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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 916
1989 August 5
[A. LOIZOY. P]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MARO THEODOSSIADOU,
Applicant,
v.
THE CYPRUS BROADCASTING CORPORATION, THROUGH THE ADMINISTRATIVE BOARD OF CYPRUS BROADCASTING
CORPORATION AND ANOTHER,
Respondents.
(Case No. 259/83)
Acts or decisions in the sense of Art. 146.1 of the Constitution - Omission to reply to a request submitted under Art. 29 of the Constitution - Election to challenge the substance of the matter - Precludes applicant from challenging the omission to reply as well.
General principles of Administrative Law - Imposing by Scheme of Service duties on applicant which she was unofficially performing - Applicant cannot complain against the so-called amendment of the Scheme of Service.
Collective agreements - Terms thereof not enforceable, unless embodied in Regulations.
Legitimate interest - Change entailing increase of salary and no diminution or deterioration of vested rights - Applicant's legitimate interest has not been "adversely" affected - By the upgrading of the post applicant's vested rights were not affected adversely, but she is now in a superior and more beneficial position than she was before.
By reason of an amendment to a Scheme of Service the applicant was emplaced in a higher scale without diminution of status or deterioration of her vested rights. The applicant, however, filed the present recourse, complaining in effect in respect of alleged "failure or refusal" of the respondent corporation to emplace her on a still higher personal scale or make a further upgrading of the post he now holds. The Court dismissed the recourse.
Recourse dismissed. No order as to
costs.
Cases referred to:
Kyriakides v. Republic 1 R.S.C.C. 66,
Charalambous v. Republic (1986) 3 C.L.R. 557,
Kontemeniotis v. C.B.C. (1982) 3 C.L. R. 1027,
Evagelou v. C.B.C. (1985) 3 C.L.R. 1410.
Damianos v. C.B.C (1987) 3 C.L.R. 848
Recourse.
Recourse against the decision of the respondents to emplace applicant on scale A. 11 instead of scale A. 12.
A. S. Angelides with Spanou Anastasiou (Mrs), for the Applicant.
P. Polyviou, for the Respondents.
Cur. adv. vult.
A. LOIZOU, P. read the following judgment. By the present recourse the applicant claims:
A. Declaration of the Court that the continuing omission of the respondent to reply to the applicant or to her lawyer's letter of the 25th April 1983, is contrary to Article 29 of the Constitution.
B. Declaration of the Court that the decision of the respondent to emplace the post of Film Programmes Organiser on Scale A 10/11 instead of on scale A12 is null and void and of no legal effect whatsoever.
C. Declaration of the Court that the decision of the respondent to emplace the applicant on scale All (personal scale), instead of on scale A 12 is null and void and of no legal effect whatsoever.
The applicant was first employed by the respondent Corporation as an Assistant Programme Officer for Radio on the 1st December 1957. She served in various posts and on the 1st August 1976 she was appointed to the permanent post of Film Programmes Organiser on the basis of Schemes of Service dated 1st May, 1969. Clause 3 of the offer for the post in question dated 19th August 1976, states that "in accepting the above offer you will be subject to the conditions of service and regulations of the Corporation in force at any given time"; and in Clause 4 thereof it is stated that "your duties will be specified in the Schemes of Service of the Corporation in force at any given time".
On the 4th May 1978, the Administrative Board of the respondent Corporation revised the Scheme of Service for the post and to which it added the following:
"To prepare for publication in the Radioprogramme, material relevant to films. To supervise and coordinate the work of the Film Library (Archive)."
It is alleged by the applicant that she was never officially informed of the amendment of the Scheme of Service of the post she held, which was effected without any upgrading of the salary scale. She addressed therefore two letters to the Director General of the Corporation dated 28th August 1981, and 20th May, 1982, requesting the upgrading of the post. A similar letter was also addressed to him on the 29th November 1982.
As no reply was given, a letter dated 17th January 1983, was addressed to the respondent Corporation by the applicant's lawyer to the effect that the salary scale of her post be upgraded to scale A12 the soonest possible and requesting a duly reasoned reply within ten days.
A reply was sent on the 8th February 1983 wherein it was stated to the effect that the matter of the reorganization/evaluation of the employees of the Corporation had been during the whole of the year 1982 the object of negotiations between the Corporation and the employees Trade Union EVRIK, of which the applicant is a member. As a result of the said negotiations with EVRIK an agreement was reached around the end of December of that year and the Corporation was now considering certain matters put before it by its employees, including the claim of the applicant.
The respondent Corporation informed the applicant by letter of the 12th January 1983, that as a result of the agreement for re-organisation she was emplaced to the personal salary scale of All as from 1st January 1981, under the new title of Film Programmes Organiser. It is alleged by the applicant, however, that she received this letter on the 7th April 1983. In reply the applicant's lawyer wrote on the 25th April 1983. to the respondent Corporation to the effect that and in the light of the various correspondence exchanged until then - that his client considered herself as having been unjustly treated, that irrespective of the outcome of the negotiations she did not consider herself as bound by the terms of the -collective agreement, not having herself agreed to its becoming part of her personal agreement with the Corporation and requested to be informed within ten days, whether (a) the Corporation is considering the matter of the upgrading of the post of his client as this was put forward by her and (b) as to the time such matter will be concluded.
It is contended by the applicant that contrary to Article 29- of the Constitution, the respondent Corporation failed to consider or satisfy her complaint that is that she should have been placed on a higher scale and that it also failed to reply to her lawyer's letter of the 25th April 1983.
As correctly submitted by the respondent Corporation the applicant cannot succeed on this ground as assuming there was any failure to examine the matter on the part of the respondent Corporation, she has proceeded to challenge by means of the present recourse the substance of the matter for which a reply to her letter was sought (see Phedias Kvriakides v. The Republic 1 R.S.C.C. 66).
It is further alleged that the administrative Board of the respondent Corporation amended Schemes of Service for the post of Film Programmes Organiser on the 4th May 1978 without the knowledge of the applicant and/or Trade Union, contrary to the standing agreements between Trade Unions and the Management. Furthermore it was contended that the respondent Corporation by virtue of Section 3 of the Public Corporations (Regulations of Personnel Matters) Law 1970 (Law No. 61 of 1970), has to enact regulations to be approved by the Council of Ministers, regulating matters of re-organisation or upgrading of posts of its employees. The restructuring re-organisation and re-evaluation of the services in the respondent Corporation was effected without any such regulations and the applicant was called upon to perform duties on the basis of amended Schemes of Service and salary conditions which neither approved or published and which resulted in the lowering of the status of her post vis-a-vis other posts of equal status. The presence of the collective agreement, it was submitted is of no consequence not having been made part of any regulations, consequently the emplacement of the applicant on scale A 11 was not validly effected, but in any event such emplacement was wrongly effected as the post in question should have been placed on a higher salary scale.
I consider that in the first place it is within the power of an appropriate Authority to make Schemes of Service and carry out any necessary amendments to such Schemes in order to serve the requirements of the service. (See Charalambous v. The Republic (1986) 3 C.L.R. 557 at 573).
In the present instance as it appears from the documents which are before me and in particular Appendix B, to the application it was within the widened duties of the post held by the applicant as from 1975.
"To prepare material on scheduled films or tapes for use in the Radioprogramme.
To be responsible for and supervise the film library, including newsfilms and CBC productions."
In effect these duties which she does not appear to have refused to perform or to have ever complained about, do not differ from the "new" duties of the post as these were amended by the additional of 1978 in the Scheme of Service which the applicant complains of, therefore I would consider that she cannot complain about the so called amendment of her Scheme of Service since the effect of this was to make official the duties she was performing unofficially all this time.
As far as the terms of the collective agreement are concerned, in the present instance there does not appear that such terms were embodied in any Regulations made by the respondent Corporation in the manner provided by Law, the applicant therefore cannot proceed on its basis to enforce any such terms tinder Article 146 of the Constitution, since it lacks the force of law. (See Kontemeniotis v. C.B.C. (1982) 3 C.L.R. 1027 at 1032; Nitsa Evagelou v. C.B.C. (1985) 3 C.L.R. 1410 at 1422, and Damianos v. C.B.C. (1987) 3 C.L.R. 848. at 853).
Irrespective of this the post of Films Programmes Organiser which is held by the applicant which previously was on scale A8, was upgraded to scales A 10/11 in accordance with the provisions of the collective agreement. The applicant herself was emplaced on personal scale All as from 1st January 1981 (B759X152-4975) and on £4367 as from 1st October 1982, that is on the fourth increment of scale A11 within less than two years, a higher salary scale, I expect in order to keep some balance in the hierarchy of the service.
On this point it was submitted on behalf of the respondent Corporation that since the applicant's salary is superior to what it was before, she has no legitimate interest to challenge this particular act. In support the case of Nitsa Evangelou v. C.B.C. (supra) at p.1426 was cited to the effect that where a salary is increased and there has been no diminution or deterioration of vested rights no recourse can lie in that connection.
To begin with I should state that the powers of the Court under Article 146 of the Constitution do not extend as far as to order that an applicant be emplaced in any particular post or grade (see Damianos v. C.B.C (supra) at 851). the Supreme Court in its Revisional Jurisdiction not being a Court of Appeal, only decides whether in the circumstances the decision under recourse was proper and correct or not.
In the present case as already stated above, by the reorganisation and restructuring of the service, the applicant was placed in a higher salary scale than she held before and indeed in the higher scale of those provided by the collective agreement. I fail therefore to see in what way her legitimate interest might have been adversely affected by this new state of affairs. By the upgrading of the post she now holds not only her vested rights, if any, were not affected adversely but she is undoubtedly in a superior and more beneficial position that she was before. She did not have a vested right in any higher scale and the alleged "failure or refusal" of the respondent Corporation to emplace her on a still higher personal scale or make a further upgrading of the post she now holds, does not affect any legitimate interest of hers.
As far as the general set up of the service is concerned, I do not find that this has been disturbed in any way and in any event to her detriment. On the contrary I find from the facts before me-that her post was upgraded and the applicant hersel, from scale A8, she now enjoys scale A 11 which is the same level as that of posts which were previously at scale A9. Needless to say that as far as the creation of posts and their upgrading is concerned this is not by itself a matter within the ambit of Article 146 of the Constitution.
Finally I would like to say that no discrimination was established, as between the applicant and any other officer inasmuch as equality of treatment is as between equals and there does not seem to exist the necessary equality between the post of the applicant and that of other officers complained of. The different upgrading, if any, does not constitute in the circumstances, discrimination.
For all the above reasons this recourse fails and is hereby dismissed. There will be. however, no order as to costs.
Recourse dismissed. No order as
to costs.