(1988) 3 CLR 1314
[*1314] 1988 June 29
[KOURRIS, J.]
IN THE MAtTER OF ARTICLE 146 OF THE CONSTITuTION
cHRISTOS KRAMVIS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE PUBLIC SERVICE COMMISSION,
Respondent.
(Case No. 421/86).
Practice-Recourse for annulment-Unreservedly withdrawn-Whether its reinstatement possible-Question determined in the negative.
The applicant withdrew unreservedly this recourse on the same day, when a second recourse filed by him succeeded and the sub judice promotion was annulled. However, the interested party in the second recourse filed an appeal, raising for the first time the issue that the sub judice act was confirmatory of the sub judice act in this recourse; whereupon the applicant filed an application for reinstatement of this recourse. This application was dismissed.
Application for reinstatement dismissed.
No order as to costs.
Cases referred to:
Nissis (No.2) v. The Republic (1967) 3 C.L.R. 671;
Tsingis v. The Republic (1984) 3 C.L.R. 1262;
Rousos v. The Republic (1985) 3 C.L.R. 119. [*1315]
Application.
Application for reinstatement of recourse No. 421/86.
A.S. Angelides, for the applicant.
P. Hadjidemetriou, for the respondent.
G. Triantafyllides, for the interested party.
Cur. adv. vult.
KOURRIS J. read the following judgment. This is an application for reinstatement of the recourse 421/87 based on s.11 of Law 33/64, Regulations 17, 18 and 19 of the Supreme Court Rules, 1962, s.32 of Law 14/60 and the Civil Procedure Rules Order 48, r.2, Order 33, r.1, 25, Order 65, r.11.
The facts which gave rise to this application shortly are these:-
The applicant on 2.7.1986, filed recourse No. 421/86 challenging the decision of the Public Service Commission dated 2.6.1986, to promote the interested party to the post of Registrar of the Psychiatric Services of the Department of Medical Services instead of him.
Counsel for the applicant by his letter dated 19.7.1986, requested reconsideration of the said promotion and the Public Service Commission convened on 5.11.1986 and having reconsidered its decision, it confirmed her previous decision. The Office of the Public Service Commission communicated its decision to the counsel of the applicant by letter dated 9.12.1986. Thereupon, applicant filed Recourse No. 8/87 which was heard by me and on 28.12.1987 I delivered judgment whereby I annulled the decision of the Public Service Commission.
On the day of the hearing of Recourse No. 8/87, which was on 9.12.1987, the applicant through his counsel withdrew without [*1316] reservation recourse No. 421/86 and consequently the recourse was dismissed.
Interested party filed an appeal against the judgment of Recourse No. 8/87 and through his advocate, who was not the one appearing in the recourse. One of the grounds of the appeal was that the decision of the Public Service Commission in Recourse No. 8/87 was a confirmative administrative act and not an executory one and as such was not justiciable. Another ground of appeal was that the Recourse 8/87 was out of time, if it were to be held that the decision was a confirmative one.
Counsel for the applicant argued that the reason why he filed this application was because the interested party raised in his appeals inter alia, the aforesaid grounds which were not raised in Recourse No. 8/87. He said that had these two grounds been raised in the recourse he would not have withdrawn Recourse No. 421/86 but he would have tried it together with Recourse No. 8/87. He concluded that it was for these reasons and acting in good faith, that he withdrew Recourse No. 421/86 without reservation. He relied on the cases of Nissis (No. 2) v. The Republic (1967) 3 C.L.R. 671; Tsingis v. The Republic (1984) 3 C.L.R. 1262 and Rousos v. The Republic (1985) 3 C.L.R. 119.
I have considered these cases but in my opinion they have no bearing on the matter. The Nissis case related to the approach of an appellate Court when there was a new ground of appeal before it which was not raised before the trial Court. The Tsingis case was in respect of the inherent jurisdiction of the Court to reinstate a recourse where the applicant failed to comply with the directions of the Court regarding the filing of his written address and an order was made by the Court that the case was treated as abandoned and was dismissed accordingly. With regard to the Rousos case, the trial Judge dismissed the recourse for want of prosecution by being treated, prima facie, as having been abandoned due to the non - appearance of counsel for the applicant.
I have considered carefully the submissions of counsel for the [*1317] applicant in view of the particular facts of this case which caused me anxiety, but because the recourse was withdrawn without reservation, I cannot accede to this application for reinstatement.
For all these reasons, the application is dismissed. In view of the particular circumstances of this application, I do not propose to make any order as to costs.
Application dismissed.
No order as to costs.
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