ANDRONIKOU ν. REPUBLIC (1983) 3 CLR 1280

(1983) 3 CLR 1280

1983 November 21

[SAVVIDES, J.]

IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

ANTONIOS ANDRONIKOU,

Applicant.

THE REPUBLIC OF CYPRUS. THROUGH

1. THE COUNCIL OF MINISTERS.

2. THE MINISTER OF FINANCE.

Respondents.

(Case No. 216/80).

Legitimate Interest-Article 146.2 of the Constitution-Free and unreserved acceptance of an administrative act or decision deprives the acceptor of a legitimate interest to challenge the validity of such act or decision-Free and unreserved exercise by applicant of option that pro visions of Pensions (Amendment) (No. 2) Law, 1967 (Law 18/67) were to be extended to him-has deprived him of any legitimate interest to challenge a decision calculating his pension on the basis of such option.

By virtue of the legislation in force immediately before the date of the coming into operation of the Constitution, the age of retirement of public officers, including the applicant, was that of 55 years. (See section 8(1) of Cap. 311). This section was subsequently repealed by section 7 of Law 9/67 and replaced by a new section 8 providing that the age of retirement of public officers shall be that of 60 years. Officers, who were already in the service of the Republic were given an opportunity to make an election under section 5 of Law 18/67 that certain provisions of Law 9/67 and of the Regulations set out in the Schedule thereto, should not be applicable to them and also avoid the application to them of the said section. 7 of Law 9/67.

The applicant made his election by accepting unreservedly the option given to him by Law 18/67 and the provisions of the amended law were extended to him to the effect that the age ofhis retirement should be the age of 60, subject to the provisions of the amending law and the Regulations set out in the Schedule thereto. The said Regulations which came into force by virtue of section 7 of the Pensions (Amendment) (No. 2) Law, 1967 (Law 18/67) as from the 1st April 1967 provided that the pensionable emoluments of an officer who has exercised a right of election under section 5 of Law 18/67 "shall be reduced by six and one-quarter per centum". Upon making his election the pensionable emoluments of the applicant had been reduced according to the provisions of the above regulations.

In 1973 the applicant retired from the Civil Service in the public interest by virtue of sections 6 and 7 of Cap. 311; and the decision for the assessment of the pensionable emoluments of the applicant was taken at the time of his retirement from the civil service in 1973, when the calculation of his emoluments was made and paid to him. The applicant accepted such calculation without any reservation or protest and without having challenged such decision within the 75 days time-limit provided by the Constitution. On the 12th January, 1980, the applicant sent a letter to the Director-General of the Ministry of Finance, requesting that the calculation of his pension and gratuity be revised in the light of the decision of the Supreme Court in lonides v. The Republic (1979) 3 C.L.R. 679, alleging that his case was falling within the ambit of that decision as the facts of his case were the same as in the Ionides case and asking that he should be therefore treated in the same way. The respondents rejected his claim and hence this recourse.

Held, that a person who unreservedly and freely accepts an act or decision of the administration, is deprived because of such acceptance, of a legitimate interest to challenge the validity of such act or decision; that the unreserved and free exercise by the applicant of the option that the provisions of Law 18/67 were to be extended to him, has deprived him of any legitimate interest to challenge such decision; accordingly this recourse should fail.

Application dismissed.

Cases referred to:

lonides v. Republic (1979) 3 C.L.R. 679;

lonides v. Republic (1979) 3 C.L.R. 206;

Stylianides v. Republic (1983) 3 C.L.R. 672;Zambakides v. Republic (1982) 3 C.L.R. 10.17;

Tomboli v. Republic (1982) 3 C.L.R. 149;

Economides v. Republic (1980) 3 C.L.R. 219 at p. 223.

Recourse.

Recourse against the refusal of the respondents to reconsider the computation of the pension and gratuity payable to him on his retirement.

A. Triantafyllides, for the applicant.

A. Papasavvas, Senior Counsel of the Republic, for the respondents.

Cur.adv. vult.

SAVVIDES J. react the following judgment. The applicant challenges the. refusal of the respondents to reconsider the computation of the pension and gratuity. payable to him on his retirement, which is contained in a letter dated 28th May, 1980 addressed to him and the contents of which read as follows:

"Κύριον Α. Aνδρονίκου

Γενικό Διευθυντή Κυπριακού

Οργανισμού Τουρισμού,

Έχω εντολή ν' αναφερθώ στην επιστολή σας με αρ. Ρ.51 και ημερ. 12.1.1980, με την οποία ζητάτε ν' επανυπολογισθεί η σύνταξη και το εφ' άπαξ φιλοδώρημα που ελάβετε κατά την αφυπηρέτησή σας από τη δημόσια υπηρεσία υπό το φώς της αποφάσεως του Ανωτάτου Δικαστηρίου στην Έφεση αρ. 211 (Νίκος Ιωνίδης ν. Κυπριακή Δημοκρατία) και σας πληροφορήσω ότι σύμφωνα με γνωμάτευση του Γενικού Εισαγγελέα της Δημοκρατίας, δυνάμει της πιο πάνω αποφάσεως δεν προκύπτει υποχρέωση στην Κυβέρνηση για αναθεώρηση της συντάξεως των συνταξιούχων υπαλλήλων που άσκησαν ανεπιφύλακτα την εκλογή τους δυνάμει του άρθρου 5 του Περί Συντάξεων (Τροποποιητικού) (Αρ. 2) Νόμου Αρ. 18/67 αλλά μόνον εκείνων που άσκησαν την εκλογήν τους υπό επιφύλαξη παρομοίαν με εκείνη του κ. Ιωνίδη, για το λόγο ότι η απόφαση του Ανωτάτου Δικαστηρίου σαφώς καθιστά την επιφύλαξη των δικαιωμάτων, την οποίαν έκαμε ο αιτητής, αποφασιστικό παράγοντα. To DECIDENDI της αποφάσεως είναι ότι το δικαστήριο κατέληξε στο συμπέρασμά του και ακύρωσε την προσβληθείσα πράξη επειδή ο αιτητής είχε κάμει την επιφύλαξη. Ο κ. Ιωνίδης είχε κάμει την εξής επιφύλαξη πάνω στο έντυπο με το οποίο άσκησε την εκλογή του κατά το 1967:

Εάν οιαδήποτε πρόνοια του ως άνω Νόμου, ήτις επηρεάζει τα συμφεροντά μου, αντίκειται προς το Σύνταγμα επιφυλάσσομαι να εγείρω τούτο εν καιρώ τω δεόντι.

Εσείς δεν ασκήσατε την εκλογή σας κατά το 1967 υπό επιφύλαξη όπως την πιο πάνω και συνεπώς, δε μπορεί να γίνει αναθεώρηση των ωφελημάτων αφυπηρετήσεως σας διά της μη εφαρμογής του Κανονισμού 19Α.

για γενικό Διευθυντή

Υπουργείου Οικονομικών"

("Mr. A. Andronikou

Director-General

Cyprus Tourism Organisation,

I am directed to refer to your letter No. P. 51 dated 12. 1. 1980 by. which you ask that the pension and the gratuity which you received on your retirement from the public service be reconsidered in the light of the judgment of the Supreme Court in Appeal No. 211 (Nicoslonides v. Republic) and to inform you that according to legal advice of the Attorney-General of the Republic, according to the above judgment there does not arise any obligation on the Government for reconsideration of the pensions of officers on pension who exercised unreservedly their option vide section 5 of the Pensions (Amendment) (No. 2) Law No. 18/67 but only for those who exercised their option with a reservation similar to that of Mr. lonides, for the reason that the judgment of the Supreme Court clearly renders, the reservation of rights, which the applicant made, a decisive factor. The DECIDENTI of the judgment is that the Court reached its conclusion and annulled the attacked act because the applicant had made the reservation. Mr. lonides had made the following reservation on the form with which he exercised his option in 1967:

'If any provision of the above Law, which affects myinterests, contradicts the Constitution I reserve my right to raise it in due course'.

You did not exercise your option in 1967 with a reservation as the above and therefore, no reconsideration of your retirement benefits can be made by the non-enforcement of regulatian 19A.

for Director-General

Ministry of Finance").

The applicant joined the Public Service before 1960 and was a member of such service immediately before August 16, 1960 when the Constitution of Cyprus came into operation. After the Independence of Cyprus and the date of the coming into operation of the Constitution his terms and conditions of service were safeguarded under the provisions of Article 192 and, in particular, paragraphs 1 and 7 of the Constitution which read as follows:

Paragraph 1-

"Save where other provision is made in this Constitution any person who, immediately before the date of the coming into operation of this Constitution, holds an office in the public service shall, after that date, be entitled to the same terms and conditions of service as were applicable to him before that date and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service of the Republic on or after that date".

And paragraph 7-

"For the purposes of this Article-

(a) 'public service' in relation to service before the date of the coming into operation of this Constitution means service under the Government of the Colony of Cyprus and in relation to service after that date means service in a civil capacity under the Republic and includes service as a member of the security forces of the Republic;

(b) 'terms and conditions of service' means, subject to the necessary adaptations under the provisions of this Constitution, remuneration, leave, removal from service, retirement pensions, gratuities or other like benefits".

By virtue of the legislation in force immediately before the date of the coming into operation of the Constitution, the age of retirement of public officers, including the applicant, was that of 55 years (see section 8(1) of Cap. 311). This section was subsequently repealed by section 7 of Law 9/67 and replaced by new section 8 providing that the age of retirement of public officers shall be that of 60 years. Officers who were already in the service of the Republic were given an opportunity to make an election under section 5 of Law 18/67 that certain provisions of Law 9/67 and of the Regulations set out in the Schedule thereto, should not be applicable to them and also avoid the application to them of the said section 7 of Law 9/67.

"19A.-(1) For the purposes of Regulation 19, the pensionable emoluments of an officer who has exercised a right of election under section 5 of the Pensions (Amendment) (No. 2) Law of 1967 shall be reduced by six and one-quarter per centum.

(2) In this Regulation the term 'pensionable emoluments' means the salary and the board or board and lodging allowances as increased under the Public Officers (Amalgamation of part of the Cost-of-Living Allowance with the Salaries) Law 1967".

Upon making his election the pensionable emoluments had been reduced according to the provisions of Regulation 19A by six and one-quarter per centum. The applicant in 1973 retired from the civil service in the public interest by virtue of sections 6 and 7 of Cap. 311 as amended, to take over the duties of the Director-General of the Cyprus Tourism Organisation, a post which he is still holding. On the 12th January, 1980, the applicant submitted a letter to the Director-General of theMinistry of Finance, requesting that the calculation of his pension and gratuity be revised in the light of the decision of the Supreme Court in lonides v. The Republic (1979) 3 C.L.R. 679, alleging that his case was falling within the ambit of that decision as the facts of the present case were the same as in lonides case and asking that he should be therefore treated in the same way. The Director-General of the Ministry of Finance in reply to his letter informed the applicant that according to the opinion, of the Attorney-General of the Republic, his case was not falling within the ambit of the lonides, case, because, no reservation had been made when accepting the option given to him, and, therefore, there was no question of reconsideration of his pension and gratuity. Reference to this letter has already been made earlier in his recourse. As a result of such letter, the applicant flied the present recourse challenging its validity.

The grounds of law on which this recourse is based are as set out in the application, as follows:

"1. Applicant is covered by the provisions of Article 192 of the Constitution.

2. Consequently, his terms and conditions of service cannot be altered to his disadvantage. Therefore, S.7 of Law. 9/67, S.8 of Cap. 311, S.5 of Law 18/67 and S.19(A) of the Schedule to Law 18/67 are unconstitutional contrary to Article 192 of the Constitution in that Applicant's terms and conditions of service are, thereby altered to his disadvantage.

3. Regulation 19(A) amounts to an alteration of his conditions of service to his disadvantage.

4. Consequently, the retirement pension and gratuity of the Applicant should have been computed as if Regulation 19(A) appearing in the Schedule of Law 18/67 had not been enacted.

5. During the course of the hearing, Applicant will rely on Revisional Appeal No. 211 (lonides v. The Republic)".

Counsel for respondents opposed the application and the grounds of law on which the opposition was based, are that:-

"The applicant does not challenge an executory administrative act, but a confirmatory one.Independently of such preliminary objection, the sub judice, act and/or decision was taken lawfully and properly and after all facts and circumstances of the case were taken into consideration".

Learned counsel on both sides filed their written addresses expounding on the grounds of law raised by them. From the contents of such addresses, the issues which pose for consideration in the present recourse, are the following:

(a) Whether the acceptance by the applicant without any reservation of his right of election has deprived him of any legitimate interest in the case.

(b) Whether the contents of the letter sent by the Director- General of the Ministry of Finance amount to an executory act or they are merely of a confirmatory or informatory nature.

(c) Whether the provisions of section 7 of Law 9/67 and Regulation 19A of Law 18/67 are to be treated, as unconstitutional in that they violate the vested rights of the applicant concerning his pension and gratuity.

As this cage emanated from the decision of the Supreme Court t in the Ionides case and most of the arguments of counsel are based on that case, I shall briefly deal with the facts of such case and the findings of the trial Court, to consider whether the facts of the present case are similar to those in the lonides case.

The facts in Ionides case were briefly as follows: The applicant was in the public service for 34 years and retired on the I St February, 1969 on reaching the age of 55. After the enactment of Laws 9/67 and 18/67 the applicant filled in a printed form by means of which he elected, purportedly under section 5 of Law 18/67, not to come, inter alia, within the am bit of section 7 of Law 9/67 but he proceeded to add to the text of the said form a reservation as follows: "If any provision of the above law which affects my interests is contrary to the Constitution, I reserve the right to raise this matter at the appropriate time". This form was forwarded to the Accountant-General who acknowledged receipt of it, without making any comment. After his retirement from the public service, on February 9, 1969, on attaining the age of 55, in computing the annual pension and gratuity payable to him, the respondent decided to apply regulation 19A of the Pensions Regulations, and as a result his pensionable emoluments were reduced by 6 and one-quarter per centum. The applicant challenged the above decision by means of a recourse which was dismissed in the first instance by a Judge of this Court sitting at first instance (see, lonides v. The Republic (1979) 3 C.L.R. 206, on the ground that the consequence complained of, has resulted from the option exercised by the applicant and which was fatal to his claim. The Full Bench of the Supreme Court on appeal from the first instance Judge, allowed the appeal and this is what was said in that judgment by Triantafyllides, P. in delivering the judgment of the Full Bench at pp. 684, 685:-

"We are of the opinion that what was, in effect, done is that the appellant has exercised the right of election under section 5 in order to evade the application of the sections of Law 9/67, and of the regulations in the Schedule to such Law, which are referred to in the said section 5, but, at the same time, he reasserted his vested rights under Article 192 of the Constitution, one of which was that the terms and conditions of his service, as were applicable to him before the date of the coming into operation of the Constitution, including his right to pension and gratuity, would not be altered to his disadvantage; and the reduction of his pension and gratuity by virtue of the operation of regulation 19A does constitute an alteration to his disadvantage, contrary to the provisions of paragraphs I and 7 of Article 192".

Comparing the facts in the lonides case and the grounds on which the first instance decision was set aside on appeal, it is apparent that the facts of the present case are different from those in lonides case in lonides case there was no unconditional exercise of the option which was given to him. In the present case the applicant made his option by signing and submitting the respective form, accepting the provisions of section 7 without any reservation, whereas in the Ionides case the applicant accepted the offer with full reservation of any rights affecting his interests and reserving his right to raise the matter when the appropriate time would come, such appropriate time beingthe time of his retirement when his pensionable emoluments were to be assessed. Immediately upon his retirement and when his pensionable emoluments were assessed, the applicant in that case, within the period of 75 days, challenged the decision of the respondents to calculate his emoluments of the basis of his rights vested in him under the: provisions of the Constitution before the enactment of Laws 9/67 and 18/67, and regulation 19A, relying on the fact that the election made by him was not, an unconditional one, but that he had already reserved his rights in this respect and that the respondents did not raise any objection or refused to accept his qualified election.

It has been held time and again by this Court that a person who unreservedly and freely accepts an act or decision of the administration, is deprived, because of such acceptance, of a legitimate interest to challenge the validity of such act or decision (see, inter alia, Stylianides v. Republic (1983) 3 C.L.R. 672 Zambakides v. Republic (198.2). 3 C.L.R. 1017 and, the decision of the Full Bench. in Tombli v. CYTA (1982) 3 C.L.R. 149 and the cases referred to therein).

In the light of the above decisions, the unreserved and free exercise by the applicant of the option that the provisions of Law. 18/67 were to be extended to him, has deprived him of any legitimate interest to challenge such decision and is fatal to his recourse.

This finding disposes of this recourse; nevertheless, I am going to consider whether, even assuming that there was a reservation by the applicant, this recourse was made within the prescribed period of 75 days.

The decision for the assessment of the pensionable emoluments of the, applicant was taken at the time of his retirement from the civil service in 1973, when the calculation of his emoluments was made and paid to him. The applicant accepted such calculation without any reservation or protest and without having challenged such decision within the 75 days time-limit provided by the Constitution, as the applicant in lonides case did. Once he did not challenge the decision within such time, his present recourse filed after more than 7 years from the date.when the decision for assessment of his pensionable emoluments was made, is out of time.

Finally, I come to consider whether the letter of the Director- General embodies a new decision after a new inquiry on the matter which could be challenged as an executory act and/or decision. In Zambakides v. Republic (supra) the facts of which are similar to the present case, and the recourse was directed against a decision contained in a similar letter by the Director -General of the Ministry of Finance, as in the present case, A. Loizou, J. had this to say at page. 1024:

"As it has been said time and again, the question as to when there is a new inquiry is a factual matter and depends, on the circumstances of the case. In the present case the factual background-if that, reservation was ever made- was the same as it existed at the time the original executory decision was taken. A re-examination was asked by the applicant in view of the decision in Jonides v. The Republic (supra) but that cannot turn the new act into an executory one, as rightly, if I may say with respect, was stated in Economides v. The Republic (1980) 3 C.L.R. 219, at p. 223, by Triantafyllides P.

'......It cannot be said that an act is not confirmatory because it is the outcome of a re-examination of a certain matter from its legal, aspect only, in the light of the legal situation which existed when a previous executory, decision in relation to it, which is being confirmed, was taken (see in this respect inter alia, LordosApartotels Limited, v. The Republic (1974) 3 C.L.R. 471, the Conclusions from the case- Law of the Council of State in Greece, supra, p. 241, and the Decisions of the said Council in cases Nos 5/1937, 229/1938, 439/1938, 1013/1966, 2250/1966, 2777/1968, 1916/1970, and 3137/1970).

In my view, the, fact that a judicial pronouncement has been made on the construction of a particular law or the constitutionality of same by the delivery of a judgment by the Supreme Court, does not, upon the application of a person who has not exorcised his rights under Article 146of the Constitution when the executory act iii question was taken, constitute a new material with regard to which there was an obligation to carry out a new inquiry or if an inquiry was carried out that the decision reached thereunder constitutes a new executory act and not a confirmatory act of a previous executory one. The act, therefore, is confirmatory and could not be the subject of a recourse which should fail on this ground also".

It is clear from the contents of such letter that, it does not embody a new decision but it is merely confirmatory of the original decision, informing the applicant at the same time that the question of revision of his pensionable emoluments could not be reconsidered in the light of lonides case, as the facts in such case were completely different from the fact of his case.

Having found as above, I consider it unnecessary to deal with any, other issues raised in these proceedings.

For the reasons above stated, this recourse fails and is hereby dismissed, but in the circumstances of the case I make no order for costs.

Recourse dismissed. No orderas to costs.

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