(1987)1986Sepfemberl8 [TRIANTAFYLLIDES, Ρ MALACHTOS, SAWIDES, STYUANIDES ANDKOURRIS,JJ] ANDREAS VORKAS, Appellant - Applicant, ν THE REPUBLICO FCYPRUS, THROUGH THE DIRECTOR OFPUBLIC ADMINISTRATION AND PERSONNEL DEPARTMENT, Respondent (Revisional Jurisdiction Appeal No 552) Constitutional Law—Equality;—Constitution, Art 28—It does not exclude reasonable distinctions—Public Officers—13th salary—Regulations providing forpayment olpart of 13thsalaryincaseof death orretirementof an officer dunng the year and for non payment m case of resignationor dismissalof such officerdunng theyear—Distinctionreasonable Upon application by the appellant, a Government occulist, thr Public Service Commission granted tohim leave for resigning his post with effect from 13 10 84 After suchresignation theapplicantappliedfor hisanalogy to the 13th salary for theyear 1984 Hisapplicationwas turneddown and,asa result, theappellantfiledarecourse tothis Court,complainingthatReg 7of 1 0 theRegulationsgoverning thegrantof 13thSalaryand13thPensiontoPublic Servants violated thepnncipteof equality by differentiating «unreasonably» between theposition of public officers who have resigned from office dunng the year and who are not entitled to any part of the 13th salary and the position of public officers who have died orretireddunngtheyear and who 1 5 are, invirtueof Reg 6of thesame Regulations,entitledtotheanalogy ofthe 13th salary ThetrialJudge dismissed therecourse Hencethepresentappeal Held, dismissingthe appeal, thatthis Courtis in full agreement with the approach of the trial Judge, thatthe distinction made by Reg 7 between a 2 0 public officer who resigns his post before theend of the year andan officer, who retires or dies dunnga year, isa reasonable oneand,therefore, Reg 7 isnotunconstitutional Appeal dismissed No orderas to costs Casesreferred to TheRepublic ν ArakianandOthers
(1972)3 CI.R 294 396 5 3 C.L.R. Vorkas v. RepubUc Appeal. Appeal against the judgment of aJudge of theSupreme Court of Cyprus (LoriSiJ.) given on the 25th January, 1986 (Revisional Jurisdiction Case No. 124/85)* whereby appellant's recourse 5 against the refusal of the respondent topay applicant hisanalogy ofthe 13thsalaryfortheyear 1984whenheresignedfrom hispost ofGovernment Occulist was dismissed. K. Talatides,for the appellant. 10 A. Papasawas, Senior Counsel of the Republic, for the respondent. Cur.adv. vult TRIANTAFYLLIDES P.: The judgment of the Court will be delivered byMr.Justice Malachtos. MALACHTOSJ.: This isan appeal against thejudgment of a 15 judge ofthisCourt inrecourse No.124/85,where itwasheld that Regulation 7of PartA ofthe Regulations Governing the Grantof the 13thSalaryand the 13thPension toPublicServants,doesnot offend theprincipleofequality,whichissafeguarded byArticle28 of our Constitution. 20 Thefacts ofthecase,asfound bythetrialJudge,andwhichare not indispute, shortlyput arethe following: The appellant was first appointed in the Public Service on the 1stMay, 1975, as a government occulist. On 25.6.84 he applied tothe PublicService Commission forleavetoresignhis aforesaid 25 post and such leave was granted with effect as from the 13th October, 1984and arrangements were made forpayment tohim of the gratuity he was entitled to, under the provisions of the Pensions Law, Cap.311, as amended by Law 39 of 1981. On 4.12.84theappellant,throughhisadvocate,raisedthequestionof 30 payment to him of the analogy on the 13th salary for the year 1984,which allegedlywaspayable tohimundertheprovisionsof the Regulations Governing the Grant of the 13th Salary and the 13th Pension to Public Servants, but thisclaim of hiswas turned down by the respondent authority in itsletter of the 7th January, 35 1985. The relevant Regulations are Regulations 1, 2, 6 and 7, which 'Reportedin
(1986)3C.L.R.212. 397 MaJachtosJ. Vorkas v. Republic
(1987)readasfollows «1 Toeverypublicservantwhoservedforthewholeperiod of one year itispaidinDecemberofeachyear a13th salary equal tohissalary forthemonthofDecember
- Toapublic servant who served forapenod shorter of 5 one year itispaidas13thsalary asum equal tol/12th ofhis salary forthe monthofDecember orofthe last monthof his service, depending ontheparticularcase,foreachcomplete monthofservicefortheyearinquestion 6 Incase ofretirementordeathofapublic servant atany 10 timebefore Decemberofeachyear, itispaidtohimortohis lawful personal representative immediately upon his retirement ordeath,asa 13th salary, anamountequal to 1/ 12th ofhis monthlysalary atthetimeofhisretirementorhis death for eachcompletemonthofservice 15 7 Apublicservant whohasresigned orhasbeen dismissed dunngtheyear,isnotentitledtopaymentofthe13thsalary.» It was the case for theappellant before thetnal judge that Regulation 7ofthe 13thSalary Regulations,isunconstitutionalas itoffends thepnnciple ofequality safeguarded byArticle 28.1 of 20 ourConstitutionbydifferentiating unreasonably theposition ofa public officer who resigns dunngtheyear andwho isnotentitled to paymentofany partofthe 13th salary, from the position ofa public officer who dies or retires dunng theyear andwhois entitled to the analogy of the 13th salary as provided by 25 Regulation
- The trialJudge, after considenng thearguments ofcounselfor the parties, came tothe conclusion, asstated atpage 40ofthe record, that thedifferentiation made between retirementand deathontheonehandunderRegulation6andresignation,which 30 is thepresent case, ontheother hand, under Regulation 7,is neitherunreasonablenorarbitraryorunjustifiable. Apublic officer •whoresigns hispostcannotbe said tobeinthesamesituationas one who retires or dies as he may regulate the time of his resignation Inreachingtheabove conclusionthetnaljudgemade reference totheleading caseof77ieRepublicν NtshanArakianandOthers
(1972)3 C.L.R. 294atpages 298-299, where the following is 398 35 3 C.L.R. Vorkas v. Republic Malachtos J. stated: 10 15 20 «The application of the 'principle of equality' has been consideredinMikrommatisandtheRepublic,2R.S.C.C.125, where, itwasstated (atp.131)that 'equal before the law'in paragraph 1 ofArticle28doesnotconveythenotionofexact arithmetical equality but it safeguards only against arbitrary differentiation and does not exclude reasonable distinctions whichhavetobemadeinviewoftheintrinsicnatureofthings; and the Mikrommatiscase was followed in, inter alia, Panayidesv.TheRepublic
(1965)3C.L.R.107,Loucav. The Republic
(1965)3 C.L.R.383,and ImpalexAgenciesLtd. v. TheRepublic
(1970)3C.L.R. 361. Valuable guidance can be derived in this respect from decisionsoftheGreekCouncilofState Incase1273/65it wasstated that the principle of equality entailsthe equal or similartreatmentofallthosewhoarefound tobeinthesame situation.... Incase 1247/67 itwasheldthattheprincipleof equalitysafeguarded byArticle3oftheGreekConstitutionof 1952-whichcorrespondstoArticle28.1ofourConstitution - excludes only the making of differentiations which are arbitraryandtotally unjustifiable...». Counselfortheappellantinarguingthisappealtodaybeforeus, put forward the same submissions as those put before the trial judgeandfurther submitted that apublicofficer whovoluntarily resignshispost,likeapublicofficer whoretiresordiesbeforethe endoftheyear, isentitled, asofright,totheanalogyofhis13th salary because of his services already rendered, irrespective of voluntaryresignationorretirementordeath. Having heard what has been argued by counsel for the appellant, we must say that we entirely disagree -with his submissions. We must further say that we fully agree with the approach of the trial Judge, that the distinction made by Regulation7betweenapublicofficerwhoresignshispostbefore the end of the year and an officer who retires or dies, is a 35 reasonableoneandsothisRegulation 7isnotunconstitutional. Theappeal,therefore,isdismissedwithnoorderastocosts. Appealdismissed. Noorderastocosts. 399