theprovisions of Article 125.1 of the Constitution—Cfr. Article 29.1 of the Constitution— See, also, herebelow. Public Officers—Safeguards
.1 of the Constitution of rights enjoyed by public officers on the day immediately preceding the coming into operation of the Constitution (i.e. the \6th August, 1960)—"Terms and conditions of service"— The expression also includes retirement from service—Article 192.7 (b)—But the said expression cannot be said to include a wrong assumption,of fact relating to a public officer's date of birth recorded before the coming into operation of the Constitution. Constitutional Law—Article 192.1 and 1 (b) of the Constitution— See immediately above. Administrative and Constitutional Law—Recourse
of the Constitution—"Legitimate interest" required—Article 146, paragraph 2—Such recourse may be made by "a person whose any existing legitimate interest is adversely and directly affected" by the decision^ act or omission complained of— Meaning, scope and effect of the said expression—Omission of the Public Service Commission to deal withthe issue of thecorrect date of birth of the Interested Party—Who was the holder in the 111 REPUBLIC 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) public serviceof thepost of Senior Dental Officer—The Applicant, a Dental Officer, 1st grade, eligiblefor promotion to the higher post held by the Interested Party as aforesaid—Applicant possessing suchlegitimate interest withinparagraph2of Article 146 of the Constitution entitling him to make a recourse
that Article against the aforesaid omission—See, also,
Legitimate Interest immediately below. Legitimate Interest—Within paragraph 2 of Article 146 of the Constitution — ' 'Existing legitimate interest adversely and directly affected "—Paragraph 2, of Article 146— The requirements of that paragraph (supra) must be satisfied at the time of the filing and hearing of the recourse—Such requirements, however, are satisfied if at the said material times it is clear that the existing interest of an Applicant, though not yet actually adversely and directly affected, is unavoidably boundto besoaffected eventually—See, also,
Administrative and Constitutional Law, above. Recourse—Recourse
Public Service Commission—Competence and duties—Article 125, paragraph 1 of the Constitution—The Commission is bound to exercise its competence without awaiting the enactment of legislation regulating the exercise of such competence—The examination of the matter of the correct date of birth of a public officer, in relation to his or her retirementfrom service—A matter within the competence of the Commission
the provisions of Article 125.1 of the Constitution—Also the Commission had a duty thereunder to deal with the matter—Since it had been requested so to do either by the competent Minister or, as in this case, by public officers, including the Applicant, whose legitimate interest is affected by the matter complained of— Competence of the Commission—One of the objects of the competence vested in the Commission
.1 of the Constitution is the safeguarding of the proper functioning of the public service—Also, the protection of the legitimate interests of the individual holders of public offices. Public Service—See above. Constitutional Law—Public Service Commission—Article 125.1 of the Constitution—See above. In this recourse
of the Constitution the Applicant complains against an omission of the Respondent 112 Public Service Commission to correct the date of birth of the Interested Party, Mrs. Stavroulla Lyssiotou, the Senior Dental Officer. The Applicant is a Dental Officer, 1st grade; and he and another Dental Officer, 1st grade, are the most senior among all Dental Officers in the Government service. In April, 1960, the date of birth of the Interested Party was altered, in the relevant records, to be, for official purposes, the 26th December, 1912, instead of the 26th December. 1911, as it stood before; had such alteration not taken place, the Interested Party would,
section 8 of the Pensions Law, Cap. 311,have retire from public service on the 26th December, 1966, on attaining the age of fifty-five years, whereas now she is due to retire on the 26th December,
paragraph 1 of Article 125 of the Constitution, is as follows: " 1 . Save where other express provision is made in this Constitution with respect to any matter set out in this paragraph and subject to the provisions of any law, it shall be the duty of the Public Service Commission to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire, and exercise disciplinary control over, including dismissal or removal from office of, public officers." Held, I. On the issue of legitimate interest within paragraph 2 of Article 146 of the Constitution:
.2 of the Constitution, (supra),to make this recourse because, in any case, this recourse wasfiledand heard prior to the alleged dateof retirement of the Interested Party,i.e. the 26th December, 1966, (supra); thus, no existing interest of his, the argument went on, was affected at the time. (b) It is quite correct that the requirements of Article 146.2 of the Constitution (supra) must be satisfied at the time of the filingand hearing of the recourse; but such requirements are satisfied if at the said material times it is clear that the existing interest of anApplicant, though not yet actually adversely and directly affected, is unavoidably bound to be so affected eventually (see Conclusions from the Jurisprudence of the Greek Council of State, 1929-1959, p. 260). And there can benodoubt inthepresent casethat the refusal of theRespondent Commission to examine the question of the proper date of birth of the Interested Party took place so proximately near, in point of time, to the alleged proper date of her Retirement from service, that the unavoidable consequence of such refusal was the continuance in service of the Interested Party after such date, thus adversely and directly affecting the relevant legitimate interest of theApplicant,—assuming, of course, as it has to be assumed for the purposes of the issue of the existence of the prerequisities
.2(supra), that the correct date of retirement of the Interested Party were to be found to be the 26th December, 1966 (in accordance with her originally accepted date of birth) and not the 26th December, 1967, (in accordance with her currently accepted date of birth). Held,II. On the merits:
.1 (supra) for the benefit of public officers within its ambit, such as the Interested Party, are the "terms and conditions of service" applicable to them before the 16th August, 1960, and which are, thus, constitutionally safeguarded. And it is quite clear from the definition in paragraph 7 (
(B) (a) Subject to the provisions of any Law regulating the matter, I am of the view that the Commission is bound, for the sake of proper administration, to consider and decide a matter relating to the proper date of retirement of a public officer if it is requested sotodo bytheappropriate Minister or Head of Department. One of the objects of the competence vested in the Public Service Commission
.1 of the Constitution (supra) is the safeguarding of the proper 118 functioning of the public service (see Nedjati and The Republic, 4 R.S.C.C. 78, at p. 82). The proper date of retirement of a public officer, being a matter of legality, is part and parcel of the proper functioning of the public service. So, when a Minister or Head of Department, who is virtute officio responsible for the properfunctioning of the branch of public service
him (see Ozturk and The Republic, 2 R.S.C.C. 35,at p. 42) requests the Commission to exercise its relevant competence
(
.1 of the Constitution (supra) does arise, also, when the Commission is called upon, as in this case, by a public officer to deal with a matter affecting a legitimate interest of his. This is so, because, as held in Nedjati and The Republic (supra at p. 82), one of the objects of Article 125.1 (supra) is, also, the protection of the legitimate interests of the individual holders of public offices; and the more so, in view of Article 29.1 of the Constitution (set out in full in the judgment, post). (b) In the present case the Commission had before it a complaint emanating from the Association of Government Dental Officers—all of them being public officers, and one of them being the Applicant.
True, the said complaint was not addressed directly to the Commission but to the Minister of Health. But apart from any other considerations the fact remains that through the Minister of Health the said complaint did reach the competent organ, i.e. the Respondent Public Service Commission.
section 8 of the Pensions Law (Cap. 311), have retired from public service on the 26th December, 1966, on attaining the age of fifty-five years, whereas now she is due to retire on the 26th December, 1967. On the 24th March, 1966, the Acting Minister of Health after having consulted, twice, the Attorney-General of the "For final decision on Appeal see
our Article 146, has held in, inter alia, the case of Charles (decided on the 1st July, 1955—reported in Collection Lebon vol. 1955 p. 379) that public officers may challenge illegal appointments which prejudice them by retarding irregularly their advancement (. .les fonctionnaires appartenant a une administration publique ont qualite pour deferer a la juridiction administrative les nominations illegales faites dans cette administration lorsque ces nominations sont de nature a leur porter prejudice en retardant irregulierement leur avancement..."). In the light of all the foregoing, and in the particular circumstances of this Case, I have reached the conclusion that the Applicant possesses a legitimate interest in the matter of the legality of the Interested Party's continuing service in the post of senior Dental Officer; such interest is an existing one, because the Applicant has been qualified for such post at all material times, and it has been adversely and directly affected by the refusal of the Respondent Commission to 124 examine the matter of the proper date of birth, and, consequently, of the lawful date of retirement, of the Interested Party. Counsel for the Interested Party, who has argued at some length the issue of legitimate interest of the Applicant, has submitted, inter alia, that the Applicant does not possess an existing legitimate interest because there exist between the posts of Dental Officers, 1st grade, and the post of Senior Dental Officer, two vacant posts of Dental Registrars. As it appears from the Budget for 1966 (Law 1/66) these two posts of Dental Registrars are new posts which have been interposed between the post of Senior Dental Officer and the posts of Dental Officers, 1st grade; at the time of the hearing of this Case they were still vacant. It cannot be reasonably assumed that when the post of Senior Dental Officer falls vacant, on the retirement of theInterested Party,no appointment will be made thereto, but only the posts of Dental Registrars will be filled; the post of Senior Dental Officer is the post of the Head of the Dental Section and it is bound to be filled anew. So long as the Applicant is, admittedly, eligible for appointment to the post of Senior Dental Officer itself, the existence of the said two posts of Dental Registrars— which have been created, but never filled yet— does not, in any way, prevent hislegitimate interestfrom beinganexistingone,and from being directly and adversely affected by the subjudice decision; and no suggestion has been made that he cannot be appointed directly to the post of Senior Dental Officer without first being appointed as a Dental Registrar. It might have been otherwise had the posts of Dental Registrars being held by others, in which case the Applicant's claim to be appointed to the post of Senior Dental Officer might have appeared prima facie as too remote for the purposes of the existence of a legitimate interest of his in the matter of the retirement of the Interested Party. It has, also, been argued by counsel for the Interested Party that the Applicant is not entitled,
.2, to make this recourse because, in any case, this recourse was filed and heard prior to the alleged date of retirement of the Interested Party, i.e. the 26th December, 1966; thus, no existing interest of his was affected at the time. It is quite correct that the requirements of Article 146.2 must be satisfied at the time of the filing and hearing of a 125 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) recourse, but such requirements are satisfied if at the said material times it isclear that the existinginterestof an Applicant, though not yet actually adversely and directly affected, is unavoidably bound to be so affected eventually (see Conclusions from the Jurisprudence of the Greek Council of State, 19291959 p. 260). And there can be no doubt in the present Case that the refusal of the Respondent Commission to examine the question of the proper date of birth of the Interested Party took place so proximately near, in point of time, to the alleged proper date of her retirement, that the unavoidable consequence of such refusal was the continuance in service of the Interested Party after such date, thus adversely and directly affecting the relevant legitimate interest of the Applicant— assuming, of course, as it has to be assumed for the purposes of the issue of the existence of the prerequisites
.2, that the correct date of retirement of the Interested Party were to be found to be the 26th December, 1966, (in accordance with her originally accepted date of birth) and not the 26th December, 1967 (in accordance with her currently accepted date of birth). Having found that the Applicant is entitled,
.2, to make this recourse, this Court should examine next, whether or not he is to succeed in it. It may be stated rightat theoutset that no question could arise of an omission of the Commission to correct the date of birth of the Interested Party —as complained of by the Applicant in the motion for relief in the Application — simply because the Commission in this Case has not, as it is clear from its relevant minutes (exhibit 1), refused to correct such date, having entered upon the substance of the matter; it has refused to examine, at all, such matter. So all that there could be found to exist in this Case would be an omission to deal with the issue of the date of birth of the Interested Party, as raised by the letter of the 10th January, 1966, (exhibit 3). I take the view that a claim for such an omission can fairly be deemed to be included in the motion for relief in the Application in this recourse, because the greater, naturally, includes the lesser. For an omission to arise, there should first exist a duty to take a certain course of action; there can be no question of 126 an omission when it is discretionary whether or not to take a certain course. Was there, then, a duty of the Commission to examine the issue in question? The competence of the Public Service Commission, as provided for
paragraph 1 of Article 125 of the Constitution, is as follows: "Save where other express provision is made in this Constitution with respect to any matter set out in this paragraph and subject to the provisions of any law, it shall be the duty of the Public Service Commission to make theallocation of public offices between the two Communities and to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinary control over, including dismissal or removal from office of, public officers". It follows that decisions relating to retirement of public officers — other than administrative action implementing retirement and taken automatically by operation of law— are among the duties of the Commission (see Alt Rouhi and The Republic, 2 R.S.C.C. p. 84 at p. 87); consequently the examination of the matter of the correct date of birth of an officer, in relation to his or her retirement, is part of the Commission's duties (see leromonachos and The Republic, 4 R.S.CC p. 82). But, did the Commission have competence to deal with the correct date of birth of this particular officer, the Interested Party? This question has to be answered because, in spite of the generality of the provisions of paragraph 1 of Article 125, it has been argued by counsel for the Interested Party that she isentitled — by virtue of Article 192
.1, for the benefit of public officers within its ambit, such as the Interested Party, are the "terms and conditions of service" applicable to them before the 16th August, 1960. In the light of the definition 127 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) of "terms and conditions of service" in paragraph 7 (b) of Article 192, which includes "removal from service", it appears that "retirement" is covered by such definition. In my opinion the terms and conditions of service —relating to the time of occurrence of retirement — which are safeguarded
.1, can be nothing else than the provisions regulating such occurrence, through fixing, inter alia, the relevant age-limit; surely, such terms and conditions of service cannot be said to include a wrong assumption of fact about any particular officer's date of birth. By operation of law an officer has to retire on reaching the prescribed age of retirement; the exact date on which, as a matter of fact, he does attain such age is a thing to be ascertained in the interests of legality; if necessary, this may be done, in the proper manner, at any time during the service of the officer concerned and it makes no difference, in my opinion, whether or not an officer is one of those within the ambit of Article 192.1, because it could not have been the intention of Article 192.1 to safeguard a vested interest in the eventual illegality which would be involved in a retirement based on a wrongly relied upon date of birth. For the same reasons, as well as because of the continuity of administration in cases of State Succession, 1 am of the view that the Commission is not precluded from dealing with the question of the date of birth of an officer in a case in which such date has been fixed by an act of the past Colonial Government of Cyprus; the Commission in such a case would not be exercising its competence in respect of a past period, prior to its creation, but it would be making an ascertainment of the correct facts so as to ensure legality of action in respect of the present. It follows, therefore, that the Commission was competent to deal with the matter of the date of birth of this particular officer, the Interested Party. The next question thai arises is: Did the Commission, in the circumstances of the present Case, have to exercise its relevant competence? This leads us to the very wide issue of in what circumstances does the Commission have to discharge its duties
128 Article 125
.1 is the safeguarding of the proper functioning of the public service (see Nedjati and The Republic, 4 R.S.C.C. p. 78 at p. 82). The proper date of retirement of a public officer, being a matter of legality, ispart and parcel of the proper functioning of the public service. So, when a Minister or Head of Department, who is virtute officio responsible for the proper functioning of the branch of public service
him (see Orturk and The Republic, 2 R.S.C.C p. 35 at p. 42) requests the Commission to exercise its relevant competence
Did, in the present Case, the Commission have before it, when it took its sub judice decision, such a request from the appropriate Ministry as to render it duty-bound to deal with the question of the date of birth, and consequently the date of retirement, of the Interested Party? The letter of the then Acting Minister of Health dated the 24th March, 1966 (exhibit 5) could be deemed to be a request by the Ministry of Health, for necessary action, on the part of theCommission; but there followed, later, on the 13th May, 1966, a further letter (exhibit 4), by a new Acting Minister of Health, in which it was expressly stated that it was open to the Commission to decide that it did not wish or intend to examine the matter, and let anyone with an interest in the matter seek his remedy before the competent Court. Thus, when the stand of the Ministry of Health in the matter is viewed as a whole there can be no doubt that it was not requesting, in the interests of proper administration and of the proper functioning of its services, that the question of 129 COMMISSION) 1967 Feb. 8 KYRIACOS G . PAPASAVVAS v. REPUBLIC ( P U B L I C SERVICE the correct date of birth of the Interested Party be dealt with on its merits by the Commission, in the exercise of its relevant competence, but the said Ministry was only requesting that the Commission should make up its mind as to whether or not it was going to deal with the matter, so that a reply could be given to the letter of the 10th January, 1966, of the Association of Government Dental Officers (exhibit 3). COMMISSION) 1 find, therefore, .that no question of an omission of the Commission to take action, on a request by the Ministry of Health, arises in this Case. But, in my opinion, the Commission's duty to exercise its competence
.1 does arise, also, when the Commission is called upon by a public officer to deal with a matter affecting a legitimate interest of his. This is so because, as held in Nedjati and The Republic (supra at p. 82) one of the objects of Article 125.1 is also the protection of the legitimate interests of the individual holders of public offices; and the more so, in view of Article 29.1 of the Constitution, which provides that: "Every person has the right individually or jointly with others to address written requests or complaints to any competent public authority and to have them attended to and decided expeditiously; an immediate notice of any such decision taken duly reasoned shall be given to the person making the request or complaint and in any event within a period not exceeding thirty days". In the present CasetheCommission had before it a complaint emanating from the Association of Government Dental Officers — all of them being public officers, and one of them being the Applicant; on the basis of all that has been stated earlier on in this Judgment it is quite clear that it was a complaint emanating from public officers whose legitimate interests were involved in the matter of the correct date of birth, and therefore of the retirement, of the Interested Party. I have, therefore, no difficulty in holding that the Commission had a duty,
It is correct that the said complaint was not addressed directly to the Commission; it was addressed to the Minister of Health. But it must not be lost sight of that the Ministry 130 of Health is the Ministry
which the Government Dental Officers work and it was, therefore, only proper and natural for them to address their complaint, in the first place, to their Minister; and the fact remains that through the Minister of Health their complaint did reach the competent organ i.e. the Commission. Therefore, I do not think that it could validly be said that no need of the due discharge by the Commission of its constitutional duty did arise, because of the fact that the relevant complaint was not addressed directly to it, but reached it through an official channel which the Government Dental Officers were entitled to use in the course of proper administration; and actually, as it appears from the relevant decision of the Commission (exhibit 1), the Commission itself did not take the view that it did not have a duty to deal with the complaint in question on the ground that it had not been addressed directly to the Commission; it refused to deal with it for other reasons. Having held that the Commission had a duty to deal with the complaint of the Dental Officers—including the Applicant— once it had reached the Commission through the Ministry of Health, it is necessary to examine, next, whether the Commission, in the circumstances of this Case, could be held to be justified in not doing so: The Commission has stated the following, at the end of its subjubice decision (exhibit 1), by way of reasoning for its refusal to act: "The Commission bearing in mind the irregular manner in which this matter has been dealt with by the Minister of Health and the enquiry carried by the Attorney-General and the decision on the validity of the act which in the mind of the Commission prejudices the point
examination by it and also bearing in mind the number of legal points raised in this case including the revising power suggested and the non-existence of any Law on the different points and also bearing in mind the letter of the present Minister Mr. T. Papadopoulos dated 13.5.66., decided not to deal with the matter and let anybody affected to have a recourse to the Court". Earlier on in its decision the Commission had referred to the fact that the Minister of Health had taken "a number of actions" in the matter, and also to the fact that the AttorneyGeneral had gone into the matter and came to the conclusion 131 1967 Feb. 8 KYRIACOS G. PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION) 1967 Feb. 8 KYRIACOS G . PAPASAVVAS v. REPUBLIC ( P U B L I C SERVICE COMMISSION) that the change of the date of birth of the Interested Party in 1960—was wrongly made. The Commission has also mentioned in its decision that "no Law of the Republic" had been cited in support of the view of the Attorney-General that the Commission had a right to re-open the matter, but only "precedents in other countries"; also, that two points had been raised by the Personnel Officer, one regarding the possibility of revoking an act - the earlier change of the date of birth of the Interested Party - after the lapse of seven years, and the other as to whether or not the said act, as made bythe Colonial Government before the establishment of the Republic, could be re-opened by the Republic. Although 1 do appreciate fully the complications facing the Commission in this matter I cannot find that they could be held to amount to justification for its refusal to examine the issue of the date of birth of the Interested Party. No matter what other organs, such as the Minister of Health and the Attorney-General, might have done in the matter — assuming even, without, however, finding thus, that they did more that it was expected of, or open to, them—the Commission could not avoid its constitutional duty on such a ground. Nor can there be any question of the Commission being prejudiced by the enquiry carried out, and the conclusion reached, by the Attorney-General; the Commission remained free to conduct its own inquiry and had to reach its own conclusion, on the basis of all relevant material, including the material which was unearthed by the Attorney-General in making his own enquiries. It is quite true that anumber of difficult legalproblems might have to be resolved but their existence could not, in any event, properly lead to a decision by the Commission to refuse to deal with the matter; the Commission was not bound to resolve itself the said legal problems, but it could refer them back to the Attorney-General for further advice. The absence of legislation of the Republic governing the matter concerned is indeed a handicap; but not such as to justify the Commission in refusing to act; as held, already, in Morsis and The Republic (4 R.S.C.C. p. 133 at p. 136) the Commission is not only entitled but also bound to exercise its competence
of the Constitution without 132 awaiting the enactment of legislative provisions regulating the exercise of such competence. 1967 Feb. 8 Lastly the letter of the Minister of Health dated 13th May,1966 (exhibit 4), though it may have had the effect of putting an end to a request for appropriate action emanating from another organ such as the Ministry of Health, could not absolve ihe Commission of its duty to deal with the complaint of the Association of Government Dental Officers, of which Applicant is a member; once there were persons properly entitled to raise the matter of the correct date of birth of the Interested Party the Commission had to deal with it, within its competence, irrespective of a request by the Ministry of Health. KYRIACOS G. For all the above reasons I am of the opinion that, in the circumstances of this Case, the Commission's refusal to deal with the matter raised by the letter dated the 10th January, 1966 (exhibit 3) amounts to a wrongful omission and it is hereby declared that such omission ought not to have been made and that what has been omitted should have been performed. Thus, the Commission has now to examine the matter raised by the aforesaid letter of the 10th January, 1966; but let it be made abundantly clear that nothing in this Judgment should be construed as laying down, in the least, how the Commission has to decide such matter. The omission of the Commission that has been found to exist is an omission to examine the matter of the proper date of birth of the Interested Party, as raised by the letter of the 10th January, 1966 (exhibit 3); not an omission to correct such date of birth. The alteration or not of the said date is a matter to be decided upon in the proper exercise of the Commission's discretion and powers, after paying due regard to all relevant considerations of fact and law. Regarding costs, I have decided to make no order as lo costs because this is a Case in which the Respondent Commission has had to act in a novel and difficult situation and the omission of which it has been found guilty is not due to any lack of diligence or bonafides on its part, but isone due to a mistaken view of its role in this matter. Declaration in terms. No order as to costs. 133 PAPASAVVAS v. REPUBLIC (PUBLIC SERVICE COMMISSION)
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.