clr/1984/1984_3_319.pdf

(1984)without protest, he no longer possesses a legitimate interest entitling him to make a recourse against it in the sense of Article 146.2 of the Constitution; that after taking into consideration thefact that the appellantshad accepted freely and unconditionally their appointments in which their salary scales were explicitly 5 set out and although they had been appointed to their posts a long time ago, such period ranging from two to twelve years, and were receiving their salaries regularly, they never protested or raised the issue, this Court has come to the conclusion that they have no legitimate interest to pursue their recourses and even if 10 such legitimate interest might have existed at any time it has been lost by the expiration of more than 75 days from the date when their first salary was paid to them; accordingly the appeal must fail. Appeal dismissed. 15 Cases referred to: Neocleous and Others v. Republic

(1980)3 C.L.R. 497; Tomboli v. CY.T.A.

(1980)3 C.L.R. 266 and on appeal

(1982)3 C.L.R. 149; Georghiades v. Republic

(1981)3 C.L.R. 431; 20 Aniliades and Others v. Republic

(1981)3 C.L.R. 21; Myrtanthis v. Republic

(1977)3 C.L.R. 165 at p. 168; lonides v. Republic

(1979)3 C.L.R. 679; Christofides v. CY.T.A.

(1980)3 C.L.R. 498; loannou and Others v. Republic

(1983)3 C.L.R. 150; 25 Shamassian and Others v. Republic

(1973)3 C.L.R. 341; Sawides v. Republic

(1975)3 C.L.R. 48. Appeal. Appeal against the judgment of a Judge of the Supreme Court (L. Loizou, J.) given on the 21st March, 1980 (Rcvisional Juris- 30 diction Case Nos. 337/74 and 331/74)* whereby appellants' recourses against the refusal of the respondent to grant additional increments to applicants were dismissed. S. Spyridakis with A. Xenophontos, for the appellants. A. Evangeloit, Senior Counsel of the Republic, for the res- 35 pondent. Cur. adv. vult. • Republic in

(1980)3 C.L.R.

1. 320 3 C.L.R. HadjiConstantinou and Others t. Republic P.: The judgment of the Court will be delivered by Mr. Justice Sawides. TRIANTAFYLLIDES SAVVIDES J.: The appellants are 58 out of 84 applicants in three recourses heard together by a Judgeof this Court sit5 ting in the first instance, as presenting common questions of law and fact, by which they were challenging the decision of the iespondents refusing to grant to them additional increments and/or emplacing them in the same salary scale as they didin other cases. Their appeal is directed against the decision of 10 the trial Judge whereby their said recourses were dismissed. The facts as appearing in the judgment of the learned trial Judge andwhich have not been contested,arcbriefly as follows: All theapplicants were prior to their appointment to the permanent establishment engaged as casual Firemen. The dates 15 of their appointment on a temporaiy basis range from 1956 to March, 1971andthe dates of their appointment to the permanent establishment range from December, 1961 to April,
2. The salary of the temporary post and that of the permanent post during theyears 1957-1973 appear in an annex to 20 exhibit
3. As from 1969the salary of the temporaiy post was either £552 or £558 per" annum and that of thepermanent post £510x18-582x24-
4. On their appointment to the permanent establishment they were put on the starting point ofthe salaiy scale withtheresult that their salarywasbyabout £5per month 25 lower than what they were getting whilst employed on a casual ba".is, but none of them complained about this nor did they makeanyreservation when accepting theoffer for appointment. On the 22nd March, 1973,one Andreas Eraklides, who was until then serving as a Fire Serviceman on a temporary basis 30 was appointed to the permanent establishment. He accepted the offer for appointment without any reservation and like all others, he wasput on the lower point of the scale. When he noticed, however, after iecciving his first monthly salary in the established post, that this lesulted in the reduction of his 35 salary he addressed a letter dated 12th May, 1973 exhibit 1, to the Chief Fire Service Officer complaining about the matteT and requesting that the necessa-.y steps be taken so that his salary would bebrought m line with what hewasgetting whilst feiving on a temporary basis. He was orally advised by the 321 Sawfdes J. HadjiConstantinou and Others v. Republic

(1984)Chief Fire Service Officer to apply to the Chief of Police and this he did through the Chief Fire Service Officer by his letter dated 21.5.1973, exhibit

1. Eventually, the Chief of Police under cover of a letter dated 26.5.1973, exhibit 4, remitted the request to the Diiector-General of the Ministiy of Finance. On the 13th July, 1973, the Ministry of Finance replied to the Chief of Police by the letter exhibit 5 irtforrning him that it had been approved that Mr. Eraklides be put on the point of £546 of salary scale Π £510x18-582x24-750 as from the date of his appointment to the permanent establishment (22.3.1973). 5 10 In consequence of the above the Chief Fne Service Officer addressed a letter to the Chief of Police dated 6th August, 1973, together with a list of all FireServicemen affected by the decision of the Ministry of Finance. The list contained the names of some 125 Fire Servicemen who had served on a casual basis 15 and had been appointed to the permanent establishment on various dates from 1st December, 1961 to the 1st July,
2. The Chief of Police by a letter dated 16th August, 1973, exhibit 6, forwarded the letter to the Director-General of the Ministiy of finance for any necessary action. On the 17th April, 1974, 20 the Director-General of the Ministry of Finance addiessed the following reply to the Chief of Police, exhibit
3. " Ένετάλην δπως αναφερθώ els την έτπστολήν σας ύπ 1 αριθμόν 156 κσΐ ήμερομηνίαν 16ην Αυγούστου 1973 έν σχέσει irpos την μισθοδοσίαν αριθμού προσωρινών Πυροσβεστών 25 οί όποιοι διωρίσθησαν els ιήν μόνιμου θέσιν Πυροσβέστου κατά διαφόρους ημερομηνία? άπό τοΰ 1962 καΐ σας πληρο­ φορήσω ότι ενεκρίθη δπως τά κάτωθι πρόσωπα τοποθετηθώσι έπϊ της βαθμίδος τών £546 της κλίμακος Π - £510χ 18-582x24-750 άπό της ημερομηνίας τοΰ διορισμού των 30 είς την ώς άνω θέσιν (νοουμένου οτι ευρίσκονται νϋν έν υπη­ ρεσία)— ΑΙ λεπτομέρειαι ώς ανωτέρω άντεγράφησανέκ τοΰ κατα­ λόγου τόν όποιονήτοίμασενό Διευθυντήςτης Πυροσβεστικής 'Υπηρεσίας δέον δπως έπαληθευθώσι προτού γίνη ή άυα- 35 προσαρμογή. 322 3 C.L.R. 5 HadjiConstantinou and Others v. Republic Savvides J.
4. "Οσον άφορα τους διορισθέντος προ της 22.3.1973 τό Ύπουργεΐον τούτο λυττεΐται διότι δεν δύναται νά έπεκτείνη τήν παροϋσαν παραχώρησιν. Πρόκειται περί παρα­ χωρήσεως ή οποία αφού ήγέρθη καΐ έξητάσθη τόπρώτον τήν 22.3.1973 έπεξετάθη άπό της ώς άνω ημερομηνίας είς τό προσωπικόν της Πυροσβεστικής Υπηρεσίας". The English translation of which is: 10 15 " I have been instructed to iefer to your letter numbei 156, dated the 16th August, 1973, with regard to the salaries of a number of temporary Firemen (Constables) who have been appointed to the permanent post of Fireman (Con­ stable) on various dates since 1962 and to inform you that it was appioved that the following persons be placed on the point of £546 of scale CI—£510x18^-582x24—750 from the date of their appointment to the above post (pro­ vided they are now in the rervice)— The details as above copied from the list prepared by the Chief FireOfficer should beverified before the readjustment in scale. 20
5. With regard to those appointed before 22.3.1973 this Ministry regrets that it cannot extent the present con­ cession. It is a concession which after being raised and considered for the first time on 22.3.1973, was extended from the above date to the staff of the Fire Service". 25 The list in the above exhibits contains the names of 39 Fire Servicemen all of whom were placed on thepermanent establish­ ment on or after the 22.3.
6. When applicants came to know about the decision contained in the said letter of the 17th April, 1974, they wrote, through 30 their advocates, three letters to the Director-General of the Ministry of Finance,dated the 9th May, 1974, 13th May, 1974 and 20th May, 1974, protesting against such decision and requesting leconsideration of the G&'JO and equal treatment with those of their colleagues who had been benefited by the decision. 35 The Director-General of the Ministry of Finance replied 323 Sawides J. HadjiConstantinou and Others v. Republic

(1984)to such pOtests by identical letters dated 5th June, 1974, as follows: Ένετάλην όπως αναφερθώ είς την έπιστολήν σας ύπό ήμερομηνίαν 9ην Μαΐου, 1974, έν σχέσει προς αίτημα άριθμοΰ Πυροσβεστών δια την παραχώρησιν είς αυτούς προσαυξή- 5 οεων, και σας πληροφορήσω μετά λύπης μου ότι τό αίτημα των έν λόγω Πυροσβεστών δεν κατέστη δυνατόν ναέγκριθη. Ή παραχώρησις προσαυξήσεων εις έκτακτους Πυροσβέσνας έπΐ τω διορισμω αυτώνεπί μονίμουβάσεωςήγέρθη,έξητάσθη και ενεκρίθη τό πρώτον την 22.3.1973 ουδείς δε έκ τών πελα- 10 των σας ήγειρε τοιούτο θέμα κατά τον χρόνον της αποδοχής τοΰ διορισμού του.

1. Έξ άλλου ή παραχώρησις προσθέτων προσαυξήσεων εις ΰπηρετοΰντας Πυροσβέοτας και γενικώς είς δημοσίους υπαλλήλους αντίκειται προς τήν άπόφασιντοΰ Υπουργικού Συμβουλίου υπ' αριθμός 3697, ήμερ. 27.2.
2. Δια της έν λόγω αποφάσεως έτερματίσθη ή τακτική της παραχωρή­ σεως προσθέτων προσαυξήσεων". 15 The English translation of which ieads as follows: ("I have been instructed to lefer to your letter dated the 20 9th May, 1974, with regard to a request of a number of Firemen (Constables) for the grant of inciemcnts to them, and to inform you with rcgirt that the iequest of the said Fiiemen could not be app.oved. The grant of increments to casual Fiieman upon then appointment on a pe.manent 25 basis was raised, considc.ed and appioved for the first time on 22.3.1973 and none of your clients railed iuch a matte, at the time of acceptance of his appointment.
3. Moieover, the graming of additional increments to Firemen in the service and to public officers generally, is 30 contiaiy to the decision of the Council of Minister, number 3697, dated 27.2.
4. By the said decision an end was put to the practice of g-anting additional inctements"). At the commencement of the heanng of the recourses learned counsel for the ιespondent? raised a preliminary objection in 35 that the applicants had no legitimate inteiest, in the sense of Article 146.2 of the Constitution, to pursue such fecourses on theground that they had accepted the offers for their appoint- 324 3 C.L.R. HadjiConstantinou and Others v. Republic Savvides J. ment in which the salary scale of the post was clearly shown, without any reservation, and that although most of them had been appointedto thepermanentestablishment a long time ago and were receiving their salaries continuously, they never pro5 tested or raised the issue of receiving additional increments. The learned trial Judge in dealing with such objection, said the following: "With all respect to counsel it is quite clear to me that the Piperis case (supra)* is clearly distinguishable from the present case. Inthatcase what theApplicant was claiming was additional incrementsabove the top of the salaiy scale which was fixed by law and it was applicable to the post to which he had been promoted having accepted the offer for promotion without any reservation. The decision. therefore, in the Piperis case can have no application to the cases in hand. A case more to the point that the free and without anyreservation acceptanceof an administrative act or decision deprives someonefrom theright to challenge it by an administrative iecourse is the case of Myrianthis v. The Republic

(1977)6 J.S.C. 841. And although the decision in that case seems to support the view that the Applicants in the present cases may, in fact, not possess a legitimate interest to pursue the present recourses yet, in view of the different and peculiar circumstances of the cases in hand, ί have eventually decided to consider the matter as doubtful and to determine this issue in their favour". 10 15 20 25 Then, the learned trial Judge proceeded to examine whether theapphcantswereentitledtotheirclaims asset outintheprayer 30 in their respective recourses and concluded as follows: "At the conclusion of the address of learned counsel for the Respondentall counsel appearing in these cases made a joint statement which I think I should record for what it is worth. It reads as follows: 35 'The Apphcants concede that the provisions of G.O. UI/i.2(e) was not applied to members of the Fire Service prior to the 22nd March, 1973 and that it • Piperis v. The Republic

(1967)3 C.L.R. 295. 325 Sawides J. HadjiConstantinou and Others v. Republic

(1984)was fust applied to members of the Fire Service a a result of a decision taken by the Minister of Finance dated 7th July, 1973,embodied in exhibit 5in a letter dated 13th July,

1. There are, however, other instances in which matters not provided for in the Police Law and Regulations when raised were dealt with in the same way as provided by General Orders but such decision is not given retrospective effect'. 5 If I do not deal with all the arguments raised by learned counsel it is not out of disrespect to them but because I 10 am of the opinion that the issue in these cases should be decided on other grounds and more particularly on the basis of the two decisions of the Council of Ministers (exhibits 10 and 11). Regarding the status of the Applicants in the Govern- 15 ment service it is quite clear to me both from Article 122 of the Constitution and s.2 of the Public ServiceLaw, 1967 that they are not 'public offices' and their office is not a 'public office' and that consequently neither the General Orders, which in fact embody the conditions of service for 20 'public officers' nor the Public Service Law are applicable to them. The General Orders as well as the existing practice relating to the public service and public officers continue in force, in so far as they aie not inconsistent with the Public Service Law, by virtue of the proviso to 25 s.86(l) the.eof. This being the position, none of the applicants could avail himself oftheprovisions ofthe General Orders relating to increments and, therefore, none of them could have any claim to any increments other than the normal annual 30 increments of the salary scale applicable to his post prior to the 3rd February,
2. But on the 3rd February, 1966, decision No. 5361 was taken by the Council of Ministers. Although there is clear reference both in the submission and in the statement of the Minister of Justice appearing 35 in exhibit 11 to the General Orders as being the source from which the discretionary powers of the Minister of Finance to giant increments in certain cases emanates, there is nothing in the decision itself to indicate that it 326 3 C.L.R. 5 HadjiConstantinou and Others v. Republic Sawides J. wasnot meant to apply to all persons in the Government service and one may, therefore, reasonably assumethat it is applicable both to public officers and other persons in the Government service. But under this decision the discretion of the Minister of Finance is certainly limited to thegrantofemplacementincrementstoofficersfirstentering theserviceand,atthemost,toofficersfirstappointedtothe permanent establishment but in either case 'upon their appointment'. 10 It is in the exercise of his discretionary powers under thisdecision thattheMinistergrantedthetwoemplacement increments to Eraklides and those other Fire Servicemen who were placed on the permanent establishment on or after the 22nd March,
3. 15 The remedy sought by the Applicants in these cases, ontheface ofit,istobeput onthesamestepofthe salary scalei.e.£546asfrom thedates oftheir respective appointments to the permanent establishment in the same way that Eraklidesandtheother 39FireServicemenwere. But when they raised this matter with the Minister, through their counsel, the time that had elapsed from such dates was a period of between about two and twelve years. In substance,therefore,whattheywereclaimingwasadditional increments; and the Minister could only satisfy their claim by granting additional increments to them. And this hehadnopower to doinviewofthebar placed to the paymentofadditionalincrementsasfromthe27thFebiuary, 1964, by decision No. 3697 of the Council of Ministers. 20 25 30 35 Thenet result, therefore, is that at the relevant time neither emplacement increments could be paid to the applicants under decision No. 5361 because such increments are payable in the Minister's discretion only 'upon their appointment' in the service and, as I said earlier on, very likely, inthe permanent establishment, nor additional incrementsbecause of the bar in decision No.
4. And as the respondent Minister had no discretion nor, indeed, power to entertain apphcants' claim it does not seem to methat these recourses can succeed on any of thegrounds raised. 327 Sawides J. HadjiConstantinou and Others v. Republic

(1984)Even if it could be conceivably argued—and no such allegation was made—that the decision of the Minister in granting emplacement increments to Eraklides and the others was erroneous and illegal on the ground that they were not first entrants in the seivice in the strict sense, 5 the Applicants in these cases would not be in any better position because this would not entitle them to the same error or illegality nor would it create an obligation on the Minister to repeat it. (See Conclusions from the Case Law of the Greek Council of State (1929-1959) p. 158 and 10 Voyiazianos v. The Republic

(1967)3 C.L.R. 239)". In arguing the case for the respondents before us, learned counsel on their behalf elaborated on his argument before the trial Court that the appellants had no legitimate interest to pursue their recourses oncethey had accepted their appointment in which their salary scales were explicitly set out, without any reservation. 15 It has been held bythis Court time and again that if a person accepts an administrative act or decision without protest, he no longer possesses a legitimate interest entitling him to make 20 a recourse against it in the sense of Article 146.2 of the Constitution (see, inter alia, Neokleous and others v. The Republic

(1980)3 C.L.R. 497, TomboHv. CYTA

(1980)3 C.L.R. 266 and on appeal

(1982)3 C.L.R. 149, Georghiades v. TheRepublic

(1981)3 C.L.R. 431,Aniliadesand othersv. The Republic

(1981)25 3 C.L.R. 21). The following passage from the judgment of Triantafyllides, P., in the case of Myrianthis v. The Republic

(1977)3 C.L.R. 165 at p. 168 has been adopted in a number of cases including TomboHv. CYTA (supra) both by the first instance judge and 30 the Full Bench on appeal: "It is well established, by now. in the administrative law of Cyprus, on the basis of relevant principles which have been expounded in Greece in relation to a legislative provision there (section 48 of Law 3713/1928) which corresponds 35 to our Article 146.2 above, that a person, who, expressly 328 3 C.L.R. HadjiConstantinou and Others v. Republic Sawides J. or impliedly, accepts an act or decision of the administration, isdeprived, because of such acceptance, of a legitimate interest entitling him to make an administrative recourse for the annulment of such act or decision". 5 It is also well settled that an acceptance of an administrative act or decision with reservation of rights does not deprive the acceptor of his legitimate interest. In lonides v. The Republic

(1979)3C.L.R. 679,Triantafyllides, P.indeliveringthejudgment of the Full Bench had this to say at pages

1. 685: 10 "We are of the opinion that what was, in effect, done is 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
2. but. at the same time, he reasserted his vested rights under Article 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 theConstitution, including his right to pension and gratuity, would not be altered to his disadvantage; and the reduction of his pension and gratuity by virtue of the operation of regulation 19Adoes constitute an alteration to his disadvantage, contrary to the provisions of paragraphs I and 7 of Article
3. 15 20 25 30 35 For all the foregoing reasons, we have reached the conclusion, as has already been mentioned in this judgment. that there has not been on the part of the appellant, an exercise of his right of election under section 5 of Law 18/67 which could bring into operation, in relation to him, the provisions of regulation 19Aand, therefore, the decision conceiTung the computation of the pension and gratuity payabletohim on hisretirement, whichhasbeen challenged in the present proceedings, has to be deda.ed to be null and void and of no effect whatsoever". (see, also Christoftdes v. CYTA

(1980)3 C.L.R. 498,loannou and others v. The Republic

(1983)3 C.L.R. 150). Bearing in mind the above principles and in the light of the material before us we find ourselves unable to share the doubts expressed by the learned trial Judgeas to whether the appellants 329 Sawides J. HadjiConstantinou and Others v. Republic

(1984)had a legitimate interest to pursue their recourse in view of the unconditional acceptance by them of the terms of the offer of their appointment. In the result, having taken into consideration the fact that the appellants had accepted freely and unconditionally their appointments in which their salary scales were 5 explicitly set out and although they had beenappointed to their posts a long time ago, such period ranging from two to twelve years, and were receiving their salaries regularly, they never protested or raised the issue, we have come to the conclusion that they have no legitimate interest to pursue their recourses 10 and even if such legitimate interest might have existed at any timeithasbeenlostbytheexpiration ofmorethan 75 daysfrom the date when their first salaiy was paid to them. Notwithstanding the doubt expressed by the learned trial Judge asto the existence of a legitimateinterest, indealingwith 15 appellants' prayer for emplacement on a higher scale he found that thelapseofaperiod betweentwototwelveyearsfrom their respectiveappointmentstotheirpermanent establishedpostswas a bar to suchclaim?and treated their casesasinsubstancebeing claims for additional increments. Though we have come to the conclusion that the appellants haveno legitimateinteresttopursuetheirrecourses,nevertheless out ofrespect to the learned trial Judge,wewishtoadd thatwe agreewiththereasonsgivenbyhim,indismissingtheirrecourses that at the relevant timeneither additional increments could be 25 paid to them by virtue of Decision No. 3697of the Council of Ministers, dated 27th February, 1964, nor emplacement incrementsbyvirtueofDecisionNo.5361oftheCouncilofMinisters, dated 3rd February, 1966. Theformer wasto the effect that "inviewofthepresentsituation-(a)noactingallowanceshould 30 bepaidinaccordancewiththerelevantgeneralorders; and(b) no application for additional increments should be entertained" and the latter -"though the Council considersthat the Minister of Finance already possesses the power mentioned in the proposal, nevertheless in order to alleviate any doubt, it decided to 35 grant to the Minister of Financethe power it hasregardingthe placing of certain officers upon their appointment in the Service, at any point above the starting point of the approved scale of theirpost"(theunderliningisours). Astotheeffect ofthesaid decisions of the Council of Ministersreference maybemadeto 40 330 20 3 C.L.R. HadjiConstantinou and Others v. Republic Sawides J. Bedros Shamassian and Others v. The Republic

(1973)3 C.L.R. 341 and Sawides v. The Republic

(1975)3 C.L.R. 48. For all the above reasons this appeal fails and is hereby dismissed with no order for costs. 5 Appeal dismissed with no order as to costs. 331