clr/1984/1984_3_757.pdf

(1984)their service proclaimed to be their duty under regulation 33 of the Medical Profession Rules of Etiquette of 1972—Government Medical Institutions (Charges and Fees) Regulations, 1962-1975 do not permit engagement in private practice—And even if they didpermit they must bedeclared illegalfor conflict with the above 5 section 64 of Law 33/67—Even if private practice has evolved into a ruleof administrativepractice suchpractice cannotoverrule the law. Administrative practice—No practice can overrule the law and none should be suffered that conflicts with its provisions. 10 On the 20th March, 1983, the Director of Medical Services and Public Health addressed a circular to all Government Medical Officers wherein he sought to define the position of the Administration in relation to the rights of government doctors to operate a private practice and intimated the measures the 15 authorities contemplated to take in the event of doctors acting in breach of their duties under the Public Service Law. A principal object of the letter was to signify the Administration's interpretation of the pertinent provisions of the Public Service Law, 1967 (Law 33/67) backed by an opinion of the Attorney- 20 General; it was the opinion of the Director that section 64 of Law 33/67prohibited medical officers from practising medicine outside government service under any guise whatsoever; and therefore, government doctors were not allowed to keep private surgeries at their home or anywhere else. They were warned 25 that the law would be rigorously applied by the institution of disciplinary proceedings against every government doctor who engaged in private practice. Following the receipt of this circular itsvalidity was challenged by 31 Government Medical Officers on the ground that it was 30 issued in breach of Article 25.1 of the Constitution, the needs and mission of the medical profession and established government practice. On the submission of Counsel for the respondents that the action complained of, that is, the circular letter, lacked executory character and as such was inamenable to judicial review under Article 146.1 of the Constitution; andonthemerits of therecourse: Held,

(1)that only administrative actsof anexecutory character 758 35 3 C.L.R. 5 10 Vorkas and Others v. Republic are justiciable under Article 146.1 of the Constitution; that executory acts are those that are in themselves productive of legal consequences; that in relation to public servants, executory are those acts that define their position, status, remuneration and generally their terms of service; that the circular under consideration had no effect whatever on the rights of the applicants and it merely proclaimed the Administration's understanding of the law, an understanding that had no conceivable repercussions in itself upon the rights of the parties; and that, therefore, it lacked executory character and as such was inamenable to judicial review under Article 146.1 of the Constitution (pp. 763-764 post). Held, on the merits of the recourse: 15 20 25 30 35 40

(1)That Article 25 isintended to safeguard a citizen's freedom to work; that there is no suggestion that applicants joined the public service except on their own freewill; that in such circumstances the freedom guaranteed by Article 25 is neither taken away nor compromised; and that if conditions at work as such are for any reason impermissible, they can be challenged as unconstitutional on other grounds; accordingly section 64 of the Public Service Law, 1967 neither violates nor is it inconsistent or hi any way incompatible with the provisions of Article 25 of the Constitution. Held, further, that the obligation of government medical officers to comply with the terms and conditions of their service isproclaimed to betheirduty under regulation 33 of the Medical Profession Rules of Etiquette of 1972.

(2)That the Government Medical institutions (Charges and Fees) Regulations, 1962-1975 do not permit engagement in private practice and even 'f they did permit they must b: declared illegal for conflict with the provisions of section 64 of the Public Service Law, 1967 (Law 33/67)'.

(3)On the submission of applicants that the authorities conceded over the years a right to medical officers to carry on a private practice parallel to the:r duties as public officersand that this practice became so widespread that it has hardened into a rule of administrative practice from which the authoritiescould not withdraw: That no practice can overrule the law and- none should be suffered that conflicts with itsprovisions; and that the supremacy 759 Vorkas and Others v. Republic

(1984)of the law would be destroyed and with it the rule of law, if the administration could be suffered to evolve practices in breach of the provisions of the law. Per Pikis J.: If public servants were allowed to engage in work or business outside the sphere of their duties, their per- 5 formance would inevitably deteriotate but more important still their devotion to duty would be diminished. Inevitably, such a course would put public servants before dilemmas that should never confront membersof the public wrvice. Invariably they would be faced with a conflict between public duty and pri- 10 vateinterest, a situation that should not be lightly countenanced, if the aim is to ensure efficient administration and sustain the confidence of the public in the mission of the civil service. This appreciation is, to my comprehension, valid in relation to every section of the public service. 15 Application dismissed. Cases referred to: Nemitsas v. Republic

(1967)3 C.L.R. 134; Papakokkinou v. Republic

(1974)3 C.L.R. 492; Karapataki v. Republic

(1982)3 C.L.R. 88; Anastassiou v. Demetriou and Others

(1981)1 C.L.R. 589; Grigoropoulos v. Republic

(1984)3 C.L.R. 449; Decisions of the Greek Council of State Nos. 674/66, 781/66, 1652/66, 401/64; Sarri v. Republic

(1973)3 C.L.R. 92; Boardfor Registration of Architects and Civil Engineers v. Kyriakides

(1966)3 C.L.R. 649; Frangos v. "Prassino Livadhi"

(1978)1 J.S.C. 48 at p. 52; Police v. Georghiades

(1983)2 C.L.R. 33; Kontos v. Republic

(1974)3 C.L.R. 112; 20 25 30 Marabou Floating Restaurant Ltd. v. Republic

(1973)3 C.L.R. 397. Recourse. Recourse against the validity of a letter addressed by the Director of Medical Services and Public Health to the First 35 Medical Officer and circulated to all Government Medical Offi- 760 3 C.L.R. Vorkas and Others v. Republic cers affecting their right to engage in private practice outside office hours. K. Talarides, for the applicants. N. Charalambous, Senioi Counsel of the Republic, for 5 the respondents. T. Papadopoullos, for interested party "Association of Private Doctors". Cur.adv. vult. PIKIS J. read the following judgment. The recourse centres 10 on the effect and implications, from the view point ofjusticiabilityaswellasthevalidity,ofa letteraddressedbytheDirector of Medical Services and Public Health to the First Medical Officer circulated at therequest oftheformer to allgovernment medicalofficers. Thirty-one of themjoined as partiesinthese 15 proceedingsandmountedachallengetothevalidityofthecircularized letter allegedly issued in breach of Article 25.1 of the Constitution, the needs and mission of the medical profession and established government piactice. The law on which the letterispiemised, notably section 64of thePublic ServiceLaw, 20 33/67, is contested as unconstitutional for inconsistency and incompatibility with theprovisions ofArticle 25.1, safeguarding the right to work. The respondents questioned, in the first place, the justiciability of the cause propounded, a non-executory act in their 25 contention. On the merits they supported the decision as wellfounded in law,thePublicServiceLaw, an enactment perfectly compatible with Article 25.1,in their view. No piactice, they asserted, can, under any circumstances, supersede the law or be countenanced as valid if evolved or suffeied in breach 30 of its provisions. Lengthy arguments were raised in support of the rival positions. Hopefully,Ishallnotdoinjusticetothelabourofcounsel byomittingtorecountthem;muchofwhathasbeensaidrelates toeventsthat leave thesubstanceofthecaseunaffected. What 35 I propose to do is identify the issues calling for resolution as they emerge from the pleadings and arguments advanced in support of the case of each party and then attempt to resolve them as best as I can. In order to define the issues we must first refer to the letter of the Director of Medical Services that 761 Pikls J. Vorkas and Others v. Republic

(1984)stirred the applicants to resort to the Couit for the protection of their rightsallegedly infringed or threatened with infringement by the circular letter. For sometime it appearsthe right, ifany, ofgovernmentmedicalofficers toengagein private practiceoutside workinghours 5 hasbeenthesubject ofcontroversybetweengovernmentmedical officers and doctors in private practice. The rights of government doctors in this connection weie also the subject of discussion between the Union of Public Employees - PASYDY and medical authorities, culminating in a decision to refer the 10 matter to the Mixed Personnel Committee - MEP- for further consideration. MEP took cognizanceof thematter and arrived atcertainconclusionsreflectedinpartintheletteroftheDirector of Medical Services undci review. On 20th March, 1983,the Director sought to define the po- 15 sition of the Administration in relation to the rights of government doctors to operate a private practice and intimated the measures the authorities contemplated to take in the event of doctors acting in breach of their duties under the Public Service Law. A principal object of the letter was to signify 20 the Administration's interpretation of the pertinent provisions of the law backed by an opinion of the Attorney-General. In the opinion of the Director, section 64 of Law 33/67 prohibits medical officers from practising medicine outside government service under any guise whatsoever. Therefore, government 25 doctors aie not allowed to keepprivate surgeries at their home oranywhereelse. Theyweiewarned thelawwouldberigorously applied by the institution of disciplinaiy proceedings against every government doctor who engaged in private practice. Aseparatepaitoftheletterpurportstodepicttheimplications 30 stemmingfrom theadmission ofpatientsbygovernment doctors at their home and the issueofprescriptionsoutsidegovernment service. Such acts, it is stated, will be treated as prima facie evidence of engagement in private practice. In sum, the letter aimed to achieve three objectives: (

1. a)35 Furnish the government's understanding ofthe lawontherights and duties of government medical officers, (
2. b)Warn of the consequences that may befall doctors acting in breach or defiance of the provisions of the law, and (
3. c)Express an opinion 762 3 C.L.R. Vorkas and Others v. Republic Pilds J. on the implications likely to arise from certain acts or conduct of government doctors. At the maximum it signified the course of action contemplated by the Administration in the event of government doctors engaging in certain acts regarded by the 5 authorities as violative of their duties as members of the public service. Their interpretation of the laws on the other hand was not binding either on the Courts or on any other body, the Public Service Commission in particular, before which disciplinary proceedings might be instituted fashioned on this 10 understanding of the law. '? Irrespective of the intentions of the Director in circularizing this letter, its contents, judged from whatever view point or angle, had no bearing on the rights of the applicants under the law. If the applicants had a right to engage in a private practice in any area, this right was left intact. Counsel foi the Attorney-General submitted the action complained of, that is, the circular letter, lacked executory character and assuch wasinamenable tojudicial review under Article 146.1 of the Constitution. In myjudgment the submission is plainly 20 right. Only administrative acts of an executory character are justiciable under Article 146.1 of the Constitution. As often repeated, executory acts are those that areinthemselves productive of legal consequences. Legally productive are those acts that 25 affect the rights of the persons to whom they are addressed. Particularizing the,subject in relation to public service, executory are, those acts that define their position, status, remuneration and"generally their terms of service. Only acts.of this.category can be made the subject of review- under Article 146.1 in the 30 interest of legality and. sound administration.* The letter under consideration had no effect whatever on the rights of the applicants; it merely proclaimed the Administration's understanding of the law, an understanding that had no conceivable repercuations in itself upon the; rights of 35 the parties. If this understanding of the law was erroneous,, it could1 be checked whenever they sought to enforce the law Nemttsasv. Republic

(1967)3C.L.R.. 134, Papakokkmou v. Republic

(1974)3 CL.R, 492, Karapataki v. Republic

(1982)3'C.L.R., 88. 763 PiUs J . Vorkas and Others v. Republic

(1984)bytheinstitution ofdisciplinary or other proceedings. Certainly it did not and could not amend, alter or in any way modify the law applicable to public service. The circular was not an act issued in exercise of statutory or other power confened on theDirector todefine the rightsof theapplicants under thelaw. 5 Theinterpretation ofthe lawattempted intheinterest ofclarity, couldundernocircumstancesaffect therightsofanyone. Whateverrightsthe applicants had, they continued to possess them. Iftheinterpretation suppliedbytheDirector, ontheother hand, was correct then their complaint is with the law and not the 10 Director recapitulating its effect. The remaining provisions of the circular letter are referable to the realm of intent, outlining future course of action. If the understanding of the law propounded in the said circular was ill-founded, it could be ignored with immunity by those 15 to whom it was addressed. Moreover, if theDirector's view ofthelawwaswrong,subordinates required totakeaction upon such interpretation could likewise ignore it and refrain ftom acting upon it in the name of legality'. Greek caselaw and authois alike take the view that circulars 20 of whatever kind arc, as a rule, beyond the scope of judicial review. Normally they aim to supply either an interpretation ofthelawfor theguidanceofsubordinates orpiovide guidelines for the application of the lawin a manner best suited to itsobjects2. Thus a circular of the Minister of Social Care, giving 25 directions to medical institutions for the enforcement of the law in a given area was held to be non-justiciable for lack of executory character3. Generally a circular limited in content to the issuing of instructions cannot be made the subject of judicial review4. In France, by way ofexception to the rule,circulars purposingto regulate matters affecting public officers are justiciable5. It may be noted that in France, the law allows greatei freedom 1. Anastassiouv. Demetriou & Others

(1981)1 C.L.R., 589; Grigoropoulos v. Republic,

(1984)3 C.L.R.

2. See Stassinopoulos, Law of Administrative Disputes, 4th Ed., pp. 171-172; and Stassinopoulos, on the Law of Administrative Acts 1975, pp. 121-
4. See Decisions of the Greek Council of State in 674/66, 781/66and 1652/
6. See Decision of the Greek Council of State in 401/64
7. See Stassinopoulos, supra. 764 30 3 C.L.R. Vorkas and Others v. Republic Pikis J. to resort to Court for the purpose of challenging action of the Administration. There is no such flexibility in Cyprus. It has been authoritatively settled that only executory acts are usticiable under Article 146.
8. 5 In my judgment the recourse must necessarily be dismissed for it is directed against a non-executory act 1 . Nevertheless, I shall probe the remaining issues canvassed in view of their importance and the need to offer guidance on a matter affecting an important branch of the public service. Address10 ing myself to the remaining issues is,in my view,also warranted by the fact that the case may go higher and, in a matter of this nature it may bedeemed appropriate that the trial Judge should express his views on all disputed issues. To do so I must go back to the contentious issues. In order of importance the 15 most prominent of the remaining issues is that of constitutionality of section 64 of the Public Service Law. The submission isthat itisunconstitutional becauseofinconsistency or incompatibility with the provisions of Article 25 of the Constitution. The Right to Work 20 The right to work acknowledged byArticle 23of the Universal Declaiation of Human Rights of 1948 as a fundamental human right, is given effect to and safeguarded in Cyprus by the provisions of Article 25 of the Constitution. Article 25.1 expressly entrenches the right to work by proclaiming everyone's freedom 25 to carry out or engage in any profession, occupation or any other businesslike activity he chooses. It casts a corresponding obligation on the State to ensure a meaningful exercise of this freedom. By the ensuing paragraphs of Article 25 the right may be subjected to reasonable limitations in the interest of 30 specified objects. Like every limitation of a basic right, it must be strictly construed and be directly referable to the purposes in the name of which limitations are imposed
9. The subject of limitations to the right of woik isdiscussed in the leading authority of The Boardfor Registration of Architects and 35 CivilEngineersv. Christodoulos Kyriakides

(1966)2 C.L.R.

1. Of couise, the question of reasonableness of a limitation can only arise if freedom of choice of profession or occupation is
2. InSarriv. Republic

(1973)3C.L.R. 92,MalachtosJ. ruled without hesitation that a circular does not constitute an executory act.. 2. Police v. AndreasGeorghiades

(1983)2 C.L.R. p. 33. 765 Pikis J. Vorkas and Others v. Republic

(1984)legislatively or otherwise limited; while in this case I fail to sec how section 64 of the Public Service Law infringes the right safeguarded by Article 25. Section 64 is solely concerned with the regulation of conditions of employment in the public service. It prohibits public 5 servants from engaging in any other work, business or businesslike activity, except with the leave of the Minister of Finance. That these conditions arc statutorily regulated does not change their character. In much the same way as a private employer may require employees to comply with terms and conditions 10 mutually agreed, so can the State require public employees to comply with terms approved by the legislature as a necessary incident of their employment. As I had occasion to indicate, as far back as 1975, in Frangosv. ^Prassino LivadhF*

(1978)1 J.S.C., pp. 48, 52, the terms envisaged by section 64 arc not !5 only reasonable but essential for the efficient administration of the public service as well as ultimate success of its mission. If public servants were allowed to engage in work or business outside the sphere of their duties, their performance would inevitably deteriorate but more important still their devotion 2^ to duty would be diminished. Inevitably, such a course would put public servants before dilemmas that should never confront membeis of the public service, invariably they would, be faced with a conflict between publicduty and'private interest, a situationthat should not be lightlycountenanced, ; fthe aim i:toensure 25 efficient administration and'sustain the confidence of the public in the mission of the civil service. This appreciation is, to my comprehension, valid in relation to eveiy section of the public service: Article 25isintended to safeguard a citizen's freedom to work. 30 There is no suggestion that applicants joined the public service except on their own freewill'. In such circumstances the freedom guaranteed by Article 25isneither taken away nor compromised. If conditions at work as such are for any reason impermissible, they can be challenged as unconstitutional on other 35 grounds. The decision in DittosKontosv. The Republic

(1974)3 C.L.R. 112, is indicative of the compass of Aiticle 25. As Hadjianastassiou, J., pointed out in that case, Article 25 is relevant to the entrenchment of the right to work and not the circum- 40 766 3 C.L.R. Vorkas and Others v. Republic Pikls J. stancesrelevanttotheexecutionofone'sdutiesatwork. Thus, it was held that restrictions in the use of aiiport space as a parking station in no wayinterfered with thefreedom to pursue theoccupation 01businessofpubliccairier. ThecaseofMara5 bouFloating Restaurant Ltd. v. The Republic

(1973)3 C.L.R. 397, suggests that only where the freedom undei Article 25 isnecessarily curtailed by a givenAct or decision is therejustification for interfering. Malachtos J. held that an order of the Council of Ministersclosingthe Kyrenia Harbour to restaurant 10 boats in the interest of the Republic in no way violated Article 25 or the pursuit of a restaurant business. It ismyconsidered viewthat section 64of the Public Service Law neither violates nor isit inconsistent or in any wayincompatible with the provisions of Article 25 of the Constitution

1. 15 Administrative Practice Applicants contended that the Government Medical Institutions (Charges and Fees) Regulations2 postulating for engagement by medical officers in a consultative and specialist practice acknowledged impliedly a right to them to pursue a 20 private practice. If this is the effect of the relevant provisions of the Regulations, they must be declaied illegal for conflict with the provisions of section 64 of the Public Service Law. Moreover, the construction placed upon the aforementioned Regulations by the applicants is, in my view, erroneous. To 25 my comprehension a consultative or speciahst practice can only be undertaken within the compass of then duties as medical officers andnotoutsideit. Certainlytheydonotpermitengagement in private practice. The principal submission of applicants in thisarea isthat the 30 authorities conceded over the years a right to medical officers to carry on a private practice parallel to their duties as public officers. This practice became so widespread that it could be said to have hardened into a rule of administrative practice from which the authorities could notwithdraw. Theansweris
2. Also it can-be added that the obligation of government medical officers to comply with the terms and conditions of their service is proclaimed to be their duty under regulation 33 of the Medical Profession Rules,of Etiquette of
4. See 1962-1975 Regulations. 767 Pikts J. Vorkas and Others τ. Republic

(1984)thatnopracticecanoverrule thelaw andnoneshouldbe suffered that conflicts with its provisions. The supremacy of the law would be destroyed and with it the rule of law, if the admi­ nistration could be suffered to evolve practices in breach of the provisions of the law. 5 As Greek Jurisptudence establishes, an administrative pra­ ctice is only relevant in testing the consistency of the Admi­ nistration but not the legality of action found thereon. As stated in the Conclusions of the Jurisprudence of the Greek Council of State 1929-1959, no rule of administrative practice 10 can bind the administration to the sustainance of an illegal state of affairs or prevent it from acting according to law (see page 158. See also Stassinopoulos on the Law of Administra­ tiveActs 1951,at p. 19). Consequently,therecourse isdoomed to failure on the merits as well. 15 For the reasons indicatedin thisjudgment, therecourse fails. It is dismissed. Let there be no order as to costs. Recourse dismissed. No order as to costs. 768