clr/1968/1968_3_683.pdf

(1)The decision complained of is discriminatory i.e. contrary to the principle of equality safeguarded under Articles 6 and 28 of the Constitution; 684

(2)The said decision is also contrary to Article 192 of the Constitution which safeguards rights enjoyed "immediately before the coming into operation of the constitution" (i.e. immediately before the 16th August i960) as well as section 45 of the Elementary Education Law, Cap. 166. Section 45 defines the word "salary" as follows: " 'Salary' with respect to any teacher shall include.... but shall otherwise be exclusive of allowances: Provided that where a teacher has during the course of his service held posts in respect of which a duty allowance is payable for an aggregate period of not less than five years the governor may direct that, for the purposes of computing pension, gratuity or the salary shall be enhanced by a sum equal to the average of the allowance payable at the time of such computation in respect of the posts held during the last five years of the aggregate period. Provided ". In dismissing the recourse the Court :Held,

(1). On the material before the Court there is not the shadow of a suspicion that there has been any discrimination against the Applicant.

(2)In so far as Article 192of the Constitution is concerned it is quite clear that the Applicant was not "immediately before the coming into operation of the Constitution" (i.e. before the 16th August i960) performing the duties of a Headmaster nor was he receiving any dufy allowance and it therefore follows that the provisions of section 45 of Cap. 166 (supra) regarding the computation of pension and gratuity where duty allowance was payable were not at the time applicable to him.

(3)In the light of the above and in view of the fact that the Applicant held a post in respect of which duty allowance was payable for a period of less than five years, in fact for three years only (supra), and he was not in receipt of such allowance at the time of the computation of his pension and gratuity, he did not qualify to have his pension and gratuity computed on the basis of £798 which sum included £96 Headmaster's duty allowance, but on the basis of £774 as it was done in the present case. Recourse dismissed with costs, 685 1968 Dec 3 MlCffAEL MrrsncoMUDES v. REPUBLIC (COUNCIL OF MINISTERS) 1968 Dec.3 Recourse. MICHAEL Recourse for a declaration thatthedecision ofthe Respondent regarding the pensionable emoluments and/or gratuity payable to Applicant by virtue of his acting as a Headmaster from 1.9.1960, is null and void. MrrsiKouMDEs REPUBLIC (COUNCIL OF MINISTERSI L. derides, for the Applicant. L. Loucaides, Counsel of the Republic, for the Respondent. Cur. adv. vult. The following Judgment was delivered by: Loizou, J.: By this recourse the Applicant seeks "a declaration of the Court that the decision of the Council of Ministers embodied in a letter addressed to Applicant on the 12.11.1966 received by him on the 13.11.1966 regarding the pensionable emoluments and/or gratuity payable to Applicant by virtue of his acting as a Headmaster from 1.9.1960, is null and voidand of no effect whatsoever". The Applicant served as an elementary school-teacher for a period of over 30years and he retired as a Headmaster, Grade B, on the 31st August, 1966. He had been serving as a Headmaster, Grade B,for sixyears prior to his retirement i.e. from the 1st September, 1960 to the 31st August, 1966. Prior to the enactment of the Teachers of Communal Schools of Elementary Education Law, 1963, (Law 7 of 1963 of the Greek Communal Chamber) which was published in the Gazette of the 4th July, 1963, the salary of the Applicant as a Headmaster, Grade B,was£798per annum which included a sum of £96 which was payable as Headmaster's duty allowance. With the enactment of Law 7 of 1963, new salary scales came into force and the salary scale of the post of Headmaster, Grade B, under this Law was £606x24-£774. However, section 37of the Law saved the right of elementary school-teachers whose basic salary, including the Headmaster's duty allowance, was higher than the new salary scales and they were, by virtue of this section, to continue to receive the higher salary; but section 37 was repealed and substituted by section 3 of the Teachers of Communal Schools of Elementary Education (Amendment) Law, 1964 (Law 1 of 1964 of the Greek Communal Chamber) which was published in the Gazette of the 27th March, 1964. The 686 1968 Dec. 3 new section reads as follows: «37. Ό βασικός μισθός 6v λαμβάνουν διδάσκαλοι κατά την ψήφισιν τοΰ παρόντος Νόμου καΐ έάν ακόμη είναι υψηλότερος εκείνου όν έδει νά λαμβάνωσιν έπ! τή βάσει τοΰ παρόντος Νόμου δέν Θά έπηρεασθη.» Law 1 of 1964 was given retrospective effect as from the date of the enactment of the principal law (Law 7 of 1963). It is to be noted that by the 1964 amendment the words "inclusive of the Headmaster's allowance" which followed the words "basic salary" were omitted from section 37. It is common ground that on his retirement Applicant's pension and gratuity were calculated on the basis of the new salary scale i.e. £774 and not £798. To this the Applicant objected by his letter dated 8th October, 1966 (exhibit 5), On the 12th November, 1966, the Applicant received a reply to his objection from the Ministry of Education; it is the letter exhibit 6 and it reads as follows: «Els άπάντησιν επιστολής σας 8/10/66 λυπούμαι νά σας πληροφορήσω, δτι ή άπόφασις τοΰ Υπουργικού Συμβου­ λίου δέν καλύπτει τήν περίπτωσιν σας. Αύτη ϋχει ώς έξη* Τ ό Συμβούλιον άπεφάσισεν όπως έγκρίνη όπως at συντάξεις των Διευθυντών τών Δημοτικών Σχολείων, οΐ όποιοι εΐχον μέχρι της 1ης Σεπτεμβρίου, 1963 συμπληρώσει συνολικήν ύπηρεσίαν.πέντε ετών είς θέσεις 5ιά τάς όποίαζ ήτο πληρωτέον επίδομα δι­ ευθύνσεως και ούτω απέκτησαν τό δικαίωμα όπως ό μέσος όρος τοΰ επιδόματος τούτου θεωρηθή ώς συντάξιμος απολαβή δυνάμει τοΰ άρθρου 45 τοΰ περί Στοιχειώδους Παιδείας Νόμου, Κεφ. 166, αϊ τοιαϋται δέ άπολαβαί ήσαν υψηλότεροι τών συν­ ταξίμων απολαβών αυτών έπϊ τη βάσει τών νέων μισθοδοτικών κλιμάκων, ύπολογισθώσιν επί τών πρώτων συνταξίμων απολαβών και ή πληρωμή της διαφοράς γίνη χαριστικώς μέχρις ότου τό θέμα τοϋτο κανονισθη δια νόμου'. Είς τήν περίπτωσιν σας είσεπράττετε επίδομα διευθύν­ σεως ά π ό 1/9/60 μέχρι 31/8/63, δτε ετέθησαν έν Ισχύϊ αϊ νέαι μισθολογικά! κλίμακες. Συνεπώς δέν ήτο δυνατόν νά ύπολογισθη ή σύνταξις επί τών παλαιών απολαβών 687 MICHAEL MITSIKOURIDES V. REPUBLIC (COUNCIL OF MINISTERS) 1968 Pec. 3 MICHAEL MITSIKOURIDES V. REPUBLIC (COUNCIL OF MINISTERS) σας έφ* 5σον δέν είσπράττετε επίδομα διευθύνσεως επί πενταετίαν.» It is the decision of the Council of Ministers contained in the above letter that the Applicant challenges by this recourse. The Application is based on the following grounds of law: "The Supreme Court has exclusivejurisdiction to declare any act and/or decision of any organ exercising executive or administrative authority null and void if it is contrary to the provisions of any law or the Constitution. Likewise a decision may be annulled if it is discrimina­ tory i.e. contrary to Arts. 6 and 28 of the Constitution. It is contended that the decision of the Council of Ministers is contrary to Arts. 6&28 & 192 of theConsti­ tution as well as section 45 of Cap. 166". TheOpposition,ontheotherhand,is based onthe following grounds of law: (

1. a)The decision challenged was lawfully taken on the basis of the facts of the case. (
2. b)The said decision does not in any way contravene the provisions of Arts. 6, 28 or 192 of the Constitution or section 45 of Cap. 166. It may be stated at this stage that learned counsel for theApphcant made noallegation, in the course of his address, that there has been any discrimination against the Applicant and noreference at all to Articles 6 and28of theConstitution; nor did he allege or attempt to establish the practice to which he refers at paragraph 3 of the facts relied upon in support of his Application—and which, he alleges in the said para­ graph, amounts to a vested right under Article 192 of the Constitution—to the effect that before 1960 "if a Headmaster completed three years service as a Headmaster he was entitled to have the extra allowance payable to him as a Headmaster, as pensionable". And in fact on the material placed before the Court, there is not the shadow of a suspicion that there has been any discrimination against the Applicant; and in so far as Article 192 of the Constitution is concerned it is quite clear that the Apphcant was not "immediately before the coming into operation of the Constitution" per688 forming the duties of a Headmaster nor was he receiving any duty allowance and it, therefore, follows that the provisions of section 45 of Cap. 166regarding the computation ofthepension andgratuitywheredutyallowancewaspayable were not at the time applicable to him. It was, however, contended on the part of the Apphcant that in view of the provisions of section 37of Law 7of 1963 the calculation of Applicant's pension and gratuity should have been made on the basis of £798 and not on the basis of £774. Learned counsel for the Applicant after referring to section 45 of the Elementary Education Law (Cap. 166) submitted that the fact that the Applicant received duty allowanceforthreeyearsonlydidnotmatterbecausealthough from 1963 he was not receiving any duty allowance such duty allowance was included in his salary "as a vested right under section 37". I find myself unable to agree with learned counsel's contention and submission. In sofar assection 37isconcerned, as stated earlier on, it was repealed and substituted by the 1964 amendment and the words "Headmaster's allowance" were deleted from the section and only the basic salary, where it happened to be higher than the salary provided under the new salary scales, was saved thereby; and this with effect from the date of the enactment of the principal law. Let us now for one moment turn to section 45of the Elementary Education Law,Cap. 166. Such section isincluded in part V of the law which deals with the retirement and pensions of teachers. Under this section (as set out in section 2 of Law 21 of 1959) the word "salary" is defined as follows: " 'Salary' with respect to any teacher shall include a portion of the cost-of-living allowance paid to such teacher for the time being amounting to twelve and one half per centum of the salary of such teacher but shall otherwise be exclusive of allowances: Provided that where a teacher has during the course ofhisserviceheld postsin respect of whicha dutyallowance is payable for an aggregate period of not less than five yearsthe Governor may direct that, for the purposes 689 1968 Dec. 3 MICHAEL MITSIKOURIDES v. REPUBLIC (COUNCIL OF MINISTERS) 1968 Dec.3 MICHAEL MITSIKOURIDES v. REPUBLIC (COUNCIL OF MINISTERS) of computing pension, gratuity or benevolent grant, the salary shall beenhanced bya sumequaltotheaverage of the allowance payable at the time of such computation in respect of the posts held during the last five years of the aggregate period". Then follows a second proviso which is not relevant for the purposes of this case. In fact (except where he held a post in respect of which duty allowance was payable for an aggregate period of not less than five years) a teacher's "salary" never included any allowance for pension and gratuity purposes since what is now numbered as section 45 was first introduced in 1944 (by section 21 of Law 3 of 1944); and the position has remained substantially the same until Law No. 19 of 1967 was enacted. In the light of the above and in view of the fact that the Applicant held a post in respect of which duty allowance was payable for a period of less than five years, in fact for three years only, and he was not in receipt of such allowance at the time of the computation of his pension and gratuity, he did not, in my opinion, qualify to have his pension and gratuity computed on the basis of £798 which sum included £96 Headmaster's duty allowance. The obvious scope of the decision of the Council of Ministers challenged by the present recourse was to protect the rights acquired, by virtue of the provisions of section 45 of Cap. 166, by those elementary school-teachers who had until the 1st September, 1963 completed an aggregate of not less thanfiveyears service in posts in which duty allowancewaspayable. TheApplicant quiteclearly never acquired such a right and, in my opinion, his pension and gratuity were correctly computed on the basis of his pensionable emoluments at the time of his retirement without taking into account the duty allowance. For all the above reasons this recourse must fail. Recourse dismissed with costs. 690