(1983)1983 November 24 [HADJIANASTASSIOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION TAKIS HASAPOPOULOS, Applicant, v. THE ELECTRICITY AUTHORITY OF CYPRUS, Respondent. (Case No. 502/80). Public Corporate Bodies—Electricity Authority of Cyprus—Employees of—Are not "State Servants"—("Κρατικοί Υπάλληλοι")— Article 122 of the Constitution—Public Service Law, 1967 (Law 33/67)—Public Bodies {Regulation of Personnel Matters) Law, 1970 (Law 61/70). 5 The sole issue for consideration in this recourse was whether the term "state servants" used in a decision* of the Council of Ministers relating to compulsory retirement of state servants covered employees of Public Corporate Bodies such as the Electricity Authority of Cyprus. 10 Held, that though Article 122 of the Constitution undoubtedly includes the employees of Public Law Corporations, later, with the enactment of the Public Service Law, 1967 (Law 33/67), and the setting up in reality of another Public Service Commis sion other than the one provided by the Constitution (see 15 Bagdassarian v. The Electricity Authority of Cyprus and Another
(1968)3 C.L.R. p. 736) in case of service, retirement and dis ciplinary control the term of civil servant acquired a narrower meaning; that the Public Service Commission deals only with matters which concern the employees of the Government, 20 whereas matters or conditions regulating the service and retire ment of the servants of Public Corporations are, by virtue of The decision is quoted at p. 1199 post. 1196 3 C.L.R. 5 10 Hasapopoulos v. E.A.C. s.3 of Law61/70withintheexclusivecompetence ofthestatutory bodyitself;that theterm "state servant"includes or presupposes the element of direct service relationship to the state which does not exist in cases of servants of Public Corporations; and that, therefore, it is obvious that the Council of Ministers could not have decided in respect of employees who were not under its competence;accordinglytheemployees ofthe Electricity Authority of Cyprus are not "State servants" and are not covered by the relevant decision of the Council of Ministers. Application dismissed. Cases referred to: Bagdassarian v. E.A.C.
(1968)3 C.L.R. 736; Iosif v. CY.T.A.
(1970)3 C.L.R. 225. Recourse. 15 20 Recourse against the refusal of the respondent to re-adapt, for pension purposes, applicant's date of birth. N. Zomenis, for the applicant. G. Cacoyannis, for the' respondent. Cur. adv. vult. J. read the following judgment. In the present case the applicant seeks (
- a)a declaration that the decision of the Electricity Authority of Cyprus which was communicated to the counsel of the applicant on the 22nd October, 1980, by a letter dated 16th October, 1980, that for 25 the purposes of pension of the applicant they were not prepared to re-adapt the date of his birth by the addition thereto of 13 more days by virtue of the application of the new calendar and the relevant correcting decision of the Council of Ministers No. 1.4.378 dated 30.10.1975, is illegal, arbitrary, unconstitu30 tional, null and void and of no effect whatsoever; (
- b)a declaration of the Court that applicant, having been born on 23.6.1920, i.e. prior to 10th March, 1924 (official date of application of the new calendar) is entitled, for pension purposes, to the re-adaption of his date of birth by the addition 35 thereto of 13 more days and that on the basis ofthenew calendar and the said decision of the Council of Ministers his date of birth for pension purposes etc. corresponds with the 6th July, 1920. HADJIANASTASSIOU 1197 Hadjianastassiou J. Hasapopoulos \. E.A.C.
(1983)THE FACTS The applicant is a pensioner section head of the Electricity Authority of Cyprus and was born on the 23rd June,
- On the 10th March, 1924, there was introduced the new calendar for purposes of determining of the date of compulsory 5 retirement of public officers who had been born prior to the 10th March,
- The Council of Ministers by virtue of its decision No. 14.378 dated 30th October, 1975, re-determined their date of birth by 13 days subsequently in all instances in which this has not been made before.
(3)Applicant falls within 10 and is covered by the said decision and/or re-adaptation;
(4)By means of his relevant letters and particularly by letters of his counsel dated 23rd September, 1980 and 21st October, 1980, applicant asked from the Electricity Authority of Cyprus that his date of birth be duly re-adapted for pension purposes. 15 The Electricity Authority of Cyprus by its letter dated 16th October, 1980 to applicant's counsel which was received by him on 22nd October, 1980, informed applicant that after considering his application it decided not to accept his request;
(5)the said decision Gf the Electricity Authority of Cypius 20 constitutes a discriminatory treatment against the applicant contrary to Article 6 of the Constitution, it does not afford to the applicant equal protection and treatment, contrary to Article 28 of the Constitution, is injustifiable, illegal, unconstitutional, and null and void;
(6)Applicant is entitled that for pension 25 purposes his date of birth be duly re-adapted on the basis of the new calendar and the said decision of the Council of of Ministers which is applicable in his case. On the contrary, Mr. Cacoyannis, counsel for the Electricity Authority, opposed the legal grounds of the applicant put for- 30 ward, and in doing so he relies on the following grounds: (I) That the retirement of applicant was correctly and lawfully made and in accordance with the collective agreements in force and the terms of employment ofthe applicant;
(2)Respondents acted lawfully and in the proper exercise of their powers;
(3)The 35 decision of the Council of Ministers No. 14.378 dated 30th October, 1975, invoked by applicant refers to the retirement of public officers and not to the retirement of officers of organs of public law such as the Electricity Authority of Cyprus;
(4)The permanent appointment, promotion, disciplinary control 40 1I9S 3 C.L.R. Hasapopoulos v. E.A.C. Hadjianastassiou J. and retirement of the staff of the respondents is within the competence of the respondents in accordance with s.3 of the Public Bodies (Regulation of Personnal Matters) Law, 1970, Law No. 61/70 and consequently the said decision of the Council 5 of Ministers isnot applicable and does not bind the respondents;
(5)The sub judice act and/or decision and/or omission of the respondents does not constitute discriminatory treatment towards the applicant nor does it constitute unequal treatment;
(6)Thesubjudice decision of the respondents wasduly reasoned; 10
(7)The application does not reveal grounds on the basisof which the annulment of the sub judice act and/or decision or the performance of any omission will be justified. Before the Court there is really one point for decision, that which concerns the interpretation of the term "State servant" 15 as it is used in the decision of the Council of Ministers, No. 14.378 and whether it covers the servants of Public Corporate Body, and more particularly in the present case, the employees of Electricity Authority. The aforesaid decision of the Council of Ministers reads as 20 follows:- 25 "For the purpose of fixing the dates of compulsory retirement of the state servants (kratiki ipallili) who were born before the 10th of March, 1924 (date on which the new calendar was introduced by virtue of Pension Laws), the Council of Ministers decided the readjustment of the date of birth in cases of those servants where this was not done by recording their date of birth to have occurred 13 days subsequent to the recorded date". Indeed, counsel for the applicant based the main part of his 30 argument on Article 122 of the Constitution which provides that "Public Service means any service under the Republic other than service in the army of the security forces of the Republic and includes service under the Cyprus Broadcasting Corporation, the Cyprus Inland Telecommunication Authority 35 and any other Public corporate or unincorporate body created in the public interest " According to suggestion made by the learned counsel the provisions of Article 122 being constitutional provisions is the 1199 Hadjianastassfou J. Hasapopoulos v. E.A.C.
(1983)paramount law and supercedes and prevails every and any other legal provision or regulation inconsistent with them. Counsel in support of his grounds of law referred also to the Electricity Development Law, Cap. 171,especially to s.11 of this law, which as he alleged, has been enacted with the sole 5 purpose of including the persons employed in the public service and the servants of the Electricity Authority. Counsel further argued that asfrom thedate of establishment ofthe ElectricityAuthority, byvirtueofCap. 171,theemployees of the Electricity Authority are for all intents and purposes 10 considered to be civil servants. In addition he pointed out the identical position which exists between the terms of employment of the employees of Electricity Authority and the civil servants. Ontheother side,learned counsel for therespondents stressed 15 that by virtue of the provisions of s.3 of Law 61/70, the conditions regulating retirement have always been and still are within the exclusive competence of the Electricity Authority ofCyprusand nobodycouldlegislateordecidefor theElectricity Authority. In the light of the above and having in mind the arguments put before the Court 1 comeback to thedecision of the Council of Ministers and the meaning of the term "state servant" upon whom this decision is binding. At first it must be stated in respect of the submissions made 25 with reference to Article 122of the Constitution and itsconsequences that a term which is used by theConstitution must not be taken or used as a technical term. The Constitution only drafts the general frames and a term gains its substantial meaninganduncoversitselfbythespecialwayitisusedintherelevant 30 law. Imustalsosaythat Iagreewiththeviewsupportedbylearned counsel for the respondents that although Article 122 of the Constitution undoubtedly includes the employees of Public Law corporations, later, with the enactment of Law 33/67, 35 and the setting up in reality of another Public ServiceCommission, other than the one provided by the Constitution (see also 1200 20 3 C.L.R. Hasapopouk» v. E.A.C. Hadjianastasskw J. YervantBagdassarian v. The ElectricityAuthority ofCyprus and Another
(1968)3C.L.R. p. 736and Ioannis fosif\.Cyprus Telecommunications Authority,
(1970)3 C.L.R. p. 225), in case of service,retirement and disciplinary control the term of civil 5 servant acquired a narrower meaning. The Public Service Commission deals only withmatters which concern theemployeesoftheGovernment, whereasmattersorconditions regulating theserviceand retirement oftheservantsof Public Corporations are, by virtue of s.3 of Law 61/70 within the exclusive 10 competence of the statutory body itself. The situation does not change even if we based the sections of Cap. 171which have been cited bythelearnedcounsel ofthe applicant, who cannot be isolated but must be construed with reference to the other provisions of the law and their develop15 ment through the provisions of the Law 61/70. It must be also noted the careful wording of the contents of thedecision of Council of Ministers. It usesthe term "state servant" which it could not be taken in the wider sense. The teim "state servant" includes or presupposes the element of 20 direct service relationship to the state which does not exist in cases of servants of Public Corporations. In my view, therefore, it is obvious that the Council of Ministers could not have decided in respect of employees who werehot under itscompetence. For thedecision to be binding 25 for the servants of Electricity Authority as well, it had to be approved by theauthority, as it hasdone later. Unfortunately for the applicant this was made after his retirement and its case falls out of the time boundaries of this decision. Therefore, the application is dismissed. There will be no 30 order as to costs. Application dismissed. No order as to costs. 1201