clr/1989/1989_3A_916.pdf

(1989)1989August5 [A. L01ZOY.P.] INTHE MATTER OF ARTICLE 146OF THE CONSTITUTION ΜΑΚΟTHEODOSSIADOU. Applicant, v. THE CYPRUS BROADCASTING CORPORATION, THROUGH THE ADMINISTRATIVE BOARD OF CYPRUS BROADCASTING CORPORATION AND ANOTHER, Respondents. (Cuse No.259/83) Acts or decisionsinthesense ofArt. 146.1 ofthe Constitution — Omission to reply to a request submitted underArt. 29 of the Constitution — Election to challengethesubstanceof thematter — Precludesapplicant from challengingthe omission toreply as well. 5 General principles of Administrative Law — Imposing by Scheme of Service duties on applicant whichshe was unofficiallyperforming — Applicant cannot complain against the so-called amendment of the Scheme of Service. 10 Collective agreements — Terms thereofnot enforceable,unlessembodied inRegulations. Legitimate interest — Changeentailingincreaseofsalaryandnodiminution or deterioration of vested rights— Applicant's legitimate interest has 15 not been "adversely" affected — By the upgrading of the post applicant's vestedrightswerenot affectedadversely, butsheisnow ina superior andmore beneficialposition than she wasbefore. By reason of an amendment to a Scheme of Service theapplicant 2 0 was emplaccd in a higher scale without diminution of status or 916 3 C.L.R. 5 Thcodossiadou v. C.B.C. & Another deterioration of her vested rights. The applicant, however, filed the present recourse, complaining in effect in respect of alleged "failure or refusal" of the respondent corporation to emplace her on a still higher personal scale or make a further upgrading of the post he now holds. The Court dismissed the recourse. Recourse dismissed. So order as to costs, 10 discs referredto: Kyriakides v.Republic IR.S.CC. 66. Charalambous v.Republic

(1986)3 C.L.R.557. 15 Kontemeniotis v.C.li.C.

(1982)3 C.L.R. 1027. Evogelou v. C.li.C.

(1985)3 C.L.R. 1410, 20 Dumiunos v.C.B.C. (I9S7) 3C.L.R.84S. 25 Recourse. Recourse against the decision ofthe respondents to emplace applicant on scale A.11instead of scale A.

1. A.
2. Angelides with Spanou Anastiisiou (Mrs), for the Applicant. 30 P. Polyviou, for the Respondents. Cur.adv. vult. A. LOIZOU.P.readthefollowing judgment. Bythe present 35 recourse the applicant claims: 40 A. Declaration oftheCourt that thecontinuing omission ofthe respondent to reply to the applicant or to her lawyer's fetter of the25th April 1983,iscontrary to Article29of the Constitution. B. Declaration oftheCourt thatthedecision ofthe respondent 917 A.Loizou,P. Thcodossiadou v.C.B.C.& Another

(1989)to emplace the post of Film Programmes Organiser on ScaleA10/11insteadofonscaleA12isnullandvoidandof nolegaleffect whatsoever. C. Declaration oftheCourtthatthedecisionoftherespondent 5 to emplace the applicant on scale All (personal scale). insteadofonscaleA12isnullandvoidandofnolegaleffect whatsoever. D. Declaration of the Coun that therefusal oftherespondent 10 to review the Schemes of Service of the post of Film Programmes Organiser,andtoemplacethem onscaleA12 isnullandvoidandofnolegaleffect whatsoever. The applicant was first employed by the respondent 15 Corporation as an Assistant Programme Officer for Radioon the 1stDecember 1957.Sheservedin variouspostsandonthe 1st August 1976she was appointed to the permanent postof FilmProgrammesOrganiseronthebasisofSchemesofService dated 1st May.

1. Clause 3 of the offer for the post in 20 question dated 19th August 1976.statesthat "in acceptingthe aboveoffer youwillbesubject totheconditionsofserviceand regulationsoftheCorporation inforce atanygiventime";and inClause4thereof itisstatedthat'"yourdutieswillbespecified in the Schemes of Service of the Corporation in force at any 25 given time". On the 4th May 1978, the Administrative Board of the respondent Corporation revised theSchemeofService forthe post andtowhichit addedthefollowing: 30 "To prepare tor publication in the Radioprogramme. material relevant tofilms. Tosuperviseandco-ordinatethe work oftheFilm Librarv(Archive).** 35 It is alleged by the applicant that she was never officially informed of the amendment of the Scheme of Service of the post sheheld,which waseffected without anyupgradingofthe salaryscale. Sheaddressedtherefore twoletterstotheDirector General of the Corporation dated2SthAugust 1981,and20th 40 May,
2. requesting the upgrading of the post. A similar letterwasalsoaddressedtohimonthe29thNovember
3. " 918 3C.L.R. Theodossiadou v.C.B.C.&Another A.Loizou.P. Asno reply wasgiven,aletter dated 17thJanuary 1983,was addressed to the respondent Corporation by the applicant's lawyertotheeffect thatthesalaryscaleofherpost beupgraded to scale A12 the soonest possible and requesting a duly 5 reasoned reply within ten days. A reply was sent on the 8th February 1983 wherein it was stated to the effect that the matter of the reorganization/evaluation of the employees of the Corporation 10 had been during the whole of the year 1982 the object of negotiations between the Corporation and the employees Trade Union EVR1K, of which the applicant isa member. As a result of thesaidnegotiations with EVRIK an agreement was reached around the end of December of that year and the 15 Corporation wasnow considering certain matters put before it by its employees, including the claim of the applicant. 20 25 30 35 The respondent Corporation informed the applicant by letter ofthe 12thJanuary 1983.that asaresult of the agreement for re-organisation she was emplaced to the personal salary scale of All as from 1st January 1981.under the new title of Film Programmes Organiser. It is alleged by the applicant, however, that she receivedthisletter on the 7th April
4. In replytheapplicant's lawyerwroteonthe25th April 1983tothe respondent Corporation to theeffect that and in thelightof the various correspondence exchanged until then - that his client considered herself as having been unjustly treated, that irrespective of the outcome of the negotiations she did not consider herself as bound by the terms of the collective agreement, not having herself agreed to its becoming part of her personal agreement with the Corporation andrequested to be informed within ten days, whether (a) the Corporation is considering thematter ofthe upgrading ofthe post of hisclient asthiswasput forward byherand(b)astothetimesuch matter will be concluded. It iscontended by the applicant that contrary to Article 29 of the Constitution, the respondent Corporation failed to consider or satisfy her complaint that is that she should have 40 been placed on a higher scale and that it also failed to reply to her lawyer's letter of the25th April
5. 919 A. Loizou. P. Theodossiadou v. C.B.C. &Another

(1989)As correctly submitted by the respondent Corporation the applicant cannot succeed on thisground asassumingthere was any failure toexamine the matter on thepart ofthe respondent Corporation, she has proceeded to challenge by means of the present recourse the substance of the matter for which a reply 5 to her letter was sought (see Phedias Kvriakides v. The Republic 1 R.S.C.C.66). It is further alleged that the administrative Board of the respondent Corporation amended Schemes of Service for the 10 post of Film Programmes Organiser on the 4th May 1978 without the knowledge of the applicant and/or Trade Union. contrary to thestanding agreements between Trade Unionsand the Management. Furthermore it was contended that the respondent Corporation by virtue of Section 3 of the Public 15 Corporations (Regulations of Personnel Matters) Law 1970 (Law No. 61 of 1970).has toenact regulations to be approved by the Council of Ministers, regulating matters of reorganisation or upgrading of posts of its employees. The restructuring, re-organisation and re-evaluation of thesen-ices 20 in the respondent Corporation was effected without any such regulations andtheapplicant wascalleduponto perform duties on the basis of amended Schemes of Service and salary conditions which neither approved or published and which resulted in the lowering of thestatus of her post vis-a-vis other 25 posts ofequal status. Thepresence ofthecollective agreement. it was submitted, is of no consequence not having been made part of any regulations, consequently the emplacement of the applicant on scale All was not validly effected, but in any event such emplacement was wrongly effected as the post in 30 question should have been placed on a higher salary scale. I consider that in the first place it is within the power of an appropriate Authority to make Schemes of Service and carry out any necessary amendments to such Schemes in order to 35 serve the requirements of the service. (See Charalambous v. The Republic

(1986)3C.L.R. 557at573). In the present instance as it appears from the documents which are before me and in particular Appendix B, to the 40 application it was within the widenedduties of the post heldby the applicant as from 1975. 920 3 C.L.R. Thcodossiadou v. C.B.C. &Another A. Loizou, P. "To prepare material onscheduled films or tapes foruse in the Radioprogramme. 5 To be responsible for and supervise the film library, including newsfilms andCBCproductions." In effect these duties which she does not appear to have refused to perform or to have ever complained about, donot differ from the"new'; duties ofthepost asthese were amended 10 by the additional of 1978in the Scheme of Service which the applicant complains of. therefore I would consider that she cannot complain about thesocalledamendment ofherScheme of Service since theeffect ofthiswastomake official theduties she wasperforming unofficially allthis time. 15 As far as the terms of the collective agreement are concerned, in the present instance there does not appear that such terms were embodied in any Regulations made by the respondent Corporation in the manner provided by Law,the 20 applicant therefore cannot proceed on itsbasis to enforce any such terms under Article 146of theConstitution, since itlacks the force oflaw.(SeeKontemeniotis v.C.B.C.

(1982)3C.L.R. 1027at 1032;Nitsa Evagelou v.C.B.C.

(1985)3C.L.R. 1410 at 1422.and Damianos v.C.B.C.

(1987)3C.L.R. S4S.at 853). 25 Irrespective ofthisthepost of FilmsProgrammes Organiser which is held by the applicant which previously was on scale AS. was upgraded to scales A10/11 in accordance with the provisions of the collective agreement. The applicant herself - 30 wasemplaced on persona! scale Al1 asfrom 1stJanuarv 1981 (£3759X152-4975) and on £4367 as from 1st October 1982. that isonthefourth increment ofscaleAl1 within lessthantwo years, a higher salary scale. I expect in order to keep some balance inthehierarchy oftheservice. 35 On this point it wassubmitted on behalf of the respondent Corporation that sincetheapplicant's salaryissuperiortowhat it was before, she has no legitimate interest to challenge this particular act. In support the case of IS'itsa Evangelou v. 40 C.B.C.(supra) at p.1426 was cited to the effect that where a salary is increased and there has been no diminution or deterioration of vested rights no recourse can lie in that 921 A. Loizou,P. Thcodossiadou v.C.B.C.& Another

(1989)connection. To begin with I should state that the powers of the Coun underArticle 146of the Constitution donot extend asfar asto order that an applicant be emplaced in any particular post or 5 grade (see Damianos v. C.B.C. (supra) at S51). the Supreme Court in its Revisional Jurisdiction not being a Court ot Appeal, only decides whether inthecircumstances the decision under recourse was proper andcorrect or not. 10 In the present case, as already stated above, by the reorganisation and restructuring ot the service, the applicant was placed in a higher salary scale than she held before and indeed in the higher scale of those provided by the collective agreement I tad therefore to see in what way her legitimate 15 interest might have been adversely affected bythisnewstate ot affairs. B>the upgrading ot thepost shenow hoidsnot onlyher vested rights, it any. were not altected adversely but she is undoubtedly ina superior andmore beneficial position that she was before. She didnot have a vested right in any higher scale 20 and the alleged "failure or refusal*' of the respondent Corporation to emplace her on a still higher personal scale or make a further upgrading ot the post she now holds, does not affect anylegitimate interest ot hers. 25 As far as thegeneral set upot the service isconcerned. Ido not find that thishasbeen disturbed inanywa\ andinanyevent to her detriment. On the contrary Ifind Irom the tacts before me'that her post was upgraded and the applicant hersel. from scale AS.she now eniovs scale A11 which isthe same level as 30 that ot posts which were previously at scale A9 Needless to say that as far as the creation ot posts and their upgrading is concerned this is not by itself a matter within the ambit ot Article 146ot the Constitution 35 Finally I would like to say that no discrimination wa> established as between the applicant and any other officer inasmuch as equality oi treatment is as between equals and there doesnot seem toexist thenecessary equality between the post oi the applicant and that ot other officers complained of. 40 The different upgrading, if any. does not constitute in the circumstances, discrimination 922 3 C.L.R. Theodossiadou v. C.B.C. &Another A. Loizou, P. For all the above reasons this recourse fails and is hereby dismissed. There will be.however, no order astocosts. 5 Recourse dismissed. No orderas rocosts. 923