ficers—Retirement—Compulsory retirement
public
ficers on reaching the age
(compulsory) retirement— Section 8
the Pensions Law, Cap. 311—Competence to decidecorrect date
birth
a public
ficerfor the pur pose
determining the exact date
compulsory retirement under the section—The competent organ in the matter is the Council
Ministers in view
its residual executive powers under Article 54(a) and (d)
the Constitution— The Public Service Commission has no competence in this specific matter—The word to "retire" public
ficersin Arti cle 125.1
the Constitution does not confer any competence on the Public Service Commission to decide the date
birth
a public
ficer,even if the ascertainment
such date is necessary for the determination
the date
compuhory retirement
a public
ficer—Pensions Law, Cap. 311, l α an l sections 2
1967J sections 6 and 7—Article 1 8 8 . 3 ^ and 4
the Constitution. Public Service Commission—Creature
the Constitution endowed with such powers and competence as are expressly conferred on it—Rendual executive power over public service vests in the Council
Ministers—Article $$(a) and (d)
the Constitution—See, also, above under Public
ficers. Council
Ministers—Residual executive powers—Competence— Article $$(z) and (d)
the Constitution—See above. Retirement—
public
ficers—Compuhory 173 retirement—As- KYRIAKOS G. PAPASA WA AND ANOTHER 1968 April 9 STAVROULLA LYSSIOTOU V. K.YRIAKOS G. PAPASAVVA AND ANOTHER certainment
the date
birth
a public
ficerfor the purpose
determining the date
compuhory retirement under section 8 f i j
the Pensions Law, Cap. 311—Competence—See above. Compuhory retirement—
public
ficers—Compuhory retirement on attaining the age
compuhory retirement—Competence to ascertain the date
birthfor thepurpose
determining the exact date
such retirement—Council
Ministers (not the Public Service Commission) is the competent organ in the matter—See above. Constitutional Law—Public Service Commission—Council
Ministers—Competence—Retirement
public
ficers— Ex• press powers—Residual powers—Articles $4(a) and (d) and 125.1
the Constitution—See above. This is an appeal by the Interested Party (Mrs. Lyssiotou) against the decision
a single Judge
this Court (TriantafyHides, J.) granting the recourse
the first Respondent (hereinafter referred to as "the Applicant") and declaring that the Public Service Commission (2nd Respondent) wrongly omitted to examine the question
the correct date
the birth
the Interested Party on the application
the Applicant (See this decision in
.1
the Constitution to decide the question
the correct date
the birth
the Interested Party for the purpose
the determination
the date
her retirement on attaining the age
compulsory retirement (viz. 55 years), under the provisions
section 8
the Pensions Law, Cap. 311. The Interested Party held the post
Senior Dental
ficer in the Government Service, the Applicant was a Dental
ficer, 1st Grade, and he together with another Dental
ficer were the most senior among the Dental
ficers in their grade in the Government Service. The Applicant possessed the qualifications for promotion to the post
Senior Dental
ficer held by the Interested Party at the material time. T h e Interested Party was first appointed to the Government Service on the 1st May, 1935. In an
ficial certifi174 cate
birth produced by her at the time it was certified that she was born on the 26th December, 1911. Subsequently, on the 7th January, 1943, in an application for permanent appointment, she produced again an
ficial certificate
birth issued by the Commissioner
Paphos to the effect that she was born on the aforesaid date (i.e. 26th December, 1911). By a letter dated the 10th November, 1959, addressed to the then Establishment Secretary
the Colony
Cyprus, who was responsible for personnel matters under the Colonial Government, the Interested Party challenged the correctness
the date
her birth alleging that she was born on 26th December 1912 (and not on the 26th December 1911). The Establishment Secretary dealt with the matter and decided that the 26th December, 1912, should be accepted as the date
the Interested Party's birth and informed her accordingly by letter dated the 19th April, i960. The result
this alteration
the date
the birth
the Interested Party was that the date
her compulsory retirement from the public service under the provisions
section 8
the Pensions Law, Cap. 311, was moved to the 26th December, 1967, instead
the 26th December, 1966, the age
compulsory retirement being, at the material time, under the Pensions Law, the age
55 years. On the 10th January, 1966 the Applicant addressed a letter to the Acting Minister
Health complaining that the date
birth
the Interested Party had been altered wrongly so as to make her appear younger than what she actually was; and requesting a re-examination
the matter for the protection
the interests
other Dental
ficers. The Acting Minister
Health, after obtaining legal advice from the Attorney-General
the Republic, placed on the 24th March 1966, the matter before the Public Service Commission as the "apropriate Authority for acting in the matter". T h e Commission met on the 9th
June, 1966, and, after considering the matter and giving its reasons in their minutes, decided "not to deal with the matter and let anybody affected to have a recourse to the Court." The Applicant was duly informed
this decision and filed a recourse against it, complaining that the date
birth
the Interested Party was wrongly accepted as being the 26th December, 1912, and that in consequence
this she may stay in the Service for an extra year, "prejudicing 175 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAVVA AND ANOTHER 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. P A P A S A W A AND ANOTHER thereby the rights
promotion or otherwise
the Applicant". The learned trial Judge found that the Applicant has a legitimate interest under Article 146.2
the Constitution to make a recourse and held that "decisions relating to retirement
public
ficers—other than administrative action implementing retirement and taken automatically by operation
law—are among the duties
the Public Service Commission (see AH Rouhi and the Republic, 2 R.S.C.C. 84, at p. 87); consequently the examination
the matter
the correct date
birth
an
ficer, in relation to his or her retirement, is part
the Commission's duties (see Ieromonachos and the Republic, 4 R.S.C.C. 82); that the Commission was competent to deal with the matter in issue; and that their refusal to deal with the matter raised by the letter dated the 10th January, 1966, (supra), amounted to a wrongful omission on their part to examine the question
the correct date
the birth
the Interested Party. It is against this decision that the present appeal is taken by Mrs. Lyssiotou the Interested Party. Article 125.1
the Constitution provides: "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
any law, it shall be the duty
the Public Service Commission to . . . . appoint . . .transfer, retire and exercise disciplinary control over, including dismissal or removal from
fice
, public
ficers". In allowing the appeal the Court:Held, per Josephides, J. (Vassiliades P. and StavrinidesJ., concu-ring, Hadjianastassiou J., dissenting) :
the provisions
.1
the Constitution (supra). It should be borne in mind that the Commission is a creature
the Constitution with the limited powers which are expressly conferred on it under paragraph 1,
; and, unless the power or competence is expessly conferred on 176 the Commission in Article 125.ι (supra), the competent organ to exercise any residual executive power in respect
all matters, concerning the Public Service in Cyprus is, under the provisions
(a) and (d)
the Con stitution, the Council
Ministers: See alsoPapapetrou and TheRepublic, 2 R.S.C.C. 61, at pp. 62 and 65. (i)(a) Consequently, the question before us is one
construction
the provisions under Article 125.1
the Constitution. (b) We are not called upon to give a full exposition
the powers
the Public Service Commission with regard to the expression "to retire" therein, but simply to decide whether the matterreferred tothem comes within the ambit
that term. (c) And as the question
the date
the birth
the Interested Party raised in these proceedings is solely in connection with the determination
the date
her com pulsory retirement from the Public Service on attaining the age
retirement (55 years
age) it is necessary for us to examine the legislative provisions applicable to the retirement
public
ficers on reaching the age
retire ment. (d) The Pensions Law, Cap. 311, before its recent amendment in April, 1967 (effected after the delivery in February, 1967
the Judgment at first instance in this case, but before the hearing
this appeal) by Laws Nos. 9
1967 and 18
1967, conferred all the powers to declare an
fice pensionable, to grant pensions and gra tuities, to require or permit an
ficer to retire, or to allow an
ficer to remain in the service after attaining the age
55 years, on the Governor-in-Council
the Colony
Cyprus (now on the Council
Ministers by virtue
paragraph 3(b)
the Constitution). See sections 2
the Pensions LawCap. 311,thematerial parts
which areset outpost inthe judg ment. (e) It is significant to note that the new Pensions (Amendment) Law, 1967 (Law No. 9
1967) which by sections 6and 7repeals and re-enacts sections 6(a) and 8
the principal Pensions Law, Cap. 311 (supra) confers expressly the power or competence to require or permit 177 1968 April 9 STAVROULLA LYSSIOTOU V. KYRIAKOS G. PAPASAVVA AND ANOTHER April 9 STAVROULLA LYSSIOTOU V. KYRIAKOS G. PAPASAWA AND ANOTHER an
ficer to retire from the service on the Council
Ministers, and not on the Public Service Commission; (the text
the new provisions is quoted post in the judgment).
a public
ficer following disciplinary proceedings, which would no doubt be within the competence
the Commission; nor are we concerned with the retirement
a public
ficer "in the public interest", under the provisions
section 7
the Pensions Law, Cap. 311, which would appear to fall within the exclusive competence
the Council
Ministers (cf. the cases
the termination
the services
three Court stenographers referred to in the case Papaleontiou and the Republic,
law and does not require the taking
a decision by the Commission, and that such Commission has no competence under the provisions
.1
the Constitution (supra) to take a decision to "retire" a public
ficer on reaching the age
compulsory retirement, how can it have any competence to decide a matter incidental thereto, that is, the ascertainment
the correct age
birth
an
ficer for the purpose
the determination
his date
retirement, in the absence
any express provision conferring such competence on the Commission. As already observed (supra) the Public Service Commission being a creature
the Constitution, has, no competence to deal with a certain matter requiring the taking
a specific decision, .unless expressly empowered to do so.
section 3
the Pensions Law Cap. 311, the Council
Ministers in the exercise
its executive powers, as successor
the former Governor
the Colony
Cyprus, has the exclusive competence to grant pensions on the attainment
a public
ficer
the age
compulsory retirement. Retirement on reaching the age
55 years is compulsory by operation
law and no decision
the Public Service Commission is necessary. But in order that the Council
Ministers may grant such pension it must be satisfied that the age
compulsory retirement has been attained by the public 178
ficer. Consequently -the determination
the date
retirement
an
ficer and, incidentally, the ascertain ment
the date
his birth on which the date
his retire ment depends, lies within the competence
the Council
Ministers and not within that
the Public Service Com mission. Ieromonachos and the Republic, 4 R.S.C.C. 82 distinguished on the ground that the question whether the Commission in fact possessed such competence dots not appear to have been directly in issue in that case.
the Constitution, and the Commission rightly refused to deal with it. Appeal allowed. Decision
the learned trial Judge set aside. No order as tocosts here and at the trial. Held,per Hadjianastassiou, J. (in his dissentingjudgment) : (i)(a). The material words in paragraph 1
the Constitution (supra) are to the effect that the Public Service Commission has competence, inter alia, to "retire and exercise disciplinary control over, including dismissal or removal
, public
ficers". (b) Those words have to be expounded according to their manifest or express intention (see Attorney-General for^Canada v. Hallet and Carey L.D. and Another [1952] A.C. 427 at p. 449 per Lord Radcliffe). If so, then, in my view, the word, "retire" in paragraph 1 (supra) ought to be given the express meaning which the Constitutional Drafters intended it to have, that is to say, that the Public Service Commission has competence, in a proper case, to take a decision to retire public
ficers from
fice.
ficers in 'the context
disciplinary proceedings only, then in my view the word would be superfluous. That it is not so, it is evident from the fact that the word "retire"is followed by the word " a n d " which is
a conjunctive·nature. 179 Ϊ968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER 1968 April 9 STAVROULLA LYSSIOTOU V. KYRIAKOS G. PAPASAWA AND ANOTHER (b) It is thus clear that the Public Service Commission has competence to retire public
ficers from
fice, in those cases necessitating the taking
a specific decision; and quite apart from those cases where the retirement
a public
ficer becomes automatic by operation
law, under the provisions
the Pensions Law, Cap. 311 (See Rouhi case, supra). (c) Furthermore, the words "exercise disciplinary control over" following the word "and" indicate to my mind that the Commission is vested with a further power to dismiss or remove from
fice in a proper case public
ficers; and those words do not refer in my opinion to the word "retire". {$)(a) True, paragraph 2(b)
the Constitution provides that any reference to the "Governor" in a law continuing in force after the coming into operation
the Constitution, shall be construed as a reference to the "Council
Ministers" in matters relating to the exercise
executive power; but this is to be done, unless "the context
the law otherwise requires". In view
the express provision in Article 125.1
the Constitution (supra), I am
the opinion that a competence is conferred thereby on the Public Service Commission in relation to the retirement
public
ficers. (b) I am, therefore,
the view that section 8
the Pensions Law, Cap. 311 has to be applied to the present case so modified as to be brought within paragraph 1
the Constitution, pursuant to the provisions in paragraph 4
the Constitution.
a Judge
the Supreme Court
Cyprus (TriantafyHides, J.) given on the 8th February, 1967 in case No. 185/66, whereby it was decided that the Public Service Commission wrongly omitted to examine the question
the correct date
birth
theInterested Party on the application
the first Respondent in this appeal. A.P. Anastassiades, for the Appellant. L. Demetriades, for the first Respondent. The second Respondent was not represented. Cur. adv. vult. The following Judgments were read: VASSILIADES, P.: The first Judgment in thisAppeal will be delivered by Josephides, J. JOSEPHIDES, J.: This is an appeal by the interested party against the decision*
a single Judge
this Court declaring that the Public Service Commission wrongly omitted to examine the question
the correct date
birth
the interested party, on the application
the first Respondent in this appeal (to whom I shall refer as "the Applicant"). The interested party appealed to this Court upon various grounds but the view which I may take upon one point
construction may render it unnecessary to consider any
the other grounds. The first question which falls to be determined is whether the Public Service Commission has competence, under the provisions
.1
the Constitution, to decide 'Note- Decision reported in
the correct date
birth
- the interested party for the purpose
the determination
the date
her retirement on attaining the age
compulsory retirement, under the provisions
section 8
the Pensions Law, Cap.311. The facts which gave rise to the present case, which are not actually in dispute are the following: The interested party held the post
Senior Dental
ficer in the Government Service, the Applicant was a Dental
ficer, 1st Grade, and he together with another Dental
ficer were the most senior among the Dental
ficers in their grade in the Government Service." The Applicant possessed the qualifications for promotion to the post
Senior Dental
ficer held by the interested party at the material time. The Applicant was a member and the Secretary
the Association
Government Dental
ficers. The interested party was first appointed to the Government Service on the 1st May, 1935. In an
ficial certificate
birth produced by her at the time it was certified that she was born on the 26th December, 1911. Subsequently, on the 7th January, 1943, in an application for permanent appointment, she declared that she was born on the aforesaid date and this was supported by an
ficial certificate
birth issued by the Commissioner
Paphos. By a letter dated the 10th November, 1959, addressed to the then Establishment Secretary
the Colony
Cyprus, who was responsible for personnel matters under the Colonial Government, the interested party challenged the correctness
the date
her birth. According to the opposition filed bytheRespondent Public Service Commission, "after a careful examination
the whole matter which included a perusal
the relevant registers
births, the Establishment Secretary decided that the 26th December, 1912, should be accepted as the date
Mrs. Lyssiotou's birth for all
ficial purposes"; and she was so informed by a letter addressed to her on the 19th April, 1960, by the Establishment Secretary
the Government
Cyprus. The result
this alteration in the date
birth
the interested party was that her date
compulsory retirement from the Public Service under the provisions
section 8
the Pensions Law, Cap. 311, was moved to the 26th December, 1967, instead
the 26th December, 1966. 182 The compulsory age
retirement under Cap. 311 was, at the material time, the age
55 years. On the 10th January, 1966, the Applicant, in his capacity as the Secretary
the Association
Government Dental
ficers, addressed a letter to the Acting Minister
Health complaining that the date
birth
the interested party, as
ficially recorded in relation to her service, had been altered wrongly so as to make her appear younger than what she actually was; and requesting a re-examination
the matter for the protection
the interests
other Dental
ficers. On the 24th March, 1966, the Acting Minister
Health, after obtaining legal advice from the Attorney-General
the Republic, placed the matter before the Publ'c Service Commission as the "appropriate Authority for acting in the matter". On the 13th May, 1966, the then Acting Minister
Health addressed a letter to the Commission enquiring as to whether the Commission was prepared to examine the matter or not. The Commission met on the 9th June, 1966, and, after considering the matter and giving its reasons in their minutes, decided "not to deal with the matter and let anybody affected to have a recourse to the Court". On the 21st June, 1966, the Acting Minister
Health addressed a letter to the Association
Government Dental
ficers, in reply to their letter
the 10th January, 1966, informing them
the action taken and the decision
the Public Service Commission. Thereupon, the Applicant filed a recourse against the decision
the Commission. TheApplicant bases hiscomplaint onthe allegation that the date
birth
the interested party was wrongly accepted as the 26th December, 1912, and that in consequence
this she may stay in the Service for an extra year "prejudicing thereby the rights
promotion or otherwise
the Applicant". The learned trial Judge found that the Applicant is entitled under the provisions
.2
the Constitution to make a recourse, and went on to examine whether there existed in this case an omission on the part
the Public Service Commission to deal with the question
the correct date
birth
the interested party. The learned trial Judge, relying on the provisions
.1
the Constitution, held that "decisions relating to retirement
public
ficers —other than administrative 183 1968 April 9 STAVROULLA LYSSIOTOU V. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides, J. 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides, J. action implementing retirement and taken automatically by operation
law—are among the duties
the Commission (see Alt Rouhi and The Republic, 2 R.S.C.C. p. 84 at p. 87); consequently the examination
the matter
the correct date
birth
an
ficer, in relation to his oi her retirement, is part
the Commission's duties (see Ieromonachosand The Republic, 4 R.S.C.C. p. 82)"; that the Commission was competent to deal with the matter in issue; and that the Commission's refusal to deal with the matter raised by the letter dated the 10th January, 1966, amounted to a wrongful omission on their part to examine the question
the correct date
birth
the interested party (the judgment
the trial Judge isfully reported in
the provisions
.1
the Constitution which provides: "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
any law, it shall be the duty
the Public Service Commission to appoint transfer, retire and exercise disciplinary control over, including dismissal or removal from
fice
, public
ficers". Consequently, the question before us isone
construction
the aforesaid provisions. We are not called upon here to give a full exposition
the powers
the Public Service Commission with regard to the expression "to retire", but simply to decide whether the matter referred to them comes within the ambit
that term. As the question
the date
birth
the interested party raised in these proceedings is solely in connection with the determination
the date
her compulsory retirement from the Public Service on attaining the age
retirement (55 years
age), it is necessary for us to examine what are the legislative provisions applicable to the retirement
public
ficers on reaching the age
retirement. It should, perhaps, be clarified that we are not here concerned with the compulsory retirement
a public
ficer 184 following disciplinary proceedings, which would no doubt be within the competence
the Commission; nor are we concerned with the retirement
a public
ficer "in the public interest", under the provisions
section 7
the Pensions Law, Cap. 311,which would appear to fall within the exclusive competence
the Council
Ministers (cf. the cases
the termination
the services
three Court stenographers referred to in the case
Papaleontiou and TheRepublic,
the competence
the Public Service Commission to examine and take a decision with regard to the question
the correct date
birth
the interested party for the purpose
the determination
the date
her retirement by operation
law (Cap. 311), it should be borne in mind that the Commission is a creature
the Constitution with the limited powers which are expressly conferred on it under paragraph 1,
, "save where other express provision is made in this Constitution", and "subject to the provisions
any law", with respect to any matter set out in that paragraph; and, unless the power or competence is expressly conferred on the Commission in Article 125.1; subject to the aforesaid restrictions, the competent organ to exercise any residual executive power in respect
all matters, concerning the Public Servicein Cyprus is, under the provisions
, paragraphs (a) and (d), the Council
Ministers: see also Papapetrou and The Republic(Public Service Commission), 2 R.S.C.C. 61,62 and 65. The legislative provisions regarding the retirement
Public
ficers are to be found in the Pensions Law, Cap. 311, as amended, which lays down a comprehensive pension scheme for the Public Service. After the delivery
the judgment.at first instance in this case in February 1967, and before the hearing
this appeal, the Pensions Law, Cap. 311, was amended with effect from the 1st April, 1967, by Law 9
1967 (and subsequently by Law 18
1967). I shall refer to those amendments later in this judgment. The Pensions Law, Cap. 311,before its recent amendment in April 1967, conferred all the powers to declare an
fice pensionable, to grant pensions and gratuities, to require or permit an
ficer to retire, or to allow an
ficer to remain in the Service after attaining the age
55 years, on the Governor or the Governor-in-Council
the Colony
185 1968 April9 SlAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides,J. 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. P A P A S A W A AND ANOTHER Josephides,J. Cyprus. Since Independence Day those provisions have to be read subject to the provisions
the Constitution and Article 188 thereof. Paragraph 3(b),
, provides that, unless the context
a pre-constitution law otherwise requires, any reference to the "Governor or the Governor-in-Council" in such law shall be construed as a reference to the "Council
Ministers in matters relating to exercise;
executive power". Under the provisions
section 2
Cap. 311 the Governor-in-Council could declare an
fice to be a pensionable
fice. That power has, since the establishment
the Republic, been exercised by the Council
Ministers on nine different occasions, in respect
some 200
fices: see Orders published in the Gazette beginning with Public Instrument No. 139/1961 and ending with Public Instrument 1/1968. Under the provisions
section '3
an
ficer's retirement. There again the competent organ entrusted with this duty and power is now the Council
Ministers. Section 6 and sections 6(a) and 8
Cap. 311,prior to its amendment, read as follows: "6. No pension, gratuity or other allowance shall be granted under this Law to any
ficer except on his retirement from the public service in one
the followingcases:"(a) on or after attaining the age
fifty-five years, or in any case in which the Governor, under the provisions
this Law, may require or permit an
ficer to retire on or after attaining the age
fifty years, on being required or permitted so to retire; "8.
ficer to retire from the service
Cyprus at any time after he has attained the age
fifty years and also in the case/
a female
ficer to require or permit such
ficer toJTcetire for the reason that she has married or is about toVmarry, and retirement shall be 186 compulsory for every
ficer on attaining the age
fifty-five,years: STAVROULLA "Provided that-(b) 1968 April 9 LYSSIOTOU. the Governor may allow any
ficer to remain in the service
Cyprus for such time,after attaining the age
fifty-fiveyears, as to the Governor may seem fit." These provisions show that the retirement
a public
ficer is compulsory on attaining the age
fifty-fiveyears and that on such, retirement the decision to grant pension is taken by theCouncil
Ministers in exercise
its executive powers, replacing the former Governor
the Colony
Cyprus. In the present case we are not concerned with the exercise
the power
the former.Colonial Governor "to require or permit any
ficer to retire from the service", under the provisions
section8
Cap. 311 (prior to itsamendment in 1967),but only with the case
an
ficer whose retirement is compulsory on attaining the age
fifty-fiveyears by ope ration
law which does not require the taking
any deci sion by any organ whatsoever.' Nevertheless, it is significant to note that the new Law enacted in 1967 (Law 9
1967, sections 6 and 7, repealing and re-enacting sections 6(a) and 8
the principal Law, Cap.311),confers expressly the power or competence to requireor permit an
ficer to retire from the service on the Council
Ministers, and not on the Public Service Commission (the text
the new provisions is quoted below); and one should not lose sight
the fact that the provisions
paragraph 1,
,
theConstitution conferring, inter alia, the power on the Public Service Com mission to "retire" a public
ficer, are made expressly "subject to the provisions
any law" with respect to any matter set out in that paragraph. But, as already observed, in this case we are not concerned with the power
thecom petent organ to take a decision to retire a public
ficer, but with that provision in section 8
Cap. 311,which lays down expressly that retirement
a public
ficer is "compulsory" on attaining the age
fifty-five years, by operation
law and without.the.taking
a decision by any,organ whatso ever. The aforesaid sections 6 and 7
the new Pensions (Amendment) Law 9
1967 read as follows:«
a public
ficer from the Public Service on attaining retiring age was, by operation
law, automatic not necessitating the taking
a decision; that the taking
a decision was an essential ingredient
the notion
competence
the Public Service Commission asdefined in Article 125.1; that a provision
law not requiring the taking
a decision did not involve the exercise
competence; and that the provisions
the Pensions Law, Cap. 311, were not inconsistent with the competence
the Public Service Commission under Article 125.1 and, coming within the expression "subject to the provisions
any law" in Article 125, continued in force without any modification under Article 188. The following is the relevant extract from the decision
the Court in that case (at page 87A):"In the opinion
the Court when a public
ficer reaches the age
retirement the appropriate administrative action is taken by operation
law without the taking
a decision in the particular case. Paragraph 1
the Constitution is a provision defining the competence
the Public Service Commission. The taking
a decision is an essential ingredient
the notion
competence. A provision
a law not requiring the taking
a decision does not involve the exercise
competence. It follows, therefore, that provisions such as those contained in the Pensions Law, CAP. 311, making retirement automatic by operation
law on reaching a specified age limit are not inconsistent with the competence
the Public Service Commission to deal with matters relating to retirement and requiring the taking
a specific decision. In the circumstances the said provisions
CAP. 311 continue in force, without any modification in this respect under Article 188
the constitution, and they, therefore, come within the expression 'subject to the provisions
any law' in paragraph 1of Article 125". In the Rouhi case, on the date
the decision
the Public Service Commission not to alter the date
the Applicant's birth, his retirement (on the basis that he had been allegedly born in the year 1900) had already taken effect. That is, his retirement took effect on the 1st January, 1961, and the Commission took its decision on the 14th March, 1961, although theApplicant had raised the question
the correct 189 1968 April 9 STAVROUIXA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides, 1. 1968 April 9 STAVROULLA LYSSIOTOU V. KYRIAKOS G. PAPASAVVA AND ANOTHER Josephides, J. date
hisbirth on the21st December, 1960,inan application addressed to the Minister under whom his department was placed; and his application had been referred by the-Ministry to the Public Service Commission "for any action they may deem appropriate" under the provisions
Applicant was informed by a letter dated the 30th December, 1960. In fact, the Applicant himself wrote to the Public Service Commission on the 14th February, 1961, forwarding a copy
the Ministry's letter requesting the Commission to consider his case at an early date. Meantime the Chief Establishment
ficer by a letter dated the 27th December, 1960, informed the Applicant (Rouhi) that the Council
Ministers had granted him a pension at the rate
£445.184 mils per annum with effect from the 1st January, 1961, and a gratuity
£1854.932 mils. This was done under the provisions
the Pensions Law, Cap. 311. His retirement with effect from the 1st January, 1961, which was published in the
ficial Gazette on the 11th January, 1961, took place by way
administrative action by the Chief Establishment
ficer pursuant to the provisions
the Pensions Law, Cap. 311, on the ground
age limit. Some
these facts do not appear in the report
the Rouhi case but I have obtained them from the original court record. In those circumstances it was held that the decision
the Public Service Commission (taken in March 1961) not to alter the date
birth and to reject a new birth certificate
the Applicant, was taken in a matter in which it did not have competence, and amounted to excess
power, as the Commission on the date
its decision "did not have competence concerning the aforesaid administrative action taken in relation to retirement by operation
Law"; and that the rejection by the Commission
the birth certificate did not and could not have affected any existing legitimate interest
the Applicant within the ambit
(see pages 85D and 88D-F
the Rouhi report). If the ratio decidendiof the Rouhi case is That the Public Service Commission would have had competence if the retirement
the Applicam had not already taken place by operation
law (on the 1st January, 1961), I would not, with respect, be prepared to follow that decision. Once it is accepted —as it is accepted by the Court in the Rouhi case - that retiiement on reaching the age limit is automatic by operation
law and does not require the taking
a deci190 sion by the Commission, and that such Commission has no competence under the provisions
.1 to take a 'decision to *'retire" a public
ficer on reaching the age
•compulsory retirement, how can it have any competence to decide a matter incidental thereto, that is, the ascertainment
the correct age
birth
an
ficer for the purpose
the determination
his date
retirement, in the absence
any express statutory provision conferring such competence on the Commission. As already observed, the Public Service Commission being a creature
the Constitution can only have and exercise the powers expressly conferred on it under theConstitutionand it cannot have any other powers. Unless expressly empowered by a statutory provision to deal with a certain matter re quiring the taking
a specific decision, the Public Service Commission has no competence to do so and, if such matter relates to the exercise
executive power, then the only com petent organ to exercise such power and take a decision in the matter is the Council
Ministers within its residual executive powers. The case
Ieromonachos and The Republic {PublicService Commission), 4 R.S.C.C. 82, which was also relied upon by the trial Judge in the present case, was decided by the Supreme Constitutional Court on the assumption that the Public Service Commission had competence to examine and decide the question
the correct date
birth
a public
ficer for the purpose
his compulsory retirement under section 8
Cap. 311. The question whether the Commis sion in fact possessed such competence does not appear to have been directly in issue in that case. - Perhaps reference should also be made to a provision in the Public Service Law, No. 33
1967, which was enacted on the 30th June, 1967, after the hearing
this appeal,' although such provision cannot be said to be conclusive either way. Section 52
that law provides that the age
a public
ficer shall be proved by such evidence as the Council
Ministers may prescribe; but it would appear that this has not yet been done. Section 52 reads as follows:«52. Ή ηλικία δημοσίου υπαλλήλου αποδεικνύεται διά τοιούτων αποδεικτικών στοιχείων οία τό Ύπουργικόν Συμ βούλιον ήθελε καθορίσει» 191 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides, J. 1968 April9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides,J. Having considered all these matters I can now sum up and conclude. The power possessed by the Public Service Commission under Article 125.1 is, inter alia, to "retire" public
ficers, and the question which falls to be determined by this Court is whether that expression may be construed to include the duty and competence to decide the correct date
birth
a public
ficer for the purpose
the determination
the date
his retirement under the provisions
sections 3
the Pensions Law, Cap.311, which provide for hiscompulsory retirement on attaining the age
fifty-five years (or as the case may be) by operation
law, and the granting
a pension to him. Under the provisions
section 3
the Pensions Law, Cap. 311,the Council
Ministers, in exercise
its executive powers, as successor
the former Governor
the Colony
Cyprus, is the only organ charged with the duty and power
granting pensions on the attainment
a public
ficer
the age
compulsory retirement; and it has exclusive competence to take such a decision to the exclusion
any other organ
the State. Retirement on reaching the age
55 years is compulsory by operation
law and no decision
the Public Service Commission is necessary. In order that the Council
Ministers may grant such pension it must be satisfied that the age
compulsory retirement has been attained by the public
ficer, that is, that the requirements
the law are fulfilled. Consequently, the determination
the date
retirement
an
ficer and, incidentally, the ascertainment
the date
his birth on which the date
his retirement depends, lies within the competence
the Council
Ministers and not within that
the Public Service Commission. I would, however, leave the question open as regards the mode
proof
such date
birth, e.g. whether on the basis
an
ficial birth certificate issued under the provisions
the Births and Deaths Registration Law, Cap. 275, or, in the absence
such a certificate, on the basis
a declaration made by a competent court as to the correct date
birth
such
ficer, or otherwise, having regard to the statutory provisions in force at thetime,as such question isnot necessary to be decided for the purposes
the present appeal. For the reasons I have endeavoured to explain in this judgment 1am
the view that the matter referred to the 192 Public Service Commission for examination and decision was not within their competence, as laid down in Article 125.1
the Constitution, and the Commission rightly refused to deal with it. A In the result, I would allow the appeal and set aside the decision
the learned trial Judge. \ VASSILIADES, P.: I agree. I had the advantage
reading in advance the judgment
Mr. Justice Josephides and I concur, but I would like to add this. What falls to be decided in this recourse is whether the Public Service Commission had the competence, and therefore the duty, to embark on an enquiry for the purpose
finding and declaringthe age,and incidentally the date
birth,
the interested party in connection with her retirement from the Public Service. It is common ground that the interested party was born in Cyprus at a time when there was in force a statute, the Births and Deaths Registration Law, now Cap.275,in some form or other. Under the provisions
the stature, the interested party's birth had to be entered and recorded in the
ficial Register
Births. It is common ground in this case that there isan entry in the
ficial Register concerning the party in question. It issaid that an
ficial certificate
birth, based on such entry, was used in connection with her appointment in the Public Service. It is also said that at some later stage an
ficer
the Colonial Government
Cyprus issued certain instructions regarding the interested party's date
birth,' the correctness or validity
which are now being challenged, in connection with her retirement. I takethe viewthat Article 125ofthe Constitution was neither intended to, nor does it in fact, have the effect
conferring on the Public Service Commission the competence to decide whether the entry concerning the interested party's date
birth in the
ficial Register is correct; or whether the instructions
the Colonial
ficial in question are valid. I think the Public Service Commission were right in declining to embark on such enquiry. This is sufficient, in my opinion, to decide the present recourse. It does notfall to be decided in these proceedings who has the comoetence under the law to deal with the matter. I would allow the appeal and decide the recourse accordingly. 193 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Josephides, J. 1968 April 9 r. KYRIAKOS G PAPASAWA AND ANOTHER STAVRINIDES, J.: I agree with the judgment
Mr. Justice Josephides and I have nothing to add. HADJIANASTASSIOU, J.: The decision
this appeal appears to me to involve a question with regard lo the true construction
paragraph 1of Article 125
our Constitution. In this case the main contention
counsel for the appellant was that the Public Service Commission had no competence to deal with the question
the correct date
birth
the Appellant-Interested Party. The question, which in this case, 1 really have in the first place to decide, seems to me to be (a) whether it is within the competence
the Public Service Commission to retire public
ficers and (b) if the answer to the first question is in the affirmative, then to examine whether or not the Public Service Commission was competent to take a specific decision relating to the correct date
birth
the Appellant for the purpose
her retirement. Before I deal with these two questions, 1will in brief, deal with the facts
this case. On January 10, 1966, Respondent-Applicant, a member
the Association
Government Dental
ficers, in his capacity as a secretary
the Association wrote a letter to the Ag. Minister
Health complaining that the date
birth
the Appellant, who was the Senior Dental
ficer, had been alteled wrongly from the dateofficially recorded in relation to her service; and an examination
this question was requested with a view to protecting the interests
the other Dental
ficers. It is not in dispute that the Respondent is a Dental
ficer, 1st Grade, and that together with another Denial
ficer are the most senior among the rest
the Dental
ficers; and that theRespondent possesses the qualifications for promotion to the post
Senior Dental
ficer. On January 7, 1943, the appellant in her application for permanent employment with the Cyprus Civil Service, she declared that she was born at Ktima on December 26, 1911 and supported her application by a certificate
birth
the Commissioner
Paphos dated January 8, 1943. In her personal file
the Ministry
Health there was filed another certificate
birth dated January 21, 1935, giving as her date
birth December 26, 1911. 194 On November 19, 1959,the Appellant wrote a letter to the Establishment Secretary
the then Colony
Cyprus, and raised the question that the date
her birth as stated in her personal file was not correct, and it had to be altered, so as to read December 26, 1912, which she claimed was the correct date
her birth. As a matter
fact in April, 1960, the date
birth
the Appellant was altered to be for
ficial purposes December 26, 1912. It is to be observed that it is this administrative decision that the Respondent is challenging, because had it not been for such alteration
Appellant's date
birth, the appellant was to retire from Public Service on December 26, 1966, under the provisions
the Pensions Law, Cap. 311. The compulsory age
retirement under the provisions
the Law was at the material time the age
fifty-five. On March 24, 1966, the Ag. Minister
Health, after having consulted the Attorney-General
the Republic, placed the matter together with the advice
the AttorneyGeneral, before the Public Service Commission, as the organ vested with competence to deal with such matter. On May 13, 1966 the Ag. Minister
Health addressed a letter to the Public Service Commission requesting a reply as to whether or not, the Commission was prepared to examine the matter raised earlier. On June 9, 1966, the Public Service Commission met, and as the minutes read, it decided "not to deal with the matter and let anybody affected to have a recourse to the Court". On June 21, 1966, the Ag. Minister
Health, wrote a letter informing the Association
Government Dental
ficers
the decision
the Commission; and as a result theRespondent made a recourse to the SupremeCourt,dated July 27, 1966, claiming, inter alia, in paragraph 1: "A declaration
the Honourable Court that the omission
the Respondents whereby they refused to correct the date
birth
a public
ficer viz., Mrs. Stavroulla Lyssiotou, ought not to have been made and that whatever has been omitted should have been performed". The Opposition filed on the 29th September, 1966, was to the effect that there was no omission on the part
Respondent; because Respondent had refused to deal with the 195 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Hadjianastassiou, J. 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. P A P A S A W A AND ANOTHER Hadjianastassiou, J. matter complained
after a careful examination
the whole matter which included a perusal
the relevant Registers
Births, and because the Establishment Secretary decided that the 26th December, 1912, should be accepted as the date
Mrs. Lyssiotou's birth for all
ficial purposes. The learned trial Judge in a careful and considered judgment found that theApplicant was entitled to make a recourse; and after examining whether or not there existed in this case an omission on the part
the Public Service Commission to deal with the question
the correct date
birth
the Interested Party, he had this to say at p. 29: "For all the above reasons I am
the opinion that, in the circumstances
this Case, the Commission's refusal to deal with the matter raised by the letter dated the 10th January, 1966(exhibit3) 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". Now with regard to the first question whether or not the Public Service Commission had competence, I consider it constructive to quote the words
Lord Radcliffe, in the case
Attorney-Generalfor Canadav. Hallet and CareyL. D. and Another, [1952] A.C. 427 at p. 449: "The paramount rule remains that every statute is to be expounded according to its manifest or express intention". Let us now consider whether this matter comes within the ambit
paragraph 1
our Constitution, which deals with the competence
the Public Service Commission. It reads: "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
any law, it shall be the duty
the Public Service Commission to make the allocation
public
fices 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
fice
, public
ficers". The words in this paragraph,which are immediately applic196 able to the present case are: "retire and exercise disciplinary control over, including dismissal or removal from
fice
public
ficers". It is stated here on behalf
theAppellant, that the Public Service Commission has no competence to deal with the retirement
public
ficers, because the compulsory retirement
an
ficer reaching the age
retirement is taken automatically by operation
law and not by a decision
the Public Service Commission. With due respect to the argument advanced, I hold the view that the Public Service Commission has competence in this case, because to my mind the Court is bound before reaching a decision on the question
whether the Public Service Commission has competence to retire or not a public
ficer, to examine the nature, objects and the scheme
paragraph 1 as a whole with regard to the functions
the Public Service Commission, and in the light
that examination to consider exactly what is the area over which its powers are given by that paragraph and under which the competent authority is purported to act. The view that it is right in each case to examine the nature, objects and scheme
the relevant legislation as a whole is further supported by the fact that the Supreme Constitutional Court took such a course in the case I am about to cite. The Supreme Constitutional Court
Cyprus dealing with paragraph 1
Republic
Cyprus,
paragraph 1
due regard must be had to the context
the paragraph .as a whole and, therefore, no particular provision thereof should be interpreted in such a way as to result in defeating the intention and object
all or any
the remaining provisions
the said paragraph". Later on they say: "The Court isof the opinion that paragraph 1of Article 125 constituted the Public Service Commission as the only competent organ to decide on all matters stated therein concerning the individual holders
public
fices. It will be seen, therefore, that the objects
197 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Hadjianastassiou, J. 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Hadjianastassiou, J. paragraph 1
include, not only the safeguarding
the efficiency and proper functioning
the public service
the Republic, but also the protection
the legitimate interest
the individual holders
public
fices". Having reached this conclusion I now turn to the legislation under consideration in the present case.
its nature it concerns the retirement
public
ficers. Section 8
the Pensions Law Cap. 311, so far as relevant reads: "It shall be lawful for the Governor to require or permit any
ficer to retire from the service
Cyprus at any time after his attaining the age
50 years and also in the case
a female
ficer to require or permit such
fic;r to retire for the reason that she has married or is about to marry, and retirement shall be compulsory for every
ficer on attaining the ageof 55years". In Chrysanthos Makrides and The Republic
Cyprus,
Cyprus was, matters
pension and gratuity are, by legal fiction, regarded as discretionary acts
grace, they were nevertheless vested 'rights'
the individual concerned, inasmuch as they could be vindicated through the appropriate administrative procedure". In Mehmet AH Rouhi and The Republic
Cyprus,
the Pensions Law, had this to say at p. 87: "In the opinion
the Court when a public
ficer reaches the age
retirement the appropriate administrative action is taken by operation
law without the taking
a decision in the particular case. Paragraph 1
the Constitution is a provision defining the competence
the Public Service Commission. The taking
a decision is an essential ingredient
the notion
competence. A provision
a law not requiring the taking
a decision does not involve the exercise
competence. It follows, there198 fore, that provisions such as those contained in the Pensions Law, Cap. 311, making retirement automatic by operation
law on reaching a specified age limit are not inconsistent with the competence
the Public Service Commission to deal with matters relating to retirement and requiring the taking
a specific decision. In the circumstances the said provisions
Cap. 311 continue in force, without any modification in this respect under Article 188
the Constitution, and they, therefore, come within the expression 'subject to the provisions
any law' in paragraph 1of Article 125". In Panaretos leromonachos and The Republic
Cyprus (Public Service Commission), 4 R.S.C.C. 82 the Supreme Constitutional Court dealing with the question
the ascertainment
the correct age
an
ficer for the purposes
retirement from Public Service had this to say at p. 85: "In the opinion
the Court the Respondent acted quite correctly in applying the principle laid down in the aforesaid General Order II/1.47 and the established practice in this matter because if the sa'd principle and the established practice were not to be adopted the result would follow that it would be open to an
ficer, who had given an incorrect date
his birth on entering the public service, and who, throughout the length
his service, thus had the advantage
such incorrect date and upon which both he and the Government had throughout such service acted as being the correct date, to have the said date changed when it suited him to do sojust before his retirement and thereby obtain a second advantage. The Court is
the opinion that such a situation would not be in the public interest and that the public interest requires that positive evidence
the exact date
the birth
an
ficer would be necessary in ordei to rebut the presumption that the date
birth
the
ficer for
ficial purposes, and in particular for the purposes
calculating the date
his retirement, isthe date which such
ficer gave on entering the public service". In Andreas A. Markoullides and The Republic (Public Service Commission), 3 R.S.C.C. 30 the Court said at p.33:"In the opinion
the Court no conflict, in effect, arises between paragraph 1
KYRIAKOS G. PAPASAWA AND ANOTHER Hadjianastassiou, J. 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. P A P A S A W A AND ANOTHER Hadjianastassiou, J. 10
Cap. 171. Clearly Cap. 171 is a Law which has continued in force under, and subject to, the provisions
the Constitution. Under such Article 188, and in particular paragraph 3 thereof, the corresponding body
the Republic which has to be substituted in Cap. 171 for the Authority, in all matters falling within the competence
the Commission under paragraph 1of Article 125, is the Commission and likewise, the Council
Ministers is, in this connection, to be substituted in Cap. 171 for the Governor or the Governor-in-Council". It is plain in my view that under paragraph 3(b)
the Constitution it is provided that any reference to the "Governor" in a law continuing in force after the coming into operation
the Constitution, shall be construed as a reference to the "Council
Ministers" in matters relating to exercise
executive power; but this is to be done, unless "the context
the law otherwise requires". In view
the express provision in paragraph 1,
,
the Constitution, I am
the opinion, that it confers on the Public Service Commission competence in relation to the retirement
public
ficers; and, therefore, I am
the view, that because
the provisions
paragraph 4
the Pensions Law, Cap. 311, has to be applied modified, in order to be brought within the Constitution, and particularly within paragraph 1
. As I have said earlier the Public Service Commission has competence in the present case, because if the words in paragraph 1
were to be expounded according to its manifest or express intention, then in my view, the word "retire" ought to have been given the express meaning which the Constitutional Drafters intended it to have, that isto say, that the Public Service Commission has competence, in a proper case, to take a decision to retire public
ficers from
fice. If the word "retire" was intended to be read and applied withthewords "and exercise disciplinary control" over public
ficeis in disciplinary proceedings only, then in my view the word "retire" is superfluous. That it is not so, it is evident that the word "retire" is followed by the word "and" which is
a conjunctive nature; and,therefore, make itclear that the Public ServiceCommission has competence to retire public
ficers from
fice, in those cases necessitating 200 the taking
a specific decision; and quite apart from those cases where the retirement
a public
ficer becomes automatic by operation
law, under the provisions
the Pensions Law, Cap. 311. See AHRouhi (supra). Furthermore the words "exercise disciplinary control over" following the word "and" indicate to my mind, that the Commission, is vested with a further discretion to dismiss or remove from
fice in a proper case, public
ficers; and those words do not refer in my opinion, to the word "retire". One would observe the change
language here, that the words "including dismissal or removal from
fice o f following the words "exercise disciplinary control over" were intended to apply to thewords "exercise disciplinary control" only, thus empowering the Commission in carrying out these duties to have additional powers over the public
ficers. Having reached the conclusion that the Public Service Commission is vested with competence under the provisions
paragraph 1
, in a proper case, to retire public
ficers from
fice, it follows in my view, that in the present case, the Commission was also competent to deal with the question
the alteration
the date
birth
the Interested Party, andto reach a specific decision; because such alteration wasmade for the purpose
the continuance
the Interested Party in Public Service and, although incidental it wasclearly connected with the question relating to her retirement. For all these reasons, I am
the view, that the decision
the learned trial Judge to refer the matter to the Public Service Commission for examination and decision, was the right one; and, therefore, I affirm thejudgment
the trial Court on this issue. Having had theadvantage
reading in advance the majority judgment
this Court, 1do not propose dealing inmy judgment separately with the rest
the issues argued in this appeal. I might welt content myself with merely expressing my concurrence with the judgment
Mr. Justice Triantafyllides, which seems to me to be exhaustive and convincing. I. therefore, think that the appeal should be dismissed. VASSILIADES, P.: Does any question
costs arise? 201 1968 April 9 STAVROULLA LYSSIOTOU v. KYRIAKOS G. PAPASAWA AND ANOTHER Hadjianastassiou, J. 1968 April 9 V. KYRIAKOS G. P A P A S A W A AND ANOTHER Vassiliades, P. Mr. Papachrysostomou: I claim costs for the Interested Party. VASSILIADES, P.: Any other counsel who wishes to be heard regarding costs? Mrs. Loizides: I submit that there should be no order as to costs as the legal issues involved were rather difficult and
public importance. VASSILIADES, P.: The trial Judge made no order as to costs in the proceedings before him. As regards the costs in the appeal we are inclined to the view that, as this case does involve what appear to be complicated questions
construction
legislation, we should follow the same course as the trial Judge and make no order as to costs. In the result the appeal is allowed, thejudgment
the trial Judge is set aside with no order as to costs here or at the trial. Appeal allowed. Judgment
trial Court set aside. No order as to costs here or at the trial. 202
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.