Supreme Court confirms jurisdiction over termination of daily-paid midwife in public hospital under Article 146.1 of the Constitution.

[*1492] 1970 October 27

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Georghia Papakyriakou,

Applicant,

and

The Health Services of Cyprus, through

the Ministry of Health of the Cyprus Republic,

Respondent.

(Case No. 86/70).

Administrative Law - Executive or administrative authority in the sense of Article 146.1 of the Constitution - Employment for a very long and indefinite period of time as a daily paid midwife at the Nicosia General Hospital - Held to be an employment in the ordinary course of satisfying the needs of a public service and, therefore, comes within the domain of public law - Act terminating such employment is an act within the ambit of the said Article 146.1 of the Constitution.

Public Officers - Temporary employment on a daily wage basis - An employment within the domain of public law.

Jurisdiction - Supreme Court - Article 146.1 of the Constitution - Jurisdiction of the Supreme Court under the said Article to entertain a recourse against termination of employment of a temporary employee serving on a daily wage basis in the ordinary course of satisfying the needs of a public service.

Temporary employment - Public Officers - See under "Administrative Law"; "Public Officers".

E. Efstathiou, for the Applicant.

V. Aristodemou, for the Respondent.

DECISION ON PRELIMINARY ISSUE*

The following decision was delivered by: TRIANTAPYLLIDES, J.: In this case counsel for the respondent has raised the preliminary issue that this Court [*1493] does not possess

jurisdiction, under Article 146 of the Constitution, to entertain the recourse of the applicant against the termination of her employment

as a daily paid midwife at the Nicosia General Hospital.

Counsel for the respondent has argued that the relationship between

the applicant and her employer, the respondent, was such that it came within the domain of private law, and not within that of

public law; and he has, also,

submitted that neither the relevant provisions of the Public Service Law, 1967 (Law 33/67) nor the definition of "public officer" in Article

122 of the Constitution apply to the applicant.

Assuming, without deciding to that effect, that the provisions

of Law 33/67 and the said definition in Article 122 are not applicable in relation to the applicant the result would be that the question of

the termination of her employment would not be a matter for the Public Service Commission which has been set up under Law 33/67 or for the Public Service Commission envisaged under Article 124 of the Constitution.

Such a result, however, does not provide the answer to the

issue of jurisdiction which was raised by counsel for the respondent. This answer depends on whether the employment of

the applicant, in the light of the particular circumstances of such employment, was within the domain of public law; because in such a case then the termination of her employment would still amount to the exercise of "executive or administrative authority" in the sense of Article 146(1) of the Constitution. [*1494]

The salient, in this respect, facts of this case are that the applicant served, from 1965 until the termination of her employment in 1970, as a midwife posted at the Nicosia General Hospital; though she was not holding a specific post of midwife, and was paid on a daily casual assistance basis, her duties were the same as those of any other midwife there.

The proper approach to a situation of this nature has been laid down by this Court, on appeal, in Paschalidou and The Republic (1969) 8 J.S.C. 1030: It was held in that case that the employment of a nursery school teacher on contract, on a month to month basis, was within the realm of public law because the appointment had been made "in the ordinary course of satisfying the needs of ... a public service". Likewise, the applicant in the present case had been employed, for a very long and indefinite period of time, on a temporary basis, in the ordinary course of satisfying the needs of a public service, viz. the maternity service provided by the Nicosia General Hospital.

The decision of the Greek Council of State in Case 528/1933, which is referred to in a passage - cited by counsel for the respondent - of the treatise by Kyriacopoulos on Greek Administrative Law (4th ed., vol. C, at p. 178) is, in my view, distinguishable both because of the different structure of the public service in Greece and on the basis of its particular circumstances (there a doctor had been employed, on contract, in a manner which was found by the Council of State not to be at all compatible with the [*1495] creation of the status of a public functionary and it was held that his employment was of a private contractual nature).

In the light of the foregoing I hold that the employment of the applicant was within the domain of public law and that, therefore, I have jurisdiction under Article 146(l) to decide on the validity of the termination of such employment which is in issue in these proceedings.

Order accordingly.