior, 2.The Director of Planning and Housing (1966) 3 C.L. R. 572; Telemachos Andreou and Others v. Republic (council of Ministers) (1975 ) 3 C.L.R.108; Irr. Division "Katzilos"' v. Republic (1983) 3 C.L.R.1.068.)
In the present case the complained of act ceased to exist at the time of the hearing and no damage or detriment was caused to the applicant by the act challenged.
A present direct concrete legitimate interest must exist at the time of the filing of the recourse until its conclusion (Avgoloupi v. Minister of interior (1985) 3 C.L.R. 1525; KritiotIs v. Municipality of Paphos and Others (1986).3 C.L R. 322.)
The applicant had no legitimate interest, but, even if he had, it did not continue to exist at the time of the hearing of the recourse, as in the meantime the interested parties reverted to their seat at Dhekelia Power Station, Whereas he (the applicant) was in the Generation Department at Nicosia undergoing the same training.
Therefore, the recourse was abated and. cannot proceed.
For the foregoing reasons, this recourse is dismissed with no order as to costs.
Recourse dismissed. No order as to costs.