(1987)1987November13 [LORIS.J] INTHE MATTEROFARTICLE 146OFTHE CONSTITUTION CHRISTOSSOLOMONIDES, Applicant, v.. T H E CYPRUS T E L E C O M M U N I C A T I O N S AUTHORITY, Respondent (Case No. 461/85). Constitutional Law — Equality — Constitution, Art. 28 — Does not exclude reasonable distinctions, but only arbitrary and totally unjustifiable differentiations — Public Corporations —Appointments — Prerequisite that candidatesshould belessthan30yearsofage— Whethercontrary toArt 28 — Question answered inthenegative. 5 Constitutional Law — Right to exerciseaprofession — Constitution, Art. 25 — Public Corporations —Appointments — Prerequisitethatcandidatesshould beless than30years ofage— Art 25 not relevant. Public Corporations — ThePublic OrganisationsLaw 61/70 —Appointments — They are not regulated bythe Public ServiceLaw 33/67, but byLaw 61/70 10 and theRegulations madethereunder. Public Officers—Appointments — ThePublicServiceLaw33/67, section33(b)— Ambit of. The questioninthiscaseiswhether theprerequisite setoutinthe relevant advertisement for the subjudice post, namely that the candidatesshouldbe lessthat30years of ageason31.12.84 isillegalor contrarytoArticles 25or 28ofthe Constitution. Itmustbenotedthatinrespectoftheissueofillegality,counselforapplicant invoked section33(b) ofLaw33/67,which providesthat nopersonshallbe appointedtothePublic Service unless«hehasattainedtheageof seventeen years». Held, dismissing the recourse:
(1)The respondent isan «Organisation» in the senseof Law 61/70.Appointments to the respondent Authority are not regulatedbythePublicServiceLaw,butbytheRespondentitselfpursuant to 1710 15 20 3C.LR. Sotomonldeav.CYTA section 3 of Law 61/70 andtheRegulationsmadeundersuch law Assuming that section 33(b) of Law 33/67 is applicable, thesaid prerequisite asto age isnotcontrarytoits provisions
(2)Art 25 of theConstitution has nothingtodowith this case 5
(3)Art 28 of the Constitutiondoes not exclude reasonable distinctions. which have to be made in view of the intrinsic nature of things, but only differentiations, which are arbitrary and totally unjustifiable Theprincipleof equality entailsthe equalorsimilartreatmentofallthosewhoare found tobe inthesamesituation 10 In this case the applicant has failed to establish that the prerequisite in questton•doesnotrestuponareasonablebasis butitisessentially arbitrary· Recoursedismissed Costsagainstapplicant Casesreferredto 15 Loizides ν Mayorof Nicosia.1RS CC 59 TheImprovement Boardof Eylenjiaν Constanbnou
(1967)1 C LR 167, Republic ν NishanArakianand Others
(1972)3 C LR 294 Hjiloannou ν TheRepublic
(1983)3 CLR 1041 Recourse. 20 Recourse against the decision of the respondent whereby applicant's name was notincluded inthe listof candidates for the posts of Computer's Programmer/Analyst and Economist with specialization in Statistics and Marketing as he did not cover the required qualifications and/or prerequisites set out in the 25 announcement of therespondentauthonty C. Loizou, for theapplicant. A. Hadjioannou, for therespondent. Cur. adv vult. LORIS J. read the following judgment. The respondent 30 Authority, published on 11.11.84 an announcementin the daily press, inviting applicationsfor thefillingofvacant postsof Headof Service «B» - Financial Personnel: (a) Computer's Programmer/Analyst (b) Economist with specialization in Statistics and Marketing. 1711 LoriaJ. Solomonldes v.CYTA
(1987)In the aforesaid announcement apart form the required qualifications ofthecandidatescertainotherprerequisiteswereset out, amongst which one referring to the age of the candidates, which according to the announcement should be «less than 30 yearson 31.12.84.» 5 The applicant inthe present recourse,whowasborn on the6th April 1954,submittedon24.11.84anapplication for appointment in one of the vacant posts in question, in response to the said announcement of the respondent Authority. The respondent Authority addressed to the applicant a letter 10 dated 9.2.85 (vide Appendix «A» attached to the recourse) whereby he was informed that hisname could not be included in thelistofcandidatesashedidnotcovertherequired qualifications and/or prerequisites set out in the said announcement of the Authority. 15 Applicant impugnes by means of the present recourse the decision of the respondent Authority set out initsletter of 9.2.85 addressed totheapplicant, whereby latters'candidature inoneof the said vacant posts of theAuthority wasexcluded obviously on theground of age,asapplicantwould havebeen over30yearsof 20 age by the 31.12.84, having been bom on 6.4.54, whilst the announcement of the Authority in the daily press required the candidates tobe lessthan thirtyyears on 31.12.84.» Thesub-judice decision isbeingattackedasviolatingArticles25 and 28 of our Constitution. 25 It must be stated at the outset that the complaints for alleged unconstitutionality were not refened with sufficient clarity and in quite unequivocal terms,asthey should be. {Loizidesv.Mayorof Nicosia, 1RiS.C.C.59—The Improvement Board ofEylenjia v. Constantinou
(1967)1C.L.R. 167). 30 In the first place I cannot see how the sub-judice decision offends Article 25 of the Constitution. It is true that relevant argument inthisconnection, inapplicant'swrittenaddress,wasin awaymodified and expressreference wasmadetos.33(b)ofthe PublicService Lawof 1967,(LawNo.33/67),asamended. 35 1712 3 C.L.R. Solomonldes v.CYTA Lori» J. Itisthe allegation of the applicant that the onlylimitin respect of age that can be imposed on applicants for appointment to the Public Service is\he one envisaged by s. 33(
- b)of Law 33/67, which provides that no person shall be appointed to the Public 5 Service unless«he hasattained the age of seventeen years.» With respect I am unable to agree with this submission: The respondent is the Cyprus Telecommunications Authority, an «organisation» within the definition of section 2 of Law 61/70. Appointments, promotions e.t.c. tothe Respondent Authority are 10 regulatedbytheRespondentitselfpursuanttosec.3ofLaw61/70; and Regulations made under this law (Personnel ot Cyprus Telecommunications Authority, General Regulations 1982 published in the Official Gazette of the Republic under No. 1792 of 26.7.1982 Suppl. No 3 Not. 220) contain provisions as to the 15 age of new appointees with the Authority, entirely different from the provisions set out ins.33(
- b)of Law33/67 (vide Regulation 7 and inparticular Regulation 7(l)(
- f)of the aforesaid Regulation of 1982) But even if we consider that s. 33(
- b)of Law 33/67 was 20 applicable in the case under consideration, would that make any difference to the case of the applicant? I would answer this question unhesitatingly inthenegative.Invirtueofs.33(b)ofLaw 33/67 the minimum age of a prospective appointee is the 17th year. The announcement of the Respondent Authority requires 25 the prospective appointees in the vacant posts in question to be «lessthan30 yearson 31.12.84». LetusnowturntoArticle28ofthe Constitution.The complaint of the applicant is that the sub-judice decision discriminates between citizens of the Republic over 30 years with those under 30 30 years.With respect the comparison attempted istoo wide and itsvagueness hindersanycomparison. Inthe caseofthe Republic v.NishanArakianand Others
(1972)3C.L.R. 294,the Full Bench of this Court held inter alia that (a) para 1of Article 28 does not convey the notion of exact arithmetical equality but it safeguards 35 only against arbitrary differentiations and does not exclude reasonable distinctions which have to be madi in view of the intrinsicnature of things. (b)theprinciple ofequality entailstheequalorsimilartreatment of allthose who are found tobe inthesame situation. 1713 Lori·J. Solomonide·v.CYTA
(1987)(c)Article 28.1 of ourConstitution excludesonlythe makingof differentiations which arearbitrary and totally unjustifiable. Inthe case oiHjhannou v.Republic
(1983)3 C.L.R. 1041,the FullBench ofthisCourtdealingwiththeprovisionsofaschemeof service in the Welfare Department and confronted with a 5 submission totheeffect thattheprovision intheschemeofservice that a candidate for first entry should not be lessthan 21 and not more than 45yearsof ageisunconstitutional asbeingcontrary to the principle of equality in Article 28 of the Constitution, as this age-limit isnotapplicable tothe candidates intheservicewhoare 10 eligiblefor promotion, held that «Aclassification that has reasonable basis does not offend against the principleofequalitybecause inpracticeitresultsin some inequality. One who asserts the classification as unjustified must carrythe burden of showing that itdoes not 15 rest upon a reasonable basisbut itisessentially arbitrary.» And in the case under consideration the applicant has failed to establish that the prerequisite inthe publication ofthe respondent Authority, to the effect that the prospective appointee should be lessthan 30 years on 31.12.84, «does notrest upon a reasonable 20 basisbutitisessentially arbitrary.» Forallthe above reasonspresent recourse isdoomed to failure and itishereby dismissed. Applicant to pay the costs of the respondent as same will be assessed bythe Registrar. Recourse dismissed with costsagainst applicant. 1714 25