ARTICLE 146OF T H E CONSTITUTION 1965 Nov. 16, 1966 Feb. 24 DR. YIANGOS FRANGIDES and DR. YIANGOS FRANGIDES, Applicant, and T H E REPUBLIC
CYPRUS, T H R O U G H — 1. T H E COUNCIL
MINISTERS,
HEALTH, Respondents. (Case No. 108J65). Public Service—Public
ficers—Rights existing prior to Independence (viz. 16th August, 1960)—Allowances—Acting allowance in respect
acting appointments—General Order IIJ3.6—Decision
the Council
Ministers to the effect that as from the 1st January, 1965, no acting allowance should be paid in accordance with the relevant General Orders—Applicant entitled to have General Order II\3-6^ (supra) applied tohis case,in view
theprovisions
the Constitution—Notwithstanding the aforesaid decision
the Council
Mini- v> sters—Which decision to that extent i.e. in sofar as it purports to beapplied to the applicant's caseis unconstitutional, in that it is repugnant to paragraph 1
the Constitution. See, also, under Constitutional Law herebelow. Constitutional Law—Article 192, paragraphs 1 and 7(b),
the Constitution—Public
ficers holding
fice in the public service immediately before the date
the coming into operation
the Constitution (such date being the 16th August, 1960)—Safeguard
such public
ficers "terms and conditions
service" after that date—"Terms and conditions
service", "remuneration" etc. etc. in paragraph 7(b)
the Constitution—Meaning and effect on the true construction thereof—Principles
construction applicable—In interpreting the expressions "remuneration" or "other like benefits" inparagraph 7(b)
THECOUNCIL
MINISTERS,
HEALTH. 1965 Nov. 16, 1966 Feb. 24 D R . YIANGOS F R A N CIDES and T H E REPUBLIC
CYPRUS THROUGH 1. T H E COUNCIL
MINISTERS,
HEALTH. Constitution one has to look at the Government General Orders and Circulars then inforce (viz. on the 15th August, 1960)—And by "remuneration" we have to understand not only the isolated element
the salary payable to a given public
ficer—But, also, the whole complex
provisions governing his emoluments. General Order IIJ3.6 (supra)—It is not relied on in the judgment in the instant case as legislation still in force generally, but as a provision forming part
the legal situation preserved by paragraph 1
the Constitution—And it matters not in this respect that General Orders have, otherwise, not continued in force as legislation after the date
the coming into operation
the Constitution (viz. on and after the 16th August, 1960), by virtue
the Constitution. See, also, under Public Service above. In this case, the applicant challenges the decision to refuse him payment
an acting allowance in respect
his acting service as District Medical
ficer, Larnaca, as irom the 24th May, 1965. That decision is contained in a letter
the Director-General
the Ministry
Health, dated the 29th May, 1965. The applicant was at all material times before the 16th August, 1960, (date when the Constitution came into operation) a Medical
ficer, Class I and he continued to remain in that
fice when he was appointed by the respondent Commission as Acting District Medical
ficer, Larnaca, as from the 24th May, 1965. General Order II/3.6 provides for an acting allowance in the case
an acting appointment. It is common ground that the said decision to refuse to applicant the acting allowance was based on a circular dated the 17th March, 1964, and setting out a decision
the Council
Ministers to the effect that as from the 1st January, 1965-, "in view
the present situation— (a) no acting allowances should be paid in accordance with the relevant General Orders; and ( * ) ; • ; The matter will be reviewed when the situation improves". Article 192
the Constitution provides: "192.1. Save where other provision is made in this 182 • • Constitution any person who, immediately before the date
the coming into operation
this Constitution, holds an
fice in the public service shall, after that date ! be_entitled_to-the-same terms and conditions
service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service ot the Republic on or after that date". "7. For the purposes
this Article— "(b) 'terms and conditions
service' means, subject to the necessary adaptations under the provisions
this Constitution, remuneration, removal from service, retirement pensions, gratuities or other like benefits". The Supreme Court, declaring the subjudice decision, contained in the said letter
the Director-General
the Ministry
Health dated the 29th May, 1965,—null and void :- Held,
, paragraph 1,
the Constitution (supra) to the same terms and conditions
service as were applicable to him as Medical
ficer, Class I, before the 16th August, i960, and such terms and conditions cannot be altered to his disadvantage during his continuance in the public service after that date. (z)(a) One
such terms and conditions
service, as defined in paragraph y(b)
(supra), is the "remuneration" attaching to applicant's post; and by "remuneration" we have to understand not only the isolated element
the salary payable to applicant but also the whole complex
provisions governing his emoluments. (b) Among the said provisions was General Order 11/3.6 providing for an acting allowance in the case
an acting appointment. In interpreting the expressions "remuneration" or "other like benefits" in the aforesaid paragraph 7
MINISTERS,
HEALTH. 1965 Nov. 16. 1966 Feb. 24 DR. YIANGOS FRANGIDES i960), as these included many
t h e t e r m s and conditions
t h e public service. Boyiatzis and the Republic 1964 C . L . R . 367 at p. 374 per Josephides, J. applied.
t h e t e r m s and and conditions
service
t h e applicant, safeguarded u n d e r THE REPUBLIC οι CYPRUS THROUGH
HEALTH. Article 192, paragraph 1,
the Constitution, in t h e sense that it laid down, in effect, that so long as t h e applicant was occupying t h e post
Medical
ficer, Class I, he was eligible to an acting allowance in case
his being vested with the increased responsibilities involved in acting in a higher post.
t h e t e r m s and conditions
service
t h e substantive a p p o i n t m e n t
applicant. Shener and the Republic, 3 R.S.C.C. 138, distinguished.
his acting a p p o i n t m e n t as District Medical
ficer Larnaca with increased duties, on the g r o u n d that this was prohibited by t h e aforesaid decision
t h e Council
Ministers, because such decision by being applied to the case
t h e applicant altered t h e t e r m s and conditions
service
t h e applicant to his disadvantage, which is contrarv to paragraph 1
t h e Constitution (supra). We are not annulling t h e said decision
t h e Council
Ministers as s u c h ; such decision may or may not be found to be a valid decision when applied to
ficers not protected by Article 192
t h e C o n s t i t u t i o n ; we are leaving t h e issue entirely open.
t h e Director-General
the Ministry
Health dated t h e 29th May, 1965, to refuse applicant an acting allowance is declared null and void and
no effect whatsoever. Per curiam: For t h e purposes
this j u d g m e n t , it matters not that t h e General Orders have, otherwise, n o t continued in force as legislation after t h e 16th August, i960, by virtue
S
t h e Constitution (vide Loizides and The Republic, 1 R.S.C.C. 107), because in this j u d g m e n t G e n e ral O r d e r 11/3.6 is not relied on as legislation still 184 in force generally, but as a provision forming part
the legal situation preserved by paragraph ι
the Constitution, with regard to the applicant. 1965 Nov. 16, 1966 Feb. 24 D R . YIANGOS FRANGIDES and Cases referred to: Boyiatzis and the Republic, 1964 C.L.R. 367 at p. 374 followed; Shener and The Republic, 3 R.S.C.C. 138, distinguished; Loizides and The Republic,1 R.S.C.C. 107. Recourse. Recourse against the decision
the Respondents refusing to applicant payment
an acting allowance in respect
his acting service as District Medical
ficer, Larnaca, as from the 24th May, 1965. L. derides, for the Applicant. K. Talarides,Counselof theRepublic, for the Respondent. Cur. adv. vult. ZEKIA, P.: The judgment
the Court will be delivered by Mr. Justice Triantafyllides. TRIANTAFYLLIDES, J.: In this Case, the Applicant challenges the decision to refuse him payment
an acting allowance in respect
his acting service as District Medical
ficer, Larnaca, as from the 24th May, 1965. Such decision is contained in a letter
the Director-General
the Ministry
Health, dated the 29th May, 1965. During the hearing
the Case, counsel for Applicant abandoned two other claims for relief, the first alleging an omission by the Public Service Commission, Respondent 2, to appoint him to the post
Acting District Medical
ficer, Larnaca, as from the 1st December, 1964, and the second, in the alternative, complaining against the decision
the said Respondent 2 to so appoint him, as above, as from the 24th May, 1965, instead
as from the 1st December, 1964. In short, the facts
this Case are as follows:— J85 T H E REPUBLIC
CYPRUS THROUGH 1. T H E COUNCIL
MINISTERS,
HEALTH. 1965 Nov. 16, 1966 Feb. 24 D R . YIANGOS FRANGIDES The Applicant, a Medical
ficer, Class I, was transferred by the Respondent Commission, on the recommendation
the Director
the Department
Medical Services, from Famagusta to Larnaca, as Medical
ficer in charge
Larnaca, with effect from the 1st December, 1964. and T H E REPUBLIC
CYPRUS THROUGH ! . T H E COUNCIL
MINISTERS,
HEALTH. On the 8th May, 1965, the said Director recommended to the Commission that the Applicant be appointed to act as District Medical
ficer. The Commission decided on the 24th May, 1965 to appoint Applicant in such capacity as from the 24th May, 1965. Then, in answer to a claim by Applicant, there followed the aforementioned letter
the Director-General
the Ministry
Health, which has given rise to this recourse. It is common ground that the decision to refuse to Applicant an acting allowance was based on a circular dated the 17th March, 1964, and setting out a decision
the Council
Ministers to theeffect that, as from the 1stJanuary, 1965— "in view
the present situation— (a) no acting allowances should be paid in accordance with the relevant General Orders; and (/>) The matter will be reviewed when the situation improves". Originally, and due to some vagueness in this respect
the letter
the Director-General
the Ministry
Health, dated 29th May, 1965, it was thought by counsel for Applicant that the relevant decision
the Council
Ministers was to be found in a circular dated 20th April, 1965, which had been communicated to Applicant in the usual course
administration on the 19th May, 1965. This misunderstanding was cleared up by the Opposition which disclosed that the action
the Director-General
the Ministry
Health, complained
by Applicant, was based on the aforesaid circular
the 17th March, 1964. Consequently, at the hearing before us, counsel for Applicant applied to amend accordingly the relevant part
the motion for relief, and he was allowed to do so, because such amendment did not involve a new claim but only an amendment
the particulars
the claim
Applicant, in respect
the refusal to grant him an acting allowance, such claim 186 having, in substance, been raised by Applicant right from the start
these proceedings. The amended motion for relief reads now as follows: ' "Applicant applies to the Court for a declaration that the decision contained in the letter
the DirectorGeneral
the Ministry
Health, dated 29th May, 1965, communicating to Applicant and applying a circular
Respondent 1 (the Council
Ministers) dated the 17th March, 1964, is null and voidand
no effect whatsoever". As a result
the amendment
the motion for relief, the description
Respondent in the title
proceedings was also amended, in order to be in formal compliance with the substance
the proceedings, and it should now read as follows: "The Republic
Cyprus, through— 1. The Council
Ministers,
Health". . In this Case, we are going to limit ourselves to the particular circumstances
this Case, as it is not necessary to decide any general issue
constitutional or other principle which does not really arise in these proceedings. So, though counsel for Respondents has himself voiced doubts as to whether a decision, such as the decision
the Council
Ministers in question, could be properly taken under the competence
.the Council
Ministers by virtue
f the Constitution, instead
the matter being legislated for, the Court will leave this question open and assume, for the purposes
this Case,that the said decision is a valid one from the point
view
competence. Likewise, the Court will not proceed to examine whether or not such decision, by depriving a public
ficer, an employee,
extra remuneration in respect
increased responsibilities and duties, is a decision contrary to elsewhere accepted principles
proper administration and, therefore, taken in abuse
the relevant powers
the Council
Ministers. The narrow issue to be determined in the present proceed187 1965 Nov. 16, 1966 Feb. 24 D R . YIANGOS FRANGIDES and T H E REPUBLIC
CYPRUS THROUGH
CYPRUS THROUGH 1. T H E COUNCIL
MINISTERS,
HEALTH. ings is whether or not the decision contained in the letter
the Director-General
the 29th May, 1965, as based on the aforesaid circular
the Council
Ministers
the 17th March, 1964, is a valid decision, in view
the provisions
the Constitution; in other words whether or not in view
the Council
Ministers could be properly applied to the particular case
the acting appointment
this Applicant. At the material—for the purposes
—time immediately before the 16th August, 1960, Applicant was a Medical
ficer, Class I, i.e. he was occupying substantively the same post which he occupied when he was appointed by the Respondent Commission as Acting District Medical
ficer Larnaca, as from the 24th May, 1965. Applicant isentitled, byvirtue
service as were applicable to him as Medical
ficer, Class I, before the 16th August, 1960, and such terms and conditions cannot be altered to his disadvantage during his continuance in the public service after that date. One
such terms and conditions
service, as defined in paragraph 1(b)
, is the "remuneration" attaching to Applicant's post; and by "remuneration" we have to understand not only the isolated element
the salary payable to Applicant but also the whole complex
provisions governing his emoluments. Among the said provisions was General Order II/3.6 providing for an acting allowance in the case
an acting appointment. In this respect it is useful to recall that Josephides, J., in delivering the judgment
this Court in Boyiatzis and The Republic (1964, C.L.R. 367 at p. 374) has correctly pointed out that " . . . .in interpreting the expressions 'remuneration' or Other like benefits' one has to look at the Government General Orders and circulars then in force (i.e. the 15th August, 1960), as these included many
the terms and conditions
the public service". General Order N/3.6 was part
the terms and conditions
service
Applicant, safeguarded under Article 192
Medical
ficer, Class I, he 188 was eligible to an acting allowance in case
his being vested with the increased responsibilities involved in acting in a higher post. Thus, the aforesaid provision was part
the terms and conditions
service
the substantive appointment
Applicant; and on this point this Case is different from that
Shener and The Republic (3 R.S.C.C. p. 138) where it was merely held that, in the case
an acting appointment or appointment on secondment, Article 192 did not confer any greater security
tenure than the holder would otherwise have enjoyed. In view
General Order 11/3.6 being safeguarded for the benefit
Applicant by Article 192
the opinion that it was unconstitutional to refuse to Applicant an acting allowance, in respect
his acting appointment to the post
District Medical
ficer Larnaca with increased duties and responsibilities, on the ground that this was prohibited by the aforesaid decision
the Council
Ministers, because such decision by being applied to the case
Applicant it altered the terms and conditions
service
Applicant to his disadvantage, contrary to Article 192
the Council
Ministers to the contrary. We are not annulling the said decision
the Council
Ministers as such; such decision may or may not be found to be a valid decision when applied to
ficers not protected by Article 192; we are leaving such issue entirely open. For the purposes
this judgment, it matters not that the General Orders have, otherwise, not continued in force as legislation after the 16th August, 1960, by virtue
p. 107), because in this judgment General Order 11/3.6 is not relied upon as legislation still in force generally, but as a provision forming part
the legal situation preserved by Article 192, with regard to Applicant. For the reasons given in this judgment the subjudice decision to refuse Applicant an acting allowance, as contained in the letter
the Director-General
the Ministry
Health, 189 1965 Nov. 16, 1966 Feb. 24 D R . YIANGOS FRANGIDES and THE REPUBLIC
CYPRUS THROUGH I. T H E COUNCIL
MINISTERS, 2.' T H E PUBLIC SERVICE COMMISSION, 3. T H E MINISTRY
HEALTH. '965 1966 ' Febr.24 DR. YIANGOS FRANGIDES 0 f the 29th May, 1965, is declared to be null and void and
no effect whatsoever; the matter has now to be reconsidered £20.— costs in favour
m the light
this judgment. Applicant. THE REPUBLIC
CYPRUS Decision complained
dedared null and void. Order ,. TT„TCou" c f°' ™<S "S
MINISTERS,
HEALTH. 190 "f°reSaid-
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.