MICHAELIDES ν. C.B.C.
(1988)3 CLR 171 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
(1988)3 CLR 171 1988 January 30 [PIKIS, J.] IN THE MATFER OF ARTICLE 146 OF THE CONSTITUTION MICHAEL (MIKIS) A. MICHAELIDES, Applicant, v. THE CYPRUS BROADCASTING CORPORATION, Respondent. (Case No. 846/85). Constitutional Law-Civil Service-Constitution, Art. 122-Does not purport to define financial benefits, far less retirement benefits of "Public Officers"-Does not place any constraints on legislative authority to differentiate in accordance with needs and realities between various branches of the Civil Service or between Public Corporations. Constitutional Law-Terms of service of members of civil service- Constitution, Art. 192-Civil servant, who retired voluntarily in 1962 and reappointed to a Public Corporation, cannot, upon retirement from such Corporation, invoke its provisions as regards retirement benefits from such Corporation. Rule of Law-No organ, however, high in the hierarchy, can act outside the law or cast himself above it-Assurances for granting benefits outside the Law to an Officer of a Public Corporation--Do not create any rights-Had the Officer modified his position in reliance to such assurance, other considerations might apply. In 1952, the applicant joined the Broadcasting Service, which was, then, a Branch of the Civil Service. In 1962 he retired from the Civil Service pursuant to Law 6/62 and was reappointed to the Broadcasting Service, which, by that time, had been entrusted to the Cyprus Broadcasting Corporation. After the enactment of the Pensions (Amendment) Law 2/81, providing for the recognition of the service of members of the civil service with the armed forces during the Second World War as pensionable, the applicant sought recognition of his own such service during the said War as pensionable. On 16.2.85 the management of C.B.C. agreed to credit the applicant with such entitlement as he would have enjoyed, had he been a member of the Civil Service. The assurance to the applicant was not consistent with the relevant collective agreement between C.B.C. and the Unions of its Employees, which was later adopted with retrospective effect by Regulations. When the applicant retired, his service with the armed forces was not recognised as pensionable. Hence this recourse Held, dismissing the recourse:
(1)Art. 122 of the Constitution, invoked by applicant, does not purport to define the financial benefits of public officers, far less their retirement benefits. Art. 122 does not raise any constraints to legislative authority to classify retirement benefits in the various sections of the public service as the intrinsic needs and realities of each branch may justify (Georghiou v. Republic
(1985)3 C.L.R. 2007 adopted). The same amenity to differentiate exists too in the case of public corporations (Anastassiades v. E.A.C.
(1987)3 C.L.R.790 adopted).
(2)Art. 192 of the Constitution, also, invoked by applicant safeguards continuity of employment of members of the public service at the time of the establishment of the Republic and prohibited the alteration of the terms. of their service to their detriment. In this case the applicant severed his links with the public service by the voluntary act of his retirement in 1962. In any event the period of service with the armed forces during the Second World War was not pensionable as at the date of the establishment of the Republic.
(3)No organ or official of the Administration, however, high in rank, can act outside the law or cast himself above it. The law is tile only source of authority and power. Consequently, there was no power to grant to the applicant benefits to which he was not entitled to. No rights could be derived from the understanding of 16.2.85, which was outside the realm of law. Had the applicant modified his position in any way in consequence of this undertaking and had he suffered any detriment in consequence thereto, other considerations might come into play. Recourse dismissed. No order as to costs Cases referred to: Kontemeniotis v. C.B.C.
(1982)3 C.L.R. 1027; Georghiou v. Republic
(1985)3 C.L.R. 2007; Anastassiades v. E.A.C.
(1987)3 C.L.R. 790; Droushiotis v. C.B.C.
(1984)3 C.L.R.
- Recourse. Recourse against the refusal the respondent to recognise applicant's service with the P.W.D. as an apprentice for 18 months and later with the British Navy for a period of 32 months as pensionable for the purposes of computation of his gratuity. A. Dikigoropoulos, for the applicant. P. Polyviou, for the respondent. Cur. adv. vult. PIKIS J. read the following judgment. In 1952 the applicant joined the Broadcasting Service, a branch of the civil service. In 1962 he retired from government service pursuant to the provisions of the Cyprus Broadcasting Corporation (Service of Government Officers) - (Retiring Provisions) Law 6/
- Following his retirement from the government service, he was reappointed as a member of the personnel of the broadcasting service .entrusted to a public corporation, that is, the Cyprus Broadcasting Corporation. The aforementioned law made both provision for the retirement from the public service and the reappointment of personnel to the Cyprus Broadcasting Corporation. The applicant served as a member of the Corporation, first, as a Technical Superintendent and later as Operations Manager until his retirement on 1st March,
- Before and after his retirement he pressed for the recognition of his service with the P.W.D. as an apprentice between 1941-1943 (for a period of about 18 months) and later with the British Navy between 1943-1946 (for a period of 32 months) as pensionable for the purposes of computation of his gratuity. His application was turned down (21.6.1985) for the reasons indicated in the letter addressed. to him on 25th July,
- The request of the applicant for the recognition of his service with government during the war years was, as may be gathered, inspired by the enactment of the Pensions (Amendment) Law 1981-2/81., providing for the recognition of the service of members of the civil service with the armed forces during the second world war as pensionable. His application for recognition of his services during the second world war was made shortly after the enactment of the aforementioned statute. In due course the union of the C.B.C. personnel took up his case and made it a subject of negotiations, between the unions and the management of the Corporation. On 16th February, 1985 the management argeed to credit him with such entitlement to gratuity as he would have enjoyed had he been a member of the civil service. This is confirmed by an affidavit of the then Minister to the Presidency , Mr. Dinos Michaelides, dated 4th September,
- The, assurances of the management to the applicant and their undertaking to the unions run contrary to the provisions of the gratuity scheme of the Corporation. The gratuity of the employees of C.B.C. was governed by the provisions of an agreement between management and unions concluded in
- But for the agreement the applicant would have been unable to secure recognition of his services for purposes of pension for the years 1952-
- The agreement replaced an earlier one and supplemented the regulations in force governing pensionable rights of the staff of the organization. In due course the agreement of 1980 was given statutory force by the enactment of the Regulations 1987 and was given retrospective effect from 1st January,
- Notwithstanding the time gap in giving statutory effect to the Regulations of 1980, the management of the Corporation regarded themselves as bound by the agreement and determined the benefits of retiring personnel according to its provisions Whether they were entitled to do so need not be debated in these proceedings as it was not made an issue. We may remind that collective agreements as such are not a source of law (Kontemeniotis v. C.B.C.). What was made an issue in these proceedings is the amenity, if any, of the Corporation to derrogate from its agreement of assurances of 16th February, 1985, and the breach, if any, of the rights of applicant safeguarded by Articles 122 and 192 of the Constitution. It is the case for the applicant that Art.122 of the Constitution safeguards equality of treatment with regard to retirement benefits among the class of public officers defined therein A similar submission made in the case of Georghiou v The Republic was turned down by A Loizou, J as untenable The learned Judge decided that Art. 122 does not purport to define the financial benefits of public officers and far less their retirement benefits. The aim of Art 122 was to define the range of the public service with a view to defining the competence of the Public Service Commission The ratio of the above case is that Art 122 does not raise any constraints to legislative authority to classify retirement benefits in the various sections of the public service as the intrinsic needs and realities of each branch may justify The case of Georghiou (supra) was followed by Stylianides J in Anastassiades v E.A.C Not only it was competent, the Court observed, for legislative authority to enact different rules for the pensioning of different branches of the public service, but the same amenity to differentiate existed too in the case of public corporations. Consequently the fact that service during the second world war was recognized as pensionable by any other public corporation, did not involve any breach of the provisions of Art 122 of the Constitution. Art. 192 cannot get the case of the applicant off the ground either. It. safeguarded, by the provisions of para.1, continuity of employment of members of the public service at the time of the establishment of the Republic and prohibited the alteration of the terms of their service to their detriment. In this case the applicant severed his links with the public service by the voluntary act of his retirement in
- Thereafter, the terms and conditions of his service were solely regulated by the law and regulations governing the emoluments and pension rights of members of the Cyprus Broadcasting Corporation. Even if we were to suppose that the Cyprus Broadcasting Corporation ought to heed the provisions of the pension Law at the time of the establishment of the Republic, the scheme under which his rights were determined in no way offended the provisions of the Pension Law at the time. As correctly pointed out in an advice of the Personnel Department of the. Ministry of Finance (31.1.1985), the Pension Law in force in 1960 did not recognize as pensionable the service of the applicant with the British Armed Forces because of lack of continuity. Between the years 1946-1952 the applicant was employed in the private sector. What remains to decide is whether the agreement or assurances of 16th February, 1985, altered or modified the obligations of the respondents towards the applicant. It is a cardinal principle of public law that the Administration should operate within the limits and subject to the provisions of the law. In this case, the scheme governing the determination of the retirement gratuity of the employees of the organization. No organ or Official of the Administration, however high in rank, can act outside the law of cast himself above it. The law is the only source of authority and power. Consequently, neither the Minister to the Presidency nor the Director-General of the organization or the board of management for that matter had power or authority to award benefits outside the approved scheme. The undertaking given to the applicant on 16th February, 1985, had no sanction in law and was wholly outside the powers of any official of the organization to give. Consequently, it was not a legitimate exercise of power and as such outside the realm of the law. No rights in public law could derive therefrom. Of course, had the applicant modified his position in any way in consequence of this undertaking and had he suffered any detriment in consequence thereto, other considerations might come into play. This is not the case and the matter need be pursued any further. The applicant had no right to additional benefits for his service with the P.W.D. or the Armed Forces between 1941-1946, and none could be validly claimed or be awarded to him. He was compensated according to the scheme in force and the decision must be validated by this Court. The case is distinguishable from cases where the Administration in the exercise of its discretion evolves a practice consonant with the law and then fails to follow it in a particular case. In those circumstances, the Administration may expose itself to the charge of bad faith and the subject may legitimately complain of discrimination. In the result the recourse is dismissed. The sub judice decision is confirmed pursuant to Art. 146.4 (a) of the Constitution. Let there be no order as to costs. Recourse dismissed No order as to Costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο