(1). It is quite clear that the scope of section 24of the National Guard Law, 1964 (see the section post in the judgment) is to protect the interests of the employees called up for service in theNational Guard by ensuring that their absence from work does not bring their employment to an end butonly suspends it for theduration of the period oftheir service.

(2)(

1. a)The fact, however, remains that during the summer months schoolmasters have the benefit of some two months of school vacations and that if theApplicants in the present case had not been called up for military service they would be enjoying their holidays and at the same time they would be paid their salaries at theendof July andAugust 1966. (
2. b)It seems to me a little odd to hold that because they were called up for service in the National Guard they should be deprived of the two months salary towhich, in my opinion, they became entitled as a result of the services they hadalready rendered during the school year andwhich (salary) they would have got whilst on vacation.

(3)I think, therefore,that it is notopen to the Respondent in thespecial circumstancesof thiscase toinvoke the provisions of section 24 of the Law (supra) which were enacted for the benefit of the employees called up for military service and twist them in such a way as to operate to thedisadvantage of those whom the legislature intended to protect and benefit by its enactment. Subjudicedecision annulled with costs. 120 Recourse. 1969 Mar. 7 recourse against me reiusai 01 uie K-esponueni ιυ pay ιυ the Applicants—secondary education schoolmasters—their salaries for the months of July and August 1966, in the course of their serving in the National Guard. A N D OTHERS v. REPUBLIC L. Papaphilippou, for the, Applicants. (MINISTRY O F EDUCATION) G. Tornaritis,for the Respondent. Cur. adv. vult. The following judgment was delivered by:Loizou, J.: All Applicants are schoolmasters posted at various secondary schools in the Republic. With the exception of Applicants 12 and 13, Petros Charalambous and Finios Demetriou, who at the time of the decision challenged by this recourse were appointed on a permanent basis, all the others were on probation. Exhibit 2 is a photostat copy of a specimen offer for appoint­ ment which contains, in a summary form, the terms of the appointment. It also expressly provides that the appointment is made in accordance with the laws and regulations in force. Clause (a) of this document sets out the salary scale applicable to the post and provides that the salary and cost-of-living allowance shall be paid in equal monthly instalments at the end of each month. The appointment was with effect from the 16th September,

1. With the exception of three of them, all Applicants were called up for service in the National Guard on the 16th July, 1966; the other three were called up on the 5th of the same month having been grantedfive days' leave by theirheadmasters for the purpose. , . . . . ' By virtue of a decision of the Council of Ministers all Applicants but one, Applicant 3 Stylianos Papaphotiou, were discharged from the National Guard on various dates between the 31st October and the 17th November, 1966, as their services were considered essential. Schedule " B " attached to the Application, which has been marked as exhibit 1, sets out the·names of the Applicants-and' 121 MARCOS PANAYIOII 1969 Mar. 7 MARCOS PANAYIOTI A N D OTHERS v. REPUBLIC (MINISTRY O F EDUCATION) against each name, in separate columns, the school at which he was posted at the time, the date of his appointment, the date he was called up for National Guard service and the date of his discharge. It would appear that for the period of the school vacations during which the Applicants were serving in the National Guard they were not paid their salaries. On the 4th January, 1967, counsel for the Applicants wrote the letter exhibit 3 to the Ministry of Education; the relevant part of this letter reads as follows: «"Εχω έντολήν των πελατών μου στρατευθέντων καθηγητών τών οποίων τα ονόματα εμφαίνονται είς έττισυνημμένον κατάλογον να σας καλέσω όπως πληρώσετε είς αυτούς ή είς τό γραφεϊον μου τους μισθούς των άπό της στρατεύσεως των κατ' Ίούλιον 1966 μέχρι Αυγούστου
2. Παρακαλώ σημειώσατε ότι έάν παραλείψετε να συμμορφωθητε προς τα ανωτέρω 0ά ληφθώσι δικαστικά μέτρα.» In reply to the above letter the Director-General of the Ministry of Education wrote the letter dated 30th January, 1967, exhibit 4 which reads as follows: «Ένετάλην δπως αναφερθώ είς την έτπστολήν σας ΰπ'αριθμόν Ε. 913 καΐ ήμερομηνίαν 4 Ιανουαρίου, 1967, έν σχέσει προς τό θέμα της καταβολής τών μισθών τοΰ Ιουλίου καΐ Αυγού­ στου 1966, εις πελάτας σας καθηγητάςκληθέντας προς κατάτα£ιν είς τήν Έθνικήν Φρουράν, καί να πληροφορήσω ύμδς ότι εφ' όσον οι πελάται σας πράγματι υπηρετούν είς την Έθνικήν Φρουράν κατά τάν Ίούλιον καί Αΰγουστον τοΰ 1966, οΰτοι δέν δικαιούνται εί μή μόνον είς τα χορηγήματα τα προνοούμενα ύπό τών Κανονισμών δι' όλους τους Εθνο­ φρουρούς.» As a result the present recourse was filed. The relief claimed is a declaration that the decision contained in the letter exhibit 4 is voidas being in excess or abuse of powers and/or contrary to the orders and/or regulations of the Ministry of Education. Applicants further seek a declaration that they are entitled to be paid their salaries for the period July-August
3. It was contended on the part of the Applicants in support of their case that in any school-year, but particularly during the school-year 1965-1966, the end of the school-year is the 122 10th July, when the school vacations commence, and as by that date the Applicants had performed their duties as schoolmasters in full they were also entitled to be paid their salaries in full. Learned counsel for the Applicants has also stated that the Applicants were posted for National Guard service near their schools and that some of them rendered services, the nature of which he did not specify, to their schools during the school vacations for which they were not paid. He further contended that up to a few years ago, first he said up to 1962 or 1963 and later up to 1961, the practice was to pay to the schoolmasters their salaries for the months of July and August at the end of June in each year, but that since then the practice has changed and schoolmasters are paid at the end of each month the same as all other civil servants. But in spite of this, learned counsel argued, during the months of July and August all teachers are on leave and have no obligation to work. Mr. Frixos Petrides, the Head of the Pancyprian Gymnasium, who was called as a witness by the Applicants, has confirmed that up to a few years ago the salary of schoolmasters for the months of July and August was paid before the closing of the schools for the summer vacations, but that this practice has been discontinued. This witness has also confirmed that the work of the school-year ends approximately on the 10th July of each year. Asked whether schoolmasters have any obligation to work during the school vacations the witness has, very fairly, replied that he does not know if they have any legal obligation but that in practice they are very seldom called upon to render any services. It has happened, the witness said, for him to request schoolmasters to do some work during the vacations and they complied with his request, but he could not say if they were legally bound to do so. Another witness, Mr. Socrates Evangelides was also called for the Applicants, but his evidence was not very helpful and does not affect the issue one way or the other. On the part of the Respondents it was contended that in view of the provisions of section 24 of the National Guard Law No. 20 of 1964 the employment of the Applicants, once they were called up for military service, was suspended and, consequently, so was their salary. Section 24 of the National Guard Law 1964 (as amended by section 4 of Law No. 5/66 and section 12 of Law No. 70/67) reads as follows: 123 1969 Mar. 7 MARCOS PANAYIOTI A N D OTHERS v. REPUBLIC (MINISTRY O F EDUCATION) 1969 Mar. 7 MARCOS PANAVIOTI AND OTHERS v. REPUBLIC (MINISTRY O F EDUCATION) «24.—

(1)Όσάκις πρόσωπον κληθέν 5Γ ϋπηρεσίαν έν ένεργφ υπηρεσία της Δυνάμεως δυνάμει τών διατάξεων τοΰ παρόντος Νόμου εργάζεται είς τακτικήν άπασχόλησιν παρά τινι εργο­ δότη, ή άπασχόλησις αΰτοϋ ουδόλως διακόπτεται άλλ' απλώς αναστέλλεται διαρκούσης της περιόδου καθ' ήν τό πρόσωπον τοϋτο τελεϊ έν τη υπηρεσία της Δυνάμεως· ό εργοδότης όμως υποχρεούται όπως επακόλουθη να καταβάλλη, διαρκούσης της τοιαύτης αναστολής, την εβδομαδιαίαν αύτοϋ είσφοράν συμφώνως προς τό άρθρον 5 τοΰ περί Κοινωνικών 'Ασφαλίσεων Νόμου τοΰ 1964 καί όπως καταβάλλη περαιτέρω την Οπό τοΰ μισθωτού πληρωτέαν είσφο­ ράν συμφώνως προς τό ρηθέν άρθρον ανεξαρτήτως τοΰ ότι ό μισθωτός ούδεμίαν ϋπηρεσίαν παρέσχεν είς τον έργοδότην διαρκούσης της περιόδου ταύτης. Πας εργοδότης όστις παραλείπει ή αμελεί νά καταβάλη την Οπό τοΰ παρόντος εδαφίου προνοουμένην είσφοράν δια­ πράττει αδίκημα καί υπόκειται έν περιπτώσει καταδίκης του είς τάς ΰπό τοΰ άρθρου 73 τοΰ περί Κοινωνικών Ασφαλίσεων Νόμου τοΰ 1964 προνοουμένας ποινάς καί υπόκειται περιπλέον είς τάς λοιπάς διατάξεις τοΰ άρθρου τούτου.

(2)Παν πρόσωπον άναφερόμενον έν τ φ έδαφίω

(1)εντός ενός μηνός ά π ό της απολύσεως ή άποστρατεύσεως αυτού αίτεϊται παρά τοΰ εργοδότου όπως προσλάβη αυτόν είς την άπασχόλησιν εις ην ήσχολεϊτο παρά τ φ εργοδότη πρό της στρατεύσεως αυτού καί ό εργοδότης υποχρεούται όπως προσλάβη τούτον είς την τοιαύτην ή παρομοίαν άπασχόλη­ σιν ύπό ορούς ουχί όλιγώτερον ευνοϊκούς τών όρων ΰφ' οΰς Θά είργάζετο έάν δέν έκαλεϊτο νά υπηρέτηση καΐ είς περί­ πτωσιν καθ' ήν ή τοιαύτη άπασχόλησις θά ήτο αορίστου διαρκείας δια περίοδον ουχί όλιγωτέραν τών It μηνών.

(3)Διά τους σκοπούς τοΰ παρόντος Νόμου—τακτική άπασχάλησις σημαίνει έργοδότησιν είς μόνιμον Θέσιν ή έργοδότησιν είς προσωρινήυ θέσιν διαρκέσασαν πέραν τών εξ μηνών.» (In fact the second paragraph of sub-section

(1)was only enacted on the 10th November, 1967, and was not, therefore, in force at the relevant time, but it does not in any way affect the issue in the present case). It is, in my view, abundantly clear from the wording of the above section read in conjunction with sections 23 and 28 and the regulations made thereunder that suspension of employment of the employee entails suspension of the payment of his salary 124 by,the employer and this, quite obviously, in view of the fact that the employee conscript no longer renders any services to his employer. 1969 Mar. 7 It is equally clear that the scope of the section is to protect the interest of employees called up for service in the National Guard by ensuring ,that their absence from work does not bring their employment to an end but only suspends it for the duration of the period of their service so that when they are discharged or demobilized they will not find themselves out of work. PANAYIOTI MARCOS The question that arises is whether in the somewhat peculiar circumstances of the present case the employer, the Respondents,were entitled to suspend payment of Applicants' salaries for the months of July and August on the ground that they were called up for service, in the National Guard. I say peculiar circumstances because it is an undisputed fact that as from approximately the 10th July in each year the schools close for ,the summer vacations and the work of the schoolmasters .comes to an end but they,·> nevertheless,' continue to get their salaries while they are on vacation. Quite probably the summer and other vacations that school teachers enjoy are considered to be-in the nature of leave and this may be the reason why they are entitled to only 14 days leave during the rest of the school year as against the 42 days in the case of other government servants. 'But I do not think that we need go into this matter for the purposes of this case. The fact remains that during the summer months schoolmasters have the benefit of some two months of school vacations and that if the Applicants in the present case had not been called up for National Guard Service they would be enjoying their holidays and at the same time they would be paid their salaries at the end of July and August. It seems to me a little odd to hold that because they were called up for service in the National Guard they should be deprived of the two months salary to which, in my opinion, they became entitled as a result of the services they had already rendered during the school year and which (salary) they would have got whilst on vacation. It is interesting to note that under section 31 of Law 10 of 1963 pregnant schoolmistresses are granted eight weeks continuous leave of absence i.e. four weeks before delivery and four weeks after delivery and that whereas they get their full emoluments if the leave happens to be during the school vaca125 A N D OTHERS V. REPUBLIC (MINISTRY O F EDUCATION) 1969 Mar. 7 MARCOS PANAYIOTI A N D OTHERS v. REPUBLIC (MINISTRY O F EDUCATION) tions they only get half of their emoluments if the birth occurs and, therefore, the leave is granted at any time during the rest of the school year. The provisions of this section, in my view, to a certain extent, support the view that the services rendered by schoolmasters during the rest of the school year entitle them to full salary during the period of the summer school vacations or in other words that by their work during the rest of the school year they earn the right to full salary during the summer school vacations. With regard to section 24 of the National Guard Law I think that it is not open to the Respondents, in the special circumstances of this case, to invoke its provisions which, as stated earlier on, wereenacted for the protection and the benefit of employees called up for military service and twist them in such a way as to operate to the disadvantage of those whom legislature intended to protect and benefit by its enactment. For all the above reasons I am of the view that the Respondents wrongly refused to pay Applicants their salaries for the months of July and August and that, consequently, this recourse must succeed. In all the circumstances I consider that Respondents should pay the costs of these proceedings. In the result the decision challenged by this recourse is annulled. Order for costs as above. Sub judre decision annulled; order for costs as aforesaid. 126