FINANCE AND ANOTHER)
ARTICLE 146
THE CONSTITUTION IOANNIS IOANNIDES, Applicant, and THE REPUBLIC
CYPRUS THROUGH 1. THE MINISTRY
FINANCE, 2. THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 9/66). Public
ficers-Public Service and Greek Communal Chamber Service-Emplacements-The Transfer
the Exercise
Competence
the Greek Communal Chamber and The Ministry
Education Law, 1965 (Law No. 12
1965, sections 16
Applicant in the post
Assistant Examiner
Accounts, by virtue
section 16
the Law-Relevant decision properly and reasonably open to Respondent 2-No interference by the Court called for. Public Service and Greek Communal Chamber Service-Nothing in section 16
the Law No. 12
1965 (supra) safeguarding the promotion prospects
those
ficers transferred to the public service from the service
the Greek Communal Chamber. Public
ficers-
ficer in the service
the Greek Communal Chamber-Transferred to the public service by virtue
the aforesaid Law No. 12
1965 (supra)-Rent allowance-Eligibility
Applicant for a rent allowance in respect
his previous service under the Greek Communal Chamber and as a public
ficer i.e. as
ficer in the public service
the Republic transferred there-to by virtue
the said Law-Section 16
the Law-Rent allowance not within the ambit
the status provided for under sub-section
section 16-"Terms and conditions
service" as defined by sub-section
the said section 16-"Remuneration" (αντιμισθία)-Rent allowance is a benefit not included in the term "remuneration" (αντιμισθία)-Cfr. Article 192.7
the Constitution-The service under the Republic
ficers like the Applicant transferred from the service
the Greek Communal Chamber to the public service
the Republic by virtue
the said Law No. 12
1965 (supra) "shall be governed by the same terms and conditions
service which were in force in relation to him before the present date" (viz. the date
the enactment
the said law)-Section 16
the Law-On the other hand "terms and conditions
service" are defined, for the purposes
section 16, by sub-section
service" do not include a matter such as a rent allowance-Which is a benefit (επίδομα) and no mention
benefits is made in the said definition
the "terms and conditions
service" given in subsection
section 16-If follows that a rent allowance, not being part and parcel
the special status preserved in respect
the Applicant under sub-section
section 16 (supra), the Applicant's eligibility for such a benefit as a rent allowance has to be decided on the same footing as in relation to all other public
ficers in general-And it is not disputed that on such footing the Applicant was eligible for such an allowance since he became emplaced in the post
Assistant Examiner
Accounts in the Audit
fice
the Republic. Greek Communal Chamber-Transfer
the exercise
its competence to the Republic-Law No. 12
1965 (supra)-See above. Ministry
Education-Created by Law No. 12
1965 (supra)-See above. Transfer-
ficers in the service
the Greek Communal Chamber transferred to the service
the Republic by Law No. 12
1965 (supra)-See above. Words and Phrases-"Terms and conditions
service", "remuneration" (αντιμισθία), as defined by sub-section
section 16
the Law No. 12
1965 (supra)-Benefit-Rent allowance-Rent allowance is a benefit (επίδομα) and is not included in the word "remuneration" (αντιμισθία) (supra).-Cfr. Article 192.7
the Constitution. Cases referred to: Loizides and The Republic, 1 R.S.C.C. 107; Boyiatzis and The Republic, 1964 C.L.R. 367; Georghiades and The Republic,
this case sufficiently appear in the judgment
the Court. Recourse. Recourse against a decision
Respondent No. 1 by virtue
which it was held that the Applicant is not entitled to a rent allowance and against a decision
Respondent 2 emplacing him in the post
Assistant Examiner
Accounts, when he was transferred, by operation
law, to the public service from the service
the dissolved Greek Communal Chamber. L. Clerides, for the Applicant. L. Loucaides, Counsel
the Republic, for the Respondent. Cur. adv. vult. The following Judgment was delivered by: TRIANTAFYLLIDES, J.: By means
this recourse the Applicant complains against two separate administrative decisions: First, against a decision
Respondent 2, the Public Service Commission, emplacing him in the post
Assistant Examiner
Accounts, when he was transferred, by operation
law, to the public service from the service
the dissolved Greek Communal Chamber. Secondly, against a decision
the Director
the Personnel Department-on behalf
Respondent 1, the Ministry
Finance-by virtue
which it was held that the Applicant is not entitled to a rent allowance. The salient events relevant to the matter
the emplacement
the Applicant in the post
Assistant Examiner
Accounts are as follows: When the Greek Communal Chamber was dissolved the Applicant was working in the Audit Service
the Chamber as an Auditor, 3rd grade (or Auditor C). By virtue
section 16
the Transfer
The Exercise
Competence
the Greek Communal Chamber and the Ministry
Education Law, 1965 (Law 12/65) the Applicant was transferred to the public service
the Republic; and by a decision
Respondent 2 taken under section 16
Law 12/65, on the 7th October, 1965 (see its minutes exhibit 8) he was emplaced in the post
Assistant Examiner
Accounts in the Audit
fice
the Republic. As it appears from the relevant minutes
Respondent 2 it considered the duties
the post which had been held by the Applicant under the Greek Communal Chamber and, having regard to views expressed for the purpose by the Auditor-General
the Republic-as such views were mentioned in a relevant decision
the Council
Ministers dated the 26th August, 1965 (see exhibit 9)-came to the conclusion that the said duties
the Applicant were analogous to the duties
the post
Assistant Examiner
Accounts in the Audit
fice
the Republic. The aforesaid views
the Auditor-General, are to be found, also, in the relevant submission to the Council
Ministers dated the 10th August, 1965 (see exhibit 10); they were to the effect that, having considered the functions
the posts concerned under the Greek Communal Chamber and the duties and responsibilities under the schemes
service relating to posts in the Audit
fice
the Republic, he was
the opinion, inter alia, that an Auditor, 3rd grade, under the Chamber, should be emplaced in the post
Assistant Examiner
Accounts in the Audit
fice
the Republic. The above decision
Respondent 2 was communicated to the Applicant by a letter dated 12th October, 1965 (see exhibit 5). On receiving this letter the Applicant replied on the 25th October, 1965 stating that had the Communal Chamber not been dissolved he would have been promoted to the post
Auditor, 2nd grade (or Auditor B) in the Audit Service under the Chamber and that, therefore, he could not accept appointment as Assistant Examiner
Accounts only (see exhibit 2). On the 2nd November, 1965, Respondent 2 reconsidered the matter (see its minutes exhibit 11) and decided that it could not alter its decision in the matter and informed the Applicant accordingly by letter dated the 8th November, 1965 (see exhibit 1); and it is against this final decision in the matter by Respondent 2 that this recourse has been filed on the 18th January, 1966. According to section 16
Law 12/65, the emplacement
the Applicant in .a post in the public service had to be made, as far as practically possible, in a post the functions
which were analogous to the functions
the post which he had held under the Chamber. Respondent 2 in emplacing the Applicant has based itself on the expert views
the Auditor-General and has, also-as it appears from its minutes-considered itself the duties
the respective posts. The functions
the post
Auditor, 3rd grade, under the Chamber, are to be found set out in the relevant scheme
service (see page 4
exhibit 17). The duties and the responsibilities
the post
Assistant Examiner
Accounts in the Audit
fice are to be found in the relevant scheme
service (see page 6
exhibit 13). Having compared myself the relevant schemes
service, I am satisfied that the decision reached by Respondent 2 was properly and reasonably open to it and I should not interfere therewith (see Georghiades and The Republic
the Auditor-General. Counsel for the Applicant has submitted that Respondent 2 was unduly influenced by the related to the matter decision
the Council
Ministers (exhibit 9), which preceded its own decision, and in which it was, in effect, stated that the Applicant being an Auditor 3d grade should be emplaced in the post
Assistant Examiner
Accounts. At the time the Council
Ministers was dealing with the matter from another angle, that
the number
relevant posts needed in the public service; and, it proceeded, also, to request Respondent 2 to emplace the
ficers
the Chamber affected, including the Applicant, in accordance with the views
the Auditor-General. I do not think, however, that Respondent 2 was unduly influenced by the action taken by the Council
Ministers. It is perfectly clear from the relevant minutes
Respondent 2 (exhibit 8) that it took into account the decision
the Council
Ministers only in so far as it conveyed the views
the Auditor General, and for no other purpose; and that Respondent 2 proceeded to make itself the necessary examination
the matter. The fact, furthermore, that later, as result
representations
the Applicant, Respondent 2 proceeded to reconsider the whole matter on the basis
the points raised by the Applicant (see exhibit 11), shows that Respondent 2 did not consider itself bound by the decision in question
the Council
Ministers; and Respondent 2 proceeded to reaffirm its own previous decision, on the ground that the points raised by the Applicant did not justify altering it, and for no other reason at all. Counsel for the Applicant has argued, further, that the Applicant, by virtue
the decision
Respondent 2 regarding his emplacement, has been deprived
his prospects
promotion, because he was due to have been promoted to Auditor, 2nd grade, (or Auditor B) under the Chamber; and that now he has no promotion prospects because he does not possess the qualifications required for promotion to Examiner
Accounts, 3rd grade, in the Audit
fice
the Republic. It is a fact which I do accept that the material before the Court tends to show that had the Communal Chamber not been dissolved the Applicant might have eventually been promoted to Auditor, 2nd grade. But I cannot find anything in section 16
Law 12/65 safeguarding the promotion prospects
those transferred to the public service from the service
the Greek Communal Chamber, or making it necessary for the Commission to take such prospects into account in emplacing them under the provisions
such section. On the contrary, the wording
sub-section
section 16 seems to point to the opposite direction, in the sense that it provides that analogy must exist between the post which the person to be emplaced had held under the Chamber and the post in which he is to be emplaced in the public service
the Republic-and not between the post to which he might have been, or would have been eventually, promoted, in the service
the Chamber, and the post in the public service in which he is to be emplaced; moreover, there is nothing in sub-sections
section 16 which could lead to the conclusion that the promotion prospects
persons, such as the Applicant, are preserved and have to be given effect to by Respondent 2 under section 16
Law 12/65. In any case, I cannot agree that he Applicant can never be promoted from the post
Assistant Examiner
Accounts; he can always acquire the necessary qualifications, in future, and become eligible for promotion. For all the above reasons this part
the recourse-which relates to the emplacement
the Applicant in the post
Assistant Examiner
Accounts-fails and is hereby is dismissed accordingly. I pass on next to the part
the recourse which is aimed at the refusal to grant Applicant a rent allowance. The salient facts in relation thereto are as follows: The Applicant, before he was appointed to the post
Auditor, 3rd grade, under the Chamber, was being employed by the Chamber as a weekly-paid regular employee, having been transferred to the service
the Chamber, from the public service, again as a weekly-paid regular employee; and as a weekly-paid employee he was never in receipt prior to July, 1961, when he was appointed as Auditor, 3rd grade,
a rent allowance. The Applicant, when appointed on the 1st July, 1961, to the post
Auditor, 3rd grade, under the Greek Communal Chamber, did not become entitled to receive a rent allowance in view
the fact, that, as stated in a relevant circular, dated the 11th September, 1961 (see exhibit 12) it had been decided by the Chamber that no rent allowance would be paid to those who were appointed or were to be appointed in the service
the Chamber after the 15th August, 1960. On the 11th December, 1965, the Applicant claimed, by letter which he addressed to Respondent 1 (see exhibit 6), a rent allowance retrospectively, as from the 1st July, 1961, when he was appointed as Auditor, 3rd grade, under the Chamber. In the end he came to know by means
copy
a letter addressed to the Auditor-General, and dated the 29th December, 1965, (see exhibit 7) that there was nothing to be added to what had been already stated by the Director
the Personnel Department in a letter to the Auditor-General dated the 7th December, 1965; it is common ground that this amounted, in effect, to a refusal
the rent allowance claimed by the Applicant. As the letter
the 7th December, 1965, had not been produced I directed, after judgment had been reserved, that copies thereof should be filed in Court and delivered to counsel for the Applicant. This was duly done (see exhibit 18) and copies
a related letter by the Director
the Personnel Department to the Ministry
Education, dated the 19th November, 1965, were also filed, and delivered to counsel for the Applicant (see exhibit 19). These letters confirm fully that the Applicant was not regarded as eligible for a rent allowance. At the request
counsel for the Applicant I heard the parties further on the issue
the rent allowance, after the production
the above two letters. Counsel for Respondents has argued all along that the reason why Respondent 1 has refused a rent allowance to Applicant are the provisions
sub-section
section 16
Law 12/65 which read as follows: «Η παρά τη Δημοκρατία υπηρεσία παντός τοιούτου προσώπου τελεί υπό τους αυτούς όρους υπηρεσίας οίτινες ίσχυον δι' αυτό προ της ημερομηνίας ταύτης. Νοείται ότι η αντιμισθία της θέσεως ην το πρόσωπον τούτο κατείχε ως εμφαίνεται εν τω τελαυταίω προϋπολογισμώ της Συνελεύσεως θεωρείται ως προσωπική αντιμισθία του προσώπου τούτου». ("The service
any such person under the Republic shall be governed by the same terms and conditions
service which were in force in relation to him before the present date: Provided that the remuneration relating to the post which such a person had held, as shown in the last Budget
the Chamber, shall be deemed to be remuneration personal to such person"). «Όροι Υπηρεσίας» ("terms and conditions
service") are defined, for the purposes
section 16, by sub-section
the remuneration
the Applicant, and his remuneration under the Chamber having not included a rent allowance, the Applicant was not-through the combined effect
sub-sections
section 16-eligible for a rent allowance while holding the post
Assistant Examiner
Accounts to which he had been emplaced under sub-section
such section 16. Counsel for the Respondents has fairly conceded that his above set out view holds good only while the Applicant holds the post in which he has been emplaced i.e. Assistant Examiner
Accounts, and that after promotion therefrom to another post he would be eligible for a rent allowance like other public
ficers; it was only while he held the post in which he had been emplaced that he was treated differently from other public
ficers and such differentiation, as provided for under sub section
section 16, was a reasonable one, in the circumstances, due especially to the fact that the Applicant had come from the service
the Greek Communal Chamber and was enjoying a special status protected by sub-section
section 16. I have no difficulty in finding that there can be no question
Applicant being entitled to claim now rent allowance allegedly due to him by the Greek Communal Chamber, as from July, 1961 onwards. The relevant decision to the contrary
the Chamber was applied to him all through his service under the Chamber; he never received any rent allowance from the Chamber and he never challenged its decision not to pay him such allowance. It is too late now to challenge the said decision by means
this recourse. The decision, however,
Respondent 1 not to pay to the Applicant a rent allowance, to which he would admittedly have been otherwise entitled as a public
ficer, appears to me to have been based on a mistaken construction
sub-section
section 16
Law 12/65: It is quite clear that, apart from what is laid down as applicable to an
ficer-such as the Applicant-by virtue
the said sub-section
the public service
the Republic is, otherwise, subject to the same terms and conditions
service as are applicable to public
ficers in general. So, even if I were to assume, in agreement with counsel for the Respondents, that sub-section
service, as defined in sub-section
section 16, are preserved in force and constitute a special status for the Applicant, to the exclusion, in respect
the matters concerned,
the terms and conditions applicable to public
ficers in general, the Applicant would be excluded from receiving, as an Assistant Examiner
Accounts, a rent allowance-on the ground that he was not receiving a rent allowance under the Greek Communal Chamber-only if I were to find that the matter
the rent allowance is within the ambit
the terms and conditions
service to which sub-section
section 16 refers. I have come to the conclusion that the terms and conditions
service to which sub-section
section 16 refers, do not include a matter such as a rent allowance; I take this view because in my opinion the rent allowance is not related to the remuneration («αντιμισθία») which the Applicant was receiving under the Greek Communal Chamber and, therefore, is unconnected with the terms and conditions
service
the Applicant under such Chamber, as such terms and conditions are defined by sub-section
section 16, for the purposes, inter alia,
sub-section
such section. It is a benefit («επίδομα») and no mention
benefits is made in the definition
the terms and conditions
service given in sub-section
section 16. It follows that a rent allowance, not being part and parcel
the special status preserved in respect
the Applicant, under sub-section
section 16, the eligibility
the Applicant for such a benefit has to be decided on the same footing as in relation to all other public
ficers in general-and it is not in dispute that on such a footing the Applicant was eligible for such an allowance since he became emplaced in the post
Assistant Examiner
Accounts in the Audit
fice. My view that the rent allowance is not covered by the term "remuneration" (αντιμισθία) to be found in sub-section
section 16-and "remuneration" is the only term in such sub-section with which we need be concerned in this Case-is based not only on the very nature
a rent allowance, which being an "allowance" is something different from "remuneration", but it is also based, inter alia, on a comparison
the definition
terms and conditions
service in sub-section
section 16, with the definition
terms and conditions
service in paragraph 7(b)
the Constitution-section 16 and Article 192 being provisions quite similar to a large extent. Actually, it appears from a comparison
the texts
subsection
section 16 and
paragraph 7(b)
that the latter formed the drafting prototype
the former; even the sequence
terms common to both is the same. Yet, whereas in paragraph 7(b)
mention is made expressly
benefits (επιδόματα) in addition to the term remuneration (αντιμισθία), sub-section
section 16 mentions only remuneration (αντιμισθία), and there is no mention therein
any benefits (επιδόματα). In the circumstances I have to conclude that it was not intended to cover benefits (επιδόματα) by means
the definition in section 16
sub-sections
section 16 is, apparent, also, from the 1965 Budget
the Greek Communal Chamber, to which express reference is made in the proviso to sub-section
the Chamber-in which the expenses for the Audit Service
the Chamber are included-that a differentiation is made between remuneration and allowances (μισθοί και επιδόματα) and special separate provision is made therein for allowances (επιδόματα) including the rent allowance-(and in relation to the relevant nomenclature it is to be noted that no difference in meaning exists between «μισθός» and «αντιμισθία», both amounting to one and the same thing-see Δημητράκου Νέον Λεξικόν της Ελληνικής Γλώσσης, Β έκδοσις). Likewise in the Budgets
the Republic the remuneration
public
ficers and allowances payable to them, such as a rent allowance, are provided for as separate matters. In the cases
Loizides and The Republic (1 R.S.C.C. p. 107) and Boyiatzis and The Republic (1964 C.L.R. 367) the Court, in dealing with education grants, did not have to decide specifically whether such grants were "remuneration" or "benefits" and it was held that such grants were, in any case, covered by the said two terms; in the latter case however, it was mentioned, by way
obiter dictum, that free medical treatment was a "benefit". In the present Case when it has to be decided whether a rent allowance is "remuneration" or a "benefit" I have no difficulty at all in holding that a rent allowance, being an allowance, is a benefit, and that, in any case, and for all the foregoing reasons, when sub-sections
section 16 were referring to remuneration (αντιμισθία) it was not either possible, or intended, to cover thereby rent allowances; therefore, the matter
a rent allowance was not within the ambit
the status provided for under sub-section
section 16. In the circumstances I hold that the provisions
sub-section
section 16
Law 12/65 cannot affect the eligibility
the Applicant, as an Assistant Examiner
Accounts, for a rent allowance in the ordinary course. In view
the foregoing I need not decide, and I leave open, the question as to whether or not sub-section
section 16-like the relevant provisions
s a beneficial provision only, in the sense that it safeguards the terms and conditions
service enjoyed by persons such as the Applicant under the Greek Communal Chamber, but it cannot be construed-(in its context, and in view
the need to construe it, as far as possible, in accordance with the constitutional provisions regarding equal treatment and non-discrimination)-as depriving the said persons
any terms and conditions
service applicable to all other public
ficers, once such persons have become by operation
law-section 16
Law 12/65-public
ficers in the service
the Republic. In the result, this recourse succeeds in so far as the refusal to the Applicant
a rent allowance as from the time
his emplacement in the post
Assistant Examiner
Accounts is concerned; such refusal is declared to be null and void and
no effect whatsoever as being wrong in law and in excess and abuse
powers. Otherwise this recourse is hereby dismissed; and there shall be no order as to costs. Application succeeds in part. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο
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