Vorkas Andreas ν. The Republic of Cyprus through the Director of Public Administration and Personnel Department (1987) 3 CLR 396

(1987)3 CLR 396 THE CYPRUS LAW REPORTS ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1987)3 CLR 396 [TRIANTAFYLLIDES, P., MALACHTOS, SAVVIDES, STYLIANIDES AND KOURRIS, JJ.] ANDERAS VORKAS, Appellant-Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF PUBLIC ADMINISTRATION AND PERSONNEL DEPARTMENT, Respondent. (Revisional Jurisdiction Appeal No. 552). Constitutional Law - Equality - Constitution, Art. 28 - It does not exclude reasonable distinctions - Public Officers - 13th salary - Regulations providing for payment of part of 13th salary in case of death or retirement of an officer during the year and for non payment in case of resignation or dismissal of such officer during the year - Distinction reasonable. Upon application by the appellant, a Government occulist, the Public Service Commission granted to him leave for resigning his post with effect from 13.10.

1. After such resignation the applicant applied for his analogy to the 13th salary for the year
2. His application was turned down and, as a result, the appellant filed a recourse to this Court, complaining that Reg.7 of the Regulations governing the grant of 13th Salary and 13th Pension to Public Servants violated the principle of equality by differentiating «unreasonably» between the position of public officers who have resigned from office during the year and who are not entitled to any part of the 13th salary and the position of public officers who have died or retired during the year and who are, in virtue of Reg. 6 of the same Regulations, entitled to the analogy of the 13th salary. The trial Judge dismissed the recourse. Hence the present appeal. Held, dismissing the appeal, that this Court is in full agreement with the approach of the trial Judge, that the distinction made by Reg. 7 between a public officer who resigns his post before the end of the year and an officer, who retires or dies during a year, is a reasonable one and, therefore, Reg. 7 is not unconstitutional. Appeal dismissed. No order as to costs. Cases referred to: The Republic v. Arakian and Others

(1972)3 C.L.R.

1. Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Loris J.) given on the 25th January, 1986 (Revisional Jurisdiction Case No. 124/85) whereby appellant's recourse against the refusal of the respondent to pay applicant his analogy of the 13th salary for the year 1984 when he resigned from his post of Government Occulist was dismissed. K. Talarides, for the appellant. A. Papasavvas, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by Mr. Justice Malachtos. MALACHTOS J.: This is an appeal against the judgment of a judge of this Court in recourse No.124/85, where it was held that Regulation 7 of Part A of the Regulations Governing the Grant of the 13th Salary and the 13th Pension to Public Servants, does not offend the principle of equality, which is safeguarded by Article 28 of our Constitution. The facts of the case, as found by the trial Judge, and which are not in dispute, shortly put are the following: The appellant was first appointed in the Public Service on the 1st May, 1975, as a government occulist. On 25.6.84 he applied to the Public Service Commission for leave to resign his aforesaid post and such leave was granted with effect as from the 13th October, 1984 and arrangements were made for payment to him of the gratuity he was entitled to, under the provisions of the Pensions Law, Cap.311, as amended by Law 39 of
2. On 4.12.84 the appellant, through his advocate, raised the question of payment to him of the analogy on the 13th salary for the year 1984, which allegedly was payable to him under the provisions of the Regulations Governing the Grant of the 13th Salary and the 13th Pension to Public Servants, but this claim of his was turned down by the respondent authority in its letter of the 7th January,
3. The relevant Regulations are Regulations 1, 2, 6 and 7, which read as follows: «
4. To every public servant who served for the whole period of one year it is paid in December of each year a 13th salary equal to his salary for the month of December.
5. To a public servant who served for a period shorter of one year it is paid as 13th salary a sum equal to 1/12th of his salary for the month of December or of the last month of his service, depending on the particular case, for each complete month of service for the year in question.
6. In case of retirement or death of a public servant at any time before December of each year, it is paid to him or to his lawful personal representative immediately upon his retirement or death, as a 13th salary, an amount equal to 1/12th of his monthly salary at the time of his retirement or his death for each complete month of service.
7. A public servant who has resigned or has been dismissed during the year, is not entitled to payment of the 13th salary.» It was the case for the appellant before the trial judge that Regulation 7 of the 13th Salary Regulations, is unconstitutional as it offends the principle of equality safeguarded by Article 28.1 of our Constitution by differentiating unreasonably the position of a public officer who resigns during the year and who is not entitled to payment of any part of the 13th salary, from the position of a public officer who dies or retires during the year and who is entitled to the analogy of the 13th salary as provided by Regulation
8. The trial Judge, after considering the arguments of counsel for the parties, came to the conclusion, as stated at page 40 of the record, that the differentiation made between retirement and death on the one hand under Regulation 6 and resignation, which is the present case, on the other hand, under Regulation 7, is neither unreasonable nor arbitrary or unjustifiable. A public officer who resigns his post cannot be said to be in the same situation as one who retires or dies as he may regulate the time of his resignation. In reaching the above conclusion the trial judge made reference to the leading case of The Republic v. Nishan Arakian and Others

(1972)3 C.L.R. 294 at pages 298-299, where the following is stated: «The application of the 'principle of equality' has been considered Mikrommatis and the Republic, 2 R.S.C.C. 125, where, it was stated (at p.131) that 'equal before the law' in paragraph 1 of Article 28 does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiation and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things; and the Mikrommatis case was followed in, inter alia, Panayides v. The Republic

(1965)3 C.L.R. 107, Louca v. The Republic

(1965)3 C.L.R.383, and Impalex Agencies Ltd. v. The Republic

(1970)3 C.L.R. 361. Valuable guidance can be derived in this respect from decisions of the Greek Council of State.. In case 1273/65 it was stated that the principle of equality entails the equal or similar treatment of all those who are found to be in the same situation. In case 1247/67 it was held that the principle of equality safeguarded by Article 3 of the Greek Constitution of 1952 - which corresponds to Article 28.1 of our Constitution - excludes only the making of differentiations which are arbitrary and totally unjustifiable.» Counsel for the appellant in arguing this appeal today before us, put forward the same submissions as those put before the trial judge and further submitted that a public officer who voluntarily resigns his post, like a public officer who retires or dies before the end of the year, is entitled, as of right, to the analogy of his 13th salary because of his services already rendered, irrespective of voluntary resignation or retirement or death. Having heard what has been argued by counsel for the appellant, we must say that we entirely disagree with his submissions. We must further say that we fully agree with the approach of the trial Judge, that the distinction made by Regulation 7 between a public officer who resigns his post before the end of the year and an officer who retires or dies, is a reasonable one and so this Regulation 7 is not unconstitutional. The appeal, therefore, is dismissed with no order as to costs. Appeal dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο