Reinstatement claim dismissed as applicant was not an entitled officer and equal treatment cannot be based on illegal grounds.

[*448] 1967 April 22

REVISIONAL JURISDICATION

In the matter of article 146 of the Constitution

Praxitelis Voyizianos,

Applicant,

and

The Republic of Cyprus, through

the Board for the Reinstatement

of Public Officers,

Respondents.

(Case No.251/65).

Reinstatement - Claim of reinstatement by a regular weekly employee under the Dismissed Public Officers Reinstatement Law 1964 (No.48 of 1961) - Applicant not an "entitled officer" for the purposes of the Law - As at the material time he was not the holder of a "public office" in the sense of section 2 of the Law.

Constitutional Law - Constitution of Cyprus - Unequal treatment or discrimination, Articles 28 or 6 - There can be no right to equal treatment on an illegal basis.

L. Clerides, for the Applicant.

M. Spanos, Counsel of the Republic, for the Respondent.

JUDGEMENT

The following Judgment was delivered by: -

TRTANTAFYLLIDES. J.: In this recourse the Applicant complains, by his first claim in the motion for relief, against the refusal of the Respondent Board to treat him as an "entitled officer" for the purposes of reinstatement under the provisions of the Dismissed Public Officers Reinstatement Law, 1961 (Law 48/61); the said refusal was communicated to the Applicant by letter dated the 10th December, 1965 (see exhibit 1). [*449]

There exists, also, a second alternative, claim of the Applicant by which he complains, in effect, of an omission of the Respondent to reinstate him; such claim is neither well-founded nor necessary, since there exists in the matter a decision of the Respondent which has been taken in the exercise of the relevant statutory powers and has been communicated to the Applicant by means of the aforesaid letter of the 10th December, 1965.

Though in the Application in this recourse the Applicant has pleaded that the sub judice decision of the Respondent is contrary to the provisions of Law 48/61, at the hearing he has conceded that he does not, in fact, come within the provisions of Law 48/61 and that, therefore, he could not be lawfully treated as being an "entitled officer" for the purposes of

such Law, inasmuch as at the material time he was not a holder of a "public office" in the sense of section 2 of the said Law, in that he was only a

regular weekly employee and not a holder of an office specifically budgeted for; and actually it is on this ground - as it appears from the letter of the 10th December, 1965 (exhibit 1) - that the Respondent has turned down the application of the Applicant for reinstatement.

Counsel for the Applicant has submitted, however, that the Applicant is a victim of discrimination, contrary to Articles 6 and 28 of the Constitution, in that throe other persons, the Applicants in recourses 259/62, 268/62 and 6/63 - who for the same reasons as the Applicant could not be treated as "entitled officers" under Law 248/61 - were in fact paid compensation under such Law; and it is [*450] not disputed By counsel for Respondent that, indeed, the said three persons were in the same position, vis a vis section 2 of Law 48/61, as the Applicant.

As it appears from the files of the said recourses, which have been put in evidence in the present proceedings, the Applicants therein were originally held to be "entitled officers" by the Respondent, but, later, the Accountant-General refused payment of the compensation due to them on the ground that, under section 2 of Law 48/61, they were not entitled to reinstatement; then the above-mentioned recourses were filed, but they were never determined because it was, eventually, agreed to, by the Ministry of Finance, under which comes the Accountant-General, that the said Applicants would be deemed to be "entitled officers", provided that they would receive only part of the relevant compensation, namely, that two of them would receive 90/, and one of them 85% of such compensation; upon the above agreement the three recourses in question were withdrawn and struck out.

There can be no doubt that payment to the Applicants in recourses 259/62, 268/62 and 6/63 was made ex gratia, by way of settlement of pending recourses; the position therein was, indeed, a somewhat peculiar one because the Respondent Board had decided that they were entitled officers, and the Accountant-General had taken the view that the relevant decisions of the Board could not be lawfully implemented.

It appears that, subsequent to the aforesaid recourses, the Respondent realized that the view of the Accountant-General was a correct one in law and, therefore, [*451] the in all material respects similar claim of this Applicant for reinstatement was turned down by Respondent, without the Accountant-General having to intervene in the matter; and the Applicant does concede that the sub judice decision of Respondent is, indeed., a correct one legally.

In view of the above circumstances, I am of the opinion that no question of unequal treatment of, or discrimination against, the Applicant could arise, at all, contrary to Article 28, or Article 6, of the Constitution. There can be no right to equal treatment on an illegal basis; because in earlier cases the Respondent took an erroneous view of the law, Applicant in this recourse cannot be held to be entitled to the same error on the part of the Respondent. The Applicant had no legitimate interest to expect an illegal

decision of the Respondent in his favour.

As a result, this recourse fails on the ground of unequal treatment and discrimination; and, there being no other ground of invalidity of the sub judice decision which has been put forward by Applicant, it is dismissed accordingly.

The Applicant has failed in law; but I have not, in any way, decided, also, in this Case, that Applicant does not have a moral claim to an ex gratia payment, once such a payment has been made to others who could not come within the strict letter of Law 48/61 for the same reason as the Applicant. But this is not a matter to be decided by me; it is up to the appropriate authorities of the Republic to consider it; and, I do hope that Applicant will [*452] meet with sympathetic consideration if it is ascertained that his position does not differ materially from that of the Applicants in Cases 259/62, 268/62 and 6/63.

There shall he no order as to costs.

Application dismissed.

No order as to costs.