(1983)1982 September 18 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOS IOANNOU AND OTHERS, Applicants, v, THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Cases Nos. 218/80, 219/80, 220/80). Legitimate interest—Article 146.2—Acceptance of an administrative act or decision—When does it deprive someone of the right to challenge it by an administrative recourse—Police constables applying for permission to resign from the Police Force—— Required to pay compensation which they paid with reservation 5 of their legal rights—Such reservation sufficient to preserve for them a legitimate interest entitling them to file these recourses. Act or decision in the sense of Article 146.1 of the Constitution— Enlistments in the Police Force under regulation7 of the Police (General) Regulations, 1958—Purposes of enlistment within the domain of public law—Requirement to pay compensation upon applying for permission to resign—Abo within the domain of PublicLaw andassuchitmaybe challengedby mtans ofarecourse under the above Article. \0 Police Force—Enlistment in the Police Force under regulation 7 15 of the Police (General) Regulations, 1958—Resignation only withpermission of Commanderof Police—Who has, however, no power to require payment of compensation by police constable intending to resign—Such requirement in these cases in excess of powers—Regulation 8
(1)of the above Regulations. 20 The applicants enlisted in the Police as constables for an initial period of three years under regulation 7 of the Police (General) Regulations, 1958 (see No. 279 in the Subsidiary ISO 3 C.L.R. 5 10 15 Ioannou and Others v. Republic Legislation of 1958). All the applicants signed declarations (on 24th March 1980, 12th March 1979, and 1st March 1979, respectively) accepting the conditions of service contained in notices given to them under regulation 5(h) of the aforesaid Regulations. Theapplicants,inApril 1980,appliedinwritingfor permission to resign from the Police; applicant 1 (in case 218/80) stated that he had realized that he was not suited for a career in the Police and applicants 2 and 3 (in cases 219/80 and 220/80) stated that they were going to take up employment with the Cyprus Telecommunications Authority. In May 1980 the Commander of Police informed the officer in charge of the unit of the applicants that their applications might be looked at favourably only if each applicant was ready to reimburse the State for its expenditure in respect of salary, uniform, meals etc. The applicants accepted to pay the above expenses, but with reservation of their legal rights. 20 25 30 35 Eventually, applicant 1was required to pay to the Governmeat by way of compensation the amount of OE333.540mils, applicant 2 the amount of C£394.970 mils and applicant 3 the amount of C£398.540 mils; hence these recourses. Held,(I) on the question whether in the light of all relevant circumstances the applicants possess a legitimate interest, in the senseof Article 146.2 of the Constitution, entitlingthem to file theserecourses: That in order that the acceptance of an administrative act or decision should deprive someone of the right to challenge it by an administrative recourse for annulment such acceptance should take place unreservedly and freely and not because of fear of adverse consequences otherwise; that the reservation by the applicants of their rights, combined with the fact that they were virtually compelled to accept to pay compensation in order to be allowed to resign from the Police, was sufficient to preserve for the applicants a legitimate interest entitling them to file the present recourses. • (II) Onthe question of whether ornot thesubjudice decisions 151 Ioannoa and Others v. Republic
(1983)requiring the applicants to pay compensation come withinthe domainof public law or withinthat of private law: That taking into account that applicants have been appointed inthe ordinary course ofsatisfying theneeds of a public service 5 and that the conditions of service of the applicants were laid down by the Government unilaterally under regulation 5(h) of the Police (General) Regulations, 1958and werenever negotiated between the Government and the applicants, and, moreover, that there is not to be found in such conditions any term 10 providing for the payment by the applicants of compensation in case of their resignation from the Police, and having, furthermore,in mind that thepurpose for whichthe applicants enlisted in the Police falls clearly and obviously within the domain of public law, this Court is of the opinion that the sub judice 15 decisions come, also, within the domain of public law and that, therefore, the applicants may challenge them by means of the present recourses. Held, (III) on the merits of the recourses: That from the wording of regulation 8
(1)of the Police 20 (General) Regulations it is clear that the Commander of Police may permit or not the resignation of a police constable, but thereisnothing in such regulation empowering the Commander to impose conditions such as those which were imposed in the present cases; and that, therefore, the sub judice decisions 25 of the Commander to the extent to which the applicants were required to pay compensation should be annulled as having been reached in excess of powers. Subjudice decision annulled Cases referred to: 30 Myrianthisv. Republic
(1977)3 C.L.R. 165 at p. 168; PapaKyriacou v. HealthServices of Cyprus
(1970)3 C.L.R. 351 at pp. 354, 355; loannouv. Republic
(1979)3 C.L.R. 423 at pp. 451,452; Georghiades v. Republic
(1980)3 C.L.R. 486 at p. 490; 35 Michaelv. Republic
(1981)3 C.L.R. 147 at p. 152. Recourses. Recourses against the decision of the respondent to demand 152 3 C.L.R. Ioannou and Others v. Republic from applicants the payment of compensation as a condition for permitting them to resign from the Police Force. E. Markidou (Mrs.), for the applicants. CI. Antoniades, Senior Counsel of the Republic, for the 5 respondent. Cur,adv.vult. TRIANTAFYLLIDES P. read the following judgment. Bymeans of the present recourse the applicants challenge the decision of the Commander of Police, who comes under the respond10 ent Minister of Interior, to demand from them the payment of compensation as a condition for their being permitted to resign from the Police Force. The applicants enlisted in the Police as constables for an initial period of three years under regulation 7 of the Police 15 (General) Regulations, 1958 (see No. 279 in the Subsidiary Legislation of 1958). All the applicants signed declarations (on 24th March 1980, 12th March 1979, and 1st March 1979, respectively) accepting the conditions of service contained in notices given to them under regulation 5(h) of the aforesaid 20 Regulations. The applicants, in April 1980,applied in writing for permission to resign from the Police; applicant 1 (in case 218/80) stated that he had realized that he was not suited for a career inthePoliceand applicants2and3(incases219/80and220/80) 25 stated that they were going to take up employment with the Cyprus Telecommunications Authority. In May 1980 the Commander of Police informed the officer in charge of the unit of the applicants that their applications might belooked at favourably onlyif each applicant wasready 30 to reimburse the State for its expenditure in respect of salary, uniform, meals etc. The applicants accepted to pay the above expenses, but with reservation of their legal rights. Eventually, applicant 1 was required to pay to the Govern35 ment by way of compensation the amount of C£333.540 mils, applicant2 the amount of C£394.970mils and applicant 3 the amount of C£398.540 mils. 153 Triantafyllides P. Ioannou and Others v. Republic
(1983)As a result the applicants filed the present recourses which, in view of their nature, were heard together. As regards the issue of whether, in the light of all relevant circumstances, the applicants possess a legitimate interest, in the sense of Article 146.2 of the Constitution, entitUng them 5 tofilethepresentrecourses,counselfor theapplicantssubmitted that they possessed such an interest since they had agreed to pay compensation with reservation of their rights, and as, in any event, they had no choice but to accept to pay such compensation in order to be allowed to resign from the Police. 10 Counsel for the respondent was of the view that, unless it is found by the Court that the reservation of the rights of the applicants, as made, was not sufficient for such a purpose, they did possess the required legitimate interest. In Myrianthis v. The Republic,
(1977)3 C.L.R. 165, this 15 Court said the following (at p. 168): "It is well established, by now, in the administrative law of Cyprus, on the basis of relevant principles which have been expounded in Greeceinrelationto a legislativeprovi sion there(section48of Law 3713/1928) whichcorresponds 20 to our Article 146.2 above, that a person, who, expressly or impliedly, accepts an act or decision of the admi nistration, is deprived, because of such acceptance, of a legitimate interest entitling him to make an administra tive recourse for the annulment of such act or 25 decision (see, inter alia, Πορίσματα Νομολογία* τοΰ Συμβουλίου τ % ΈπικρατεΙα*, 1929-1959, pp. 260-261, Piperis v. The Republic,
(1967)3 C.L.R. 295, 298, Ioannou and. others v. The Republic,
(1968)3 C.L.R. 146, 153, Markou v. The Republic,
(1968)3 C.L.R. 267, 30 276 and Pericleous v. TheRepublic,
(1971)3 C.L.R. 141, 145, 146). It is quite clear that in order that the acceptance of an administrative act or decision should deprive someone of the right to challenge it by an administrative recourse 35 for annulment such acceptance should take place un reservedly and freely and not because of fear of adverse consequences otherwise (see, Πορίσματα,, supra, p. 261, Κυριακοπούλου Έλληνικόν Διοικητικόν Δίκαιον, 154 3 C.L.R. 5 Ioannou and Others v. Republic TriantafyUIdes P. 4th ed., vol. C, p. 124, and the Pericleous case, supra—and it may be pointed out, at this stage, that though the in the first instance decision in thePericleouscase was reversed on appeal in The Republic v. Pericleous,
(1972)3 C.L.R. 63,there was not disapproved of, on appeal, that part of thefirstinstance decision which is relevant for the purposes of this Interim Decision)". I have reached the conclusion that the reservation by the applicants of theirrights,combined with thefact that theywere 10 virtually compelled to accept to pay compensation in order tobeallowed toresignfrom thePolice,wassufficient topreserve for the applicants a legitimate interest entitling them to file the present recourses. Regarding now the question of whether or not the subjudice 15 decisions requiring the applicants to pay compensation come within the domain of public law or within that of private law, counsel for the respondent has argued that the matter falls within the domain of private law and that, in this connection, the provisionsof sections 73and 75of the Contract Law,Cap. 20 149, are applicable. In thecaseofPapakyriacouv. TheHealth ServicesofCyprus,
(1970)3 C.L.R. 351 (at pp. 354, 355), there were stated the following: 25 30 35 "The proper approach to a situation of this nature has been laid down by this Court, on appeal, in Paschalidou v. TheRepublic
(1969)3 C.L.R. 297; it was held in that case that the employment of a nursery school teacher on contract, on a month to month basis, was within the realm of public law because the appointment had been made 'in the ordinary course of satisfying the needs of a public service*. Likewise, the Applicant in the present case had been employed, for a very long and indefinite period of time, on a temporary basis, in the ordinary course of satisfying the needs of a publicservice, viz. the maternity service provided by the Nicosia General Hospital". Useful reference may, also, be made to the judgment of Hadjianastassiou J. in Ioannou v. TheRepublic,
(1979)3C.L.R. 423, 451, 452. 155 Triantafyllides P. Ioannou and Others v. Republic
(1983)In the light of the above case-law and having taken into account that the conditions of service of the applicants were laid down by the Government unilaterally under regulation 5(h),above, andwerenevernegotiated between the Government and theapplicants,and,moreover, thatthereis nottobe found 5 in such conditions any term providing for the payment by the applicants of compensation in case of their resignation from the Police, and having, furthermore, in mind that the purpose for which the applicants enlisted in the Police falls clearly and obviously within thedomainof public law, I am of the opinion 10 that the sub judice decisions come, also, within the domain of public law and that, therefore, the applicants may challenge them bymeansof thepresentrecourses(see, also,inthisconnect ion, the Conclusions from the Case-Law of the Council of State in Greece—Πορίσματα Νομολογίας τοϋ Συμβουλίου της 15 Επικρατείας—1929-1959, pp. 321, 322). As regards the merits of these cases it has been submitted by counsel for the applicants that the Commander of Police was not empowered by the relevant legislation—-the Police Law, Cap. 285, and the Regulations made thereunder—to 20 imposeconditionsfor permittingtheresignationoftheapplicants from the Police. Regulation 8
(1)of the already referred to Police (General) Regulations, 1958, reads—as modified under Article 188 of the Constitution—as follows: 25 "8.-(l) No member of the Force other than a special constable appointed under sub-section
(1)of section 30 of the Police Law, 1958, shall be at liberty to resign from the Forceunless expressly permittedto do so by theChief Constable",—now the Commander of Police—"and in 30 the case of Gazetted Officers, with the approval of the Council of Ministers: Provided that, in normal circumstances— (
- a)one month's notice will be required from members of the Force other than Gazetted Officers; and (
- b)three months' notice will be required from Gazetted Officers: 156 35 3 C.L.R. Ioannou and Others v. Republic Triantafyllides P. Provided further that the period of notice may be less ifacceptabletotheChiefConstable"—nowtheCommander ofPolice—"with theapproval oftheCouncil ofMinisters". From the wording of regulation 8
(1), above, it is clear that 5 the Commander of Police may permit or not the resignation of a police constable, but there is nothing in such regulation empowering the Commander to impose conditions such as those which were imposed in the present cases. I have, therefore, reached the conclusion that the sub judice decisions of 10 the Commander to the extent to which the applicants were required to pay compensation should be annulled as having been reached in excess of powers. Counsel for the respondent has submitted that the aforesaid conditions asto thepayment ofcompensation bythe applicants 15 were validly imposed as the relationship between the Republic and the appUcants wascontractual or quasi contractual. Even if, however, the contention of counsel for the respondent as to the nature of the said relationship could be found to be correct—and I do not agree with such contention—it is to 20 be noted that in the declarations which were signed, as afore-. , said, by the applicants, and by means of which they accepted [ their conditions of service, there is not to be found any term as regards any obligation on their part to pay compensation incasetheyresignfrom thePolice;consequently,thesubmission 25 in question of counsel for the respondent cannot be upheld. In any event, even if it is assumed, contrary to all the foregoing, that the conditions as to the payment of compensation by the applicants were validly imposed by the Commander of Police, in exercising any relevant discretionary powers, his 30 sub judice decisions ought still to be annulled for lack of due reasoningenablingthisCourttotesttheproprietyoftheexercise of the said discretionary powers; because, particularly, there should have been stated in such decision the data on the basis of which the compensation demanded from each individual 35 applicant was calculated (see, inter alia, Georghiades v. The Republic,
(1980)3C.L.R. 486,490and Michaelv. The Republic,
(1981)3 C.L.R. 147, 152). In theresult thepresent recourses succeed and the subjudice 157 Triantafyllides P. Ioannou andOthers v. Republic
(1983)decisions of the Commander of Pohce are declared to be null and void and of no effect whatsoever. In the light of all relevant considerations I do not propose to make any order as to the costs of these cases. Subjudice decisions annulled. No orderas tocosts. 158 5