1968 Oct. 29 DINOS PAPACHRJ5TODOUL0U [STAVRINIDBS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION V. REPUBLIC (MINISTER OF FINANCB) DINOS PAPACHRISTODOULOU, Applicant, and THE REPUBLIC OF CYPRUS

Article 146

.1 of the Constitution—And as suchit canbe madethe subject of a recourseunder that Article. Confirmatoryact or decision—See above. Executory act or decision—See above. Misconception—A misconception as to the groundsupon which a claim is based vitiates the decisionso taken—See,also, above. 618 The Applicant holds a post of Examiner of Accounts, 2nd grade, in the Audit Office of the Republic. At the time of his appointment to that post viz. on November 1961, thepostwascarryingasalaryscaleof£570to£720perannum and he was placed at the bottom of that salary scale. In May, 1963, a Mr. A. Tapakis was appointed to another such post at a starting salary of £642 per annum; and on November 1965, the Applicant wrote to the Director of the Ministry of Finance a letter (Exhibit 1) in which, after setting out his professional qualifications and "stating that he had been informed" of Mr. Tapakis appointment "with a starting salary of £642 per annum", he continued: "To thebest of my knowledge and belief my qualifications entitle me to have the same treatment as that of Mr. A. Tapakis,i.e.,tobeplaced onaninitial salaryof£642perannum as from the 1st November, 1961, retrospectively". The relevant scheme of service provides: "Qualifications required: For first entry: (iii) the Higher certificate in Book-keeping and Accountancy of the London Chamber of Commerce or some other examination approved as of equivalent standard; or (

1. b)a university degree in commercial subjects orother appropriatepost-secondary education. Such candidates may be allowed to enter thepost at a higher point in the salary scale". The Applicant claimed that his qualifications satisfied the alternative of "other appropriate post-secondary education" contained in (
2. b)of the aforesaid Scheme of Service. On the other hand he never disputed that the said Mr. A. Tapakis was the holder of a university degree in commercial subjects. In January 1966, the Acting Director of Personnel wrote totheActingAuditor-General thefollowing letter (Exhibit 2): "I am directed to refer to your minute of November 8, 1965, forwarding an application from Mr. N. Papachristodoulou (the Applicant), Examiner of Accounts, 2nd Grade,since November 1, 1961,inwhichhe requests 619 1968 Oct. 29 DINOS PAPACHRISTODOULOU V. :REPUBLIC (MINISTER OF FINANCE) Oct. 29 DlNOS pAPACHRISTODOULOU V. REPUBLIC (MINISTER OF FINANCE) that he may be grantedincrements on the ground that his qualifications are equivalent to a University degree, and to request you to inform him that his qualifications cannotbe regarded as equivalent to a university degree. In any case it was decided six monthsago thatadditional increments should not be granted toholders of university degrees appointed to accounting or audit posts carrying a salary scale of £57θ-£72θper annum. In thecircum­ stances, Mr. N. Papachristodoulou's (Applicant'
3. s)re­ quest cannot be granted". It is against this decision in Exhibit 2 that the present recourse is made on the main ground that the decision com­ plained of discriminates against Applicant since the afore­ mentioned A. Tapakis was placed atthestarting salary point of £642 per annum. On the other hand an objection was raised by counsel for the Republic to the effect, inter alia, that the document Exhibit 2 (supra) contains no 'decision'

Article 146

.1 of the Constitution, at any rate not "one that is new the decision affecting the Applicant having been taken when hewas appointed and having been accepted by him". In annulling the refusal complained of, the Court: Held,

Article 146

.1 of the Constitution); and since the claim for increments is based on an event, viz.the grant of increments retrospectively to Mr. A. Tapakis which happened after the appointment in November 1, 1961 of the Applicant, it is a new decision and not one merely con­ firmatory of a previous decision concerning the Applicant. It follows that the Respondent's objection fails.

the scope of the practice in question. (c) Therefore the alternative ground relied upon in exhibit 2 also fails.

two years from the date of their appointment and before confirmation." (Incidentally, the lettering of the part quoted, giving, as it does, theimpression, on any but the most careful perusal, that the "university degree in commercial subjects or other appropriate post-secondary education" is an alternative requirement to (i), (ii), (iii), is misleading, since in fact it can only be alternative to '(iii)). In the translation, (

1. b)of exhibit3 reads: "A university degree in commercial subjects or other appropriate higher education. These candidates will be entitled to be appointed at an initial salary higher than the lowest point of the salary scale of the post." It was statedby counselfor theRespondent,andnotdisputed by counsel on the other side, that the text approved by the Council of Ministers was in English, being that set out in exhibit 7. Hence exhibit 3, in so far as it does not agree with exhibit 7, is wrong. The corresponding part of the scheme of service relating to the post of Examiner, 2nd Grade (hereafter the "post of Examiner"), in force at that time (exhibit 8) read: "Qualifications required: A. Firstentry; 625 1968 Oct. 29 DINOS PAPACHRISTODOULOtJ V. REPUBLIC (MINISTER OF FINANCE) 1968 Oct. 29 Dmos PAPACHRISTODOULOU V. REPUBLIC (MINISTER OF FINANCE) 1. (
2. i)Leaving certificate of a secondary school with a six-year course and a good knowledge of English of the standard of English Higher, or the following subjects of the Cyprus Certificate of Education exami­ nation at the levels indicated: 1. English Higher .. credit level 2. Greek Higher or Turkish Higher .. pass level 3. MathematicsΆ ' .. credit level 4. Mathematics'B* .. pass level 5. Any three other subjects at pass level; and (
3. ii)the Higher Certificate in Accountancy of the London Chamber of Commerceor some other examina­ tion approved as of equivalent standard; or 2. University degree in Economics (including Ac­ countancy as a subject) or in commercial subjects or other appropriate post-secondary education. 3. Previous auditing experience or auniversity degree would be an advantage." It will be noted that this scheme made no provision for the grant of an initial salary above the minimum of the scale contained in it. It was replaced on December 16, 1963, by one (exhibit 9) not only containing no such provision, but entirely replacing the requirements for first entry set out in exhibit 8 by one, without any alternative, of "A university degree in commercial subjects, including Accountancy, or other appropriate post-secondary com­ mercial education approved as equivalent." Meanwhile the scheme of service relating to the post of Ac­ countant had been amended on May 24, 1964, and on De­ cember 16, 1965, it was further amended, one of the results being that it no longer contained a provision for first entry into that post at a salary above the minimum of the scale applicable to it (exhibit 10). No evidence was called on either side. On thebasis of his counsel's address thecase for the Appli­ cant may be stated in the form of a number of propositions as follows: "1. The duties of the post of Examiner and those of the 626 post of Accountant are analogous, and the two posts carry the same salary. 2. Notwithstanding the fact that the scheme of service relating to the post of Examiner which was in force at the time of the appointment made no provision for the grant ofaninitial salary abovethe minimum ofthe scalecontained in it, "it had been Government policy to extend the same treatment inallrespects,including salary,topersons appointed to the post of Examiner (as had been applied under the scheme of service exhibit7to persons appointed to the post of Accountant), and this was implemented in the case of Mr. Tapakis". 3. By a decision of the Councilof Ministers(exhibit 6) "the Intermediate Examination (in full) of the Association of International Accountants" and "Section 1of the Intermediate Examination of the Association of Certified and Corporate Accountants" were recognised as being "of equivalent standard to the Higher Certificate in Book-keeping and Accountancy of the London Chamber of Commerce" (referred to by its correct description in (iii) of exhibit 1 and without the words "and Accountancy" in (
4. ii)of exhibit 8); and in consequence of that decision a "Mr. S. Hadjisoteriou, Accounting Officer, wasgranted retrospectively one increment". (Counsel did not say when.) 4. At the time of the appointment the Applicant had already passed the examination of the Association of InternationalAccountantsandalsowasaholderoftheCommercial Administration Certificate oftheBalhamandTootingCollege of Commerce, an institution run by the London County Council. (Counsel produced two official booklets, each containing information regarding one of these institutions— exhibits5 and 4 respectively.) Those qualifications satisfied the alternative of "other appropriate post-secondary eduT cation" contained in (
5. b)of exhibit 7. 5. In the 1965Appropriation Law there was a provision whereby"AccountingOfficers, 2ndGrade,withanappropriate university degree or professional accounting qualifications might be promoted to the post of Accounting Officer, 1st Grade, on completion of one year on the maximum of the salary scale of their post..."; and in pursuance of that provision "an Accounting Officer, 2nd Grade, Mr. Alecos Aivaliotis, who is the holder of the Association of International Accountants, was promoted to the 1st Grade in 1965". 627 1968 Oct. 29 DINOS PAPACHRISTODOULOU v. REPUBLIC (MINISTER OF FINANCE) 1968 Oct. 29 rjiNOS PAPACHRISTODOULOU V. REPUBUC (MINISTER OF FINANCE) 6. Thestatement inexhibit2that "In the circumstances Mr. Papachristodoulou's request cannot be granted" (hereafter "the refusal") is based on a misconception as to the ground on which the Applicant's claim "to be placed on an initial salary of £642 per annum as from November 1, 1961, retrospectively" (hereafter "theclaim for increments") was based; and that misconception is of itself sufficient to vitiate the refusal. 7. Thedecision referred to in exhibit2that "additional increments should not be granted" (hereafter "the decision to abolish increments") "cannot apply to cases where the right had arisen earlier"; and this view wasadopted inthe case of four Accounting Officers named bycounsel,all"graduates of the Anotati Emporiki of Athens", who "were granted increments retrospectively from January, 1965,in December ofthat year". Before 1embark ona consideration of anyof those propositions I must deal with an objection raised by Counsel of the Republic at thecommencement of thehearing, which I didnotdecideat thetimebecauseIconsidered that Icould not conveniently do so without going into the general facts of thecase. Hesubmitted that theapplication tothecourt had been filed out of time, (
6. i)because "there isnothingto show that exhibit 2 was communicated to the Applicant" and(ii)because"thatdocumentcontainsno'decision'(

art. 146, para. 1,of the Constitution), at anyrate not" one that is "new", "thedecision affecting the Applicant having been taken whenhewasappointed andhavingbeen accepted by him". With regard to (i), exhibit 1 had been sent by the Applicant to the Director-General of the Ministry of Finance through the "Acting Auditor-General"; what "the Auditor-General" was required by exhibit 2 to do was, in effect, to bring the whole contents of that document tothe knowledge of the Applicant; that request it was his duty to carry out; and since the Applicant got to know those contentsitisonlyreasonabletoinfer thattheywerecommunicated tohimbytheAuditor-General. Asto(ii),the refusal wasclearlyadecisionof"anorgan,authorityorpersonexercising an executive or administrative function" (

art. .146, para. 1, of the Constitution); and since the claim for increments isbased onanevent, viz.thegrant of increments retrospectively to Mr. Tapakis, which happened after the 628 appointment, it is a new decision and not one merely con­ firmatory of a previous decision concerning the Applicant. It follows that the objection fails. It is convenient to deal first with proposition

1. The refusal is expressly based, in the first place, on the ground that "his qualifications cannot be regarded as equivalent to a university degree"; and exhibit 2 states that such equi­ valence had been "the ground" on which the Applicant (by exhibit 1) "requests that he may be granted increments". In fact what the Applicant had relied on was, not such equi­ valence, but "other appropriate post-secondary education". It is any education answering the latter description (and not necessarily one "equivalent to a university degree") that was required as an alternative to a university degree by the Treasury practice applied in Mr. Tapakis's case and that exhibit 1 mentions in referring to that practice; in fact there is nothing in thelatter document about "equivalence". Thus thereis, truly, a misconceptioninexhibit 2 of the ground on which the claim for incrementswas based. The question then is, does this vitiate the refusal? In the book onthe caselaw of the Greek Council of State (Πορίσματα Νομολογίας τού Συμβουλίου Επικρατείας) I find the following at page 188, para. 3: "It is to be noted that when the administration rejected an application on the ground that preconditions do not exist which the Applicant did not invoke, it was held that the decision must be annulled with a view to its being referred for reconsideration on the basis of its contents." In my Judgment that passage is clearly applicable to the refusal in so far as it rests on lack of equivalent qualifications, and therefore it must be annulled, unless, indeed, it can be supported by thealternative ground given, viz. thedecision to abolish increments; which brings me to proposition
2. The last-mentioned decision has not been produced before me. But it was stated by counsel for the Applicant, and not disputed by Counsel of the Republic, that in December, 1965, i.e. not only after it had been taken but in fact after the Applicant had written exhibit 1,four Accounting Officers, 2nd Grade,whom he named, were granted incrementsretro­ spectively from January of that year; and in view of that it is fair to presume that that decision did not purport to 629 1968 Oct. 29 DINOS PAPACHRISTODOULOU V. REPUBLIC (MINISTER OF FINANCE) 1968 Oct. 29 DINOS PAPACHRISTODOULOU V. REPUBLIC (MINISTER OF FINANCE) affect officers in the public service who already possessed the qualifications required to bring them

the scope of the Treasury practice in question. Therefore the alternative ground relied upon in exhibit 2 also fails. In view of the conclusions at which Ihave arrived regarding propositions 6 and 7 it is unnecessary to go into any point, whether raised on behalf of the AppUcant or on behalf of the Respondent, not covered by the foregoing. For the reasons given the subject decision is annulled and the matter must be reconsidered by the appropriate authority on the basis of exhibit 1 and all relevant facts. The Respondent to pay the Applicant £10 costs. Sub judice decision annulled. Order for costs as aforesaid. 630