(1987)1987 December 5 [P1KIS, J.) INTHE MATTER OFARTICLE 146 OFTHE CONSTITUTION XENOPHON TSINONTAS, Applicant, v. CYPRUS LAND DEVELOPMENT CORPORATION, Respondent. (CaseNo. 111/87). Legitimate interest — Free andunreserved acceptance of an act— Deprives acceptor of legitimate interest to challenge it — Accepting terms of appointment, including the salaryscale —Refusal toaccept applicationfor retrospective readjustment ofsalary—Applicant hasnolegitimte interestto challenge such refusal. 5 I'xecutoryact—Confirmatory act—Refusal toaccept applicationforretrospective readjustment of salary, which applicant hadaccepted at the time ofhis appointment — Intheabsence ofsubstantive re-examinationof the matter the refusalisnotjusticiable. 10 Constitutional Law—Equality—Constitution, Art.28—Equal pay forequalwork — Thenotion of equalitydoes notexclude reasonable differentiations. The applicant acceptedunconditionally an offer forappointment tothe post ofTechnical Assistant Grade Βtotherespondent Organization,setting out thetermsandconditionsofservice,includinghisremuneration. Aboutayearlater,theapplicantsoughtthereadjustment,retrospectivelyof his salary,pnthegroundthat persons serving ina comparableposition as himself and who were doing essentially the same work, were better remunerated than himself. 15 These employeeshadbeen appointed much earlierthan theapplicantat the formative periodoftherespondentonthesamesalaryscale,butwiththe 2 0 addition of6 increments. Asapplicant'sapplicationwasturneddown,thepresentrecoursewasfiled. 1766 3 C.L.R. Tslnontasv. Land Dev. Corp. 'n»ild, Qi^ms-ising the recourse (1; Bu accepting the conditions of his appointment, theapplicantforfeited anylegitimate interesttoseek thereview of anyaspect of thatdecision 5 10 15
(2)The application for readjustment did not lead to substantive reexamination of tlpe matter in the sense that the respondents took into consideration facts unkown to them at the time the decision to appoint the applicant was taken Itfollows that the sub judice act is notjusticiable, as it signifies adherence to the course of action, which led to applicant's appointment
(3)Assuming thatthesubjudice decision isjusticiable, the recourse should bedismissed, because thenotionof equality does notrequire theobliteration of differences mtheremunerationof aclassof public officers referable tothe length of their service, the need for their services at the time of their appointment, as well as the circumstances of their appointment Public authonty may reasonably make differentiations on that account, provided always thatofficers assigned similar duties are remunerated within th£ same salary scale Recoursedismissed No orderas tocosts 20 Casesreferredto Umassol ChemicalProductsCo ν Republic
(1978)3 C LR 52, Piensv TheRepublic
(1983)3 C LR 1054, Xinan ν TheRepublic,3 RS CC 98 Recourse. 25 Recourse against thedecision of therespondentswhereby they rejected applicant's application for the readjustment of his salary scale. G. Triantafyllides, for the applicant. R Mtchaelides, for therespondents. on Cur. adv. vult. PIKISJ. readthefollowing judgment. XenophonTsinontas was appointed Technical Assistant Grade 'B' to the Cyprus Land Development Corporation (the respondents) on 1.9.1984. He was selected from among anumberofcandidateswhoapplied for 35 appointment following advertisement of the position. His appointment was preceded by an offer in writing (dated 13th August, 1984) setting forth the terms andconditionsof his service 1767 PiIds J. Tsinontaa v. Land Dev. Corp.
(1987)and the „cale of his remuneration that was unconditionally accepted; whereupon hejoined the permanent establishment of the respondents, albeit on probation for an initial period of two years. Morethan ayearlater,on 19thAugust. 1985.hesoughtwhat in 5 effect amounted to a variation of the scale of his remuneration. seeking the readjustment, retrospectively, of his salary by his emplacement on the sixthrung of hissalaryscale.His application for re-examination was founded on the premise that persons serving in a comparable position as himself and who were doing 10 essentially the same work, were better remunerated than himself. Those employees were P. Mouzakis and H. Himonides who joined the respondent corporation before the applicant, on 1st March, 1983,and were appointed to thesame position and same salaryscale butwith sixincrements added totheirstartingpointof 15 the salary scale. Theapplicant'srequestwasrejected forthereasonsindicatedin the letter of the respondents dated 13th February, 1987. wherein itwasstated thatafter theyhad studied hisrequest itcould not be upheld for the following reasons: ^0 (
- a)Unqualified acceptance of hisappointment, and (
- b)The explanation given to him, at the time when he had applied for appointment, by the Director-General that it would be impossible toassimilatehisremuneration with that of his former colleagues at the Town Planning Department 25 whohadbeen appointedearlierattheformative periodofthe organization soon after its incorporation. The applicant denied the allegation that the Director-General hadapprised himfrom thebeginningoftheirunwillingnessto offer him more than the starting salary of the post or equate his 30 remuneration with that of Mr. Mouzakis and Mr. Himonides. I drew the attention of counsel to the conflicting allegations affecting thisfactual aspect of thiscase and inquiredwhether they intended to elicit the matter by the adduction of oral evidence. They informed the Court that they regarded that course 35 unnecessary as intheirviewelicitation of th^tfact wo-tldnot alter the complexion of the issues callingfor resolution inthiscase. I entertain serious reservations, to begin, whether the act complainedof, thatis,therejectionofhisclaimforreadjustmentof 1768 SCLJL T e t e M t w v .LandD«v.Cotp. ftkisJ. his salary isjusticiable. The offer for appointment, including the conditions of his remuneration, were accepted by the applicant without reservation;hence he forfeited any legitimate interest to seek the review of any aspect of that decision. A right to judicial 5 reviewwouldonlyaccrueifhisapplicationof 19thOctober, 1985. ledtoasubstantivere-examinationoftheissues,substantiveinthe sensethattherespondentstook intoconsideration factsunknown *othematthetimethedecisiontoappointtheapplicantwastaken. This does not appear to have happened. Nor were any facts 10 unknown to therespondents atthe time ofappointment, brought to their notice or examined. By their decision of February 1987 they signified adherence to the course already plotted by the decisionof 1stSeptember, 1984*.Evenifweweretosupposethat the action complained of isjusticiable, the outcome of the case 15 would be no different; for the position of the applicant was distinguishable from that of his two colleagues in a number of respects andfor that reason noduty wascaston the respondents under Art. 28to equate their remuneration.The decision inJeny Xinari v. TheRepublic** doessalutarilyestablishthatthenotionof 20 «quality under Art. 28 encompasses equal pay for equal work in the public service. Broadly speaking the applicant was similarly remuneratedashiscolleaguesinthat like them hewas emplaced on the salary scale applicable to Technical Assistants. The respondents were under nodutyto offer himtheincrementsthey 25 hadadded to the initial salary of hiscolleagues asthey had been appointed before him, a fact in itself differentiating applicant's position from that of his colleagues; whereas the fact that his colleagueswereappointedattheinitialstagesoftheestablishment and operation of the respondent authority may yet be another 30 reason for distinguishing between them. The notion of equality does not require the obliteration of differences in the remuneration ofaclassofpublicofficersreferabletothelengthof their service, the need for their services at the time of their appointment, aswell asthe circumstances of their appointment. 35 Public authority may reasonably make differentiations on that account, provided always that officers assignedsimilar duties are remuneratedwithinthesamesalaryscale. For the reasons indicated above, the application isdismissed. Beitwithadegreeofreluctance,Ishallmakenoorderastocosts. Recoursedismissed No order astocosts. •LimasKlOmmealProductiCo.v.Republic(197813C.LR. 52;fWriiv. Ripubkc
(1963)3 C.LR. 1064. m 3RS.CC9& 1769