(1983)Ι98Λ November 21 [SAVVIES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANTONIOS ANDRONIKOU. Applicant. v. THE REPUBLIC OF CYPRUS. THROUGH
- THE COUNCIL OF MINISTERS.
- THE MINISTER OF FINANCE. Respondents. [CaseNo. 216/80). Legitimate Interest—Article 146.2 of the Constitution—Free and unreserved acceptance of an administrative act or decision deprives the acceptor of a legitimate interest to challenge the validity of such act or decision—Free and unreserved exercise by applicant of option that provisions of Pensions (Amendment) {No. 2) Law. 1967 (Law 18/67) were to he extended to hint5 Has deprivedhim of any legitimate interest to challengeadecision calculating his pension on the basis of such option. By virtue of the legislation in force immediately before the date of the coming into operation of the Constitution, the age of retirement of public officers, including the applicant, was 10 that of 55 years (see section 8
(1)of Cap. 311). This section was subsequently repealed by section 7 of Law 9/67 and replaced by a new section 8 providing that the age of retirement of public officers shall be that of 60 years. Officers who were already in the service of the Republic were given an opponunity to make 15 an election under section 5 of Law 18/67 that certain provisions of Law 9/67 and of the Regulations set out in the Schedule (hereto, should not be applicable to them and also avoid the application to them of the said section 7 of Law 9/67. The applicant made his election by accepting unreservedly the option given to him by Law 18/67 and the provisions of the amended law were extended to him to the effect that the age of 1280 20 3 C.L.R. 5 !0 15 20 25 30 35 40 Andronikou v. Republic his retirement should be the age of 60, subject to the provisions of the amending law and the Regulations set out in the Schedule thereto. The said Regulations which came into force by virtue of section 7 of the Pensions (Amendment) (No. 2) Law, 1967 (Law 18/67)as from the Ist April 1967provided that the pensionable emoluments of an officer who has exercised a right of election under section 5 of Law 18/67 "shall be reduced by six and one-quarter per centum". Upon making his election the pensionable emoluments of the applicant had been reduced according to the provisions of the above regulations. In 1973 the applicant retired from the Civil Service in the public interest by virtue of sections 6 and 7 of Cap. 311;and the decision for the assessment of the pensionable emoluments of the applicant was taken at the time of his retirement from the civil service in 1973,when the calculation of his emoluments was made and paid to him. The applicant accepted such calculation without any reservation or protest and without having challenged such decision within the 75 days time-limit provided by the Constitution. On the 12th January, 1980, the applicant sent a letter to the Director-General of the Ministry of Finance, requesting that the calculation of his pension and gratuity be revised in the light of the decision of the Supreme Court in lon'ulesv. The Republic (.1979) 3 C.L.R. 679, alleging that his case was falling within the ambit of that decision as the facts of his case were the same as in the lonides case and asking that heshould betherefore treated in the sameway. The respondent rejected his claim and hence this recourse. Held, that a person who unreservedly and freely accepts an act or decision of the administration, isdeprived because of such acceptance, of a legitimate interest to challenge the validity of such act o r decision; that the unreserved and free exercise by the applicant of the option that the provisions of Law 18/67 were to be extended to him, has deprived him of any legitimate interest to challenge such decision; accordingly this recourse should fail. Application, dismissed. Cases referred to: lonides v. Republic
(1979)3 C.L.R. 679; lonides v. Republic
(1979)3 C.L.R. 206; Stylianides v. Republic
(1983)3 C.L.R. 672; 1281 Andronikuu \. Republic
(1983)Zambakides v. Republic
(1982)3 C.L.R. 1017; Tomboli \. Republic (I9S2) 3 C.L.R. 149; Economidcs v. Republic
(1980)3 C.L.R. 219at p.
- Recourse. Recourse against therefusal of the respondents to reconsider the computation of the pension andgratuity payable to him on his retirement. A. Triantafyllides, for the applicant. A. Papasavvas, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. SAVVIDLS J. read the following judgment. The applicant chal lenges the refusal of the respondents to reconsider the computation of the pension a n dgratuity payable to himon his retirement, which is contained in a letter dated 28th May, 1980 addressed to him and the contents of which lead as follows: "Κύριου Α. 'Ανδρόνικου Γενικό Διευθυντή Κυπριακού 'Οργανισμού Τουρισμού. "Εχω εντολή ν' αναφερθώ στην επιστολή σαςμέ άρ. Ρ.51 και ήμερ. 12.1.1980, μέτήνοποία ζητάτε ν' έπανυπολογισθεϊ ή σύνταξη και το εφ' άπαξ φιλοδώρημα που έλάβετε κατά την άφυπηρέτησή σας α π όι ή δημόσια υπηρεσία ύπότό φως της αποφάσεωςτοΰ 'Ανωτάτου Δικαστηρίου στην "Εφεση άρ- 211 (Νίκος Ίωνίδης ν. Κυπριακή Δημοκρατία) και σας πληροφορήσω ότι σύμφωνα μέ γνωμάτευση τοΰ Γενικού Εισαγγελέα της Δημοκρατίας, δυνάμει της π ι ό πάνω απο φάσεως δεν προκύπτει υποχρέωση στην Κυβέρνηση για αναθεώρηση της συντάξεως των συνταξιούχων υπαλλήλων π ο ύ άσκησαν ανεπιφύλακτα την εκλογή τους δυνάμει τοΰ άρθρου 5 του Περί Συντάξεων (Τροποποιητικού) ( Ά ρ 2) Νόμου Άρ. 18/67 άλλα μόνον εκείνων π ο ύ άσκησαν την εκλογή τους ύ π ό επιφύλαξη παρομοίαν μέ εκείνη τού κ. Ίωυίδη, γ ι ά τό λόγο ότι ή απόφαση τού Ανωτάτου Δικα στηρίου σαφώς καθιστά τήν επιφύλαξη των δικαιωμάτων. την οποίαν έκαμε ό αίτητής, αποφασιστικό παράγοντα. Τό D E C I D E N D I της αποφάσεως εΐναι ότι τό διηαοτήρ-ο κατέληξε στό συμπέρασμα του και ακύρωσε τήν προσβληθεΐοχ; 1282 I..R. Andronikou v. Republic Savvfdes ,
- πράξη επειδή ό αίτητής είχε κάμει τήν επιφύλαξη. Ό κ. Ίωνίδης εϊχε κάμει τήν έξης επιφύλαξη πάνω στο έντυπο μέ τό όποιο άσκησε τήν εκλογή του κατά τό 1967: Έάν οιαδήποτε πρόνοια τού ώς άνω Νόμου, ήτις επηρεάζει τά συμφέροντα μου, αντίκειται προς τό Σύνταγμα επιφυλάσσομαι νά εγείρω τοΰτο έν καιρώ τω δεόντι'. Έσεΐς δεν ασκήσατε τήν εκλογή σας κατά τό 1967 ύπό επιφύλαξη Οπως τήν πιο πάνω και συνεπώς, δε μπορεί νά γίνει αναθεώρηση των ωφελημάτων άφυπηρετήσεως σας δια της μή εφαρμογής τοΰ Κανονισμού 19Α. γιά γενικό Διευθυντή 'Υπουργείου Οικονομικών" ("Mr. Α. Andronikou Director-General Cyprus Tourism Organisation, Iam directed to refer to your letter No. P. 51 dated 12.
- , 1980 by which you ask that the pension and the gratuity which you received on your retirement from the public service be reconsidered in the light of the judgment of the Supreme Court in Appeal No. 211 (Nicos lonides v. Republic)and to inform you that according to legal advice of the Attorney-General of the Republic, according to the above judgment there does not arise any obligation on the Government for reconsideration of the pensions of officers on pension who exercised unreservedly their option vide section 5 of the Pensions (Amendment) (No.2) Law No. 18/67 but only for those who exercised their option with a reservation similar to that of Mr. lonides, for the reason that the judgment of the Supreme Court clearly renders, the reservation of rights, which the applicant made, a decisive factor. The DECIDENTl of the judgment is that the Court reached its conclusion and annulled the attacked act because the applicant had made the reservation. Mr. lonides had made the following reservation on the form with which he exercised his option in 1967: 'If any provision of the above Law, winch alicets my 1283 Suv\ides J. Androaikou v. Republic (1983' interests, contradicts the Constitution I reserve m> right to raise it in due course". You did not exercise your option in 1967 with a reservation as the above and therefore, no reconsideration . of your retirement benefits can be made by the non- 5 enforcement of regulation I9A. for Director-General Ministry of Finance"'). The applicant joined the Public Service before I960 and was a member of such service immediately before August 16, I960 when the Constitution of Cyprus came into operation. After the Independence of Cyprus and the date of the coming into operation of the Constitution his terms and conditions of service were safeguarded under the provisions of Article 192 and, in particular, paragraphs I and 7 of the Constitution which read as follows: Paragraph I— "Save where other provision is made in this Constitution any person who, immediately before the date of the coming into operation of this Constitution, holds an office in the 20 public service shall, after that date, be entitled to the same terms and conditions of service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service of the Republic on or after that date'*. 25 And paragraph 7— "'For the purposes of this Article— (a) 'public service' in relation to service before the date of the coming into operation of this Constitution means service under the Government of the Colony of Cyprus 30 and in relation to service after that date means service in a civil capacity under the Republic and includes service as a member of the security forces of the Republic; (b) 'terms and conditions of service' means, subject to the necessary adaptations under the provisions of this Consti- 35 tution, remuneration, leave, removal from service, retirement pensions, gratuities or other like benefits". 1284 10 15 Λ C.1..H. Andronikou ι. Republic Sanities J. By virtue of the legislation in force immediately before the date of the coming into operation of the Constitution, theage of retirement ofpublic officers, including the applicant, wasthat of 55 years (see section 8
(1)of Cap. 311). This section was subsequently repealed by section 7 of Law 9/67 and replaced by newsection 8 providing that theage of retirement of public officers shall be that of 60 years. Officers who were already in the service of the Republic were given anopportunity to make an election under section 5of Law 18/67 thatcertain provisions of Law 9/67 and of the Regulations set out in the Schedule thereto, should not be applicable to them and also avoid the application to them of the said section 7 of Law9/67. The applicant made his election by accepting unreseivedly the option given to himby Law 18/67andthe'provisions of the amended law were extended to him to the effect that theage of his retirement should bethe ageof 60, subject to the provi sions of the amending law and the regulations set out inthe Schedule thereto. Thesaid Regulations which came into force by virtue of section,7 of the Pensions (Amendment) (No. 2) Law, 1967,(Law 18/67) as from the 1st April, 1967 and aie to be found in the Schedule to the said Law, read as follows: "19A.-
(1)Forthepurposes of Regulation 19,thepension able emoluments of an officer who has exercised a right of election under section 5 of the Pensions (Amendment) (No. 2)Lawof 1967 shall bereduced bysix and one-quarter per centum.
(2)Inthis Regulation theterm 'pensionable emoluments* meansthe salary and the boaid orboard and lodging allow ances asincreased under the Public Officers (Amalgamation of part of the Cost-of-Living Allowance with the Salaiies) Law 1967*'. ' Upon making his election the pensionable emoluments had been reduced according to the provisions of Regulation 19A by six and one-quarter per centum. The applicant in 1973 retired from thecivil service in thepublic interest by virtue of sections 6and 7of Cap. 311as amended,totake over the duties of the Director-General of the Cyprus Tourism Oiganisation, a post which he is still holding. On the 12th January, 1980, the applicant submitted a letter to theDirector-General of the 1285 Sa>vides J. Andronikou v. Republic
(1983)Ministry of Finance, requesting that the calculation of his pension and gratuity be revised in the light of the decision of the Supreme Court in lonides v. The Republic
(1979)3 C.L.R. 679, alleging that his case was falling within the ambit of that decision as the facts of the present case were the same as in lonides case and asking that he should be therefore treated in the same way. The Director-General of the Ministry o\' Finance in reply to hisletter informed the applicant that according to the opinion of the Attorney-General of the Republic, his case was not falling within the ambit of the lonides case. because, no reservation had been made when accepting the option given to hi:u, and, therefore, there was no question of reconsideration of his pension and gratuity. Reference to this letter has already been made earlier in this recourse. As a result of such letter, the applicant filed the present recourse. challenging its validity. The grounds of law on which this recourse is based are as set out in the application, as follows: "I. Applicant is covered by the provisions of Article 192 of the Constitution. 2. Consequently, his terms and conditions of service cannot be altered to his disadvantage. Therefore, S.7 of Law 9/67, S.8 of Cap. 311, S.5 of Law 18/67 and S.19(A) of the Schedule to Law 18/67 are unconstitutional contrary to Article 192 of the Constitution, in that Applicant's terms and conditions of service are, thereby altered to his disadvantage. 3. Regulation 19(A) amounts to an alteration of his conditions of service to his disadvantage. 4. Consequently, the retirement pension and gratuity of the Applicant should have been computed as if Regulation 19(A) appearing in the Schedule of Law 18/67 had not been enacted. 5. During the course of the hearing, Applicant will rely on Revisional Appeal No. 211 (lonides v. The Republic)". Counsel for respondents opposed the application and the grounds of law on which the opposition was based, are that:"The applicant does not challenge an executory administrative act, but a confirmatory one. 1286 3 C.I.R. Andronikou v. Republic Savvides .). Independently of such preliminary objection, the sub judice act and/or decision was taken lawfully and properly and after all facts and circumstances of the case were taken into consideration". 5 10 15 Learned counsel on both sides filed their written addresses expounding on the grounds of law raised by them. From the contents of such addresses, the issues which pose for consideration in the present recourse, are the following: (
- a)Whether the acceptance by the applicant without any reservation of his right of election has deprived him of any legitimate interest in the case. (
- b)Whether the contents of the letter sent by the DirectorGeneral of the Ministry of Finance amount to an executory act or they are merely of a confirmatory or informatory nature. (
- c)Whether the provisions of section 7 of Law 9/67 and Regulation 19A of Law 18/67 are to be treated as unconstitutional in that they violate the vested rights of the applicant concerning his pension and gratuity. 20 As thiscaseemanated fiom the decision of the Supreme Couit in the lonides case and most of the arguments of counsel are based on that case, I shall briefly deal with the facts of such case and the findings of the trial Court, to consider whether the facts of the present case are similar to those in the lonides case. 25 The facts in lonides case were briefly as follows: The applicant was in the public service for 34 years and retired on the 1st February, 1969 on reaching the age of 55. After the enactment of Laws9/67 and 18/67the applicantfilledina printed form by means of which he elected, purportedly under section 30 5 of Law 18/67, not to come, inter alia, within the ambit of section 7 of Law 9/67 but he proceeded to add to the text of the said form a reservation as follows: "If any provision of the above law which affects my interests iscontrary totheConstitution, I reserve the right to raise this matter at the appropriate 35 time". This form was forwarded to the Accountant-General who acknowledged receipt of it, without making any comment. After his retirement from the public service, on February 9. 1287 S;mides J. Andronikou \. Republic
(1983)1969,on attaiiung theage of 55, incomputing theannual pension and gratuity payable to him, the respondent decided to appl> regulation 19A of the Pensions Regulations, and as a result. his pensionable emoluments were reduced by 6 and one-quarter per centum. The. applicant challenged the above decision b> 5 means of a recourse which was dismissed in the first instance . by a Judge of this Court sitting at first instance (see, lonides v. The Republic
(1979)3 C.L.R. 206, on the ground that the consequence complained of, has resulted from the option exercised by the applicant and which was fatal to his claim. The Full 10 Bench of the Supreme Court on appeal from the first instance Judge, allowed the appeal and this is what was said in that judgment by Triantafyllides, P. in delivering the judgment of the Full Bench at pp. 684, 685:"We are of the opinion that what was, in effect, done is 15 that the appellant has exercised the right of election under section 5 in order to evade the application of the sections of Law 9/67, and of the regulations in the Schedule to such Law, which are referred to in the said section 5, but, at the same time, he reasserted his vested rights under Article 2G 192 of the Constitution, one of which was that the terms and conditions of his service, as were applicable to him before the date of the coming into operation of the Constitution, including his right to pension and gratuity, would not be altered to his disadvantage; and the reduction of his 25 pension and gratuity byvirtue ofthe operation of regulation I9A does constitute an alteration to his disadvantage, contrary to the provisions of paragraphs 1 and 7 of Article 192". Comparing the facts in the lonides case and the grounds 30 on which the first instance decision was set aside on appeal, it is apparent that the facts of the present case are different from those in lonidescase. In lonidescasethere wasno unconditional exercise of the option which was given to him. In the present case the applicant made his option by signing and submitting 35 the respective form, accepting the provisions of section 7without any reservation, whereas in the lonides case the applicant accepted the offer with full reservation of any rights affecting his interests and reserving his right to raise the matter when the appropriate time would come, such appropriate time being 40 1288 3 C.L.R. Andronikou v. Republic Savvides .1. the time of his retirement when his pensionable emoluments were to be assessed. Immediately upon his retirement and when his pensionable emoluments were assessed, the applicant inthat case, within the period of 75days,challenged the decision 5 of the respondents to calculate his emoluments of the basis of his rights vested in him under the provisions of the Constitution before the enactment of Laws 9/67 and 18/67, and regulation 19A, relying on the fact that the election made by him was not an unconditional one, but that he had already 10 reserved his rights in this respect and that the respondents did not raise any objection or refused to accept his qualified election. it has been held time and again by this Court that a person who unreservedly and freely accepts an act or decision of the administration, is deprived, because of such acceptance, of a ^5 legitimate interest to challenge the validity of such act or decision (see, inter alia, Stylianides v. Republic
(1983)3 C.L.R. 672, Zambakides v. Republic
(1982)3 C.L.R. 1017 and the decision of the Full Bench in Tomboli v. CYTA
(1982)3 C.L.R. 149 and the cases referred to therein). 20 in the light of the above decisions, the unreserved and free exercise bythe applicant of the option that the provisions of Law 18/67 were to be extended to him, has deprived him of any legitimate interest to challenge such decision and is fatal to his recourse. 25 Thisfindingdisposes of this recourse; nevertheless, Iam going to consider whether, even assuming that there was a reservation by the applicant, this recourse was made within the prescribed period of 75days. The decision for the assessment of the pensionable emolu30 ments of the applicant was taken at the time of his retirement from the civil service in 1973.when the calculation of his emoluments was made and paid to him. The applicant accepted such calculation without any reservation or protest and without having challenged such decision within the 75 days time-limit -"5 provided by the Constitution, as the applicant in lonides case did. Once he did not challenge the decision within such time, his present recourse filed after more than 7 years from the date 1289 Sawides J . Andronikou v. Republic
(1983)when the decision for assessment of his pensionable emoluments was made, is out of time. Finally, I come to consider whether the letter of the DirectorGeneral embodies a new decision after a new inquiry on the matter which could be challenged as an executory act and/or decision. In Zambakides v. Republic (supra) the facts of which arc similar to the present case, and the recourse was directed against a decision contained in a similar letter by the Director -General of the Ministry of Finance, as in the present case, A. Loizou, J. had this to say at page 1024: 5 10 "As it has been said time and again, the question as to when there is a new inquiry is a factual matter and depends on the circumstances of the case. In the present case the factual background—if that reservation wasevermade— was the same as it existed at the time the original executory 15 decision was taken. A re-examination was asked by the applicant in view of the decision in lonides v. The Republic (supra) but that cannot turn the new act into an executory one, as rightly, if I may say with respect, was stated in Economides v. The Republic
(1980)3 C.L.R. 219, at p. 20 223, by Triantafyllides P. , it cannot be said that an act isnot confirmatory because it is the outcome of a re-examination of a certain matter from its legal aspect only, in the light of the legal situation which existed when a 25 previous executory decision in relation to it, which is being confirmed, was taken (see, in this respect inter alia, Lordos Apartotels Limited v. The Republic
(1974)3 C.L.R. 471, the Conclusions from the CaseLaw of the Council of State in Greece, supra, p. 241, 30 and the Decisions of the said Council in cases Nos 5/1937, 229/1938, 439/1938, 1013/1966, 2250/1966, 2777/1968, 1916/1970, and 3137/1970)'. In my view, the fact that a judicial pronouncement has been made on the construction of a particular law or the 35 constitutionality of same by the delivery of a judgment by the Supreme Court, does not, upon the application of a person who has not exercised his rights under Article 146 1290 3 C.I..Κ. 5 Andronikou v. Republic Savvides J. of the Constitution when the executory act in question was taken, constitute a new material with regard to which there was an obligation tocarry out a new inquiry or if an inquiry was carried out that the decision reached thereunderconstitutes a new executory act and not a confirmatory act of a previous executory one. The act, therefore, is con firmatory and could not be the subject of a recourse which should fail on this ground also". It is clear from the contents of such letter that it does not 10 embody a new decision but it is merely confirmatory of the original decision, informing the applicant at the same time that the question of revision of his pensionable emoluments could not be reconsidered in the light of lonides case, as the facts in such case were completely different from the fact of his case. 15 20 Having found as above, Iconsider it unnecessary to deal with any other issues raised in these proceedings. For the reasons above stated, this recourse fails and is hereby dismissed, but in the circumstances of the case 1make no order for costs. Recourse dismissed. No order as to costs. 1291