(1981)1981 October 12 [A, Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS K. PROESTOU, Applicant, v. THE REPUBLIC O F CYPRUS, THROUGH THE MINISTER OF INTERIOR AND DEFENCE AND ANOTHER, Respondents. (Case No. 356/80)= National Guard—Military service—Exemption from—On ground of permanent residence abroad—Suspension of applicant's enlistment in order to complete his studies abroad—Not returning to Cyprus in order to dischargehis military duties and thus committing breach of the National Guard Laws—Decision not to 5 exempt himfrom military service lawfully taken in viewof proviso to section 4
(3)of the said laws. Constitutional Law—Equality—Discrimination—Article 28.1 of the Constitution—Wrong application of law on one occasion does not entitle another person to insist on continuation of such wrong 10 application even on the same facts. National Guard Laws—Proviso to section 4
(3)(c) of the Law—Application of— The applicant was born in 1943 and his class was called up for service in the National Guard in June,
- From July 15 1967 until December 1975 he wai. granted suspension of his enlistment in the National Guard in order to complete his studies at the University of Athens. He obtained his degree in medicine in 1968 and in 1975 he completed his specialization in suigery. In that year he married a Greek national lesident 20 of Gieece and he was appointed as Registrar of the Senaes Hospital in Greece where he worked until
- By a letter 314 3 CX.R. Proestou τ. Republic dated June 8, 1978 he applied for exemption ftom liability to serve in the National Guard on the ground that he was peima• nently residing outside Cyprus. The respondents dismissed his application and hence this recourse. 5 10 15 20 25 30 Respondents contended that after the expiration of the last suspension of his enlistment on the 31st December, 1975 he was bound to return to Cyprus for the discharge of his military duties and that by his non-returnhe committed a breach of the law. They could, therefore, by acting under the proviso* to section 4
(3)of the National Guard Laws, which follows para graph (f) thereof, lawfully refuse his application. Held,that the proviso to section 4
(3)(c), though connected from the drafting point of view, and on the face of the printing of the section to para, (f) of section 4
(3), yet its wording is such that it clearly refers to all the provisions of the Law; that it speaks of "any provision of this Law" and of "any decision of the Council of Ministers issued under the Law" and it does not speak of the exemption granted in para, (f) of section 4
(3)of the Law; that it inevitably follows that the respondents have correct!} applied the Law to the facts of the case,taking these facts as claimed to be by theapplicant himself, inasmuch as after the expiration of the last period of suspension granted to him he was bound to return to Cyprus for the dis charge of hismilitary obligations andhisfailure todosoamounts to a contravention of the provisions of the Law and in fact to compliance of thecall up order of his category of persons issued by the Council of Ministers; that,therefore, it cannot be said that the respondents acted under any misconception of Law or of fact or that the subject decision lacks due reasoning which inany event is tobe found in the materialin the file; accordingly the recourse must fail. The said proviso reads as follows: "Provided that, unless the Minister, on account of the special circum stances of the case otherwise decides no one will be granted exemption or suspension of his enlistment under any provisions of this Law or any decision of the Council of Ministers issued on the basis of this Law, if he has contravened or he has not complied with any provisions of this Law or any decision of the Council of Ministers issued or any order of the Minister issued under this Law: Provided further that the provisions of the aforesaid proviso will not apply to the case of a service-man who is exempted from obligation to serve in the force on the date of his call out for service". 315
(1981)Procstou τ. Republic Held,further, on the contention that the sub judice decision was discriminatoryagainst the applicant,contrary to Article 28.1 of the Constitution, inasmuch as in the case of loannides v. Republic
(1980)3 C.L.R. 233 on more or less the samefacts the applicantwas exemptedfrom militaryservice: 5 That although the facts in the loannides case are not exactly the same and that might be the answer to this point, yet, there is ample authority for theproposition thatin matters of equality of treatment, the wrong application of the law on one occasion does not entitle another person even on the same facts, to insist 10 on the continuation of such wrong application of tbe law. Application dismissed. Cases referred to: loannides v. Republic
(1980)3 C.L.R. 233 at p.
- Recourse. 15 Recourse against the decision of the respondents not to exempt applicant from his obligation for service in theNational Guard. Ph. Valiantisfor L. Papaphilippou, for the applicant. M. Flourentzos, Counsel of the Republic, for the respo- 20 ndents. Cur. adv. vult. A. Loizou J. read the following judgment. By the present recourse the applicant seeks a declaration that the act and/or decision of the respondents, dated 13th August, 1980, not to exempt him from his obligation for service in the National Guard is null and void and of no effect whatsoever and that what was omitted ought to have been done. 25 The facts of the case are as follows: The applicant was born in Kalogrea village in 1943 and his 30 class was called up for service in the National Guard in June
- Studying, however, medicine at the University of Athens, he was granted suspension of his enlistment from 18th July, 1967, until the 31st December,
- He had applied for that purpose whilst in Athens on the2nd March, 1967, as per exhibit 35 " G ' \ whereby he sought such suspension from enlistment for 316 3 CX.R, Procitoaτ.Republic Λ.LolzouJ, the puipose of the completion of his studies. He obtained his degree in medicine on the 15th June, 1968, and in 1975 he completed his specialization in surgery. In that year he married a Greeknationalresident of Greeceand hewas appoin5 ted as Registrar of the Serraes Hospital where he worked until 1979, when he moved to Aegina Hospital having at the same time his own consulting rooms. Thefirstsuspension granted tohimby the Minister of Interior on the 18th July, 1967, reads as follows: 10 15 20 "In the exercise of the powers vested in me by virtue ;>f exemption (a) referred to in the decision cf the Council of Ministers published under Notification 148 in the Third Supplement to the official Gazette of the Republic of the 16thJuly, 1964,andby virtue of Section26of theNational Guard Law 1964, I hereby grant to Charalambos K. Proestos of Kalogrea, holder of Cyprus Passport No. 27678, issued in Nicosia on the 5th September, 1961 I grant him suspension of enlistment until the 31st December, 1967, for the completion of his studies and I give him special permit for departure from Cyprus for the said purpose". And there followed the successive suspensions of enlistment that I have referred to earlier in this"judgment. The applicant by a letter dated 8th June, 1978, applied for 25 exemption from liabiUty for service in the National Guard on the ground that he is permanently residing outside Cyprus. His application was examined by the Advisory Committee and on the facts set out it expressed the following opinion: 30 35 "In thepresentcasetherearenewelementsthattheapplicant continues to be a permanent resident abroad during the period from the21st March, 1979, (thedateof the previous suggestion of the Committee)until to-day. So thesugges tion of the Committeeremains the same as that of the 21st March, 1979, but it is possible the Minister, if he deems it proper, to re-examine the case in view of the said new element of thepermanentresidence of the applicant abroad for the additional said period from 21.3.1979 till to-day". The respondent 1, the Minister of Interior, obtained also 317 A. Loizon J, Proestou τ. Republic
(1981)theviewsof the General Staff of theNational Guard and decided to dismiss the applicant's case. It is the case for the respondents that after the expiration of the period of suspension for enlistment of the applicant on the 31st December, 1975, he was bound to return to Cyprus for 5 the discharge of his military obligations and that by his non return he committed a breach of the Law, and/or he did not comply with a decision of the Council of Ministers, inasmuch as he was included in the decision of the Council of Ministers calling out, interalia,a category of persons towhich theapplicant 10 belongs. This order dated 29.12.1975 made under section 6
(4)of the National Guard Laws 1964-1975, published under No. 13 in Supplement No. 3 (Part II) to the official Gazette No. 1246 dated 2.1.76, brings the case of the applicant within the proviso to section 4
(3)of the National Guard Laws, which 15 follows paragraph (f), thereof and which reads: "Νοείται ότι, έκτος έάνό Υπουργός, λόγω είδικώνπεριστά σεων της υποθέσεως, ήθελεν άλλως αποφασίσει, ουδείς θα τυγχάνη εξαιρέσεως ή αναστολής κατατάξεως δυνάμει οίασδήποτε διατάξεως τοΰ παρόντος Νόμου ή οίασδήποιε άπο- 20 φάσεως τοΰ Υπουργικού Συμβουλίου εκδοθείσης βάοΐΐ τοΰ παρόντος Νόμου, έάν οΟτος έχη παραβηή 6έν ϋχη συμμορφωθη προς οίανδήποτε διάταξιν τοΰ παρόντος Νόμου ή οίανδήποτε άπόφασιν τοΰ Υπουργικού Συμβουλίου έκδοθεϊσαν ή οίονδήποτε διάταγμα τοΰ Ύπουργοΰ εκδοθέν 25 δυνάμει τοΰ παρόντος Νόμου: Νοείται περαιτέρω ότι αί διατάξεις της ως άνωεπιφυλά ξεως δέν θά έφαρμόζωνται είς τήν περίπτωσιν στρατευσίμου όστις έξηρεΐτο της υποχρεώσεως προς υπηρεσίαν έν τη Δυνάμει κατά τήν ήμέραν της κλήσεως αυτού προς ύπηρε- 30 σίαν". In English it reads: "Provided that, unless the Minister, on account of the special circumstances of the case otherwise decides no-one will be granted exemption or suspension of his enlistment 35 under any provision of this Law or any decision of the Council of Ministers issued on the basis of this Law, if he has contravened or he has not complied with any provi sions of this Law or any decision of theCouncil of Ministers issued or any order of the Minister issued under this Law: 40 318 3 C.L.R. Procstou τ. Republic A. Lolzou J. Provided further that the provisions of the aforesaid proviso will not apply to the case of a serviceman who is exempted from obligation to serve in the force on the date of his call out for service". 5 It was urged that the provisions of section 4
(3)(c) that they are exempted from military service citizens of the Republic permanently residing outside Cyprus, is subject to this proviso. It is the case for the applicant that the respondents acted contrary to law and especially in violation of the National 10 Guard Laws 1964-1977, section 4
(3)(
- c)just referred to and that support for the view that section 4{3)(
- c)is applicable is drawn from what was decided in the case of loannides v. The Republic
(1980)3 C.L.R. p. 233, where-at p. 236 Malachtos J. stated: 15 20 "Imust say thatin theparticular circumstancesof thiscase andinviewof thefact thatin 1973theapplicantwas allowed to leave Cyprus in order to completehis studies, he cannot be considered thathefailed toenlist in theNational Guard after the 15th July, 1972. But irrespective of my above view, thewording of section 4
(3)(c)of the NationalGuard Law is clear and unambiguous. Once it has been esta blished that the applicant is permanently residing abroad, he is entitled to exemption from the obligation to serve in the National Guard", 25 In my view the aforesaid proviso, though connected from the drafting point of view, and on the face of the printing of the section to para, (f) of section 4
(3),yet its wording is such that it clearly refers to all theprovisions of the Law. It speaks of "any provision of this Law" and of "any decision of the 30 Council of Ministers issued under the Law" and it does not speak of the exemption granted in para,(f) of section 4
(3)of the Law. Oncetherefore Ihave reachedthis conclusion as to the mean ingandeffect ofthisproviso, itinevitably follows thattherespon35 dents have correctly apphed the Law to the facts of the case, taking these facts as claimed to be by the applicant himself, inasmuch as after theexpiration of thelast period of suspension granted to him he was bound to return to Cyprus for the dis chargeofhismilitaryobligations andhisfailure todoso amounts 319 A. LotaM J . Ρπκβίοα τ. Republic (ΐηυ to a contraventionof the provisions of the Law and in fact to non-compliance of the call uporder of hiscategory of persons issued by the Council of Ministers, earlier referred to in this judgment. This being so it cannot be said that (he respondents acted under any misconceptionof Law or of fact or that the subject decision lacks due reasoning which in any event is to be found in the material in the hie. 5 The next point to be examined is that the sub judice decision is discriminatory against theapplicant contrary to Article 28.1 10 of the Constitutioninasmuch as in thecase of loannides (supra) on more or less the same facts, the applicant in that case was exempted from service, whereas the present applicant has not been so exempted. Although the facts are not exactly the same and that might IS be the answer to this point, yet, it must be said that there is ample authority for the proposition that in matters of equality of treatment, the wrong application of the law on oneoccasion does notentitleanotherperson even on thesamefacts, to insist on the continuation of such wrong application of the law. 20 Therefore this ground also fails. For all the above reasons this recourse is dismissed but in the circumstances I make no order as to costs. Applicationdismissed. No order as to costs. 320 25