|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1965) 3 CLR 334
1965 May 6
[TRIANTAFYLLIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE
CONSTITUTION
ELEFTHERIOS SOTERIOU,
Applicant,
and
1. THE GREEK COMMUNAL CHAMBER, AND/OR
2. THE REPUBLIC THROUGH THE ATTORNEY-
GENERAL, AS SUCCESSOR TO THE GREEK
COMMUNAL CHAMBER,
Respondents.
(Case No. 161/63).
Administrative Law-Elementary school-teachers-Age of retirement-Recourse by Applicant against his retirement from service and his non-employment as school-teaches till his 60th year of age-Action taken by the Greek Board of Education concerning the retirement age of school-teachers, regulation 8 of the Qualifications of Teachers and Masters Regulations (Regulations 1/61), enacted by the Greek Communal Chamber, and the Teachers of Communal Elementary Schools Law, 1963 (Greek Communal Law No. 7 of 1963), section 33(1)-Effect of.
Applicant seeks a declaration that his retirement from service, as an elementary schoolteacher, on the 31st August, 1963, and his non-employment, as such, till his 60th year of age, or, in any event, for the 1963/1964 school-year, and subsequent school-years, should be declared to be null and void.
The following three main issues are determined by this Rulling:
(a) What is the effect of the action taken by the Greek Board of Education concerning the retirement age of school-teachers;
(b) What is the effect of regulation 8 of the Qualifications of Teachers and Masters Regulations (Regulations 1/61), enacted by the Greek Communal Chamber; and
(c) What is the effect of section 33(1) of the Teachers of Communal Elementary Schools Law, 1963 (Greek Communal Law 7/63).
Held, 1. As regards issue (a);
(a) The Greek Board of Education was set up under the Greek Cypriot Education (Transitional Arrangements) Law, 1959 (Law 19/59) and it is clear from the title and the provisions of such Law that the purpose thereof was to enable transitional arrangements to be made in respect of Greek Cypriot education pending the transfer of power to the Republic of Cyprus. No decision of such Board, extending the age of retirement to the 60th year, could have had the effect of amending the then existing statutory provisions relating to the age of retirement of school-teachers-section 51 of the Elementary Education Law, Cap. 203-unless such decision was given effect to by the enactment of a statutory amendment of such provisions; such an amendment was not in fact enacted then, so the said section 51, providing for retirement at the age of 55, remained in force.
2. As regards issue (b):
(a) The true construction of regulation 8, in relation to section 53, is that regulation 8 regulates the exercise of the discretion granted under section 53(1) (c) for the purpose of extending the period of service of school-teachers. The provisions of section 53 of Cap. 166 remained in force unamended by regulation 8. But, the effect of regulation 8 is that the appropriate authority in exercising its discretion under sub-section 53(1)(c) should, as a rule, extend the service of school-teachers until the age of 60, unless there exist in a case reasons properly militating to the contrary. In other words, the effect of regulation 8 of Regulations 1/61, read in conjunction with section 53 of Cap. 166, is that though in the past an extension of service under sub-section 53(1)(c) might have been an exception to the rule, after the enactment of the said regulation the rule was reversed in favour of extending the service of all school-teachers till the age of 60.
(b) But it still remained a matter of discretion to be exercised, though, in accordance with regulation 8. Had the intention been to exclude the exercise of the discretion under sub-section 53(1)(c) completely, there could have been nothing easier than to have amended expressly section 53 to that effect. But as this has not been done and as only a regulation was enacted in the matter-and not the provision of a Law-I have to find that such regulation could only regulate the application of the existing provisions of section 53 but did not amend them.
(c) Regulation 8 is not ultra vires the Elementary Education Law (Cap. 166) in relation to which it appears to have been made. This Law, having been continued in force under Article 188, has to be applied, by virtue of the provisions of the same Article, in the light of the relevant provisions of the Constitution, one of. them being Article 87 which lays down the legislative powers of a Communal Chamber; under Article 87 it is in any case possible for a Communal Chamber not only to enact legislation by way of Laws, but also, in matters within its competence, to make Regulations for the purpose of applying Laws which have continued to be in force under Article 188-as it has been found to be the case with the said regulation 8.
3. As regards issue (c):
(a) Regulation 8, to the extent to which it applies to school-teachers, has been repealed by virtue of Greek Communal Law 7/63, through the provisions of section 33(1) thereof. So on this point the legal position is clear and since the coming into force of Law 7/63 retirement is to be governed by section of Cap. 166 only, as in the past.
(b) If it had been found that Regulation 8 repealed the provision in section 53 concerning the age-limit for retirement being 55, and had replaced it with the age of 60, then on the enactment of Law 7/63 and the repeal of regulation 8 the provision of section 53 relating to age of retirement would not have revived and, therefore, we would have found ourselves without any provision laying down effectively the age-limit for retirement of school-teachers, as section 33(1) of Law 7/63 is a mere repealing, and not a substantive, enactment.
4. The question now remains to apply the legal position, as found to exist, to the circumstances of this Case-and the other Cases heard together with it.
Cases referred to:
Georghios Petrides and others v. The Republic (1964 C.L.R. 413).
Ruling.
Ruling determining three main issues arising in a recourse against the decision of the respondents concerning the, retirement age of the applicant.
Fr. Markides with A. Triantafyllides for then applicant (Appear also for all Applicants-in connected Cases).
G. Tornaritis for the respondents.
Cur. adv. vult.
The following Ruling was delivered by:-
TRIANTAFYLLIDES, J.: This Case, together with Cases 162/63-183/63, 185/63-188/63, 190/63, 191/63, 195/63, 197/63 and 198/63, have been heard together on legal issues common to all, pursuant to directions given on the 19th September, 1964, and this Ruling, delivered now in this Case, should be deemed to be applicable to all the aforesaid Cases, to the extent to which the legal issues with which it deals arise therein.
In view of the enactment of Law 12/65, during the pendency of these proceedings, the title of the proceedings has been consequentially amended by consent. Such amendment does not affect the substance of the subject-matter of this recourse.
Applicant in this Case seeks a declaration that his retirement from service, as an elementary school-teacher, on the 31st August, 1963, and his non-employment, as such, till his 60th year of age, or, in any event, for the 1963/1964 school-year, and subsequent school-years,' should be declared to be null and void.
During the hearing on the legal issues, with which this Ruling is dealing, it has been necessary to receive evidence, both oral and documentary, for the purpose of establishing the exact factual framework within which such legal issues had arisen. Needless to say, however, that where the determination of such issues depended on the proper construction of relevant enactments, none of the evidence adduced has been allowed to improperly influence the said construction.
There are three main issues to be determined by this Ruling, and they are as follows:-
(a) What is the effect of the action taken by the Greek Board of Education concerning the retirement age of school-teachers;
(b) What is the effect of regulation 8 of the Qualifications of Teachers and Masters Regulations (Regulations 1/61), enacted by the Greek Communal Chamber; and
(c) What is the effect of section 33(1) of the Teachers of Communal Elementary Schools Law, 1963 (Greek Communal Law 7/63).
Concerning issue (a), considerable difficulty has been encountered in ascertaining what exactly, if any, was the relevant decision of the Greek Board of Education-and this is one instance where evidence had to be heard in order to ascertain the exact factual framework in relation to this legal issue.
At first, a text was put in, by consent, (exhibit 1) as being the text of a decision of the Greek Board of Education, taken on the 6th May, 1959. Such text, in its relevant part, states that the age of retirement of teachers and headmasters is to be extended until the 60th year of age.
As it transpired later this text was taken from a communique issued by the Greek Board of Education, through its then Chairman, Dr. Constantinos Spyridakis-who, subsequently, became the President of the Greek Communal Chamber-and which was published on the 8th May, 1959, in newspaper "Eleftheria" (exhibit 13).
During the hearing, counsel for Respondent, on receiving further instructions, disagreed that exhibit 1 was a correct text of a decision of the Greek Board of Education and produced a relevant extract from the minutes of the meeting of the 6th May, 1959, of the Greek Board of Education, (exhibit 11); it is stated therein that it had been decided that the right of extension of service which, till then, was not granted to headmasters who were receiving a headmasters' allowance, should be granted to them too. This extract is headed "Extension of service of teachers and headmasters who retire at the end of the current school-year".
Dr. Spyridakis, who has been summoned to give evidence by counsel for Applicant, has confirmed that he has issued the communique from which exhibit 1 originated and which appeared, as stated, in newspaper "Eleftheria", on the 8th May, 1959. He said that exhibit 11 was the decision of the Board in the matter; but he also said that in the said communique were set out the decisions of the Board taken on the 6th May, 1959.
I have no reason to believe that Dr. Spyridakis could have issued and prepared a communique dealing with the several educational matters, which were dealt with by the Greek Board of Education on the 6th May, 1959, and have inserted therein a statement of such significance, as the decision to extend the age of retirement of school-teachers up to the age of 60, without anything of the sort having been agreed upon by the Board.
I think, therefore, that it is proper to conclude that, though no formal decision seems to have been recorded on the 6th May, 1959, it was the already formed policy of the Board to extend the age of retirement of school-teachers up to the 60th year of age and on that day it was somehow not found necessary to record it once again. This view is consistent with the wording of exhibit 11: "It has been decided that the right of extension of, service which at present is not granted to headmasters who are receiving a headmasters' allowance should be extended to them too" and is also consistent with the heading of such exhibit which refers to the extension of service of both teachers and headmasters.
But, whether a formal decision had been taken on the 6th May, 1959, and recorded in the minutes, concerning the extension of the retirement age-limit of school-teachers-which is not the case-or such was the existing policy of the Board though no decision was formally recorded on the 6th May, 1959,-which seems to have been the case-does not make, in my opinion, the slightest difference concerning the resulting legal position, because in either case the action of the Board could not have amounted to anything more than a mere statement of intention or a declaration of policy, even though such policy might have been relevant to the exercise of any administrative discretion in the matter.
The Greek Board of Education was set up under the Greek Cypriot Education (Transitional Arrangements) Law, 1959, (Law 19/59) and it is clear from, the title and the provisions of such Law that the purpose thereof was to enable transitional arrangements to be made in respect of Greek Cypriot education pending the transfer of power to the Republic of Cyprus. No decision of such Board, extending the age of retirement to the 60th year, could have had' the effect of amending the then existing statutory provisions relating to the age of retirement of school-teachers-section 51 of the Elementary Education Law, Cap. 203-unless such decision was given effect to by the enactment of a statutory amendment of such provisions; such an amendment was not in fact enacted then, so the said section 51, providing for retirement at the age of 55, remained in force.
This concludes what I had to say on issue (a).
With the coming into force of the Revised Edition of the Laws of Cyprus, section 51 of Cap. 203 became section 53 of the Elementary Education Law, Cap. 166, as it is still so in force today by virtue of, and subject to, Article 188 of the Constitution. The said section lays down that every teacher on the permanent staff register who attains the age of 55 years shall retire, provided that, under subsection (1) (c) thereof, "the Governor may allow any teacher to remain in the service for such time, after attaining the age of fifty-five years, as to the Governor may seem fit". Since the establishment of the Republic, and at the material time for this Case, the powers of the Governor were being exercised, because of Article 188, by the Greek Communal Chamber, which had delegated them, according to the evidence of Dr. Spyridakis, to its President, himself.
It is not disputed that Applicant was a person to whom the provisions of section 53 applied. As already stated in this ruling these provisions continued to be so applicable, unamended by any decision of the Greek Board of Education.
Coming now to issue (b), we find that regulation 8 of Regulations 1/61, which were promulgated on the 5th January, 1961, provides, in its material part, that the limit of retirement of school-teachers is fixed to be the 60th year («Ως όριον αφυπηρετήσεως διά τους διδασκάλους.ορίζεται το 60όν...»).
Much argument has been addressed as to the exact effect of this provision.
I have to state outright that it is a matter which has given me considerable concern. It is very unfortunate that an organ in the Republic, such as the Greek Communal Chamber, chose to deal with a cardinal issue, such as the age of retirement of school-teachers,-and other educationalists-by means of Regulations rather than by a Law, by way of an ultimate addendum at the end of such Regulations which were mainly dealing with the qualifications of educationalists, and without any overt attempt to link the new provisions to existing legislation by way of amendment, repeal or otherwise. Be that as it may, however, it is a fact that regulation 8 has been enacted and being relevant to the outcome of this Case it has to be duly construed.
It has been in issue whether or not Regulations 1/61 are a legislative or an administrative act. I have come to the conclusion that they are a piece of legislation, and this applies also in particular to regulation 8 thereof. The Greek Communal Chamber, in enacting Regulations 1/61 appears clearly to have adopted a legislative form of action and I cannot truly see how such Regulations could be considered as constituting an administrative act, whether of an individual or of a more general nature, when one considers, too, the substance of the provisions of such Regulations. The fact that they were published in Supplement No. 4 to the official Gazette as "decisions" of the Greek Communal Chamber is not sufficient to render them administrative decisions. It is the essence of a matter that has to be looked at. Moreover, in the Constitution it is expressly envisaged that the legislative power of a Communal Chamber may be exercised by means not only of Laws but also of decisions. This is clear from Article 87(3), inter alia.
The main problem to be resolved is how regulation 8 is to be construed in relation to section 53 of Cap. 166.
I do not think that I can hold that regulation 8 is to be treated as validly repealing, by way of amendment, the provision in section 53 which lays down the age of 55 years as the retirement age of school-teachers. Such amendment has not been directly provided for, by means of express reference to section 53; actually in regulation 8 itself, there is a reference to the "legislation in force" (των εν ισχύι νόμων), in relation to the vested rights of any person concerning his age-limit for retirement, and yet there is no mention that such legislation is to he deemed as amended by regulation 8 in any way.
Nor is it possible, in the light of relevant principles of construction-as also referred to recently in Georghios Petrides and others v. The Republic (1964 C.L.R. 41.3)-and in view of the fact that regulation 8 is not part of a Law of the Greek Communal Chamber hut only a regulation, to find that section 53 has been amended by regulation 8, by necessary implication, in so far as the age-limit for retirement is concerned.
In my opinion, the true construction of regulation 8, in relation to section 53, is that regulation 8 regulates the exercise of the discretion granted under section 53(1) (c) for the purpose of extending the period of service of schoolteachers. The provisions of section 53 of Cap. 166 remained 'in force unamended by regulation 8. But the effect of regulation 8 is that the appropriate authority in exercising its discretion under sub-section 53(1) (c) should, as a rule, extend the service of school-teachers until the age of 60, unless there exist in a case reasons properly militating to the contrary. In other words, in my opinion, the effect of regulation 8 of Regulations 1/61, read in conjunction with section 53 of Cap. 166, that though in the past an extension of service under sub-section 53(1) (c) might have been an exception to the rule, after the enactment of the said regulation the rule was reversed in favour of extending the service of all school-teachers till the age of 60.
But it still remained a matter of discretion, to be exercised, though, in accordance with regulation 8. Had the intention been to exclude the exercise of the discretion under sub section 53 (1) (c) completely, there could have been nothing easier than to have amended expressly section 53 to that effect; but as this has not been done and as only a regulation was enacted in the matter-and not the provision of a law-I have to find that such regulation could only regulate the application of the existing provisions of section 53 hut did not amend them.
I am, further, of the opinion that regulation 8 is not ultra vires the Elementary Education Law (Cap. 166) in relation to which it appears to have been made. I am of the opinion that this Law, having been continued in force under Article 188, has to be applied, by virtue of the provisions of the same Article, in the light of the relevant provisions, of the Constitution, one of them being Article 87 which, lays down the legislative powers of a Communal Chamber; under Article 87 it is in any case possible for a Communal Chamber not only to enact legislation by way of Laws, but also, in matters within its competence, to make Regulations for the purpose of applying Laws which have continued to be in force under Article 188-as it has been found to' be the case with the said regulation 8.
It has, also, been submitted that regulation 8 is not within the ambit of Part IV of Cap. 166 which is mentioned in the title of Regulations 1/61 In my opinion the reference to the said Part was intended to indicate the main object, of the Regulations in question but cannot be given such a decisive role as to invalidate any other provision in such Regulations which, though not strictly directly connected with such Part, is, nevertheless, relevant to the theme of Regulations 1/61, i.e. the career of educationalists.
This disposes of issue (b).
Dealing now with issue (c) it became, between counsel, common ground, eventually; and I am in agreement also, that regulation 8, to the extent to which it applies to schoolteachers, has been repealed by virtue of Greek Communal Law 7/63, through the provisions, of section 33(1) thereof. So on this point the legal position is clear and since the coming into force of Law 7/63 retirement is to be governed by section 53 of Cap. 166 only, as in the past.
I might state here that one can now realize the absurdity that would ensue, had any: other construction been given to regulation 8. If it had been found that it repealed the provision in section 53 concerning the age-limit for retirement being. 55, and had replaced it with the age of 60, then on the enactment of Law 7/63 and the repeal of regulation 8. the provision of section 53 relating, to age of retirement would not, have revived and, therefore, we would have found ourselves, without any provision laying down effectively the age limit, for retirement of school-teachers, as section 33(1) of Law 7/63 is a. mere repealing, and not a substantive, enactment.
The question now remains to apply the legal position, as found by me to exist, to the circumstances of this Case-and the other Cases heard together with it.
A lot of evidence has been received in an effort to discover whether or not the retirement of Applicant on the 31st August, 1963, or his non-employment thereafter, was due to an administrative decision applicable in general to a class of school-teachers, such as this Applicant and the other Applicants. But it does appear, from the personal files of all Applicants that their cases are not identical in material respects.
I have, therefore, to deal with the merits of each Case separately, starting. with the present one, and to decide, depending on when the relevant decision to retire or not to re-employ each Applicant has been taken-whether before or after the enactment of regulation 8 or before or after its repeal-depending on the circumstances in which such decision was taken, and the reasons relied upon for taking it, and on any other pertinent consideration, whether or not the relevant discretion has been properly exercised and the administrative action involved should be confirmed or annulled.
It has been submitted that Applicant in this Case, and Applicants in the other Cases heard with it, have been influenced into financial commitments under the impression that they were going to serve until they reached the age of 60. This is a consideration which may be found to be relevant, in the circumstances of this Case, or of any other of the related cases, to the propriety of the exercise of the discretion concerned.
Order in terms.