(1987)1987 June 17 [A LOIZOU J ] INTHE MATTEROFARTICLE 146OFTHE CONSTITUTION MAMAS PARPAS, Applicant, ν THE REPUBLICOFCYPRUS, AND/OR THE MINISTRY OFCOMMUNICATIONS ANDWORKS, Respondent (CaseNo 369/85). Time within which to file a recourse — Payment of allowance to a civil servant stopped asfrom 153 83, whereasheprotested for the firsttime on 15 9 83, receiving in the meantime his salary unreservedly — Recourse out of time Executory decision — Confirmatory decision Constitutional Law — Equality — Constitution Art 28 1 — Safeguards against 5 arbitrary differentiations, but does not include reasonable distinctions that have to be made in view of the intnnsic nature of things — Civil servants serving at Lamaca International Airport — Credit of two hours travel penod toand from theirhome — Decision tostopsuchcreditin respectof employees residing in Lamaca and suburbs— Distinction between such employees and 1 0 other employees reasonable On the 15 5 81 the applicant, who was a resident of Troulli village near Lamaca, was appointed Assistant Airport Officer, Second Grade and started work at Lamaca International Airport Invirtue ofanagreementmade in 1975 between the Government and the Pancypnan Union of Civil Servants, whereby it was agreedthat employees who were postedpnor to the Turkish Invasion in Cyprus at the Nicosia lnt«i'H"*+'nn3l Airport, would continue to havetheirstation in Nicosiaandconsequentlytheywould becreditedwiththe time of their travel in Lamaca, agreedtobe two hoursaspartoftheir working hours, the applicant was creditedwith two hours travel penod The said allowance stoppedas farasthe applicant was concernedasfrom 15 3 83 On 22 10 83 the Joint Personnel Committee agreed that the applicant and two other employees residingin the Distnct ofLamaca should stop being credited with travel time as aforesaid 926 J5 —U 3 C.L.R. Parpas v. Republic By letter dated 122 85the respondent replied to applicant's letters dated 25 9 83 and 31 1084, informing the applicant that the termination of the credit was effected in accordance with therelevant decision of the Joint Personnel Committee which the Ministry cannot ignore 5 XQ Hence this recourse Held dismissing the recourse
(1)Theallowance was stopped as from 15 3 83, whereas the applicant protested for the first time by letter dated 15 983, though he was receiving dunng theintervening time his salary unreservedly The recourse isout oftime Moreover, the sub judice decision, which was taken without examination ofnew facts is confirmatory of an earlier one
(2)The applicant was not in the service at the time ofthe Turkish invasion and therefore did not fall within the class ofemployees in respect of whom the agreement of 1975 was made 16 2Q Art 2 8 1 of the Constitution safeguards against arbitrary differentiations, but does not include reasonable distinctions that have to bemade in view of the intrinsic nature of things On the facts ofthis case areasonable distinction could bedrawn between the classofthe applicant and two other employees who resided tn Lamaca and suburbs and the other employees ofthe respondent
(3)The applicant failed tosubstantiate his complaint of misconception of fact, namely that the respondent did not have inmind that hewaslivingin Troulli village and not in Lamaca town Recourse dismissed No orderas tocosts ^5 Casesrefened to MavrommahsandOthersν The Republic
(1984)3 C LR 1006, Mynanthisv The Republic
(1977)3 C LR 165, Zambakides ν The Republic
(1982)3 CLR 1017 30 Demetnadesv The Republic
(1986)3 CLR 290, hannou ν The GramCommission
(1986)3CLR 612 Recourse. Recourse against the decision of the respondent whereby applicant wasdepnved of hisrighttobe credited with the period oc ofhis travel from his home tohis work 927 Parpas v. Republic
(1987)A S Angelides for theapplicant Μ Tsiappa(Mrs), for the respondent Cur adv vult A LOIZOU J read the following judgment By the present recourse the applicantseeksadeclaration of theCourtthattheact 5 and or decision of the respondent dated the 12th February 1985, by which he was depnved of hisnghttobe creditedwiththepenod of histravel from hishometohiswork, isnullandvoid andwith no legal effect The applicantwas onthe 15th May, 1981 appointedtothepost κ ) of Assistant Airport Officer, Second Grade and started work at Lamaca International Airport He is a resident of Troulh village which lies at a distance of eight miles from Larnaca town and he was credited with two hours travel penod to and from his home He was so credited as there was an agreement which had been 15 entered into in 1975, between the Government and the Pancypnan Union of Civil Servants, underwhich employees who were posted pnor to the Turkish Invasion in Cyprus at Nicosia International Airport and were to perform their duties in Lamaca International Airport they would continueto have as theirstation 20 the Nicosia Airport and thetime for travel two hoursinall offered by the Governmentex gratia, would be considered as partoftheir hours of work and be also paid subsistence allowance On the 24th August 1983, the Sub-committee of the Joint Personnel Committee submitted a report {Appendix 1), on the 25 question of the station of employees of the Department of Civil Aviation who were employed at Larnaca Airport having been moved to this effect by the Government and the Joint Personnel Committee As it emanates from the said report three employees of the Department of Civil Aviation including the applicant who 30 were working at Larnaca Airport had their place of residence in Larnaca Districtand had been so employed after 1975 should no longer be credited with travel timeιο. ΛΊ^Τ triptoLamaca Airport At the meeting of the Joint Personnel Committee of the 22nd October 1983 (Appendix 3) it was agreed that the above 35 mentioned three employees should stop being credited with such travel time In reply to the applicant's letter of the 25th September 1983, and 31st October 1984 (Appendices 4 and 5) addressed to the 928 3 C.L.R. Parpas v. Republic A. Loizou J. res] ident the latter replied ultimately by his letter of the 12th February 1985 (Appendix 7) as follows 5 10 «I have instructionstorefer toyourletterdated31st October 1984 which was received attheMinistryonthe28th January 1985 regarding youi claim to continue to be credited with a joumey for your travelling to and from work at Lamaca Airr QH and to inform you thattermination of this credit was nade in accordance with th t relevant decision of the Joint Peisonnel Committee which the Ministry cannot ignore or differentiate» As against the decision contained in the aforesaid communication theapplicantfiled the present recouise The payment of such allowance to the applicant stopped as from the 15th March 1983. and theapplicant complained torthe 15 firsttimetotherespondentby hisletterdated the 15th September 1983, thatis six monthsattersuch cessdiiun of payment wh>ch >s after the lapse of 75 days prescribed in Anicle 146
(3)of the Constitution, though he was receiving during that time hissalaiy unreservedly I mayoutnghtsay thatthepresent recourse isoutof 20 time and that the applicant by his conduct impliedly and unreservedly accepted the decision subject matter of this recourse (See in this respect Mavrommatis and Others ν The Republic
(1984)3CLR 1006 Mynanthisv TheRepublic
(1977)O C L R 165 Zambakidesv TheRepublic(\9S2) K L R 1017 25 and Demetnades ν TheRepublic (1986}3 C LR 290 Relevant is also the case of hannou ν The Gram Commission
(1986)3 C L R 612) Moreover the said decision challenged by the applicant ~ i< confirmatory of the decision already taken by them without 30 examination of new facts (See hannou (supra) at ρ 616 and Zambakides ν The Republic (supra) at pp 1023-1024) The recourse therefore should be dismissed on this ground I shall proceed however to examine if theie ha^ been am, discnmination which appears tobe the main ground upon whicn 35 this recourse iscontended uitheyear 1983 thenumberof employees of theDepartmentof CivilAviation who were working atLamacaAirport was 76 Outof these employees 56 had been employed for the first time on or 929 A. Lolzou J. Parpas v. Republic
(1987)before theyear 1974,andhadatthetime,astheiractualstationof work, the Nicosia Airport. With the exception of five employees who wee residing in Limassol, Frenaros and Theletra, the remaining fifty-one employees out ofthe fifty-six were residingin thetown of Nicosia orinotherplaceswithin,theNicosia District. 5 TheremainingnumberofemployeesoftheDepartment ofCivil Aviation, that is twenty-one out of seventy-six, were employed withtheDepartment aftertheyear 1974andsincethedateoftheir employment has as their actual station of work the Lamaca Airport. Out of these fourteen employees were residinginplaces 10 far away from Lamaca, such as,*Nicosia, Emba,Avgorou, Sotera, Paralimni and Limassol.Twoof suchemployeeswere residing at Larnaca, itself and theapplicantwasresidingatTroulli,very near Larnaca. (Appendix 1tothe Opposition and para ivof Appendix 3 to the Opposition.) Itisobviousfrom whathasbeenhereinabove setoutbriefly that the applicant did not fallwithinthe classof employees in respect of which travellingtime hadbeen creditedfortheirjourneytoand from Larnaca Airport. Hewasnotinthe servicebefore 1974and needless to say he was not and could not be posted at Nicosia 20 Airport.Thatagreementanditssubsequentadoptionasadecision of the respondent covered employees of the Department ofCivil Aviation, who were prior to 1974 Turkish Invasion stationed for work at the Nicosia Airport and because of the occupation they hadtowork atthe then constructed LamacaAirport.Itseemsthat 25 itwasnecessitatedbythecircumstancesaffecting them,including, as claimed by the respondents in their address, the difficulty of finding housing accommodation at Lamaca due to the refugee problem, hence these employeesweretobedeemed to continue to have as their work station the Nicosia Airport and the time for 30 theirtravellingestimated astwohours,wastobetaken asworking time so that they were to be paid overtime allowance, and meal allowance. Itisclearthatitdidnotamounttoanarbitrarydifferentiation to j> stop crediting with travellingtime theapplicant, whowasresiding 35 nearLamaca,andtheabovementionedtwootheremployeeswho were residing at Lamaca itself, and all of whom had been employed after 1974and have been working at Lamaca Airport. 930 15 3C.L-R. Parpas v. Republic A. LoizouJ. Moreover on the basisof the above facts a reasonable distinction could be drawn between the classof the applicant and the other two employees and the rest of the employees employed at the Department of Civil Aviation 5 Article28 1 oftheConstitutionsafeguardsonlyagainstarbitrary differentiations and does not include reasonable distinctions whichhavetobemadeinviewoftheintnnsicnatureofthings This ground therefore cannot succeed either The last ground which was introduced by learned counsel for 10 the applicant in the address in reply and msupport thereof two affidavits, one by the applicant himself and another by a certain Chnstodoulos Panteli an Inspector of Airports and a member of the Branch Committee of PASYDY, were filed, is that the respondent acted under a misconception of fact The 15 misconception beingthatthe respondent and theJoint Personnel Committee and the sub-committee it set up ro siudy the matter did nothave inmind thattheapplicant waslivinginTroullivillage and not inLamaca town Aperusal of the relevant documents showsthat there has been 20 no misconception of fact asthetravellingallowance wasstopped from all employees residing in Lamaca Distnct vis-a-vis those residing inother districts Infact in paragraph 4 of the affidavit of Panteliittsstatedthatthey«hadinmindthreeresidentsof Lamaca and suburbs» and Troulli village must be considered as being a 25 suburb of Lamaca town, being eight miles away from it. next to Livadhia village Ido not think that the statement of the affiant in the said affidavit, that they «did not know that the village of the applicant was at such a great distance from the airport» is an accurate one On the contrary it makes it clear that when 30 examining the situations the sub-committee had in mind that the applicant came from Troulli village Moreover inAppendix IIthe minutes of the sub-committee- paragraph (d) is headed «Application oftheagreement forthosethatreside inLamaca and near Lamaca »Thisground should also fail 931 Λ. I.oizou .1. Parpas v. Republic
(1987)For all the above reasons this recourse is dismissed with no orderastocosts. Recourse dismissed. No orderas to costs. 932