clr/1987/1987_3_1009.pdf

(2)and

(3)— The leaveisnot granted asamatterof nght—A constable cannot accumulate leave in excess of 42 days, unless the Commander oftheForcehadpreviously permitted theaccumulation — Save in exceptional circumstances servants of the Republic cannot demand compensation moneywise for not taking their vacation leave The applicant was amember ofthe Police Force until 1 2 80,when he was dismissed fromthe Force by adecision of the Council of Ministers By letterof his advocate dated20 8 82 the applicant askedthat hebe paid «allsums due to him relating to the existing to his credit, until his dismissal, vacation leave», that is for 231 days, which he had accumulated dunng his service in the post The request was turneddown Hence this recourse Held, dismissing the recourse

(1)Leave of absence of members of the Police Force, other than special constables, below the rank of Assistant Superintendent, are governed by Regulations 17

(2)and (3(* of the Police General Regulations, 1958 Regulation 17 was amended on 26 9 85 by the addition ofa new paragraph 6

(2)A police constable is not entitledunder regulation 17 tovacation leave as of nght Moreover, a Police Constable cannot accumulate vacation leave in excess of 42 days, unless the Commander of the force had previously permittedsuch accumulation •Quotedatρ 10Π post 1009 Georghiouv. Republic

(3)As the applicant never applied for such a permission for accumulation the applicant had lost by theend of 1979 all nghts toany vacation leave The applicant as on the day of hisdismissal was only entitled to2 1/2 days leave for serving inthe ForcedunngJanuary, 1980

(4)Servants of the Republic unless they take theirvacation leave cannot demand, save mexceptional cases, tobe compensated moneywise 5 Recoursedismissed No orderas tocosts Recourse. Recourse against the refusal of the respondents topay all sums 10 due to applicant relating to the existing to his credit, until his dismissal, vacation leave A Eftychiou, for the applicant Κ Michaehdes, for the respondents Cur adv vult DEMETRIADESJ read thefollowing judgment The Applicant was a member of the Police Force of the Republic until the 1st February, 1980, when, after disciplinary proceedings had commenced against him, he was dismissed from the Force by a decision of the Council of Ministers No 18 767, on the ground 20 that his further stay in the service would be detrimental and contrary to thepublic interest The decision of the Councilof Ministers was communicatedto the applicant by a letter addressed tohimby theDirector-General of the Ministry of Intenor, dated the 11th February, 1980 On the 25 20th August, 1982, the applicant, through his counsel, wrote a letter to the Commanderof Police and asked thathe be paid«all sums due to him relating to the existing to his credit, until his dismissal, vacation leave»,thatisfor 231 days' leavewhich hehad accumulateddunnghisservice intheForce Byletterdatedthe6th 30 September, 1982, theCommanderof Policeinformed applicant's counsel thatinviewof thedecision of theCouncilof MinistersNo. 18 907, dated the 13th March, 1980, no sum in lieu of accumulated leave was payable to a member of the Force who was dismissed in the public interest Against this decision the 35 applicant filed the present recourse by which he prays for a declaration by theCourtthatthesaid decision isnullandvoid and 1010 15 3 C.L.R. Georghlouv.Republic D e m e t r i a d · · J. of no effect and that anything that wasomitted tobe done ought tobe done. WhatregulatesleaveofabsenceofmembersoftheForce,other than special constables, below the rank of Assistant Super5 intendent, is regulation 17

(2)and

(3)of the Police (General) Regulations 1958,published inSupplement No.3 tothe Cyprus GazetteNo.4128ofthe30th April, 1958,underNotification 279. Thisregulation provides: 10 15 20 25 «17.-

(1)Leave to Gazetted Officers and expatriate officers of other ranks who are entitled to return passages to the United Kingdom, shall be governed by General Orders in force from timetotime: Provided that the Chief Constable shall be permitted to grantleavetoanofficer whohasnotcompleted hisminimum tour ofservicebuthascompleted not lessthan fifteen months resident service since his first appointment or his last return from overseas leave, where the Chief Constable is satisfied thatthegrantingofsuchleaveisintheinterestofthe efficiency ofthe Force. ProvidedfurtherthatinsuchcasestheChiefConstableshall notify theGovernment thatsuchleave hasbeen granted.

(2)Members of the Force, other than special constables, belowtherankofAssistantSuperintendent, and notincluded in paragraph

(1)of this regulation, may be granted vacation leaveof 42dayseach year.

(3)Withoutthepreviouspermission of theChief Constable leave shallnotbe accumulated- 30 .(a) in respect of officers to whom paragraph

(1)of this regulation applies beyond the period provided in General Orders; (b)inrespectof allotherofficers beyond a maximum of 42 days. 35

(4)Leave shall not be granted toany member ofthe Force who is undergoing punishment or who is charged with any offence whichhasnotbeen finally dealt with. /

(5)Leave accumulated before the coming into force of these Regulations may be granted at the discretion of DivisionalorUnit Commanders.» 1011 DemetriadesJ. Georghiouv. Republic

(1987)By Notification No 177, published in Supplement No III(I)to the Official Gazette No 1223 of the 26th September 1975, regulation 17 was amended by the addition of a new paragraph which, at its matenal part, reads as follows «(6}-(α) Ανεξαρτήτως των διατάξεων των άνω τταρα- 5 γ ρ ά φ ω ν του π α ρ ό ν τ ο ς Κανονισμού, π α ν μέλος της Δυνάμεως, ασχέτως του εάν έχη υποβάλει αίτησιν δι' άδειαν ή όχι, λαμβάνει υποχρεωτικώς κατά την διάρκειαν της υπηρεσίας του πάσαν άδειαν εις ην δικαιού­ ται, ο χρόνος δε κατά τον οποίον λαμβάνεταιτοιαύτη 10 άδεια ορίζεται υ π ό του Αρχηγού της Αστυνομίας: Νοείται ότι εις περίπτωσιν καθ' ην το μέλος της Δυνάμεως πρόκειται να αφυπηρετήση συντόμως και τοιαύτη άδεια δεν ελήφθηπροηγουμένωςαύτη λαμβά­ νεται κατά τοιούτον χρόνον ώστε να συμπληρούται 15 κατά την ημερομηνίαντηςαφυπηρετήσεώς του.» («

(6)-(

1. a)Notwithstanding the provisions of the above paragraphs of the present Regulation, every member of the Force, irrespective of the fact thathe hadapplied for leave or not,takes compulsonly duringhisservice allleavetowhich he 20 is entitled, and the time dunng which such leave is taken is fixed by the Commanderof Police Provided that in case the member of the Force will retire soon and such leave has not been taken previously itwill be taken at such time so that it be completed at the time of his 25 retirement») The legal grounds on which the recourse isbased are (
2. a)The sub judice decision was taken in contravention of the provisions of regulation 17 (
3. b)Itlacks sufficient and/or legal reasoning 30 (c)Itwas taken in excess or abuse of power, and (d)Itwas taken after a misconception of the real facts and/orof the legal aspect of the case of the applicant In his address counsel for the applicant, after making reference totheprovisions of regulation 17andgivinghisown interpretation 35 of them, argued that as the Commander of Police rejected repeatedly applicant's request for leave on the excuse that the 1012 3 C.L.R. Georghiouv.Republic Demetriade· J. exigencies of the service did not perniit the absence of the applicant, the failure of the Commander of Police to grant to the applicanthisaccumulated leavepriortohisdismissalwas unlawful in that the provisions of para 6(
4. a)of regulation 17 were 5 contravened. Counsel fortherespondents, onthe other hand, argued thatin view of the provisions of regulation 17 the applicant was not entitled to accumulated leave without the consent of the CommanderofPolice;thatinanyevent,ifhewassoentitled,such 10 leave could not exceed 42 days and that the applicant ought to have challenged the decision not to be granted his earned accumulated leave prior to the termination of his services in the Police Force. Ascounsel for the applicant has very rightly conceded -andI 15 fully adoptthisview-aPolice Constable isnotentitled,asofright, under the provisions of regulation 17 of the Police (General) Regulations 1958,as amended, tovacation leave. Itisfurther my view that in the light of the clear and unambiguous wording of regulation 17, a Police Constable cannot acccumulate vacation 20 leave in excess of 42 days unless the Commander of Police had previously permitted the accumulation ofsuch leave. In the present case, there is no evidence before me that the applicant had ever applied to the Commander of Police for vacation leaveorforthegranttohimofvacation leavethathehad 25 accumulated and that the Commander of Police gave or refused permission for either case.Therefore, the allegation made by the applicant's counsel in hisaddress that the applicant's application for vacation leave was rejected by the Commander of Police is untenable. 30 Further, there isno evidence before me that the applicant, on receiving the letter by which he was informed of his dismissal, asked the Commander of Policetobe granted anyvacation leave to which he was entitled up to the day his dismissal became effective. 35 ConsideringnowthatPoliceOfficers oftherankwhichwasheld by the applicant are entitled to vacation leave for 42 days every year; that they cannot accumulate,as ofright,vacation leave and that the applicant has never applied for the permission of the Commander ofPolicetoaccumulate such leave,I find thatbythe 1013 DemetriadesJ. Gcorghlouv.Republic

(1987)end of 1979 he had lost all rightsto anyvacation leave and, therefore,hisclaimcannotstand.Inthecircumstances,therefore, the maximum of leave towhich hemight beentitled was2 1/2 days,thatistheproportionoftheleave hewouldbeentitledfor servingintheForceforonemonth,thatisJanuary 1980. 5 Counselfortheapplicantdidnotbasetheclaimoftheapplicant that he was entitled to be compensated in money in lieu of vacation leave,onanylaw, customorprecedent.Asfarasίknow, servants of the Republic, unless they take theirvacation leave to whichtheymaybeentitled,cannotdemand,exceptinexceptional 10 cases,tobecompensated moneywise. Intheresult,therecourseisdismissedbut,inthecircumstances of thecase,therewillbenoorderastocosts. Recoursedismissed. Noorderastocosts. 15 1014