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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1974) 3 CLR 57
1974 February 19
[L. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
XENIS LARKOU,
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
1. THE MINISTER OF FINANCE,
2. THE DIRECTOR OF THE DEPARTMENT OF PERSONNEL,
Respondents
(Case No 59/72).
Public Officers-Rent allowance-Officer residing in a town other than his station-Not entitled to rent allowance under the relevant Scheme-Paragraph 4 of the Instructions and Rulings set out in Appendix II to the Rent Allowance Scheme-Which paragraph in no way offends against the principle of equality safeguarded under Article 28 of the Constitution-Cf. further infra.
Rent allowance-See supra.
Constitutional Law-Principle of equality-Safeguarded under Article 28 of the Constitution-Not excluding reasonable differentiations as the one in issue in this case-That is to say distinction between officers renting houses in their station and residing therein, in respect of whom only a rent allowance is granted-And officers not residing in their station-Reasonable distinction warranted by the difference of the respective situations (The Republic v. Arakian and Others (1972) 3 C.L.R. 294).
Equality-Principle of-See supra
By this recourse the applicant, a public officer in the Department of Inland Revenue, seeks a declaration that the decision of the respondents whereby his application for 'rent allowance' was refused is null and void Up to the 31st May, 1970, the applicant was posted in Nicosia up on the 1st June, 1970, he was transferred to Famagusta until the 1st June, 1972, when he was transferred back to Nicosia It is common ground that durings the aforesaid two years' period the applicant did not move to Famagusta but continued to reside in Nicosia in a Government. House which he had on lease; it is in respect of the said period that he was posted in Famagusta that the respondents refused to pay him rent allowance in view of paragraph 4 of the Instructions and Rulings set out in Appendix 11 to the Rent Allowance Scheme, which reads as follows:
"4 Rent allowance is payable only in respect of a house rented by an officer in his station The term 'station' includes any place within a radius of five miles from the centre of the station".
It was argued by counsel for the applicant that the said paragraph 4 improperly discriminates against public officers in the same position as the applicant and that therefore, it offends against Article 28.1 and 2, of the Constitution, safeguarding the principle of equal treatment Dismissing the recourse, the learned Judge of the Supreme Court:
Held, (1) Article.28 (supra) safeguards against arbitrary and unreasonable differentiations; it does not exclude reasonable distinctions (see The Republic v Arakian and Others (1972) 3 C.LR.294).
(2) But it seems to me that the distinction made between the officers who rent a house in their station and reside therein from those who, for whatever reason, choose not to reside in their station, but in another town is a reasonable one and does not in any way offend against the principle of equality safeguarded by Article 28 of the Constitution.
Recourse dismissed.
No order as to costs.
Cases referred to:
The Republic v Arakian and Others (1972) 3 C.L.R.294
Recourse.
Recourse against the decision of the respondents whereby applicant's application for rent allowance was refused.
M. Christophides, for the applicant.
A. Evangelou, Counsel of the, Republic, for the respondents.
Cur adv vult.
The following judgments was delivered-by:-
L. LOIZOU, J.: By this recourse the applicant seeks a declaration that the decision of the respondents whereby his application for rent allowance was Refused is null and void and of no effect.
The applicant is employed in the public service as a Principal Assessor, 1st Grade, in the Department of Inland Revenue Up to the 31st May 1970, he was posted in Nicosia and on the 1st June, 1970, he was transferred to Famagusta until the 1st June, 1972, when he was again transferred back to Nicosia It is the period that he was posted in Farnagusta that is the relevant period for the purposes of this recourse because it was during that period that the respondents did not pay to him rent allowance.
Lt is common ground that during the relevant period the applicant did not move to Famagusta but continued to reside in Nicosia in a Government house which he had on lease.
The grounds of law upon which the Application is based, as set out therein, are:
(1) That in reaching the decision complained of the respondents wrongly interpreted and/or applied the rent allowance scheme;
(2) That the reasoning of the decision is misconceived;
(3) That the said decision and/or act is the result of a defective or wrong exercise of discretionary powers;
(4) In the alternative, if it is considered that the rent allowance scheme provides for the grant of such allowance only to officers who rent a house in the town where they are posted, then, such provisions of the scheme offend violently against the principle of equality safeguarded by Article-28 of the Constitution and they create unreasonable discrimination, which does not serve the interests of justice or the public interest or any special purpose, between public officers.
At paragraph 2 of the facts in support of the Application it is alleged that the applicant had accepted the transfer to Famagusta after he had been assured by the respondents, through the Director of the Department of Inland Revenue, Mr. Apostolides, that rent allowance would be granted to him even though he and his family would continue to reside in Nicosia. This allegation is also made by the applicant in a letter dated 12th November, 1971, addressed by him to the Director of the Department.of Personnel, exhibit 2. At paragraph (c) of that letter he writes that he accepted the transfer to Famagusta chiefly in the interests of the service and after the Head of his Department assured him that he would be entitled to rent allowance whilst residing in Nicosia In another letter dated 22nd January, 1971, exhibit 1, addressed by the applicant to the Head of his Department, apparently in reply to a letter by the latter informing him of the decision of the Director of the Department of Personnel not to grant to him rent allowance, he writes that he does not accept the decision of the Director of the Department of Personnel because prior to his transfer to Famagusta he the Head of his Department-told him that he had communicated with Mr.Stathis, the Auditor-General who had assured him that the applicant would be entitled to rent allowance as there was the precedent of Mr. Marcos Miltiadous, Registrar at the District Court of Famagusta.
Respondents denied that any promise was given to the applicant by anybody that he would be granted rent allowance and in fact in his letter dated 18th November, 1971, exhibit 11, addressed to the Director of the Department of Personnel when forwarding applicant's letter of the 12th November, exhibit 2, the Director of the Department of Inland Revenue clarifies that he never made any such promise to the applicant but that when the latter told him that there was a precedent in which rent allowance was granted under similar circumstances he told him that in such a case he would, no doubt, be treated in the same way.
At the hearing of the case learned counsel for the applicant relied on two of his grounds of law I e grounds 3 and 4.
With regard to ground 3 he submitted that since the applicant was promised by his superiors that he would be paid rent allowance the Administration should have fulfilled the promise and should have paid rent allowance to the applicant But, quite independently of the merits of this submission, the allegation that applicant had been promised rent al1owancehas never been substantiated in fact learned counsel appearing for him applied for an adjournment in order to call evidence but at the adjourned hearing he stated to the Court that having considered the matter further he did not propose to call any evidence Perhaps it should also go on record that it transpired from the evidence that applicant's information about the existence of a precedent was wrong and that the person who it was alleged was granted rent allowance in similar circumstances was only granted such allowance after he leased a house in his station and resided therein This appears from a letter dated 16th February, 1971, exhibit 5, produced on the part of the applicant, addressed by the Director of the Department of Personnel to the Director of the Department of Inland Revenue with copy to the applicant.
There now remains the 4th ground i.e. the question of discrimination.
Paragraph 4 of the Instructions and Rulings set out in Appendix II to the Rent Allowance scheme, exhibit 4, reads as follows:
"(4) Rent allowance is payable only in respect of a house rented by an officer in his station The term 'station' includes any place within a radius of five miles from the centre of the station".
Learned counsel for the applicant was not in a position to inform the Court that in any previous rent allowance scheme there was provision whereby an officer was entitled to rent allowance if he resided in a town other than his station; nor has it been submitted that applicant had any vested rights which were safeguarded by Article 192 of the Constitution.
I cannot accept the view that the paragraph in question discriminates against public officers in the same position as the applicant On the contrary it seems to me that the distinction made between the officers who rent a house in their station and reside therein from those who, for whatever reason, choose not to reside in their station but in another town is a reasonable one; and does not in any way offend against the principle of equality safeguarded by Article 28.1 of the Constitution (see The Republic v. Nishian Arakian & Others (1972) 3 C.L.R. 294).
This disposes of the case But before leaving this judgment I think it should be mentioned that the original decision of the Director of the Department of Personnel refusing the grant of rent allowance to the applicant was taken in December, 1970, and that the applicant appealed against such decision to the Rent Allowance Appeals Committee. The Appeals Committee considered the appeal at its meeting of the 22nd May, 1971 and decided to dismiss it (exhibit 8). This fact was communicated to the applicant's Head of Department by letter dated 28th May, 1971 with a request that he should inform the applicant (exhibit 9). Some five months later, on the 12th November, 1971, the applicant, by his letter exhibit 2, requested the Director of the Department of Personnel to re-examine his application and the letter dated 27th December, 1971, exhibit 3, upon which this application is based, is the letter by which the applicant was informed by the Head of his Department of the decision of the Director of the Department of Personnel that so long as he resided elsewhere than the town where he was posted the grant to him of rent allowance could not be approved.
But having come to the conclusion that I did on the merits of the easel consider it unnecessary to deal with the question of time limit, which, although raised in the Opposition was never touched by either side in the course of the hearing
In the result this Application fails but in all the circumstances I do not propose to make any order for costs.
Application dismissed.
No order as to costs.