Cyprus Supreme Court partially allows education grant claim for son studying in England, upholding Loizides adaptations for second son.

[*972] 1967 August 19

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

George Constantinides,

Applicant,

and

The Republic of Cyprus, through

The Minister of Finance,

Respondent.

(Case No.248/65)

Public Officers - Rights to education grant — Refusal to pay Applicant education grants for his two sons who have pursued higher studies in England - Eligibility and entitlement to education grant of Applicant under the scheme in Circular 1286, dated the 6th December, 1955, considered by reference to the adaptations laid by the case of Loizides and The Republic (1 R.S.C.C. p. 107).

Decided Cases - Adaptations laid down to Circular 1286, dated 6th December, 1955, regarding education grants by the case of Loizides and The Republic (1R.S.C.C. P.107), affirmed.

A. Triantafyllides, for the Applicant.

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

JUDGMENT

The following judgment was delivered by:-

TRIANTAFYLLIDES. J.: By means of this recourse the Applicant complains against a decision of the Director of the Personnel Department - which comes under the Respondent Minister of Finance - by virtue of which he was refused education grants in respect of his two sons, Antonios and Charalambos, who have pursued higher studies in England – [*973] the first from 1960 to 1965 and the second from 1961 to 1965; the said decision was communicated to the Applicant by a letter dated the 3rd December, 1965 (see exhibit 1)·

The Applicant applied for education grants in respect of his sons on the 20th October, 1965 (see exhibit 5)

It is not in dispute that at all material times the Applicant was the holder of an office which entitled him to the benefit of an education grant under the scheme set out in Circular 1286, dated the 6th December, 1955 (see exhibit 6).

The said scheme was discontinued by decision of the Council of Ministers which is contained in a Circular dated the 23rd February, 1961 (see exhibit 4); by means of the said decision provision was made for the scheme to continue in force in so far as it related to public officers who were already in receipt of education grants on the date of the coming into effect of the Constitution (i.e. the 16th August, 1960).

The discontinuance of the scheme, decided as above was held to be unconstitutional, in so far as it was contrary to Article

192 of the Constitution, on the 31st May, 1961, in Loizides and The Republic (1 R.S.C.C. p.107)·

As a matter of fact in his letter of the 3rd December, 1965 (exhibit 1) the Director of the Personnel Department relied upon the Loizides case in refusing the grants to the Applicant. He did so because it was held in such case that the relevant scheme should, in view of the Constitution, be applied adapted so as to provide, in [*974] cases of Greek public officers, education grants for studies in Greece, instead of, as before, in the British Commonwealth; as, therefore, the sons of the Applicant had studied in England, education grants were refused to the Applicant in respect of their studies. Another reason given in exhibit 1, for refusing the grants to the Applicant, was that as from the 1st larch, 1963, he was seconded, and on the 1st December, 1964 he was substantively promoted, to the post of Inspector of Works in the Water Development Department and though he had been told on both occasions that he would no longer be eligible for education grants he accepted both his secondment and promotion without reserve.

During the hearing of this Case further grounds were raised against the claim of the Applicant to education grants:- It was argued by counsel for the Respondent that as the Applicant had failed to apply for education grants contemporaneously with the relevant studies of his sons he was not entitled to claim such grants ex post facto; also, that he was estopped from claiming the said grants because he accepted on the 31st December, 1960 a sum of £43.333 mils, in relation to the studies of his son Antonios, on an ex gratia basis and without any undertaking on behalf of the Government that any further amount would be paid to him by way of an education grant (see the relevant receipt exhibit 3).

On the other hand counsel for the Applicant has invited this Court, not only to find that the several grounds relied upon by the Respondent in order to justify the non-payment of education grants to the Applicant were [*975] not well-founded, but, also, to review the Loizides case and reverse it as being incorrect, to the extent that it had proceeded to adapt the relevant scheme as aforestated.

I must begin by saying that I cannot accept the submission of counsel for the Respondent that the Applicant is not entitled to the relevant education grants because he did not apply for them contemporaneously with the studies of his sons· It appears, indeed, in the relevant application form, which is attached to Circular 1374, of the 23rd February, 1957 (see exhibit 7), that education grants are envisaged to be, as a rule, contemporary with the relevant studies; but there is nothing in the original circular, which laid down the scheme for such grants, stating that a grant may not be claimed ex post facto, or stating when it should be claimed; all that it is stated in such circular - for administrative convenience only, no doubt - is that an education grant will be payable in not more than three instalments in respect of each calendar year.

Even in the letter of the 3rd December, 1965 (exhibit 1), by which the grants claimed by the Applicant were refused, the delay in claiming such grants was not raised as a ground disentitling the Applicant to the grants·

I pass on next to the issue of whether or not the Applicant is entitled to education grants in respect of his two sons in the light of the adaptations to the relevant scheme which were laid down by the Loizides case; and now is the proper stage to examine whether such adaptations should be affirmed in this Case. [*976]

I am quite well aware that this point was to a certain extent left open in the case of Boyiadjis and The Republic (1964, 5 J.S.C., p.9). I was a member of the Courts which decided both the Loizides and the Boyiadjis cases. But I have, in this Case, considered the validity of the relevant reasoning in the Loizides case independently of my past participation in its determination. My sole purpose was to decide correctly the present Case, irrespective of past views, but, of course, with due regard to the principle that precedent should not be disturbed unless there are good reasons for doing so. I have, in the end, reached the conclusion that the Loizides case was correctly decided.

There is no doubt in my mind that the scheme for education grants was primarily introduced as a means of solidifying the ties of Cyprus as a British Colony with Great Britain and the British Commonwealth; had it been introduced primarily for the benefit of education it would not have been restricted to studies in countries of the British Commonwealth only.

When Cyprus ceased to be a British Colony and its inhabitants British subjects, I think that the adaptations decided upon in the Loizides case were, indeed, necessary and were properly adopted on the basis of the reasoning set out in the judgment in that case. The fact that Cyprus, as a totally independent State, has remained in the British Commonwealth is a radically different situation from the one which had existed when the education grants' scheme was introduced, while Cyprus was still a British Colony.

Counsel for the Applicant has submitted that the adaptations introduced by the Loizides case result in unequal [*977] treatment as between public officers, because those who wish to send, their children to, for example, the United Kingdom, for the purpose of pursuing studies which cannot be sufficiently well pursued elsewhere, due to lack of required facilities, are being deprived of an education grant. As already stated the primary purpose of the relevant scheme was not the advancement of education, and it is as it was that it has been preserved by Article 192 of the Constitution in favour of those eligible under it; and the Constitution prohibits unequal treatment or discrimination, except when such treatment or discrimination result through its own provisions (see, inter alia, Articles 6 and 28 of the Constitution).

Nor can I find anything in the adaptations introduced by the Loizides case which is inconsistent with the right to receive education, which is safeguarded under Article 20 of the Constitution; that Article is, clearly, applicable only to education in Cyprus and not to education abroad.

The adaptations introduced by the Loizides case are of a retrospective nature, in the sense that it was laid down in that case how the relevant scheme had to be applied in view of the coming into force of the Constitution; therefore, since the coming into operation of the Constitution, the Applicant was no longer eligible for an education grant for studies in England; therefore, his claim in respect of his son Charalambos, who went to England, to study, in 1961, was rightly rejected on this ground by the Respondent. [*978]

The position in relation to Applicant’s son Antonios, who actually went to England, to study, in July, 1960, is. rather peculiar, in this sense; He went there in July, 1960, to be interviewed for admission to the London Pylytechnic - in Regent Street - but the actual course of studies commenced in September, 1960 (see the relevant certificate exhibit 2)·

Thus, Applicant’s son Antonios, went to England, in relation to his studies there, before the coming into operation of the Constitution, but he actually commenced his course of studies after the coming into operation of the Constitution.

So, the question arises as to whether or not in these particular circumstances, and in view of the adaptations of the scheme caused by the Loizides case, the Applicant is entitled to an education grant in relation to the studies in England of his son Antonios.

There is no suggestion that the Applicant hurried unduly to send his son to England, in July, 1960, because he could, and did, anticipate the decision in the Loizides case or the decision of the Council of Ministers discontinuing, in 1961, the scheme for education grants (see exhibit 4).

His son went to England in July, 1960, to be interviewed for admission by the Regent Street London Polytechnic, and he was in fact so interviewed on the 21st July, 1960 (see the relevant certificate by the said Polytechnic exhibit 2): thus, it is clear that, at the time, in July, 1960, the process of admission had already [*979] commenced and, as, the Applicant’s son Antonios was to be interviewed for the purpose, his presence in England was necessary.

A public officer's eligibility for, and entitlement to, an education grant under the relevant scheme has to be decided, in my opinion, by reference to the point of time when such officer, acting reasonably in accordance with the requirements of a particular course of studies, embarks upon the venture of sending abroad his child for such studies; events subsequent to such point of time cannot affect the officer's eligibility for an education grant, or his continued entitlement to it, in respect of the particular child of his whom he has already sent abroad to study.

In the present Case the eligibility of the Applicant for an education grant for his son Antonios should be considered by reference to July, 1960, when he sent his said son to England for a necessary interview with a view to admission for the course commencing in September, 1960; it is, indeed, a Case with rather special circumstances,

I am of the view, therefore, that the adaptations laid down by the Loizides case, and which are effective as from the 16th August, 1960, cannot, and should not, apply in deciding on the eligibility of the Applicant for an education grant in respect of his son Antonios, whom he sent to England in July, 1960, as aforesaid; nor can the adaptations to the said scheme, made by the Loizides case, apply to, or affect, the entitlement of the Applicant in respect of an educational venture embarked upon in July [*980] 1960; so, the Applicant, in respect of the studies of his son Antonios remained entitled, under Article 192 of the Constitution, to an education grant, on the basis of the scheme as it stood in July 1960, and to refuse him such grant was unconstitutional.

Moreover, I cannot hold that the fact that the Applicant was seconded in 1963, and substantively promoted in 1964, to a higher post, subject to a condition that he would not be eligible for an education grant, can affect the Applicant’s eligibility for, and entitlement to, an education grant in respect of his said son’s studies in England, which were embarked upon much earlier.

The exact text of the aforesaid condition has not been placed before the Court by the Respondent, who is the party relying thereon; I must assume, in the circumstances, that the effect of such condition was correctly set out in the letter of the 3rd December, 1965 (exhibit 1) which was written to the Applicant by the Director of the Personnel Department. There is nothing therein to satisfy me that the Applicant at the time "accepted" - when he accepted his secondment and subsequent promotion

- not only not to be eligible for an education grant, but, also, to abandon his accrued rights to an education grant in respect of his son Antonios, in relation to whom he had already become eligible, in 1960, for an education grant.

Furthermore, the Applicant's secondment and promotion, including any relevant thereto conditions, were administrative acts which could not be given a retrospective effect to the detriment of the Applicant.

Thus, the secondment and promotion of the Applicant did not have the effect of depriving the Applicant [*981] of an education grant in respect of his son Antonios.

I leave open therefore - because I do not have to decide it - the question as to whether or not the condition of the non-eligibility of the Applicant for education grants, which was made a term of his secondment and promotion, can be held to be valid vis-a-vis Article 192(1) of the Constitution, which appears not only to provide for an entitlement of the officers concerned to certain terms and conditions of service, but which, also, expressly prohibits any change of such terms and conditions while such officers continue in the public service - and not only in a particular post.

Regarding the payment made as aforesaid, in December, 1960, to the Applicant, ex gratia, by the Government, in respect of the studies of his son concerned, Antonios, I can find nothing in the relevant receipt (exhibit 3) which could be construed as estopping the Applicant from claiming an education grant in relation to the studies of his son Antonios in England; therefore, the relevant submission of counsel for the Respondent fails.

Lastly, I have noted that the Applicant's son Antonios studied in the Regent Street London Polytechnic for the academic years 1960-1961 and 1961-1962 so that he could pass, at the General Certificate's of Education Advanced level, the subjects of Pure Mathematics, Applied Mathematics and Physics (see exhibits 2 and 5). Then, for three academic years - 1962-1963, 1963-1964, 1964-1965 - he studied at the Northampton College of Advanced Technology, in London (see exhibit 5). I have considered whether it could be said that the Applicant's son pursued [*982] two distinct and separate courses of studies in England - one which, took him there in July 1960, and another which he commenced in 1962: if this were so then possibly I might have held that the Applicant was not entitled to an education grant in respect of the second course of studies of his son, in view of the Loizides case adaptations. But it is obvious on the face of things that the first course was essentially linked with, and preparatory to, the second course and, thus, in effect, the Applicant’s son went to England in July, 1960 for correlated studies which were completed in 1965; the subject of such studies being - according to scounsel for the Applicant, and not denied by counsel for the Respondent - electronics.

For all the foregoing reasons this recourse succeeds only in so far as the question of the education grant in respect of the Applicant’s son Antonios is concerned, and the sub judice decision is hereby declared to be null and void and of no effect whatsoever to that extent only, while it is hereby confirmed regarding the case of Applicant’s son Charalambos.

The matter of an education grant in respect of the Applicant’s son Antonios will now have to be reconsidered in the light of this Judgment,

There shall be an order for £10 costs in favour of the Applicant.

Sub judice decision

annulled in part.

Order for

costs as aforesaid.