Constitutional Court grants just compensation to public officer whose office was abolished under new constitutional provisions.

[*93] 1961 November 10

(forsthoff, p., triantafyllides and munir, jj.)

(March 15, 30, April 11, May 8, September 18, 29, October 27, November 10, 1961)

Ali Suleiman of Limassol,

And

The Republic of Cyprus, Through

(a) The Minister of Finance,

(b) The Public Service Commission, (An Independent Body).

(Case No. 7/61)

Public officers — Vested rights — Just compensation on abolition of office terms — Officers whose offices by operation of the Constitution come within the competence of the Communal Chambers — No right of such officers to be appointed in public service — Election to serve under the Communal Chambers — Waiver — Non-appointment in the public service of the Republic — Art. 192.

Appointments — “Same terms and conditions”, meaning of — Performance of duties — Power to approve personal scales — Appropriation Law No. 9 of 1961 — Art. 192.

The Applicant, a member of the public service of the former Colony of Cyprus, held the office of Registrar, Turkish Family Court, Limassol, which by operation of Article 192.4 of the Constitution, with effect from 16th August, 1960, came within the competence of the Turkish Communal Chamber. On the 1st September, I960, the Applicant intimated to the Public Service Commission and to the High Council of Judicature, [*94] that he did not wish to serve under the Communal Chamber, but that he wished to opt for just compensation, in accordance with the provisions of Article 192.3, or, alternatively, to continue in the public service of the Republic as Registrar of a District Court.

An exchange of correspondence ensued between the Applicant and the Public Service Commission culminating in a letter of the latter to the former, dated the 15th December, 1960, which the Applicant considered as a refusal of the Republic which, in the meantime, stopped paying any salary to the Applicant, to appoint him as provided in Article 192.1, and as a result he filed his recourse in this Court under Articles 146 and 192 on the 18th February, 1961. On the 23rd March, 1961, the Applicant, was informed by the Public Service Commission that it was decided that he should be appointed as from 16th August, 1960, as Clerk, 2nd Grade and be regarded as having served on loan with the Turkish Communal Chamber from the 16th August, I960, to the 31st December, 1960, and from the 1st April, 1961, as Assistant Registrar in the Judicial Department and be posted for duty to the District Court of Paphos.

Held : (a) the provisions of Article 192.1 applied to, and were designed to safeguard the rights of, officers who, having held an office in the public service of Cyprus prior to the 16th August, 1960, continued in such office in the public service of the Republic on or after that date ;

(b) the provisions of Art. 192.3, with regard to the rights for “just compensation or pension on abolition of office terms”, read in conjunction with Art. 192.4, applied to, and were vested in, all officers mentioned in paras. 1 and 2 of Art. 192, who, not having continued in the public service of the Republic were not appointed in it, and included officers whose offices, by operation of the Constitution, came within the competence of a Communal Chamber ;

(c) where an officer whose office by operation of the Constitution came within the competence of the Communal Chambers, was appointed in the public service of the Republic as contemplated by Art. 192.3, his appointment should be such as would entitle him to the same terms and conditions of service as were applicable to him immediately prior to the 16th August, 1960, and to which he would have been entitled under Art. 192.1, had he continued in the public service of the Republic, and involving also the performance of duties of the same general nature;

(d) the Applicant ceased to be a member of the public service as from the 16th August, 1960, as his office came within the competence of a Communal Chamber ;

(e) the appointment to the post of Assistant Registrar in the Judicial Department, offered to the Applicant by the Public Service Commission, on a personal scale higher than that provided for and approved by the Legislative Authority (Law No. 9 of 1961, Head 54, Sub-head 1(17), Scale 10), could not lawfully be made even with the approval of the Ministry of Finance, nor could it lawfully entitle the Applicant to receive it, and, therefore, such appointment could not be said to have been validly made under Art. 192.3 ;

(f) the post of Assistant Registrar at the lawful salary attached to it as provided in the 1961 Budget (Scale 10), would not entitle the [*95] Applicant to the same terms and conditions of service as were applicable to him immediately before the 16th August, 1960 ;

(g) in the absence of an appointment under Art. 192.3, the Applicant was entitled to just compensation on abolition of office terms out of the funds of the Republic whichever was more advantageous to him.

PER CURIAM : Art. 192.3 does not vest a right in an officer to be appointed in the public service of the Republic.

The Application was dismissed.

R. R. Denktash for the Applicant.

P. N. Paschalis, Counsel of the Republic, for the Respondent.

Cur. adv. vult.

September, 29. The Decision of the Court was read by:

FORSTHOFF, P. : The Court declares—

(a) Paragraph 3 of Article 192 applies to all holders of offices mentioned in paragraphs 1 and 2 of Article

192 who have not continued in the public service of the Republic on or after the date of the coming into operation of the Constitution.

(b) Paragraph 3 of Article 192 contemplates such an appointment in the public service of the Republic as would entitle the person concerned “to the same terms and conditions of service as were applicable to him” immediately before the date of the coming into operation of the Constitution and as would also involve the performance of duties of the same general nature.

(c) The rights under paragraph 3 of Article 192 only vest in the person concerned if an appointment such as contemplated by the said paragraph 3 is not offered to such person.

On the 18 h September, 1961, when this Case came up for hearing, the Court, having regard to the submissions made by counsel in this case, directed under rule 18 of the Supreme Constitutional Court Rules, 1961, that the issue of the extent to which paragraphs 3 and 4 of Article 192 of the Constitution apply to this case should be argued and decided as a preliminary legal issue.

The Court is of the opinion that the provisions of paragraph 1 of Article 192 of the Constitution apply to, and are designed to safeguard the rights of, those persons who, immediately before the date of the coming into operation [*96] of the Constitution, held an office in the public service of the former Colony of Cyprus and who continue in the public service of the Republic on or after that date. That this was the intention of the drafters of the Constitution appears to be abundantly clear from the expression “and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service of the Republic”, which appears in that Article.

Paragraph 2 of Article 192, which makes provision regarding members of the judicial service, is not relevant for the purposes of this decision.

The provisions of paragraph 3 of Article 192 of the Constitution apply, in the opinion of the Court, to the holders of offices mentioned in paragraphs 1 and 2 of the said Artice 192, who, not having continued in the public service of the Republic, are not appointed in such public service. It should here be noted that paragraph 3 does not vest a right in the person concerned to be appointed in the public service of the Republic and, therefore, no question of such person electing to be so appointed, without being offered such an appointment, can arise.

Paragraph 3 provides that where any holder of an office mentioned in Paragraph 1 and 2 of Article 192 is not appointed in the public service of the Republic, he shall be entitled either to just compensation or to pension on abolition of office terms whichever of the two is more advantageous to him. It will be observed that the holder of such an office only becomes entitled to the rights referred to in paragraph 3 if such person “is not appointed to the public service of the Republic”.

The Court has come to the conclusion that paragraph 3 of Article 192, read in conjunction with paragraph 4 of that Article, applies to all holders of offices mentioned in paragraphs 1 and 2 of Article 192 who do not continue in the public service of the Republic, including holders of offices which have come, by operation of the Constitution, within the competence of a Communal Chamber.

Special provision is made in paragraph 4 of Article 192 regarding holders of offices which come, by operation of the Constitution, within the competence of a Communal Chamber. Paragraph 4 provides, inter alia, that in such a case the person concerned may, if he so desires, “waive his rights under paragraph 3” of the said Article 192 and choose to serve under a Communal Chamber.

In the opinion of the Court the rights under paragraph 3 are only vested in the holder of an office mentioned in paragraphs 1 and 2 of Article 192 in all cases where the holder of [*97] such an office is not appointed in the public service of the Republic. It follows, therefore, that in the case of the holder of an office, which comes, by operation of the Constitution, within the competence of a Communal Chamber, the rights under paragraph 3, which such person must waive, as provided in paragraph 4, if he chooses to serve under a Communal Chamber, only become vested in such person if he is not appointed in the public service of the Republic.

In the opinion of the Court an appointment in the public service of the Republic contemplated by paragraph 3 of Article 192 must be such an appointment as would entitle the person concerned to the same terms and conditions of service as were applicable to him immediately before the date of the coming into operation of the Constitution, i.e. “to the same terms and conditions of service” to which he would have been entitled under paragraph 1 of Article 192 had he continued in the public service of the Republic and involving also the performance of duties of the same general nature.

The questions for the consideration of the Court which would thus arise in the resumed hearing of this Case are:-

(a) whether the appointment to the post of Assistant Registrar in the Judicial Department of the public service of the Republic is an appointment which entitles the Applicant “to the same terms and conditions of service as were applicable to him” immediately before the date of the coming into operation of the Constitution and involving the performance of duties of the same general nature so as to prevent the vesting in the Applicant of the “rights” under paragraph 3;

(b) if such rights have vested in the Applicant, whether the Applicant can be expected to exercise his option under paragraph 4 of Article 192 between claiming his rights under paragraph 3 or choosing to serve under a Communal Chamber, without knowing the terms of the just compensation provided for in paragraph 3.

November, 19. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

This Application cannot succeed and is dismissed accordingly.

The Applicant was, immediately before the date of the coming into operation of the Constitution on the 16th August, I960, holding an office in the public service, namely, the post of a Registrar, Turkish Family Court, and was posted in Limassol. This post, by the operation of the Constitution, came within the competence of the Turkish Communal Chamber as from the aforesaid date. [*98]

On the 1st September, 1960, the Applicant addressed a letter (Exhibit 1) to the Chairman of the Public Service Commission informing him that he did not wish to serve under the Communal Chamber concerned and requested that he be given a new post in the public service of the Republic.

On the 8th October, 1960, the Chief Establishment Officer wrote a letter in reply (Exhibit 2), on behalf of the Chairman of the Public Service Commission, in which he informed the Applicant that as his case came under paragraph 4 of Article 192 of the Constitution he could either exercise his rights under paragraph 3 of that Article or waive those rights under paragraph 4 and choose to serve under the Turkish Communal Chamber. The Applicant was further informed that he could not be considered for a promotion post in the public service but that he could, however, apply for any post advertised and take his chances with other candidates.

The Applicant replied to Exhibit 2 by a letter dated the 25th October, 1960, (Exhibit 3), requesting the Chief Establishment Officer to let him know what his financial benefits would be if he exercised his rights under paragraph 3 of Article 192 and pointing out that the “Laws of Cyprus do not specify the amount of just compensation” mentioned in paragraph 3 of the said Article 192. The Applicant subsequently wrote a further letter on the 7th November, 1960 (Exhibit 4), to the Chairman of the Public Service Commission repeating that he did not wish to serve under the Communal Chamber and stating that he wished to exercise his rights under paragraph 3 of Article 192. The Applicant also pointed out in this letter that what he was requesting was not promotion but that he should be considered for the post of a Registrar of a District Court.

The Chief Establishment Officer replied to Exhibit 3 by letter dated the 7th November, 1960, (Exhibit 5) in which the Applicant was informed that the amount of just compensation mentioned in paragraph 3 of Article 192 had not yet been determined but that steps were being taken to do so. On the same day the Chief Establishment Officer wrote another letter (Exhibit 6), this time on behalf of the Chairman of the Public Service Commission, in reply to Exhibit 4, informing the Applicant that the question of the exercise of his rights under paragraph 3 of Article 192 does not fall within the competence of the Public Service Commission and that he should, therefore, address his request to the appropriate authority of the Republic. It was also stated in Exhibit 6 that on reconsideration it had been decided that the Applicant would be considered together with other candidates when vacancies in the post of Registrar, District Court, were filled. [*99]

On the 15th December, 1960, the Applicant sent a further letter to the Chief Establishment Officer (Exhibit 7) reiterating his position regarding the Communal Chamber, and pointing out that he had not yet been offered an equivalent post in the public service of the Republic nor had he been told anything with regard to his rights under paragraph 3 of Article 192. This letter had remained unanswered up to the time of the filing of this recourse on the 18th February, 1961.

As a result of the position taken by the Respondent in this Case the Republic stopped paying any salary to the Applicant.

On the 23rd March, 1961, that is to say, more than a month after the filing of this recourse and on the eve of the filing of the Opposition by the Respondent, a letter was written by the Chairman of the Public Service Commission to the Applicant, in reply to Exhibit 7, informing him that the Public Service Commission had decided that he should be appointed to the post of Clerk, 2nd Grade, General Clerical Staff, from the 16th August, 1960, and that he should be regarded as having served on loan to the Turkish Communal Chamber from the 16th August, 1960, to the 31st December, 1960,and that he should be appointed to the post of Assistant Registrar in the Judicial Department from the 1st April, 1961, and be posted for duty to the District Court of Paphos. The Applicant’s salary in the new post would be £720 per annum in the personal scale of £642x24-690x30-810, plus cost of living allowance at the approved rate. The text of this letter is set out in paragraph 4 of the Statement of Facts in support of the Respondent’s Opposition and the letter is hereinafter in this Judgment referred to as “the letter of the 23rd March, 1961”.

There is no provision in the relevant Budget of the Republic for the attaching of such a personal scale to the post of Assistant Registrar in the Judicial Department.

The Application in this Case was filed on the 18th February, 1961, and the formal motion for relief contains the following two claims :-

“(a) that the decision of the Public Service Commission to the effect that the applicant had ceased to be a member of the Public Service is null and void as it is contrary to the Constitution and natural justice;

(b) the decision of the Minister of Finance not to pay the salary of the applicant is ultra vires, illegal and void”.

In paragraph 7 of the Statement of Facts filed in support [*100] of the Application the Applicant also prays for an order of the Court -

“(a) directing the appropriate authorities of the Republic of Cyprus to give just compensation to the applicant and/or

(b) declaring that it is arbitrary, unjust and unconstitutional to refuse to pay the salary of the applicant until the terms of just compensation are determined by a law or

decision of the Republic.

(c) declaring that the treatment of officers such as the applicant as having become automatically members of the Communal Chambers, without having the terms and details of just compensation under Article 192 para. 3 fully determined, is arbitrary, unjust and unconstitutional”.

The Opposition of the Respondent, which was filed on the 24th March, 1961, apart from raising certain formal procedural objections, appears to rely solely on the arrangements set out in the letter of the 23rd March, 1961.

The Case came up for mention on the 15th March, 1961, and was fixed for hearing on the 30th March, 1961, when it was adjourned on the application of the Applicant, and with the consent of the Respondent, with a view to settlement. On the 11th April, 1961, the Case was further adjourned for the same purpose to the 8th May, 1961. As no settlement could be reached by that date the Case was again fixed for hearing on the 18th September, 1961

On the 18th September, 1961, the Court, having regard to submissions made by counsel, directed under rule 18 of its Rules that the issue of the extent to which paragraphs 3 and 4 of Article

192 of the Constitution apply to this Case should be argued and decided as a preliminary legal issue. The Court gave its Decision on this issue on the 29th September, 1961, and the hearing was resumed on the 27th October, 1961, and judgment was reserved until today.

Although it follows from the above-mentioned Decision of the 29th September, 1961, that the Applicant has ceased to be a member of the public service as from the 16th August, 1960, a basic question which this Court must, nevertheless, in view of the letter of the 23rd March, 1961, still consider is whether the appointment in question was one which was validly made so as to have effect under paragraph 3 of Article

192 and thus prevent the vesting in the Applicant of the rights referred to in the said paragraph. It must first be examined whether it was within the competence of the Public Service Commission to make an appointment to a post to [*101] which the Public Service Commission has attached a salary scale other than the salary scale which is attached to such post under the Budget of the Republic.

The post of Assistant Registrar in the Judicial Department is shown in the Schedule of Expenditure, which is attached to the Budget of the Republic, the Appropriation Law, 1961, (Law No. 9 of 1961), under Head 54 - Judicial, Sub-head 1(17) and the salary attached to such post is shown as Scale 10. In Appendix A to the aforesaid Schedule of Expenditure Scale 10 is the scale of £570x24-690x30-720. This scale is also shown in Exhibit 10.

The salaries attaching to all public offices of the Republic are laid down in the Budget and, as such Budget is enacted into a Law, it is binding, like all Laws, on all authorities concerned.

In the opinion of the Court, therefore, it is not competent for the Public Service Commission to alter such salaries without legislative authority or other appropriate legislative provison. There is nothing in Law 9 of 1961 which authorises the Public Service Commission to attach a different salary to a post other than the salary attached to it under the authority of the aforesaid Law.

In this Case it is in evidence that the Public Service Commission attached a salary of “£720 per annum in the personal scale of £642x24-690x30-810” to the post of Assistant Registrar with the approval of the Ministry of Finance.

In the opinion of the Court the fulfilment of the obligations arising out of the rights vested in certain public officers under Article 192 necessitates the making of legislative provision in the Budget and cannot be achieved by executive action, as in this Case, inconsistent with the provisions of the Budget.

An examination of the above-mentioned Schedule of Expenditure attached to the aforesaid 1961 Budget clearly shows that where it is intended that a “personal scale” should be attached to a particular post, in addition to, or in lieu of, the ordinary salary attached to such post then specific provision is made for such “personal scale” opposite the item of the Schedule of Expenditure concerned, in the column headed “MEMORANDA”, e.g. Sub-heads 1(9) and 1(11) of Head 16, Prisons, Sub-heads 1(3) and 1(5) of Head 31, Foreign Services, and Sub-heads 1(25) and 1(27) of Head 34, Customs and Excise.

In view of the above it is clear that what has been offered to the Applicant in this case by the letter of the 23rd March, 1961, is the post of Assistant Registrar in the Judicial Department [*102] with a “personal scale” attached to it which the Public Service Commission, in view of the absence of any provision therefor in the relevant Budget, had no power, even with the approval of the Ministry of Finance, to attach.

In the opinion of the Court, therefore, the appointment to the post of Assistant Registrar in the Judicial Department, made in accordance with the letter of the 23rd March, 1961, would not have lawfully entitled Applicant to the “personal scale” referred to therein, and such appointment is not consequently one contemplated by paragraph

3 of Article 192 of the Constitution so as to prevent the vesting in the Applicant of the rights referred to in the said paragraph 3 of Article 192.

As the Court has found that no such appointment in the sense of paragraph 3 of Article 192 has been validly made in respect of the Applicant in this Case, the question whether such an appointment, if it could have been validly made by the Public Service Commission, was accepted by the Applicant and whether, if accepted, was of the nature contemplated by paragraph 3 of Article 192 as interpreted in the afore-mentioned Decision[1] of the Court of the 29th September, 1961, does not arise in this Case. It is quite clear, in any case, that the post of Assistant Registrar in question, with the lawful salary scale attached to it as provided by the 1961 Budget (i.e. Scale 10) would not entitle the Applicant to the same terms and conditions of service as were applicable to him immediately before the date of the coming into operation of the Constitution and this fact was clearly recognized by the Public Service Commission otherwise they would not have decided to make provision for a higher “personal scale”.

The Court, having found that the Applicant has not been lawfully and validly appointed in the public service of the Republic for the purposes of paragraph 3 of Article 192 so as to prevent the vesting in the Applicant of the rights referred to in that paragraph, is of the opinion that the Applicant is, in the absence of such an appointment, entitled, in accordance with the provisions of the said paragraph 3 of Article 192, to just compensation or pension on abolition of office terms out of the funds of the Republic whichever is more advantageous to him.

With regard to claims (a)† and (b)† contained in the formal motion for relief, the two claims in question have, in effect, already been disposed of by the above-mentioned Decision of this Court on Preliminary Legal Issues of the 29th September, 1961, and they are, therefore, dismissed accordingly.

With regard to prayers (a),* (b)* and (c)[2], contained in paragraph 7 of the Statement of Facts attached to the Application, in view of the preceding findings of the Court in favour of the Applicant it becomes unnecessary for the Court to decide whether the prayers contained in paragraph 7 of the aforesaid prayers should be regarded as part of the formal motion for relief, as contended by counsel for the Applicant, or whether they should not be so regarded, as contended by counsel for the Respondent.

[1] * p. 95 supra letter E.

† p. 99 supra letter G.

[2] * p. 100 supra letters A-C.

†P. I. 344, Supplnt. No. 3 of Official Gazette No. 4246 of 20/7/59, p. 291.