THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS BOYIATZIS, Applicant, and THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF FINANCE, Respondent. (Case No. 212/62) Constitutional Law and Administrative Law-Public Officers-Article 192.1 and 7 (b) of the Constitution-Constitutional safeguard of the rights and benefits of public servants
the service of the former colony of Cyprus immediately prior to the coming
to operation of the Constitution (i.e. 16th August, 1960)-By ensuring to them after that date the same "terms and conditions of service" as were applicable to them before that date-Article 192.1 and 7 (b) of the Constitution-"Terms and conditions of service"
.1-Meaning of, as defined
sub-paragraph (b) of paragraph 7 of the same Article-Meaning of "Remuneration or the like benefits"
sub-paragraph (b) of paragraph 7 (supra)-Those expressions are wide enough to cover the "education grants" to Government Officers under the Circular No. 1286 of the 6th December, 1955-Dr. P. Loizides and others and the Republic
the Loizides' case (supra). Administrative Law-Public Officers-Education grants-Entitled to such grants
certain circumstances-Circular No. 1286 of the 6th December, 1955-Preserved by operation of Article 192.1 and 7 (b) of the Constitution-With the appropriate adaptations to the Constitution. Administrative Law-Public Officers-They are entitled to a written reply addressed to them personally to a written application by them to a Government Department or Ministry. Constitutional Law-Respect due to the judgments of the courts-Observation by the Supreme Court with regard to the importance which must be attached to the satisfaction of a de and declaratory judgment such as the one given
the
stant case, and the order for costs therein. Paragraphs 1 and 7 of Article 192 of the Constitution Provide: "1. Save where other provision is made
this Constitution any person who, immediately before the date of the coming
to operation of this Constitution, holds an office
the public service shall, after that date, be entitled to the same terms and conditions of service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance
the public service of the Republic on or after that date. 7. For the purposes of this Article- (
a permanent post. He has a son aged 24, unmarried, who has been studying Law
the University of Athens since August,
due course by the Director of Personnel. On the 17th of September, 1962, the applicant sent a reminder to the Minister of Justice, and on the 18th September, 1962, a letter was addressed to the applicant by the Registrar, District Court, Famagusta, to which was attached a reply, of the Director of Personnel Department, Ministry of Finance, dated the 15th May, 1962, stating that "as the House of Representatives, has not passed the Supplementary Appropriation Bill which would provide funds for education grants to public servants, it is regretted that it is not possible to accede to" the applicant's request.
the Registrar's letter of the 18th September, 1962, it was stated that the reply from the Director of Personnel was received by him on the 21st May, 1962, but, as the applicant was ill
bed this reply was communicated orally to the applicant's son, a practising advocate
Famagusta, on the same day but it does not appear that at the time the latter was acting on applicant's behalf. The applicant, who was on sick leave at the material time, and who resumed his duties on the 1st October, 1962, stated
evidence at the presentation of this case that from the 1st May, until about the end of July, 1962, he was very seriously ill
bed suffering from heart and kidney trouble, and that he was
formed of the Director's refusal for the first time on the 17th September, 1962, when he handed
his reminder of that date. This was not disputed by, the respondent. The main question which was argued before the court
this recourse was whether the case of Dr. P. Loizides and others and The Republic (Council of Ministers)
respect of his son. Counsel on behalf of the respondent
vited the court to overrule Loizides' case (supra) on the ground that the "education grant"
question is not covered by the expression "remuneration" "...or other like benefits"
He submitted that on the ejusdem generis rule the expression "or other like benefits" refers expressly to "retirement pensions, gratuities" which immediately precede it and that the
tention of Article 192.1 of the Constitution (supra) was not to guarantee all the rights and benefits of a public officer immediately preceding
dependence Day (viz. 16th August, 1960). It was, further, argued on behalf of the respondent that the reply of the Director of the Personnel dated the 15th May, 1962 (supra) did not deny the applicant s right to an education grant but it simply stated that it was not possible to accede to his request as the House of Representatives had not passed the Supplementary Appropriation Bill which would have provided funds for education grants to public servants on the lines of the judgment of the Supreme Constitutional Court
Loizides' case (supra). This, it was contended, is not a "decision, act or omission"
the sense of paragraph 1 of Article 146 of the Constitution, on the part of the Director of Personnel. Held,
the Loizides' case (supra) that the expressions "remuneration" and "or other like benefits"
.7 (b) are sufficiently wide to
clude education grants. The question whether the scheme could be applied modified to
clude countries other than Greece and Turkey is left open as it does not arise
the present case. Case of Dr. P. Loizides and others and The Republic (Council of Ministers)
question, to which he was entitled under the provisions of Article 192, paragraphs 1 and 7 (b), through the refusal of the Director of Personnel which is an act or decision but not an omission on the Director's part. It makes no difference whether the Members of the Executive failed (which they did not)
their duty to
troduce a Supplementary Appropriation Bill to the House of Representatives or the Members of the House of Representatives, failed to pass such a Bill, which could have provided funds for education grants to public servants pursuant to the decision of the Supreme Constitutional Court
the Loizides' case dated the 31st May 1961 (supra).
respect of his son is null and void and of no effect whatsoever. Decision of respondent declared null and void. Declaration accordingly. Cases referred to: Dr. P. Loizides and others and the Republic (Council of Ministers)
respect of his son. A. Triantafyllides with I. Boyiadjis, for applicant. K. C. Talarides, Counsel of the Republic, for respondent. Cur. adv. vult. The facts sufficiently appear
the judgment of the court. ZEKIA, P.: The judgment of the court will be delivered by Mr. Justice Josephides. JOSEPHIDES, J.: The main question which was argued before us
this recourse was whether the case of Dr. P. Loizides and others and The Republic (Council of Ministers)
respect of his son. The Loizides' case,
ter alia, decided that Article 192 of the Constitution was
tended to safeguard the rights of those civil servants who were
the service of the former Colony of Cyprus, immediately prior to the date of the coming
to, force of the Constitution, by ensuring to them the same "terms and conditions of service" as were applicable to them before that date (paragraphs 1 and 7 (b) of that Article); that the combined effect of the words "remuneration" and "other like benefits"
.7 (b)
cluded education grants; and, finally, that
view of the Constitution and the London and Zurich Agreements, the "necessary adaptations" to be made
the particular case should be that the education grant would be payable to public officers towards the of educating their children
Greece or Turkey
stead of the British Commonwealth. The Supreme Constitutional Court,
deciding the above case, was of the opinion that the combined effect of the word "remuneration" and the expression "or other like benefits" is sufficiently wide to bring the grant of free return passages and education grants within the letter and spirit of the definition (Loizides' case, at page 11OG). The applicant based his claim for the payment to him of an education grant at the rate of £100 per annum on Government Circular No. 1286, dated the 6th December, 1955, addressed by the Establishment Secretary of the former Colony of Cyprus to all Heads of Departments, whereby a scheme was put
to effect for the payment of financial grants to Government Officers towards the expense of educating their children
the British Commonwealth outside Cyprus. Article 192, paragraphs 1 and 7 (b) of the Constitution, which are material the purposes of this case, read as follows: "1. Save where other provision is made
this Constitution any person who, immediately before the date of the coming
to operation of this Constitution, holds an office
the public service shall, after that date, be entitled to the same terms and conditions of service as were applicable to him before that date and those terms and conditions shall not be altered to, his disadvantage during his continuance
the public service of the Republic on or after that date." .................................... 7. For the purposes of this Article- (
a permanent post. He has a son aged 24, unmarried, who has been studying Law
the University of Athens since August,
due course by the Director of Personnel. On the 17th of September, 1962, the applicant sent a reminder to the Minister of Justice, and on the 18th of September, 1962, a letter was addressed to the applicant by the Registrar, District Court, Famagusta, to which was attached' a reply of the Director of Personnel Department, Ministry of Finance, dated the 15th May, 1962, stating that "as the House of Representatives has not passed the Supplementary Appropriation Bill which would provide funds for education grants to public servants, it is regretted that it is not possible to accede to" the applicant's request.
the Registrar's letter of the 18th September, 1962, it was stated that the reply from the Director of Personnel was received by him on the 21st May, 1962, but, as the applicant was ill
bed this reply was communicated orally to the applicant's son, a practising advocate
Famagusta, on the same day but it does not appear that at the time the latter was acting on applicant's behalf. The applicant, who was on sick leave at the material time, and who resumed his duties on the 1st October, 1962, stated
evidence at the, presentation of this case that from the 1st May until about the end of July, 1962, he was very seriously ill
bed suffering from heart and kidney trouble, and that he was
formed of the Director's refusal for the first time on the 17th September, 1962, when he handed
his reminder of that date. This was not disputed by the respondent. Respondent's counsel
vited this court to overrule the Loizides' case on the ground that the education grant claimed by the applicant is not covered by the expressions "remuneration" and "or other like benefits". He submitted that on the ejusdem generis rule the expression "or other like benefits" refers expressly to " retirement pensions, gratuities" which immediately precede it, and that the
tention of Article 192.1 was not to guarantee all the rights and benefits of a public officer immediately preceding
dependence Day. The expression "or other like benefits" he said, was
tended to cover provident fund benefit only and no other benefit of a different kind. Finally, respondent's counsel submitted that unless a public officer was actually
receipt of the education grant on the date of the coming
to operation of the Constitution, he was not entitled to such a grant subsequently. We do not think that it could seriously be argued that the expressions "remuneration" and "or other like benefits" are not sufficiently wide to
clude, say, the cost of living allowance, which was payable before
dependence Day.
terpreting the expression "terms and conditions of service" one has to look at the actual terms and conditions enjoyed by public officers prior to
dependence and not to adhere literally to the words appearing
that definition. For
stance, the expression "terms and conditions of service"
cludes also "removal from service". If one
terprets literally these three words, surely "removal from service" as such is not a term or condition of service which was
tended to be safeguarded
favour of a public officer under Article 192.
terpreting that expression ("removal from service") one has to bear
mind the principles underlying disciplinary procedure as envisaged
the Colonial Regulations
disciplinary proceedings, that is to say, that the public officer is entitled-(a) to know the grounds upon which it is
tended to dismiss him, and (b) to be given an adequate opportunity of making his defence. Likewise
terpreting the expressions "remuneration" and "or other like benefits" one has to look at the Government General Orders and circulars then
force (i.e. the 15th August, 1960), as these
cluded many of the terms and conditions of the public service. If we were to accept the submission of respondent's counsel that the latter expression refers only to provident fund and to no other benefit, then this would mean that free medical treatment and dental treatment are no longer part of the terms and conditions of service of public officers, which could not be seriously maintained. Free medical treatment
cludes surgical operations, specialist examinations and medicines, and free treatment at Government's expense outside Cyprus
certain cases (see General Order. 111/5.1). It will thus be seen that free medical treatment is a substantial "benefit" for public officers amounting
some cases to hundreds of pounds
one year. For these reasons we agree with the decision
the Loizides' case that the expressions "remuneration" and "or other like benefits"
.7 (b) are sufficiently wide to
clude education grants. The question whether the scheme could be applied modified to
clude countries other than Greece and Turkey is left open as it does not arise
the present case. There remain two more points for consideration- (
the earlier part of this judgment it appears that the substance of the Director's letter was communicated to the applicant's son orally on the 21st May, 1962, but the applicant
evidence denied that his son passed this communication on to him and stated that he first came to know of the Government's refusal on the 17th September, 1962. This was not disputed by the respondent and on this evidence we are satisfied that the recourse was filed
time. We would, however, take this opportunity of expressing the view that when a public officer addresses a written application to a Government Department or Ministry, he is entitled to receive a written reply addressed to him personally. An oral communication through a son, even if that son may happen to be a practising advocate, cannot possibly be considered a proper reply to the applicant. As regards (b), it was submitted on behalf of the respondent that the reply of the Director of Personnel, dated the 15th May, 1962, did not deny the applicant's right to an education grant but it simply stated that it was not possible to accede to his application as the House of Representatives had not passed the Supplementary Appropriation Bill which would provide funds for education grants to public servants. This, it was contended, was not a decision, act or omission on the part of the Director of Personnel, within the provisions of Article 146.1 of the Constitution. However, one looks at this, the net result was that the applicant was not paid the education grant of £100 for the school year
question to which he was entitled under the provisions of Article 192, paragraphs 1 and 7 (b), through the refusal of the Director of Personnel which is an act or decision but not an omission on the Director's part. It makes no difference whether the Members of the Executive failed (which they did not)
their duty to
troduce a Supplementary Appropriation Bill to the House of Representatives, or the Members of the House of Representatives failed to pass such a Bill, which would have provided funds for education grants to public servants, pursuant to the decision of the Supreme Constitutional Court
the Loizides' case, dated the 31st May, 1961.
the result, the applicant is entitled to a declaration that the decision of the respondent not to pay to him education grant from the school year 1960/61 onwards
respect of his son is null and void and of no effect whatsoever. The respondent is also adjudged to pay to the applicant the costs of these proceedings for one advocate. There will be- declaration and an order for £35 costs accordingly. We need hardly stress the importance which must be attached to the satisfaction of a declaratory judgment of this nature, and the order for costs therein. Decision of respondent declared null and void and of no effect whatsoever. Order for costs as aforesaid. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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