(1987)1986March 22 rTRIANTAFYLUDES P t INTHE MATTER OF ARTICLE 146OF THE CONSTITUTION STALOKANTOUNA, Applicant, ν THE REPUBLIC OF CYPRUS, THROUGH THE MINISTEROF FINANCE, Respondent (CaseNo 105/81) Pensions — Educational Officers— 77iePensions (Secondary Schoolmasters)Law 56/67 as repealed and replacedbyLaw 40/81, section 7
(1)—Ambit of— Applicant's temporaryappointment asaschoolmistressrevoked on 28 12 67 —Applicant reappointed on 23 9 71andrebredtn 1980— Thepenodofher service pnor to2812 67 nghtiy not taken into account m computing her 5 pension Theappointmentofapplicantasaschoolmistress for the teachingof arton atemporarybasis was revoked on28 12 67,inviewofthefact thatshedidnot possess therequired qualifications The applicantobtained in 1971 thequalifications required by therelevant scheme of service and was appointedasschoolmistress for the teaching of art, oncontract,asfrom 23September 1971, and asfrom May 1972 toa permanent post, andshe served untilherretirementfor reasonsofhealthon 29Apnll980 As the service ofthe applicant up to 1967 was nottaken intoaccountfor pension purposes she filed thepresent recourse Held, dismissingthe recourse
(1)The case oftheapplicant cannotcome within the proviso to section 7
(1)of Law 56/67 because the break inher service in 1967 for thereasonsfor which itoccurredcannotbe considered as a temporarysuspension ofheremployment notdue toherfault
(2)Section 7
(1)of Law 40/81, whereby section 7
(1)of Law 56/67was repealed andreplaced, applies when theofficer concernedshould have «left orwillleave· thepublicservice foranyreasonwhereas inthepresentcasethe 1762 J0 15 20 3 C.L.R. Kantouna v. Republic applicanthasnotleft theservice in 1967 butherservices were terminatedfor the reasons already stated inthepresentjudgment
(3)Itfollowsthateven iftherevocationof28 12 67didnotoperateextunc, b tex nunc, therecoursehastobe dismissed π Recourse dismissed Noorderastocosts Recourse. Recourse against the refusal of the respondent to take into account for pension purposes applicant'sservice priorto 1967 as 10 aschoolmistress inSecondary Education. Ch. lerides,for theapplicant. R Gavnelides, Senior Counsel of the Republic, for the respondent. Cur. adv. vult 15 TRIANTAFYLLIDESP.readthefollowing judgment. By means of the present recourse the applicant is complaining against the refusal of thePublicAdministration and PersonnelService, which comes under the Ministry of Finance, to take into account for pension purposes herservice prior to 1967 as a schoolmistress in 20 Secondary Education. The applicant was first appointed as a schoolmistress to teach art, on a month to month basis, for the period from 14 February 1963 to 10 July 1963, and,then,on probation to thepermanent post of schoolmistress as from 1September 1963. 25 A~after herappointmentitwas found thattheapplicantdidnot possess the required for such appointmentqualifications she was informed, on 24 January 1966, that she had been regraded in Grade C,instead of GradeB. After herregrading the applicantfiledarecourse andby means 30 of thejudgment delivered inthatcase thedecision toregrade her was annulled (see Kantouna v. The Republic,
(1967)3 C.L.R. 395). Then, it was decided, in view of the fact that she still did not possess therequired qualifications, torevoke her appointmentas 35 from 28 December 1967. 1763 Triantafylllde· P. Kantouna v.Republic
(1987)Against this decision the applicant filed recourse No. 39/6S. which waswithdrawn on 1stDecember 1969.after a statement ot counselfortherespondent thatthematterwould be reconsidered. While the reconsideration of the matter of the appointment of the applicant was inabeyance, theapplicant obtained in 1971the qualifications required by the relevant scheme of service and was appointed asschoolmistress forthe teachingofart,on contract, as from 23September 1971,and as from May 1972 toa permanent post, and she served until her retirement for reasons of health on 29 April 1980. 5 10 As the service of the applicant up to 1967 was not taken into account for pension purposes she filed the present recourse. Inasmuch as the issue of the validity of the revocation of the appointment of the applicant in 1967 appeared to be relevant to theoutcome of thiscasehercounsel filed, on26October 1983,an 15 application for the reinstatement of recourse No. 39/68, which had been withdrawn as aforesaid; but such application was dismissed by this Court (see Kantouna v. The Republic
(1984)3 C.L.R. 1315).· Asregards the merits of thepresent case itmust be pointed out 20 that, even if it isfound mat the revocation of the appointment of the applicant as from 28 December 1967 operated ex nunc and not ex tunc there still remains to be decided whether the applicant's claim for recognition for pension purposes of her service priortothesaid datecan succeed inthelightoftheproviso 25 to section 7
(1)of the Pensions (Secondary Schoolmasters) Law, 1967 (Law 56/67), as repealed and replaced by the Pensions (Secondary Schoolmasters) (Amendment) Law, 1981 (Law 40/ 81). Inviewofthefact thattherevocationoftheappointmentofthe applicant was effected because she did not have the required 30 qualifications Iam of theopinion that hercasecannot come within the proviso to section 7
(1)ofLaw56/67 because the break in her service in 1967 for the reasons for which it occurred cannot be considered asatemporary suspension ofheremployment notdue „ to her fault Consequently, forthepurposesofsection 7
(1)ofLaw56/67 her service up to 1967 and from 1971 cannot be treated as being continuous for pension purposes and, thus, her claim regarding the taking into account of her service up to 1967 was rightly rejected. 1764 40 3 C.L.R. Kantouna v. Republic Triantafylllde* P· Counsel for theapplicanthad argued, further, that,inany case on thebasisof theprovisions of thenewsection7
(1)of Law 40/81 which, as he contends, has retrospective operation, all the previous service of the applicant should have been taken into 5 accountincompunngher pension upon herfinal retirement. Ihave to treat section 7
(1)of Law 40/81 as inapplicable tothe case of theapplicant because, as itis provided therein,the officer concerned should have «left or will leave» the public service for any reason whereas in the present case the applicant has not left. 10 the service in 1967 but her services were terminated for the reasons already stated inthe present judgment. Irrespective, therefore, of whether the new section 7
(1)of Law 40/8Γ could have retrospective application the case of the applicant cannotbe covered by it. 15 Inview of alt the foregoing the present recourse fails and itis dismissed accordingly; but with noorder as toitscosts. Recourse dismissed. No order as to costs. 1765