(1980) 1980 June 6 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MARIA TOMBOLI, Applicant, v. THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Respondent. (Case No. 24/79). Legitimate intere
Article 146
.2 of the Constitution, entitling her to challenge the validity of the above Regulations, on which her termination of employment was based, in view of her said acceptance of such Regulations. Held, that ifa person accepts anadministrative act or decision without protest, he, no longer possesses a legitimate interest entitling him to make a recourse against it; that for the assent to an administrative act or decision to be such as to deprive the person concerned of the right to make a recourse against it, it must be expressed clearly and distinctly and by unambiguous conduct from which it is to be necessarily inferred that it was intended to assent to the administrative act or decision in question;that theacceptance bytheapplicant ofthesaid Regulationstook placeunreservedly and freely and satisfies the principle that the assent must be expressed clearly and distinctly and by unambiguous conduct; that, therefore, written acceptance by the applicant of the Regulations from which the termination The said letter read as follows: "I have the honour to inform you that 1wish to join the (l)Pension Fund. I declare that I received a copy ofthe RegulationsmadebytheAuthority and Irealise that from the moment I become a memberof theabove Fund, I am bound in every respect by its Regulations.
(1)To becompleted according to the option: Pension fund or provident fund". 267 Tomboli v. CYTA
(1980)of her employment emanates, without any reservation on her part, has deprived her of the possibility of satisfying the Court that she possesses an existing legitimate interest
Article 146
.2 of the Constitution and has deprived her of the right to challenge the decision of the respondent Authority 5 togiveeffect to theprovisions of such Regulations and terminate her employment in accordance thereto; and that, accordingly, her recourse must be dismissed. Application dismissed. Cases referred to: 10 Gar/and v. BritishRail Engineering Ltd. [1978] 2 All E.R. 789; [1979] 2 All E.R. 1163 (C.A.); Piperis v. Republic
(1967)3 C.L.R. 295 at p.298; Ioannou andOthers v. Republic
(1968)3C.L.R. 146at p. 153; loannou v. TheGrain Commission
(1968)3C.L.R. 612at p.617; 15 Markouv. TheRepublic
(1968)3C.L.R. 267at p.276; Myrianthis v. TheRepublic
(1977)3C.L.R. 165at p.168; Decision of theGreekCouncil ofStateinCase No.1341/
- Recourse. Recourse against the decision of the respondent whereby 20 applicant's services were terminated as from 1st December, 1978 upon completion of her 55th year of age. G. Arestis, for the applicant. C. Hadjioannou, for the respondent. Cur. adv. vult. 25 SAVVIDES J. read the following judgment. The applicant by the present recourse prays for: A declaration of the Court that the act and/or decision of the respondents whereby the services of the applicant were terminated as from the 1st December, 1978, which, decision, was 30 communicated to the applicant by letter dated the 30th October, 1978 and/or the termination of the services of the applicant as from the 1st December, 1978 upon the completion of her 55th year of age, is null and void and of no effect whatsoever, as having been made or taken contrary to the provisions of the 35 Law and/or of the Constitution. The undisputed facts of the case are shortly as follows: The applicant was an employee of the Cable and Wireless 268 3 C.L.R. Tomboli v. CYTA Sawides J. Ltd. as from 1.1.
- By the Inland Telecommunications Law, Cap. 302, the Cyprus Inland Telecommunications Authority was established as a corporate body with perpetual succession. The object of the Law, as set out in the preamble, was to 5 provide for the establishment of a corporate body to be called the Cyprus Inland Telecommunications Authority and for the exercise and performance by such body of functions "relating to the provision and maintenance of the Inland Telecommunications Service and certain related matters; to empower such body 10 to acquire the Inland Telephone and Telegraph undertaking of Cable and Wireless Ltd.; and to provide for the regulation of the Inland Telecommunications Service and for purposes connected with the matters aforesaid." By Law 34/62, Cap. 302, was amended and the powers of the 15 Authority were extended from Inland Telecommunications to all matters concerning telecommunications. By virtue of section 28
(1)of Cap. 302,the applicant was transferred as from 1.7.1956 from Cable and Wireless Ltd. to the respondent Authority and became an officer of the Authority. Section 20 28
(1)reads as follows: 25 30 "Every officer employed on the staff of the company in Cyprus on a day to be fixed by a notice of the Governor to be published in the Gazette (in this section referred to as 'thefixedday'), who shall have given notice in writing within twenty-one days of the publication in the Gazette of the notice of the fixed day of his intention to be transferred to the Authority and who, in the opinion of the Governor, was mainly or wholly employed for the company's undertaking, shall be deemed to be an officer of the Authority at the same rate of pay, and, as near as may be, on the same conditions, as those on which he was employed by the company, with effect from the fixed day."' Under section 42 of Cap. 302, the respondent Authority 35 was vested with power to make all Regulations providing for the establishment and constitution of a scheme for the payment of gratuities etc... The said section reads as follows: "The Authority shall make such Regulations, as may be approved by the Governor, which shall be published in the 269 Sawides J. Tomboli v. CYTA
(1980)Gazette, providing for the establishment and constitution of a scheme for the payment of such superannuation allow ances and gratuities to such of the members, officers and servants of the Authority andupon such terms andcondi tions as may be specified in the Regulations." 5 In the exercise of such powers the Authority made the follow ing Regulations which were published in Supplement No.3 to the official Gazette of the Republic, No. 1276 of the31st May, 1976: (
- a)Under Notification 92: The Telecommunication 10 Services (Pensions and Allowances to the Employees of the Authority) Regulations of 1975, and (
- b)Under Notification 93: The Telecommunication Services (Provident Fund for Allowances to the Employees of the Authority) Regulations of 1975. 15 Under the provisions of both said Regulations, the retirement age of the employees was fixed,in thecase of male employees, as the60th year andthat of female employees, as the55th year of their respective age. (Vide regulation 2
(1)in the definition of "retirement age" ("σύνηθες διά την σφυττηρέτησιν δριον 20 ηλικίας") of theRegulations under Notification 92 andregulalation 15(l)(b) of the Regulations under Notification 93). The said Regulations, both in respect of Pensions and also of the Provident Fund, were communicated to the employees of the Authority, soon after their publication in the Gazette, 25 by a letter dated 5th June, 1976, copy ofwhich isexhibit 1 before the Court, whereby the employees were invited to make their option and communicate same to the Personnel Manager by written notice, specimen of which was sent with such letter. This was in line with regulations 33 and34,whereby provision 30 is made that copy of the Regulations should be made available by theSecretary toanymember of theFund. In reply to the said communication, adopting the specimen sent toher, theapplicant byletterdated24.6.1976, acknowledged her option to join the Pension Fund. The material part of 35 such letter reads as follows: " "Εχωτηντιμήνναγνωρίσω ΰμϊνδτι επιθυμώόπως ενταχθώ εϊς το *Ταμεϊον ΣΥΝΤΑΞΕΩΣ. 270 3 C.L.R. Tomboli v. CYTA Sawides J. Δηλώ ότι παρέλαβα ανά§ν αντίγραφου τώνεκδοθέντων Οπό της 'Αρχής Κανονισμών καΐ αντιλαμβάνομαι6τι άφ* ής στιγμής καθίσταμαιμέλος τοΰ ώςάνω αναφερομένου Ταμείου, δεσμεύομαι άπό πάσης απόψεως Οπό τών Κανονισμών του. 5 Υπογραφή Μαρία Τόμπολη Μαρτυρία "Ονομα και Έπώνυμον Μάρτυρος "Ανδρος Κ. Ζαντής Υπογραφή Μάρτυρος \ 10 * Να συμπληρωθή αναλόγως της προτιμήσεως: Ταμεΐον Συντάϋεωςή Ταμείου Προνοίας." ( " I have thehonour to inform you that I wish tojoin the •Pension Fund. I declare that I have received a copy of the Regulations made by the Authority and I realise that from the moment I become a member of the above Fund,I am bound inevery respect by its regulations. 15 Signature Maria Tomboli Witness Name and Surname of witness. Andros K. Zantis 20 Signature of witness * 25 30 35 To be filled in according to the option: Pension Fund or Provident Fund" ). By letter dated the30th October, 1978, respondent Authority informed applicant that as she would complete her 55th year of age on the 30th November, 1978, she was to retire from the service of the Authority as from the 1st December,1978. Copy of such letter is before the Court as exhibit "A". In reply to such letter applicant by letter of her advocates dated 20th November, 1978, informed the respondent Authority that she questioned the validity of their decision and refused to receive any benefits as a pensioner of the respondents. Such letter, copy of which was produced and is exhibit "B" reads as follows: 271 Sawides J. Tomboli v. CYTA
(1980)" Διευθυντήν Προσωπικού 'Αρχή Τηλεπικοινωνιών Κύπρου, Λευκωσία. Κύριε, θέμα: Μαρία Τομπόλη
(2513)άρ. ΛΠ.Α10 5 Άφυπηρέτησις έκ της υπηρεσίας τής 'Αρχής. Κατόπιν οδηγιών τής πελάτιδός μας κας Μαρίας Τόμπολη, έκ Λάρνακος, έπιθυμοΰμευ δπως άυαφερθοϋμευ είς προς αύτήυ έττιστολήυ σας ήμερ. 30/10/1978 καΐ υά σημειώσωμεν τα κάτωθι:Έκ μέρους τής ως άνω πελάτιδός μας καΐ άλλων θηλέων ύπαλ- 10 λήλων τής 'Αρχής Ιχομεν καταχώρηση άγωγήν είς τό Ε,Δ. Λευκωσίας δια τής οποίας αμφισβητείται τό δικαίωμα της Αρχής όπως άπολύη τάς θήλεις υπαλλήλους της εϊς τό 55ου έτος τής ηλικίας των. ΕΤυαι 6 Ισχυρισμός τής πελάτιδός μας δτι αύτη δικαιούται δπως συυεχίση έργοδοτουμέυη ύπό τής 'Αρχής μέχρι τοΰ 60ου έτους τής ηλικίας της ώς και οί άρρενες συνάδελφοι της. Ώς έκ τούτου ή πελάτις μας δέν προτίθεται δπως άποδεχθή τήν δια τής ώς άνω επιστολής σας εϊδοποίησιν περί τερματισμού τών υπηρεσιών της καΐ δέν αποδέχεται τήν λήψιν οίουδήποτε ποσού έκ τοΰ Ταμείου ΣυντάΕεως μέχρι εκδικάσεως τής αγωγής της Οπό τοΰ Δικαστηρίου. 15 20 Α.Ι. Δικηγορόπουλος Γεώργιος Άρέστης" ("Director of Personnel, Cyprus Telecommunications Authority, Nicosia. 25 Sir, Subject: Maria Tomboli
(2513)No. LP.A. 10 Retirement from the service of the Authority. On the instructions of our client Mrs. Maria Tomboli of Larnaca, we wish to refer to your letter to her dated 30/10/1978 and to observe the following:On behalf of our above client and other female employees of the Authority we have filed an action in the District Court 35 272 30 3 C.L.R. Tomboli v. CYTA Sawides J. of Nicosia whereby the right of the Authority to dismiss its female employees on their 55th year of age is disputed. It is the contention of our client that she is entitled to be employed by the Authority until her 60th year of age like her 5 male colleagues. 10 Therefore our client does not intend to accept the notice of the termination of her services sent byyour above letter and does not accept the receipt of any sum from the Pension Fund until the trial of the action by the Court. A . I . Dikigoropoulos Georghios Arestis"). A fact which is alleged by applicant in her statement of facts and which is denied by the respondent Authority is that during the time of her employment withCable and Wireless Ltd. there 15 was no discrimination as to the retirement age between male and female employees, whereas the respondent Authority alleges that there was no change concerning the retirement age. It is the applicant's contention that her forceful retirement upon the completion of her 55th year of age is discriminatory 20 on the ground of sex and as such, is contrary to Article 28 of the Constitution. Counsel for the respondent Authority by his written opposition alleges that:
(1)The said act and/or decision is lawful in all respects. 25 30 35
(2)There has never been a change in the age of retirement of the employees of the respondent Authority and that the retirement age was the same before the Authority took over from Cable and Wireless Ltd. and was included in the Regulations agreed upon between the Authority and theEmployees'TradeUnion and was accepted by the applicant and the other employees of the Authority and it was finally embodied in the General Regulations which were published in the Cyprus Gazette No. 1276 of the 31st May, 1976.
(3)In view of the above, the applicant cannot, at this stage, attack the validity of the said act and/or decision a fortiori in view of the fact that the applicant failed to file a 273 Sawides J. Tomboli v. CYTA
(1980)recourse within 75 days from the publication of the Regulations and continued to work under such conditions.
(4)The applicant brought an action in the District Court of Nicosia, under No.4079/78 and, therefore, thepresent proceedings amount to abuse of powers. 5 Byhis address counsel for applicant contested the validity of the Regulation concerning theforceful retirement upon completion ofthe55thyear ofagebyapplicant, inthat such Regulation is discriminatory on the ground of sex, and, therefore, contrary 10 to Article 28 of the Constitution which provides against any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, etc. It is his allegation that there is no express provision in the Constitution authorising the respondent Authority to discrimi- 15 nate against the applicant as to the age of her retirement on account of her sex. He further based his argument on the International Covenants on Human Rights adopted by the General Assembly of the United Nations as Resolution 2200 (XXI) of the 16th December, 1966 and which were enacted as 20 Law No. 14/69providing against anyform ofdiscrimination on account of sex. Specifically, he relied on Articles 25(c) and 26 of the International Covenant on Civil and Political Rights and Article 7 of the International Covenant on Economic, Social and Cultural Rights. He further contended that pursuant to 25 Article 169
(3)of the Constitution the said International Conventions and/or agreements which were concluded in accordance withtheprovisions ofthe Constitution and enacted as a Lawby the House of Representatives,have superior force to any Municipal Law, including Cap. 302and the Regulations made there- 30 under and, therefore, the act and/or decision complained of is null and void and of no effect whatsoever. He further dealt with the position of equality of treatment between male and female employees in the United Kingdom where,thoughsuchrelationsareregulatedbytheSexDiscrimina- 35 tion Act 1975,whereby provisions relating to retirement within section 6
(4)of the Act were left outside the provisions of the Act and are not considered asdiscriminatory, theBritish Courts have stretched the interpretation of section 6
(4)so as to take out of the exemption anything which appears to be discrimina- 40 274 3 C.L.R. Tomboli v. CYTA Sawides J. tory. In support of his argument in this respect, he referred to Garland v. British Rail Engineering Ltd. [1978] 2 All E.R.
- (At this stage, however, I wish to observe that the said case on which counsel based his argument on this point, was 5 reversed on appeal (vide Garlandv. British RailEngineering Ltd. [1979] 2 All E.R. 1163)). In conclusion he submitted that discrimination of the decision complained of, isclearly and actually arbitrary and unreasonable and cannot fall into any of the reasonable differentiations or 10 classifications to which the executive (in this case the respondent Authority) may resort to. 15 20 25 30 35 40 By his address counsel for the respondent Authority contended that the present recourse is out of time, in that it was filed after the expiration of 75 days since the publication of the administrative act No. 92 of 1976 and, therefore, the present recourse cannot proceed. He further alleged that the decision contained in the letterwhereby the services ofthe applicantwere terminated, is not an executory act, giving rise to a cause of complaint but is merely an act giving effect to what has been provided by the administrative act No. 92 of
- Therefore, such letter cannot be the subject of a recourse. Subject to the above, hesubmitted that the applicant had unreservedly accepted the administrative act complained of since its publication in 1976 and ever since acted upon it and, therefore, she does not possess a legitimate interest to attack it now. Finally, he submitted that in any event the administrative act attacked by the applicant, does not in any event offend Article 28 of the Constitution. He argued that since her employment by Cable and Wireless Ltd. the retirement agewas the sameand continued to bethe same after the taking over bythe respondent Authority of the powers and duties of Cable and Wireless Ltd. and has been the same till today. Since the establishment of the Republic of Cyprus, the respondent Authority started negotiations with its employees' Trade Unions and draft Regulations had been prepared under an agreement reached with the said Unions. There was full agreement as to the age limit which was accepted and acted upon till today. In concluding he submitted that in any event the right of equality in the enjoyment of any fundamental right is not so absolute as to exclude reasonable differentiations and distinctions 275 Sawides J. Tomboli v. CYTA
(1980)and that the differentiation in the present case is such as not to offend the Constitution. By his reply, counsel for applicant, disputed that the application is out of time and submitted that the publication of the Regulations in the Gazette under Notification 92 of 1976 is not 5 by itself an executory administrative act, as far as the applicant isconcerned. Such Regulations were madeunder the provisions of the Law and it is an act of a legislative nature and does not amount to an administrative executory act. At the material time when the Regulations were published, the applicant had 10 no legitimate interest to attack such Regulations. The only legitimate act that she could attack was the administrative act whereby the decision of the respondent Authority about her retirement was brought to her notice. He further alleged that the preparation and publication of the Regulations was a unila- 15 teral act on the part of the respondent Authority based on section 42 of Cap. 302and section 3 of Law 61/70 and he added that the discrimination in the present case is not a reasonable differentiation and distinction, as alleged by the other side but it is an arbitrary and unreasonable differentiation. 20 The questions of law posing for consideration in the present case, may be summarised and considered under the following headings:
(1)Whether the applicant possesses a legitimate interest entitling her to challenge the validity of the Regulations 25 on which her termination of employment was based, in view of her acceptance of such Regulations.
(2)Whether the present recourse is barred by limitation of time, as having been made out of the 75 days' period fixedby the Constitution as from the date when the admi- 30 nistrative act giving rise to it emanated.
(3)Whether the decision of the respondent Authority to terminate applicant's employment upon the completion of her 55th year of age is null and void, as offending Article28 of the Constitution, in that it makes discrimina- 35 tion as to the retirement age between male and female employees.
(4)Whether such decision is null and void as offending 276 3 C.L.R. 5 Tomboli v. CYTA Sawides J. International Conventions on Human Rights which were concluded in accordance with the provisions of the Constitution and enacted as law by the House of Representatives, and whether such Conventions have superior force to Cap. 302 and the Regulations made thereunder. I shall deal first with the first question as to whether applicant has a legitimate interest to pursue these proceedings or whether she has lost same, as a result of her unconditional acceptance of the Regulations embodying such provision. 10 It is an undisputed fact that the letter of the respondent Authority dated 30th November, 1978 whereby applicant was notified that her services were terminated on the completion of her 55th year of age, the validity of which is attacked, and the authority by virtue of which such letter was sent, are based on 15 the Regulations published under Notification 92 referred to earlier in this judgment. Such Regulations were promulgated by the respondent Authority in compliance with statutory provisions and communicated to the applicant who, after perusing them, as it appears in her letter (exhibit 2) accepted them 20 without any reservation. I come now to consider what is the effect of such acceptance. It has been repeatedly pronounced in a number of decisions of this Court that if a person accepts an administrative act or decision without protest, he, no longer possesses a legitimate 25 interest entitling him to make a recourse against it. In Piperis v. The Republic
(1967)3 C.L.R. 295 at p. 298, TriantafyHides, J. (as he then was) has stated: 30 35 "In my view, once the applicant has accepted the offer of appointment made to him on the 28th September, 1965, which included the salary now complained of—(and nothing was produced to show that he has accepted subject to a reservation regarding the salary offered to him)—he does not possess a legitimate interest
Article 146.2 of the Constitution entitling him to challenge the said salary by means of this recourse." In Ioannou and others v. The Republic
(1968)3 C.L.R. 146 at p. 153 it is stated: "In view of this fact, I am of the view that, in any case, they 277 Sawides J. Tomboli v. CYTA
(1980)cannot succeed in these proceedings, because the acceptance of the said benefits—without having been even alleged that it was made under protest—deprived them of a legitimate interest,
Article 146.2 of the Constitution." In Costas Ioannou v. The Grain Commission
(1968)3 C.L.R. 612 at p. 617, Triantafyllides, J. (as he then was), found as follows: 5 "Actually, the Applicant by acquiescing, at the material time, to the reduction of the rent allowance paid to him, and by accepting payment of the so reduced rent allowance, 10 deprived himself of the possibility of possessing an existing legitimate interest in the matter, directly and adversely affected,
Article 146.2 of the Constitution; and this, indeed, is a further reason for which this recourse cannot succeed." In Markou v. The Republic
(1968)3 C.L.R. 267 at p. 276 it was held: "It is well established in Administrative Law that if a person accepts an administrative act or decision he no longer possesses a legitimate interest entitling him to make 20 a recourse against it." On the same line, one can see the authorities in the Conclusions from the Jurisprudence of the Greek Council of State (1929-1959) pp. 260 and 261. The principle established by the above authorities was reite- 25 rated in Myrianthis v. The Republic
(1977)3C.L.R. 165and all the above cases are referred to therein, in which Triantafyllides, P. had this to say at page 168: "It is well established, by now, in the administrative law of Cyprus, on the basis of relevant principles which have 30 been expounded in Greece in relation to a legislative provision there (section 48 of Law3713/1928)which corresponds to our Article 146
(2)above, that a person, who expressly or impliedly, accepts an act or decision of the administration, is deprived, because of suchacceptance, of a legitimate 35 interest entitling him to make an administrative recourse for the annulment of such act or decision". 278 15 3 C.L.R. Tomboli v. CYTA Sawides J. Reverting back to the facts of the case before me, I find that the written acceptance by the applicant of the Regulations from which the termination of her employment emanates, without any reservation on her part, has deprived her of the possibility of 5 satisfying the Court that she possesses an existing legitimate interest
Article 146
.2 of the Constitution and has deprived her of the right to challenge the decision of the respondent Authority to give effect to the provisions of such Regulations and terminate her employment in accordance 10 thereto. In Case No. 1341/66 of the Greek Council of State, it was stressed that for the assent to an administrative act or decision to be such as to deprive the person concerned of the right to make a recourse against it, it must be expressed clearly and 15 distinctly and by unambiguous conduct from which it is to be necessarily inferred that it was intended to assent to the administrative act or decision in question. On the facts before me the acceptance by the applicant took place unreservedly and freely and there is no allegation to the 20 contrary. It satisfies the principle that the assent must be expressed clearly and distinctly and by unambiguous conduct. Having found so, I consider it unnecessary to deal with all other legal questions before me, in view of the fact that the recourse fails on the grounds of failure of the applicant to satisfy . 25 the requirement of possessing an existing legitimate interest. The recourse is, therefore, dismissed, but in view of all the circumstances. 1 make no order for costs. Application dismissed. No order as to costs. 279 -"