(1987)1987June13 [ALOtZOU.JI INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION GEORGHIOSDAMIANOSAND ANOTHER, Applicants, ν THE CYPRUSBROADCASTINGCORPORATIONTHROUGH THE ADMINISTRATIVEBOARDOF THE CORPORATION, Respondent (CasesNos 78/86,79/86) Administrative act — Annulment of — Obligation of the administration — Reinstatement of matter to legal situation in force before the annulled decision RevisionalJunsdiction— Courtdoes not pronounce on whatthe decisionshould have been, but on whether the sub judice decision isproper and corrector nof 5 Collectiveagreements — Do not by themselves createany nghts atpublic law Following a collective agreement reached between the respondent Corporation and thetrade unionof itsemployees, whereby the restructunng of the service was agreed, the respondent emplaced the applicants, who,at 1 0 the time,held the post of Programme Officer (Scale 6/7) tothe new post of Programme Officer Aon a combined scale 8/9 The applicants who felt aggneved by reason of their non emplacementto the newpost of ProgrammeOfficer A,Scale 10,filedarecourse tothisCourt, as a result of which the applicants' said emplacement was annulled (See Evangelouand Others ν CBC
(1985)3CLR 1410) 15 The respondent Corporation filed an appeal and decided that pending appeal the applicants should be re-emp!aced to their previous post of Programme Officer but on scale 8/9, instead of theirold scale 6/7 By means of these recourses the applicants challenge the aforesaid decision tore-emplace themintheirold post Held,dismissingthe recourses
(1)Itisageneral pnncipJeof administrative law that upon annulment of an administrative act,the administration has an obligation to reinstate the matters to the legal situation mat was in force, before theannulled decision was reached 848 20 25 3 CUR. D w n l a a o · and anotherv. C.B.C.
(2)ThisCourt initsrevisional jurisdiction isnota Courtof Appeal. Itdoes not decidewhatthedecision oughttohavebeen,butwhether thesubjudice decisionwasproper and correctornot. 5 10 15
(3)The effect of Evangeloucase,supra was notthat the applicants should have been emplaced in the post of Programme Officer A,scale 10, but that theiremplacementtothepostofProgrammeOfficerA.scale8/9wasnulland void.
(4)InthelightoftheEvangeloucase,suprathepostof Programme Officer which theapplicants originallyheld, wasnotabolished bythe re-structunng, becauseacollectiveagreement byitselfcannot create,modify orabolishany right, obligation or any other legal relation in the domain of public law (Evangelou, supra,p. 1423).
(5)Strictly speaking following the annulment by the decision m the Evangelou case,supra, the respondent all ithad to do was to emplace the applicantsto theiroldpostonscale6/
- Itwasnoteven obliged to emplace them on scale 8/
- Recoursesdismissed. No orderastocosts. Casesreferredto: 20 EvangelouandOthersv.CB.C
(1985)3C.L.R. 1410; ' Pantazisv.TheRepublic
(1986)3C.L.R.
- Recourses. Recoursesagainstthedecisionoftherespondenttore-emplace applicants in the post of Programme Officer by the existing 25 schemeofserviceonscaleA8/
- K.Talarides,fortheapplicants. P. Polyviou, fortherespondent. Cur. adv. wit A. L.OIZOU J. read the following judgment. By these two recourses which were heard together the applicants seek a 30 declaration of the Court that the decision of the respondent Corporation of the 28th November, 1985, to re-emplace the applicants in the post of Programme Officer by the existing SchemesofServiceandonscaleA8/9,isnullandvoidandofno legaleffect whatsoever. 849 A. Loizou J- Damianos and another v. C.B.C.
(1987)The facts so far as relevant are as follows: The applicants held the post of Programme Officer (Scale 6/7) with the respondent Corporation.On or about September 1982, withtheobject of the restructuring of the posts of itsemployees, a collective agreement was reached between the respondent 5 Corporation and the Union of the Employees (EVRIK)according towhich theproposed restructuring would becompleteduptothe end of March 1983, and would have retrospective effect as from 1st January
- Following such agreement the said restructuring was accordingly effected. The post of Programme 10 Officer was abolished and seven organic posts were created bearing thetitleof ProgrammeOfficer A, withsalary scale A10; all remaining holders of the post of Programme Officer were tohold the title of Programme Officer A on a combined scale A8/9 as from the 1st January 1981 and became eligible for promotionto 15 the post of Programme Officer A,Scale A
- Theapplicantswho were accordingly emplaced onScale A 8/9 objected andfiledasaresultrecourses Nos.170/83, and 258/
- Itwas held by theCourt, annulling thesaid decision, thatinthe restructured establishment nopost existed as theonetowhich the applicants had been appointed, who were entitled by virtue of 20 their vested rights in *Ίκ previous post, to be emplaced to an existent organic post underthenew structure.(SeeEvangelou and others v,C.B.C.
(1985)3 C.L.R. 1410 atp. 1427). Following suchannulment,therespondentCorporationfiledan appeal against the above decision (which, however, was 25 subsequently abandoned). Meanwhile the matter was reconsidered by it on 28th November 1985 in the light of the annulling decision of the Court and it was decided that until the conclusion of the appeal the applicants would be re-emplaced in the position they held before, of Music Programme Officer with 30 the existing scheme of service andonScale A8/9, instead oftheir old Scale of 6/7 and furthermore that the matter would be reconsidered after the conclusion of the appeal. As a result of this decision the applicants filed the present recourse claiming that the sub judice decision was reached contrary to the aforesaid Courtdecision (Evangelou (supra), with which the respondents iailed to comply, in that the applicants were wrongly emplaced back totheir old position of Programme 850 35 3C.L.R. 5 Damlanos andanotherv.C.B.C. A.LotzouJ. Officer which had been abolished bythe reorganisation, whereas the neworganicpostinthe newstructurecorresponding in duties and responsibilities tothe old post isProgramme Officer A,Scale A10, inwhichtherespondent Corporation hadadutytoemplace theapplicantsinordertocomplywiththedecision ofthe Court. On the otherhand itwasargued bycounsel forthe respondent Corporation that there had in fact been full compliance with the decision of the Court which in any case wastothe effect that the subjudicedecisionwasannulled.Itwassubmitted thatthe powers 10 oftheCourt underArticle 146ofthe Constitution could notgo as far as to order that the applicants be emplaced in any other particular post. In any event it was further stated, the applicants had infactsuffered nodetrimentasineffect theywere receivinga highersalarythan they originally did. 15 It is a general principle of administrative law that the administration upontheannulmentofitsdecisionbytheCourthas an obligation to reinstate the matters to the legal situationwhich was in force, before the annulled decision was reached. See Pantazis v. Republic
(1986)3 C.L.R. 239 at 245 et seq., where 20 extensive reference is made therein to the obligation of the administration to comply with the decisionsofthe Court. The Supreme Court in its revisional jurisdiction in administrative law matters is not a court of appeal, it therefore cannot reach a decision as to how the decision of the 25 administrative organ oughttohavebeen. Itonlydecides whether in the circumstances such decision of the organ under recourse was proper and correct or not. If such decision is annulled, the organ itselfistheappropriate organtoreconsiderthematterinthe lightofthe judgment ofthe Court and toreach anew decision. 30 Consequently the effect ofthe aforesaid judgment incasesNos 170/83and258/83,wasonlythatsuchdecisionofthe respondent Corporation was wrong and was therefore annulled and not that the applicants should have been emplaced in the post of Programme Officer A,A10, asalleged. 35 Asittranspires from the facts, seven Programme Officers were in accordance with the restructuring placed in the post of Programme Officer A, A 10. The applicants are not challenging this;whatthey are infact challenging istheir nonemplacement in ScaleA10 andtheirwrong,astheyallege, emplacement intheir 851 A. Lolzou J. Damlanos and another v.C.B.C.
(1987)old post of Programme Officer, which they alsoallege, had been abolished as a result of the restructuring. Before proceeding any further I consider itpertinent to refer to whatwasstated inthe aforesaid judgment Itisstated therein atp. 1422: 5 «Itiscommon ground thatthe restructuring wasbased ona collective agreement between the Corporation through its management, on the one hand and the Trade Unions of C.B.C, namely EVRIK and SYTYR1K, on the other. Such agreement has not been embodied in any regulations made 10 bythe respondent Corporation inthe matterprovided bylaw and, therefore ithas not acquired the force of Law.» Andat p. 1423: «Itisclearfrom theabove thecollectiveagreementbyitself cannot create, modify or abolish any right, obligation or any 15 other legal relation in the domain of public Law, a fortiori in case where there are statutory provisions which regulate the internal structure of the service and the relevant powers of a Corporation, asin the present case.» Andthe Court concludes atp. 1425: 20 «Inmyopinionthere-structuringwhichineffect amountsto a reformation oftheserviceandare-evaluationoftheposition of the employees, in a much wider sense than a mere appointment orpromotion oranyotherchangeintheservice, falls within the powers envisaged bysection 3 of Law61/70. 25 The only possible and legal way that thiscould be done was by means of regulations which eventually and necessarily shouldbeapprovedbytheCouncilofMinistersandshouldbe published in the official Gazette, which are prerequisite conditions fortheirpromulgation.Thecollectiveagreementis 30 nothing more than the expression of intention of the Corporation to proceed with the restructuring of the service and cannot byitself beasufficient legalbasisonwhichtherestructuring could bevalidly founded.» Iwould therefore consider inthe circumstances and inthe light 35 of theabove judgment thatthe post ofProgramme Officer which theapplicants originallyheldandtowhichtheywere re-emplaced after such judgment could not have been abolished by the 852 3 C.L.R. Damlano· and another v.C.B.C. A.Loizon J. restructuring, as contended. Consequently the respondent Corporation in complying with the judgment of the Court correctly emplaced the applicants intheir old post. Furthermore I cannot see how it would be possible in the .5 circumstances for the applicants to claim any rights under the collective agreement. The question of collective agreements has been considered bythe Courtsonnumerousinstancesinthe past and ifnot embodied in any regulations as provided by law, they are considered as unenforceable and as not creatinganyrightsat 10 public law. Strictly speaking, such agreement being unenforceable, the respondent Corporation in complying with the decision of the Court, allithad to do wasto emplace them tothe post they held prior tothesubjudice decision, that isthat of Programme Officer 15 scale6/7.Itwasnoteven obligedtoemplace them intheScaleof A8/9, but Iexpect it emplaced them at a higher salary scale in order to keep some balance salary wise in the hierarchy of the service. Itherefore find that the sub judice decision was correct in all 20 respectsand isconfirmed. These recourses therefore fail and are hereby dismissed with no orderastocosts. Recourses dismissed. No orderasto costs. 853