clr/1977/1977_3_84.pdf

(2)(a) of the National Guard Laws (supra). Administrative Law—Administrative decision—Reasoning—Due reasoning—Appears in the administrative records which the respondents had in mind when taking sxHo judice decision. The applicant in this recourse complained against the decision of the respondents by which he was found fit for service in the National Guard as auxiliary in the fourth degree and against the decision of the respondents to release him from service in the National Guard on account of physical unfitness. The main ground on which his recourse was based was that the constitution of the Medical Board, which examined the applicant, was irregular as it was not constituted in accordance 84 with the provisions of section 7

(3)* of the National Guard Laws 1964 to 1976 and <that -the act and/or decision of the respondents was not duly reasoned or at all. 5 10 15 20 Before the Court there was evidence that after the expiration. of his six months' suspended service for treatment the, applicant was examined by a Medical Board consisting of a Medical officer of the Nicosia General Hospital and two other Army Medical Officers which found that the applicant suffered from operation of his spine and classified him as an auxiliary in the fourth degree (see .thecertificate of this Board at pp. 89-90post). Held

(1), that the applicant was examined by a Medical Board properly constituted under section 7 of the Law; and that, accordingly, the main ground on which this application is based fails.

(2)(On the question whether the sub judice decision was duly reasoned)that the reasoning of the sub judice decision appears in the certificate of .the Medical Board which 'the respondent authorities had in -mind in taking the decision not to discharge the applicant from the ranks of the National Guard as unfit for service. Application dismissed. Recourse. Recourse against the refusal of the respondents to re25 lease the applicant from servicein theNational Guard on accountof physical unfitness. Ph. Valiandis, for the applicant. 30 R. Gavrielides, Counsel of the Republic, for the respondents. Cur.adv. vult. The following judgment was deliveryby:MALACHTOS,J.: The applicant in this recourse claims thefollowing remedies- 35 (

1. a)Adeclaration of thecourt that thedecision and/ or act of the Medical Board by which he was found fit for service in the National Guard as *Quoted at pp. 87-88 post. 85 1977 April 5 ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) 1977 April 5 ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) auxiliary in the fourth degree, is null andvoid and of no legal effect whatsoever; and (
2. b)A declaration of the court that the refusal and/ or omission of the respondents jointly and/or severally to release the applicant from service in the National Guard on account of physical unfitness is nulland voidand of no legal effect whatsoever. The applicant was born in Limassol on 12.2.57. In 1971 he underwent an operation of his spine. On 20.7.75 he was enlisted for service in the National Guard and claimed at the same time to be discharged on medical groundsduetohisphysicalcondition. On 1.1.75 upon medical examination by the Medical Board he was granted six months suspended service for treatment. On the 1st May, 1976 upon the expiration of thesixmonthsperiod heagainjoined theNational Guard. Byletter dated 25thMay, 1976,the applicant through his advocate, applied to the Minister of Interior for his discharge. To this letter he attached a medical certificate dated 9th April, 1976, by Dr. Spanos of the Nicosia General Hospital who had performed the operation of his spine in 1971 in which certificate the physical condition of the applicant is described as "although improved since the operation, nevertheless, a sensitivity remained on his spine"on accountof whichhisdischargewasrecommended. To the said letter it was also attached a certificate dated 24th May, 1976, from the physiotherapist of the Limassol hospital requesting leave for the applicant to visit the Limassol hospital at 8.30 a.m. daily excepting Wednesdays and Sundays for a period of six months for treatment. By letter dated 29th May, 1976, the Ministry of Interior replied to applicant's advocate as follows: "I have been instructed to refer to your letter dated 25th May, 1976,bywhichyouapplythatyourclient,private Eleftherios E. Pericli of Akrotiri, be discharged from the ranks of the National Guard on medical grounds and to inform you that this subject falls within the jurisdiction of the Medical Board towhich your client should apply through thecommanding officer of hisunit". 86 35 40 The applicant then by letter' dated 7th June, 1976, addressed to thecommanding officer of hisunit, towhich letter the certificates of Dr. Spanos and that of the Physiotherapist of the Limassol Hospital were attached, applied for his discharge from the ranks of the National Guard.Thisletter readsasfollows: "I attach a medical certificate from the Nicosia General Hospital dated 9th April, 1976, and a letter of the Physiotherapy Department of the Limassol Hospital dated 24th May, 1976, the contents of which speak for themselves.In the light of the abovedocuments I apply for medical examination by theMedicalBoard and on thebasis of the decision thereof be discharged from the National Guard as unfit for service". It is the allegation of the applicant that on the 10th June, 1976,hewas called and was examined by an Army medical officer holding therank of amajor, and after that he was seen by two other Army medical officers who did not examine him but said to him "Since you came twice before why did you comeagain? Return to your unit and waitfor areply". On the 14th June, 1976, according always to the allegations of the applicant, he was orally informed by the commanding officer of hisunit that his application for his discharge was not approved. As a result he filed thepresent recourse. The main ground of law on which this application is based, is that theconstitution of theMedicalBoardwhich examined the applicant wasirregular as it was not constituted in accordance with theprovisions of section 7

(3)of theNational Guard Laws 1964 to 1976. Section 7 of this Law, asamendedbyLaws26/65 and 56/75 isasfollows: "7

(1)The Council of Ministers may by decision authorise the Minister to proceed to the establishment of Enlistment Boards and a Medical Board.

(2)An Enlistment Board shall consist of(

1. a)The Deputy Commanding Officer of the unit; 87 1977 April 5 ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) 1977 April 5 (
2. b)An Officer appointed by the Commanding Officer of theunit; ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) (
3. c)AnArmyMedical Officer orin hisabsence a medical officer; and (
4. d)The Officer performing the duties of personnelofficer of theunit. 5

(3)AMedical Board shallconsist of theMedical Officer in charge of the Nicosia General Hospital or another medical officer and two other Army medical officers or in their absence of medical officers ap- 10 pointed in that behalf by the Director of Medical Services". Counsel for applicant argued that the Medical Board did not include the officer in charge of the Nicosia General Hospital or any other medical officer but consisted 15 only of three armymedical officers. The applicantwasnot examined collectively bythethreeof thembut onlybyone of these officers. Furthermore, they did not give the proper weight to themedical certificate of Dr.Spanosandthe certificate of thePhysiotherapist of theLimassolHospital, 20 which were attached to the application for hisdischarge. On the other hand, counsel for the respondents argued that soon after hisreturn on theexpirationof hisleaveon 1.5.76, the applicant was medically examined on 6.5.76 as provided by section 17 of the National Guard Laws 25 1964 to 1976 by the Medical Board properly constituted under section 7 of theLaw and wasfound fit for auxiliary service in the 4th degree. This section 17 of the Law, as amended by Laws 26/65 and 56/75 is as follows: "17

(1)The examination of physical fitness during 30 service in the Force shall be made by the Enlistment Boards or the Medical Board provided by section 7.

(2)From thephysical fitness aspect classification shall be made according to physical afflictions orinjuries, as well as to mental abilities, as follows:35 (

1. a)the recruits on their enlistment as well as during their service whether their enlistment is suspended or their service is suspended up to 88 three months due to temporary incapacity or up to six months for not temporary incapa­ city or they are considered fit, or only fit for auxiliary service in the Force or as unfit for service in general; (
2. b)Officers on probation and other ranks in the reserve at the time of their enlistment as well as during their service shall be classified as either fit or unfit for service in general; 10 15 20 25 (
3. c)Service volunteers shall be classified like ser­ vicemen, both at the time of their initial en­ listment and during their service". A certificate was produced indicating that the applicant was examined by the Medical Board on the 6th May, 1976. This certificate reads as follows: "'Εν Λευκωσία τη 6fj τοΰ μηνός Μ Α Ι Ό Τ τοΰ έτους 1976 ή Επιτροπή Εξετάσεως της Σωματικής Ικανό­ τητος Στρατευσίμων Λευκωσίας, Συγκειμένη εκ τοΰ Προέδρου αυτήςΔρς Χαρ. Σταματιάδη και των Μελών ΕΠΙΑΤΡΟΤ ΦΩΤΟΠΟΤΛΟΤ ΔΙΟΝΤΣΙΟΤ και ΛΟΧΑΓΟΤ ΙΑΤΡΟΤ ΡΟΤΣΣΑΚΗ ΠΑΝΑΓΙΩ­ ΤΗ προέβη εις την έξέτασιν τής Σωματικής Ικανότη­ τος τοΰ ενώπιον παρουσιασθέντος Στρ. Περικλή Λευ­ τέρη τοΰ Χριστάκη Α.Σ.Μ. 9417 και παραπεμφθέντος ήμίν παρά τής Ι ν Σ Δ Ι εγγεγραμμένου εις το Μ. "Αρρεν τοΰ Δήμου ή Κοινότητος ΛΕΜΕΣΟΤ της 'Επαρχίας ΛΕΜΕΣΟΤ έτους γεννήσεως 1957 και κλάσεως 1975. ΑΠΟΦΑΙΝΕΤΑΙ 30 35 "Οτι ό έν λόγω πάσχει χειρουργηθείσα κήλη μεσοσπον­ δυλίου δίσκου 02 σπονδύλου μετά λειτουργικών διατα­ ραχών και κρίνει τοϋτον Βοηθητικον Τετάρτηςομοφώ­ νως

(613)1/4 ΔΙΑ ΣΤΡΑΤΙΩΤΙΚΗΝ ΘΗΤΕΙΑΝ". ("Nicosia 6th May, 1976. The Committee of Exa­ mining the physical fitness of the Nicosia recruits, consisting of its Chairman Dr. Char. Stamatiades and the members, surgeon-major Fotopoullos Dionysiou and Captain-Doctor Roussakis Panayiotis, exa89 1977 April 5 ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) 1977 April 5 ELEFTHERIOS CHR. PERICLES v. REPUBLIC (MINISTER OF INTERIOR AND OTHERS) mined the physical fitness of private Periclis Lefteri Christaki A.S.M. 9417 who has been referred to us bythe 6thMilitary Command andisregistered inthe register of births of Limassol town in the District of Limassol, year of birth 1957 and class 1975 and 5 FINDS that the said recruit suffers from operation of his spine with operational sensitivities and unanimously classifies him as an auxiliary in the fourth degreefor military service"). It is clear from the above certificate that the applicant, 10 after the expiration of the period of six months was examined on 6.5.76 by the Medical Board properly constituted under section 7 of theLaw and, therefore, themain ground on which this application is based fails. Another ground on which the applicant based his ap- 15 plication isthattheact and/or decision of therespondents isnot dulyreasonedoratall. The short answer to this is contained in the certificate of 6.5.76 referred to hereinabove which the respondent authorities had in mind in taking the decision not to dis- 20 charge the applicant from the ranks of the National Guard, asunfit for service. For thesereasonsthisrecoursefails. There will be no order as to costs. Application dismissed. 25 No orderas tocosts. 90