[STAVRINUJKS, 1968 May 6 J.]

T H E MATTER O F ARTICLE 146 O FT H E CONSTITUTION ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) A N D ANOTHER, Applicants, and T H E MUNICIPAL CORPORATION O F LIMASSOL, Respondents. (Case No. 8/66J. Municipalities—Municipal Corporations—Licence "to carry on calling orprofession" undersection 156 ofthe Munici­ pal Corporations Lata, Cap. 240-Whether or not anofficer permanently

the service of the Electricity Authority of Cyptus andin receipt of an annual salary is "an officeror servant permanently

the service of the Government" within section 159

that regard of officers or servants permanently

theservice of theEle­ ctricity Authority of Cyprus—See above. Electricity Authority—An

dependent statutory authority or public corporation established by statute—Its officers or servants cannot besaid to be"

theservice of the Govern­ ment" under sections 156(d) and 159(1,) of Cap. 240 (su­ pra). Licence—Licence to "carry on calling orprofession" within the municipal limits—Fees—Position of "officers and servants permanently

the service of the Government"—Or

the serviceofthe Electricity Authority ofCyprus—See above. Public Corporations—

dependent statutory authorities or public 249 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOI (KLADOS LEMESOU) AND ANOTHI' V. MUNICIPAL CORPORATIOOF LtMASSO ,968 , May 6 ELEFTHERA PANKYPRIOS corporations established by statute—See r above. J Words and Phrases—"Public Service''

Article 122

of the Constitution—"Officers and servants

the service of the OMOSPONDIA . . PROSOPIKOU ARCHIS Government"

sections 156(d) and 1 5 9

section n f 1) and

the service of the Government or

the service of the Electricity Authority—See above. T h e second Applicant was at all material times to this case a Wayleave Officer permanently

the service of t h e Electricity Authority, carrying on that occupation

Limassol town. T h i s application raises a single question of substance viz. whether or not this Applicant is "an officer or servant permanently

the service of the G o v e r n m e n t " within section 159

this case by their decision complained of by this recourse. T h e case for the Applicants on this question is based partly on Article 122 of the Constitution and partly on section 11 of the Electricity Development Law, Cap. 171.

Article 122

"public service" is defined as

cluding: "service u n d e r the Cyprus

land Telecommunications Authority and the Electricity Authority of C y p r u s " . O n the other hand section 11

t h e public service within the meaning of t h e Criminal Code. 250

respect of any act, neglect or default done or committed by him

such capacity." The material parts of sections 156, 157, 158 and 159 of the Municipal Corporations Law, Cap. 240 are quoted post

the judgment of the Court. Dismissing the recourse, the Court:Held,

relation to the Criminal Code,while sub-section 2 simply extends to such persons the provisions of the Law therein referred to and that neither sub-section can have any bearing on the meaning of the words "officers and servants

the service of the Government"

section 159

Article 122

of the Constitution (supra), it is clear that Article 122 is solely concerned with regulating the allocation of posts

the "public service" as between the Greek and Turkish communities, providing for the establishment of a Public Service Commission and defining its functions; and therefore it is only

respect of such allocation and the functions of the Commission that persons serving under the Electricity Authority are affected thereby.

question

section 159

that section 159

dependent statutory authority or public corporation, its officers and 251 1968 May 6 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) ANDANOTHER v. MUNICIPAL CORPORATION OF LIMASSOL 1968 May 6 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) AND ANOTHER V. MUNICIPAL CORPORATION OF LIMASSOL servants are not "

the serviceof the Government" within section 159

ter alia, that the Employees of the Electricity Authority

Limassol and elsewhere are or are deemed to be officials and/or servants permanently

the service of the Government of the Republic within the meaning of section 159 of the Municipal Corporations Law Cap. 240 and of Article 122 of the Constitution of the Republic. M. Houry, for the Applicants. J. Potamitis for the Respondents. Cur.adv.vult. The following Judgment was delivered by:STAVRINIDES, J.: It is common ground that the second Applicant is,and sinceNovember, 1964,has been, a Wayleave Officer permanently

the service of the Electricity Authority of Cyprus (hereafter "the Authority") at an annual salary and that he is, and since that time has been, carrying on that occupation

Limassol town. By s. 156 of the Municipal Corporations Law, Cap. 240 "No person shall, within any municipal limits, carry on, exercise or practise any business, trade, calling or profession for profit unless he has obtained a licence so to do

accordance with the provisions of this Law: Provided that — (d) officers and servants permanently

the service of the Government of the (Republic). . . . and

receipt of an annual salary shall not be required to obtain such licence but shall pay the fees hereinafter provided". Section 157

Part I

of the Tenth Schedule to this Law: Provided that— (c) subject to the provisions of section 159 of this Law, nothing

this section contained shall apply to the officers and servants to which section 159 relates". Section 158 reads: "If any person fails to apply to the (committee) for a licence, as

section 157 of this Law provided within one month of his having commenced or recommended to carry on, exercise or practise any business, trade, calling or profession, the (committee) may determine the fee payable by such person, not exceeding the appropriate fee set out

Part I

of the Tenth Schedule to this Law, and enter his name

the register of trade licences and the decision of the (committee) shall be final and conclusive". Section 159 consists of two sub-sections, of which the second one has no relevance to this case and the first, so far as relevant, reads: "Officers and servants permanently

the service of the Government of the (Republic).... and

receipt of an annual salary shall pay to the municipal corporation within the limits of which they usually perform their duties the fees set out

Part II

It is agreed, too, that the second Applicant never applied to the committee for a licence to carry on his occupation

1965 and that on April 5 of that year the committee "determined the fee payable by him" with reference to Part I of Sch. 10, under which a higher fee may be fixed than is payableunder Part II thereof. The second Applicant is a member of the first Applicants, and both Applicants seek (a) "A declaration that the employees of (the Authority)

Limassol and elsewhere are or are deemed to be official and/or servants permanently

the service of the Government of the Republic within the meaning of s.159 of the Municipal Corpoiations 253 1968 May 6 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) AND ANOTHER v. MUNICIPAL CORPORATION OF LIMASSOL 1968 May 6 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) AND ANOTHER V. MUNICIPAL CORPORATION OF LIMASSOL Law, Cap, 240, and of Art. 122 of the Constitution of the Republic of Cyprus and, as such, are not bound to obtain a licence from the (municipal committee) but are only liable to pay the fees set out

Part TI of Sch. 10 of.... Cap. 240'. (b) "a declaration that the decision of the Respondents communicated to the secretary of Applicants 1 dated December 14, 1965, and signed by the President of the (municipal committee) of Limassol is contrary to the provisions of s. 159of Cap. 240 and of Art. 122of the Constitution and ismade

excess or

abuse of the powers vested

them and is null and void and of no effect whatsoever". Counsel for the Respondents

his opposition objected that this application has been made out of time and further, so far as the first Applicants are concerned, that they had no legitimate

terest within Art. 146.2 of the Constitution to bring, or join

, the proceedings. These two matters apart, the application raises a single question of substance, viz. whether or not the secondApplicant is "an officer or servant permanently

the service of the Government" within s. 159

Art. 122of the

Constitution "public service" is defined as

cluding "service under the Cyprus

land Telecommunications Authority, the Cyprus Broadcasting Corporation and the Electricity Authority of Cyprus" and partly on s. 11 of the Electricity Development Law, Cap. 371, which reads:

the public service within the meaning of the Criminal Code.

respect of any act, neglect or default done or committed by him

such capacity". It isclear that sub-s.

relation to the Criminal Code, while sub-s.

the service of the Government"

s. 159

Art. 122of the Constitution, that, as Mr.

Potamitis for the Respondents pointed out, is subject to the opening words of the Article, which read "

this chapter the following expressions, unless the context otherwise requires, mean". Now Art. 122 is solely concerned with regulating the allocation of posts

the "public service" as between the Greek and Turkish communities, providing for the establishment of a Public Service Commission and defining its functions; and therefore it is only

respect of such allocation and the functions of the Commission that persons serving under the Authority are affected thereby. It follows that neither that definition nor s. 11of Cap. 171 can have the effect of extending the meaning of the words

question to

clude the second Applicant. Thus the words must be construed without reference to either of the provisions relied upon. Now the Authority being a body corporate, established by statute as an

dependent statutory authority or public corporation, its officers and servants are not "

the service of the Government" within s. 159

his address counsel for the Respondents said that "he did not press" the objection about the application being out of time. Of course both the limitation of time contained, and the existence of legitimate

terest required, by paras. 2 & 3 respectively of Art. 122 of the Constitution are matters which cannot be waived, whether expressly or by implication. But here I need not discuss either of them because for the reasons given the application must fail. Application dismissed with £12 against costs. Orderinterms. 255 1968 May 6 ELEFTHERA PANKYPRIOS OMOSPONDIA PROSOPIKOU ARCHIS ELEKTRISMOU (KLADOS LEMESOU) AND ANOTHER v. MUNICIPAL CORPORATION OF LIMASSOL