clr/1988/1988_3_171.pdf

(1988)After theenactmentofthePensions(Amendment)Law2/81,providing for therecognition of theserviceof membersof thecivilservicewiththe armed forces during theSecond WorldWaraspensionable,theapplicant sought recognition of his own such service during the said War as pensionable. On 16.2.85themanagement ofC.B.C.agreed tocredittheapplicant withsuchentitlementashewouldhaveenjoyed,hadhebeenamemberof theCivilService.Theassurancetotheapplicantwasnotconsistentwiththe relevant collective agreement between C.B.C. and the Unions of its Employees, which was later adopted with retrospective effect by Regulations. 10 Whentheapplicantretired,hisservicewiththearmedforces wasnot recognisedaspensionable.Hencethisrecourse. Held,dismissingtherecourse:

(1)Art.122oftheConstitution,invoked by applicant, does not purport todefine the financial benefits of public j ^ officers, far less their retirement benefits. Art. 122 does not raise any constraints to legislative authority toclassify retirement benefits in the varioussectionsofthepublicserviceastheintrinsic needsandrealitiesof each branch mayjustify (Georghiou v.Republic

(1985)3C.L.R.2007 adopted).Thesameamenitytodifferentiate existstoointhecaseofpublic 20 corporations (Anastassiades v.EA.C.

(1987)3C.L.R.790adopted).

(2)Art.192oftheConstitution,also,invokedbyapplicant safeguards continuity ofemploymentof membersofthepublicserviceatthetimeof theestablishmentoftheRepublicandprohibitedthealterationoftheterms oftheirservicetotheirdetriment Inthiscasetheapplicantseveredhislinks withthepublicservicebythevoluntaryactofhisretirementin 1962. 25 In any event the period of servicewith the armed forces during the SecondWorldWarwasnotpensionableasatthedateoftheestablishment of theRepublic.

(3)Noorganorofficial of theAdministration,however,highinrank, canactoutsidethelaworcasthimselfaboveit.Thelawistheonlysource of authorityandpower.Consequently,therewasnopowertogranttothe applicant benefits to which he was not entitled to. No rights could be derivedfrom theunderstandingof 16.2.85,whichwasoutsidetherealmof law. . Hadtheapplicantmodified hispositioninanywayinconsequenceof thisundertakingandhadhesuffered anydetrimentinconsequencethereto, otherconsiderationsmightcomeintoplay. Recoursedismissed. Noorderastocosts 172 35 40 3 C.L.R. Michaelides v. C.B.C. Casesreferredto: Kontemeniotis v.CB.C.

(1982)3C.L.R. 1027; Georghiou v. Republic

(1985)3 C.L.R.2007; Anastassiades v.E.A.C.

(1987)3 C.L.R.790; Droushiotis v.C.B.C.

(1984)3C.L.R.

1. Recourse. ,Q Recourse against the refusal the respondent to recognise applicant's service with the P.W.D. as an apprentice for 18 months and later with theBritish Navy for aperiod of 32 months aspensionable for thepurposesof computation of his gratuity. A. Dikigoropoulos, for the applicant. P. Polyviou, for the respondent. Cur. adv. vult. 15 20 25 PIKIS J. read the following judgment. In 1952 the applicant joined the Broadcasting Service, abranch of thecivil service.In 1962 he retired from government service pursuant to the provisions of the Cyprus Broadcasting Corporation (Service of Government Officers) - (Retiring Provisions) Law 6/
2. Following his retirement from the government service, he was reappointed as a member of the personnel of the broadcasting service entrusted to a public corporation, that is, the Cyprus Broadcasting Corporation. The aforementioned law made both provision for the retirement from the public service and the reappointment of personnel to the Cyprus Broadcasting Corporation. The applicant served asamemberof theCorporation, first, as aTechnical Superintendent and later asOperationsManager until 173 PikisJ. Michaelides v.C.B.C.

(1988)hisretirement on 1stMarch, 1985.Before andafter hisretirement he pressed for the recognition of his service with theP.W.D. as an apprentice between 1941-1943 (for a period of about 18 months) and later with theBritish Navy between 1943-1946 (for a period of 32 months) as pensionable for the purposes of 5 computation of his gratuity. His application was turned down (21.6.1985) for the reasons indicated in the letter addressed to him on 25th July,

1. The request of the applicant for the recognition of his service with government during the war years was, as may be gathered, inspired by the enactment of the ,« Pensions (Amendment) Law 1981-2/81, providing for the recognition of theserviceofmembersof thecivil servicewith the armed forces during the second world war as pensionable. His application for recognition of his services during the second world war was made shortly after the enactment of the aforementioned statute. In due course the union of the C.B.C. personnel took up his case andmade it a subject of negotiations between the unionsand themanagement of the Corporation. On 16th February, 1985 the management argeed tocredit him with suchentitlement togratuity ashewouldhaveenjoyed hadhebeen 20 a member of thecivilservice.Thisisconfirmed byanaffidavit of the then Minister to the Presidency , Mr. Dinos Michaelides, dated4th September, 1986.Theassurancesofthemanagement to the applicant and their undertaking to the unions run contrary to the provisions of the gratuity scheme of the Corporation. The 25 gratuity of the employees of C.B.C. was governed by the provisions of an agreement between management and unions concluded in
2. But for the agreement the applicant would have been unable to secure recognition of his services for purposes of pension for the years 1952-
3. The agreement 30 replaced anearlieroneand supplemented theregulationsin force governing pensionable rights of the staff of the organization. In due course the agreement of 1980 was given statutory force by the enactment of the Regulations 1987* and was given retrospective effect from 1st January,
4. Notwithstanding 35 *RAA204I87 -Publishedinsupplement2oftheGazetteof3.7.
5. 174 3 C.L.R. 5 ,Q ,<- 20 25 Michaelides v. C.li.C. if- Pikis J. the timegap ingiving stapbry effect ίο theRegulation's of 1980, themanagementof the.(Sfcioration regardedthemselves asbound by theagreement anddetejwiined thebenefits.of retiringpersonnel according toits proviskg}£Whether they"were entitled todo so need not be debated inftftse proceedings as it was not madean issue. We mayremind that-collectiveagreements as such are not a source of law (Kontemerii&tis v. C.B.C. *). What was madean issue in these proceedings is the amenity, if any, of the Corporation toderrogate from its agreement of assurances of 16th February, 1985, and thebreach, if any, of the rights of applicant safeguarded by Articles 122 and 192 of the Constitution. It is thecase for theapplicantthat Art.122 of the Constitution safeguards equality of treatment with regard toretirement benefits among the class of public officers defined therein. A similar submission made in the^case of Georghiou v. The Republic ** was turned down by A^&nzou, J. as untenable. The learned Judge decided that Artfr>22 does,not purport to define the financial benefits of pufeli^officers and far less theirretirement benefits. The aim of Xrt:?122 was to define the range of the public service with a *ie}* to defining the competence of the Public Service Commission. The ratio of the above case is that Art. 122 does notraise arr^constraintsto legislative authority to classify retirementbene:fiti£in the various.sections of the public service as the intrinsic-i&J$s and realities Of each branch may justify. '-";?V! * - -^* • ' . ,. / The case of Georgtiiuju'rfeupraj.was followed -by Stylianides, J. in Anastassiades v. £)&iC.?.?-*. Not.only it was competent, the Court observed, ^ ^ ^ . legislative, authority to enact different rules for thepfnsjfeing.Qf different branchesof thepu&Ϊ •••'' ' ΐ& .rr-ί* *

(1982)3 CL.R. 1027. Seeatsofyoussioiis.v. C.B.C.

(1984)3 CL.R.546. **

(1988)3C.L.R.2007. g ' ***

(1987)3 CLR. 790. 175 Pikis J. Michaelides v.C.lt.C.

(1988)blic service, but the same amenity to differentiate existed tooin thecase of public corporations. Consequently the fact that service during the second world war was recognized as pensionable by any other public corporation, did not involve any breach of the provisions of Art. 5 122of the Constitution. Art. 192 cannot get the case of the applicant off the ground either. It safeguarded, by the provisions of para.1,continuity of employment of members of the public service at thetime of the establishment of theRepublicandprohibited thealteration ofthe 10 terms of their service totheirdetriment. In thiscase the applicant severed his links with the public service by the voluntary act of his retirement in 1962.Thereafter, thetermsandconditionsof his service were solely regulated by the law and regulations governing theemoluments and pension rightsof membersof the 15 Cyprus Broadcasting Corporation. Even if we were to suppose that the Cyprus Broadcasting Corporation ought to heed the provisions of thepension Lawat thetime of theestablishment of the Republic,the scheme under which hisrights were determined in no way offended the provisions of the Pension Law at the 20 time. As correctly pointed out in an advice of the Personnel Department of the Ministry ofFinance (31.1.1985), the Pension Law inforce in 1960did notrecognize aspensionable the service of theapplicant with the British Armed Forces becauseof lackof continuity. Between the years 1946-1952 the applicant was employed intheprivate sector. Whatremains todecideiswhether theagreement orassurances of 16th February, 1985,altered ormodified theobligations of the respondents towards the applicant. It is a cardinal principle of publiclaw that theAdministration should operatewithin thelimits and subject tothe provisions of thelaw. In thiscase, the scheme governing the determination of the retirement gratuity of the employees of the organization. No organ or Official of the Administration, however high inrank,can actoutsidethelawor cast himself above it.The law istheonly source of authority and 35 176 3 C.L.R. 5 10 15 Michaelides v.C.B.C. PiktsJ. power. Consequently, neither the Minister tothe Presidency nor the Director-General of the organization or the board of management for that matter had power or authority to award benefits outside the approved scheme.The undertaking given to theapplicanton 16thFebruary, 1985,had nosanction in lawand waswholly outsidethepowersof anyofficial of theorganization togive. Consequently, it was not a legitimate exercise of power and as such outside therealmof the law.Norightsin public law couldderive therefrom. Ofcourse, had the applicant modified his position in any way in consequence of this undertaking and had he suffered any detriment in consequence thereto, other considerations might come into play. This is not the case and the matter need be pursued any further. The applicant had no right to additional benefits for his service with the P.W.D. or the Armed Forces between 1941-1946, and none could be validly claimed or be awarded tohim.Hewascompensated according totheschemein force and thedecision must bevalidated bythis Court. The case is distinguishable from cases where the Administration in theexerciseof itsdiscretion evolves apractice consonant with the law and then fails tofollow it in a particular case. In those circumstances, the Administration may expose itself tothechargeof bad faith* and thesubject may legitimately complain of discrimination. In theresult therecourse isdismissed.The subjudicedecision isconfirmed pursuant to Art. 146.4 (a) of the Constitution. Let there be noorder astocosts. Recoursedismissed No orderastocosts. * Droussiotis v.C. B. C.

(1984)3C. L. R.546. 177