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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1986) 3 CLR 829
1986 March 29
[KOURRIS, J]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DR. STYLIANI PETROU KOUNOUNA,
Applicant,
v.
THE REPUBLIC OF CYPRUS,THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 664 /85).
Administrative act—Executory—Definition of—New act on the same matter taken after a new inquiry—The new act is of an executory nature—Previous act ceases to be executory—Transfer of public officers—Re-consideration of the matter upon applicant's request after filing of a re-course by her against her transfer—P.S.C. reaching the same decision after a new inquiry—Sub judice transfer ceased to be executory—Recourse dismissed.
Public Officers—Transfers: See under Administrative act.
By letter dated 1.6.85 the Director of Medical Services proposed the transfer of the applicant from Larnaca to Polis Chrysochous Hospital. He also forwarded to the Commission a letter by the applicant protesting against her proposed transfer mainly on family reasons and financial hardship.
The respondent Commission decided to effect the transfer and informed the applicant accordingly. The applicant requested reconsideration of the matter in view of the fact that she was suffering from malignant hypertension 3rd degree and also that she had two unsuccessful pregnancies and being 44 years old, only a limited period of time was left to become pregnant again.
The Commission reconsidered the matter, but once again it decided to transfer the applicant as aforesaid.
Hence the resent recourse.
After the filing of this recourse the applicant forwarded to the Commission two medical certificates requesting reexamination of her case. The first certificate related to the two unsuccessful pregnancies and the second to her hypertension.
The Commission asked for the views of the Director of Medical Services and arranged for the examination of the applicant by a medical board. Finally on 11.11.85 the Commission once again rejected applicant's request.
The question that arose for determination in the present proceedings is whether the sub judice decision ceased to be of an executory nature.
Held, dismissing the recourse: (1) An executory decision is a decision by means of which the will of the administration is made known on a given matter which aims at producing a legal situation concerning the citizen affected.
(2) The issue for determination is whether the new decision of the 11.11.85 was reached after a new inquiry what constitutes a new inquiry depends on the facts of the particular case. In this case the re-examination of the applicant's case constituted a new inquiry and the new decision has been reached on the basis of new material, namely three medical certificates, which were not before the Commission previously.
(3) It follows that the new decision is of an executory nature. The sub judice decision was incorporated in the new decision and. therefore, ceased to be of an executory nature.
Recourse dismissed.
No order as to costs.
Cases referred- to:
Papadopouflos v. The Republic (1973) 3 C.L.R. 169;
Papanicolaou v. The Republic (1968) 3 C.L.R. 225;
Satamis Holding Ltd. v. Municipality of Faniagusta (1974) 3 C.L.R. 344;
Papadopoullos v. Republic (1983) 3 C.L.R. 1423;
Limassol Chemical Products Co. v. The Republic (1978) 3 C.L.R. 52.
Recourse.
Recourse against the decision of the respondent to transfer applicant from Larnaca Hospital to Pol is Chrysochous Hospital.
A. S. Angelides. for the applicant.
E. Papadopoulou (Mrs.), for the respondent.
Cur. adv. vult.
KOURRIS J. read the following judgment. By this recourse the applicant challenges the validity of the decision of the Public Service Commission to transfer her from the Larnaca Hospital to Polis Chrysochous Hospital and communicated to her by letter dated 27.6.1985 (Appendix 4).
The applicant is a Senior Medical Officer, a refugee from Faniagusta, married with no children. Before the invasion of Cyprus by the Turkish troops she was posted to Yialousa Hospital and thereafter to the Hospital of Paralimni, Ormidhia and Polis Chrysochous. Whilst serving to Polis Chrysochous Hospital in 1982. She was promoted to the post of Senior Medical Officer and she was transferred to Larnaca Hospital.
The Director of Medical Services proposed by a letter dated 1.6.1985 the transfer of the applicant from Larnaca Hospital to Polis Chrysochous Hospital (Appendix 1). He forwarded also to the Public Service Commission a letter of the applicant dated 20.4.1985 protesting against her proposed transfer mainly on the ground of family reasons and financial hardship (Appendix 2).
On June 25, 1985 the respondent Commission at its meeting, dealt with the transfer of the applicant as well as with the transfer of other Senior Medical Officers and decided, having taken into consideration her representations, to transfer the applicant to Polis Chrysochous Hospital as from 15.7.1985 (Appendix 3). They communicated their decision to the applicant by letter dated 27.6.1985 stating therein that her transfer was in the interests of the Service (Appendix 4).
The applicant by a letter dated 12.7.1985 informed the respondent Commission that she received their letter for her transfer on 9.7.1985 and she protested about her transfer, stating that it was unjust and requesting the respondent Commission to reconsider her case in view also of the fact that she is suffering from malignant hypertension 3rd degree and also that she had two unsuccessful pregnancies and being 44 years old, only a limited period of time was left to become pregnant again. She stressed that in view of the above she had to be followed in a town hospital (Appendix 5).
As a result of her representations the respondent Commission convened on 15.7.1985 and after considering her case in the light of the contents of her letter of 12.7.85, decided to turn down her application and also they decided that her transfer would take place with effect as from 29.7.1985 (Appendix 6). On the same day they addressed a letter to her informing her of their decisions (Appendix 7). The applicant, feeling aggrieved, filed the present recourse on 25.7.1985.
After the filing of the present recourse, the applicant addressed a letter dated 26.8.1985 (exh. 1), through her counsel, to the respondent Commission requesting re-examination of her case. This letter contained, in a nutshell, her previous representations and in addition she enclosed two medical certificates (Appendix 11). Both were signed by Government doctors. One of these, referred to her unsuccessful pregnancies and stated that whilst she was in the 24th week of her pregnancy a Caesarian section became necessary due to worsening of her hypertension. The second pregnancy according to the same certificate was terminated due to a miscarriage in the 12th week of her pregnancy. The other certificate was in connection with her hypertension. It stated that the serious hypertension of the applicant became worse since 1982 and she should be followed regularly in a General Hospital.
The respondent Commission in view of the contents of the said letter asked for the views of the Director of the Medical Services by a letter dated 3.9.85 whereupon he arranged for the Medical examination of the applicant by a Medical Board.
The certificate by the Medical Board dated 10.10.1985 (Appendix 16) was forwarded to the Public Service Commission which convened on 11.11.1985. Extract of the minutes is before me as Appendix 15.
The respondent Commission reconsidered the case of the applicant and they decided to reject her application and they informed her of their decision by letter dated 19.11.85 (exh. 2).
The applicant filed another recourse with regard to this decision.
Counsel for the respondents raised a preliminary legal issue that the sub judice decision ceased to be of an executory nature because it became incorporated in the subsequent decision of the respondent Commission of 11.11.85 (Appendix 15) and consequently it can no longer be made by itself the subject matter of an administrative recourse.
The issue which poses for determination is whether the decision of the respondent Commission of 11.11.1985 has been reached after a new examination of the matter on the basis of new factors which were not before it previously and that therefore, is of an executory nature (Papadopoullos v. The Republic (1973) 3 C.L.R. 169). And an executory decision is a decision by means of which the "will" of Administration is made known on a given matter and which aims at producing a legal situation concerning the citizen affected (Papanicolaou v. The Republic (1968) 3 C.L.R. 225 at p. 230—Salamis Holdings Limited v. Municipality of Famagusta (1974) 3 C.L.R. 344).
With regard to every administrative act, the test is whether the decision is productive of legal consequences that in turn falls to be determined by reference to the implications of the decision upon the position of the party affected thereby (Papadopoullos v. The Republic (1983) 3 C.L.R. 1423).
What constitutes a new enquiry depends on the facts of the particular case.
In Stassinopoullos on the Law of Administrative Disputes, 4th Edition, at p. 176 it is stated:-
"When does a new enquiry exist, is a question of fact. In general, it is considered to be a new enquiry, the taking into consideration of new substantive legal or factual elements, and the used new material is strictly considered, because he who has lost the time limit for the purpose of attacking an executory act, should not be allowed to circumvent such a time limit by the creation of a new act, which has been issued formally after a new enquiry, but in substance on the basis of the same elements. So, it is not considered as a new enquiry, when the case is referred afresh to a Council for examination exclusively on its legal aspect, or when referred to the Legal Council for its opinion or when another legal provision other than the one on which the original act was based is relied upon if there is no reference to additional new factual elements. There is a new enquiry particularly when, before the issue of the subsequent act, an investigation takes place of newly emerged elements or although pre existing were unknown at the time which are taken into consideration in addition to the others, but for the first time. Similarly, it constitutes new enquiry the carrying out of a local inspection or the collection of additional information in the matter under consideration."
(Limassol Chemical Products Co. v. The Republic (1978) 3 C.L.R. 52 at p. 59).
In the present case, the applicant in her letter of 26.8. 1985 requesting for re-examination of her case reiterated her representations contained in her two previous letters which were before the respondent Commission when they reached their decision to transfer her to Polis Chrysochous Hospital. The only new material before the respondent Commission were the two medical certificates in connection with her hypertension and pregnancies as well as the medical certificate of the Medical Board.
Counsel for the respondent Commission said that the aforesaid three medical certificates were for the first time before the Public Service Commission and were considered by it at their meeting of 11.11.1985 and contended that these constituted new material within the meaning of a new enquiry and submitted that the decision has been reached after a new examination of the matter.
On the other hand counsel for the applicant contended that the three medical certificates do not amount to new material because when the Public Service Commission effected the transfer of the applicant they had before them the issue of her health and that the said medical certificates merely tended to support the assertions of the applicant about her health. In any event, he argued, the Public Service Commission when examining the case of the applicant on 11.11.85 confined itself to the question of her health and they have not examined the whole question of her transfer which has already been decided previously and she was already serving at the Polis Chrysochous Hospital.
I have considered carefully the submission of both counsel and I have reached the conclusion, not without difficulty, that the sub judice decision ceased to be of an executory nature because it became incorporated in the sub-sequent decision of the respondent Commission of 11.11.85 (Appendix 15) and consequently it can no longer be made by itself the subject of an administrative recourse. I have reached this conclusion because I am of opinion that the re-examination of the case of the applicant by the Public Service Commission on 11.11.1985 amounted to a new enquiry and its decision has been reached on the basis of new material which were not before it previously and therefore is of an executory nature which aims to producing a legal situation concerning the applicant.
In my opinion the three medical certificates before the Public Service Commission were new material because they were not before it previously when they reached the decision to transfer the applicant. What the respondent Commission had before it were the allegations of the applicant that she had unsuccessful pregnancies and that she was suffering from malignant hypertension 3rd degree. But, when they convened to examine her case on 11.11.1985 they had for the first time before them new evidence in the form of the three medical certificates. They have not examined the case confining themselves to the issue of the health only of the applicant, as alleged. It is apparent from the minutes of the meeting of 11.11.1985 (Appendix 15) that they referred to the minutes of their meetings of 29.1.85, 11.2.85, 19.3.85, 25.6.85 and 15.7.85 and they have reached their decision having taken into consideration all the material before them including the contents of the letter (exh. 1) as well as the medical certificates.
In view of my finding I do not propose to enter into the substance of the recourse because there is another recourse pending before another Judge of this Court.
In the result the recourse is dismissed but with no order for costs.
Recourse dismissed.
No order as to costs.