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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1978) 3 CLR 267
1978 September 9
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANDREAS YERASIMOU,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE EDUCATIONAL SERVICE COMMITEE,
Respondent.
(Case No. 121/77).
Educational Officers-Elementary school-teacher- Transfer of, during the school year without an application on his part-In order to meet request for transfer of another school-teacher, the wife of a member of the .security forces-Regulation 1 8(b)(ii) of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972 to 1974-Though sub judice decision perhaps lawful under proviso (ii) to regulation 16(3), said regulation 18(b)(ii), when read together with regulation 21, mainly, if not solely, applicable to transfers made in the normal course of events-Factor of meeting said request for transfer erroneously treated as being of a decisive nature-Relevant decision reached in a defective manner- Annulled.
Administrative Law-Administrative decision-Reached in a defective manner through erroneously treating a factor as being of a decisive nature-Annulled-Not a case in which it is properly open to the Court to examine whether such decision could be upheld by the Court, as an administrative Court, on the ba3is of some other lawful reasoning.
The applicant, an elementary school-teacher, was transferred from the elementary school of Galata to the elementary school of Katydata, as from January 10, 1977. When he objected against this transfer the respondent Educational Service Committee rejected his objection on the ground that "his transfer was made, under Regulation 16(3)(ii) of the Educational Officers Regulations 1972 to 1974, to meet a justified request for transfer of another school-teacher, who is a displaced person and the wife of a member of the security forces (Regulation 18(b)(ii) and (iii) of the aforesaid Regulations)".
The Committee further stated that "before deciding about the said transfer has studied in detail the case of the objection as well as the cases of other school-teachers serving in the area and has decided, in the light of the personal and family circumstances of each one of them and of the educational needs, that he had to be transferred".
Hence the present recourse.
Proviso (ii) to regulation 16(3) reads as follows:
"An educational officer is not transferred without an application on his part except if there exist educational reasons or if his further stay at the same school conflicts with a justified request of another educational officer for transfer".
Regulation 18(b)(ii) provides:
(b) Reasons for the applied for transfer may be -
(ii) service at the same place with a spouse who is a public officer, a public educational officer, an officer of a public corporation, a member of the security forces or of the National Guard."
Held, that though the sub judice decision was perhaps lawful under proviso (ii) to regulation 16(3), great reliance was placed, in reaching such decision, on the provisions of regulation 18(b) (ii) which, when read together with those of regulation 21, appear to be mainly, if not solely, applicable to transfersmade in the normal course of events under paragraph 1 of regulation 21, and to be only very remotely applicable, if at all, to special cases of transfer under paragraph 3 of the said regulation 21; that, therefore, a factor mentioned in regulation 18(b)(ii), namely that the school-teacher for whose replacement the applicant was transferred is the wife of a member of the security forces was, apparently, erroneously treated by the respondent Committee as being of a decisive nature, with the result that its relevant decision must be regarded as having been reached in a defective manner; and that, accordingly, that decision has to be annulled, without this being a case in the particular circumstances of which it is properly open to this Court to examine whether such decision could be upheld by this Court, as an administrative Court, on the basis of some other lawful reasoning (see, inter alia, Pikis v. The Republic (1967) 3 C.L.R. 562 at p. 574).
Sub judice decision annulled.
Cases referred to:
Pikis v. The Republic (1967) 3 C.L.R. 562 at p. 574;
Spyrou and Others (No.1) v. The Republic (1973) 3 C.L.R. 478 at p. 484.
Recourse.
Recourse against the decision of the respondent whereby applicant's objection against his transfer from the elementary school of Galata to the elementary school of Katydata was rejected.
Chr. Kitromilides, for the applicant.
A. S. Angelides, for the respondent.
Cur.adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By the present recourse-as its scope was eventually limited during the hearing before me-the applicant is challenging the decision of the respondent Educational Service Committee by means of which there was rejected, on February 3, 1977 (see the relevant minutes exhibit 4), his objection, dated January 13, 1977 (see exhibit 3), against his transfer as from January 10, 1977, from the elementary school of Galata to the elementary school of Katydata.
In the said decision of the respondent Committee, which was communicated to the applicant by a letter dated February 4, 1977 (see exhibit 5), it is stated that the transfer of the applicant was made under paragraph (ii) of the proviso to Regulation 16(3) of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations of 1972 to 1974, in order to satisfy a justified request for a transfer of another school-teacher, who is a displaced person and the wife of a member of the Security Forces; and reliance was placed, by the respondent, in this respect, on paragraphs (ii) and (iii) of Regulation 18(b) of the aforesaid Regulations. It is stated, further, that the Committee before deciding on the transfer of the applicant studied in detail his case, as well as those of other school-teachers in the area, and decided, in the light of the personal and family circumstances of each one of them and of the educational needs, that he had to be transferred.
Regulation 16 of the aforementioned Regulations (see Not. 205 in the Third Supplement, vol. 1, to the Official Gazette of 1972) reads as follows:-
"Μεταθέσεις:
16.-(1) Οι εκπαιδευτικοί λειτουργοί μετατίθενται -
(α) βάσει των εκπαιδευτικών αναγκών
(β) τη αιτήσει αυτών διά σοβαρούς προσωπικούς ή οικογενειακούς λόγους νοουμένου ότι εξυπηρετείται και το συμφέρον της υπηρεσίας.
(2) Οι εκπαιδευτικοί λειτουργοί, οίτινες υπηρετούσι κατά την διάρκειαν της περιόδου δοκιμασίας εις σχολεία ως εν τω Κανονισμώ 15 αναφέρεται, υπόκεινται εις μετάθεσιν μετά την επικύρωσιν του διορισμού των ή επικειμένης ταύτης -
(α) προκειμένου περί καθηγητών, εις σχολεία αγροτικών περιοχών και, ει δυνατόν, εις την αυτήν περιφέρειαν ή εις άλλην δι' ην έχουσιν εκφράσει προτίμησιν·
(β) προκειμένου περί διδασκάλων, εις σχολεία Γ ή, μη υπαρχουσών εις αυτά επαρκών κενών θέσεων, εις σχολεία Β των τριών διδασκάλων.
(3) Οι κατά τα ανωτέρω μετατιθέμενοι εκπαιδευτικοί λειτουργοί υπόκεινται εις περαιτέρω μετάθεσιν, κατόπιν υπηρεσίας επί χρονικόν τι διάστημα και ως ήθελον παρουσιασθή δυνατότητες διά μετάθεσιν, ως ακολούθως:
(α) Οι καθηγηταί μετατίθενται εις αστικά κέντρα·
(β) οι διδάσκαλοι μετατίθενται εις μεγαλύτερα σχολεία Β και ακολούθως, κατόπιν υπηρεσίας εις τοιαύτα σχολεία και αναλόγως των παρουσιαζομένων δυνατοτήτων, μετατίθενται εις σχολεία Α:
Νοείται ότι εις αμφοτέρας τας ως άνω περιπτώσεις -
(i) η μετάθεσις είναι εις ευμενεστέραν διά τον εκπαιδευτικών λειτουργόν θέσιν εκτός εις περιπτώσεις μεταθέσεως λόγω εκπαιδευτικών αναγκών ή πειθαρχικής μεταθέσεως·
(ii) εκπαιδευτικός λειτουργός δεν μετατίθεται άνευ αιτήσεως αυτού πλην εάν συντρέχωσιν εκπαιδευτικοί λόγοι ή εάν ή περαιτέρω παραμονή του εις το αυτό σχολείον συγκρούηται προς δικαιολογημένον αίτημα άλλου εκπαιδευτικού λειτουργού προς μετάθεσιν."
("Transfers:
16.-(1) Educational officers are transferred -
(a) in accordance with the educational needs;
(b) on their own application for serious personal or family reasons, provided that the interest of the service is also served.
(2) Educational officers, who are serving during the probationary period in the schools referred to in Regulation 15, are subject to transfer after the confirmation of their appointments or when such confirmation is about to take place-
(a) in cases of schoolmasters, to schools in rural areas, and, if possible, of the same region or of another for which they have expressed preference;
(b) in cases of school-teachers, to C schools, or, if there are not there adequate vacant posts, to B schools with three teachers.
(3) The educational officers transferred as above are subject to further transfer, after having served for a certainperiod of time and as possibilities for transfer may occur, as follows:
(a) Schoolmasters are transferred to urban centres;
(b) School-teachers are transferred to larger B schools and subsequently, after serving at such schools, and depending on possibilities that may arise, are transferred to A schools:
Provided that in both the above instances -
(i) the transfer is to a more favourable for the educational officer post, except in cases of transfer for educational needs or disciplinary transfers;
(ii) an educational officer is not transferred without an application on his part except if there exist educational reasons or if his further stay at the same school conflicts with a justified request of another educational officer for transfer").
Also, the material parts of the aforementioned regulation 18 read as follows:-
"18. Τηρουμένων των διατάξεων των παρόντων Κανονισμών, εφαρμόζεται η ακόλουθος διαδικασία εν σχέσει προς μεταθέσεις καθηγητών:
(α) Πας καθηγητής, όστις επιθυμεί μετάθεσιν, δύναται, εντός του μηνός Φεβρουαρίου, να υποβάλη αίτησιν επί του υπό της Επιτροπής οριζομένου εντύπου. Εν αύτη δέον να αναφέρωνται οι λόγοι διά τους οποίους ζητείται η μετάθεσις και το σχολείον ή τα σχολεία, κατά σειράν προτιμήσεως, εις τα όποια ο αιτών επιθυμεί να μετατεθή.
(β) Λόγοι δι' αιτουμένην μετάθεσιν δύνανται να είναι -
(i) λόγοι υγείας του καθηγητού δεόντως πιστοποιούμενοι υπό Κυβερνητικού ιατρού και υπαγορεύοντες ειδικήν θεραπείαν μη δυναμένην να παρασχεθή εις τον τόπον εργασίας του·
(ii) συνυπηρέτησις μετά συζύγου δημοσίου υπαλλήλου, δημοσίου εκπαιδευτικού λειτουργού, υπαλλήλου νομικού προσώπου δημοσίου δικαίου, μέλους των δυνάμεων ασφαλείας ή της Εθνικής Φρουράς.
(iii) άλλοι σοβαροί προσωπικοί ή οικογενειακοί λόγοι δεόντως αποδεδειγμένοι."
("Subject to the provisions of these Regulations the following procedure shall apply as regards transfers of schoolmasters:
(a) Any schoolmaster who desires a transfer may, in the month of February, submit an application on a form prescribed by the Committee. In such form there must be stated the reasons for which the transfer is applied for and the school or schools, in order of preference, to which the applicant desires to be transferred.
(b) Reasons for the applied for transfer may be -
(i) health reasons of the schoolmaster duly certified by a Government doctor and requiring special treatment which cannot be given where his work is;
(ii) service at the same place with a spouse who is a public officer, a public educational officer, an officer of a public corporation, a member of the security forces or of the National Guard;
(iii) other duly proved serious personal or family reasons.").
By virtue of regulation 19(1)(b) the provisions of paragraph (b) of regulation 18 have been rendered applicable, also, as regards transfers of school-teachers.
By means of regulation 21 of the same Regulations it is provided that transfers are normally made during the period from April to June of each year, in respect of the ensuing school-year; that supplementary transfers, in view of unforeseen needs of the service, are made during the period from September up to October; and then the following provision is made by paragraph 3 of the same regulation in relation to transfers made during the school-year:-
"3)Έκτακτοι μεταθέσεις προς το συμφέρον της υπηρεσίας δύνανται να διενεργώνται κατά την διάρκειαν του σχολικού έτους, νοουμένου ότι έκαστη περίπτωσις θα δύναται να εξετάζηται ειδικώς κατά το τέλος του σχολικού έτους. "
("(3) Special transfers in the interest of the service may be made during the school-year, provided that each such case will be subject to specific consideration at the end of the school-year.")
I propose to examine first the legality of the sub judice decision concerning the transfer of the applicant:
It is necessary, in this respect, to reproduce in full the text of the decision of the respondent Committee of February 3, 1977 (exhibit 4), by virtue of which the objection of the applicant against his transfer was rejected; it reads as follows:-
"4. Γερασίμου Ανδρέας (Π. 2918), Διδάσκαλος
Δι' επιστολής του, ημερομηνίας 13.1.77 ενίσταται διά την εις Κατύδατα μετάθεσίν του.
Αποφασίζεται όπως δοθή απάντησις ότι -
(α) η μετάθεσίς του εγένετο, βάσει του Κανονισμού 16(3)(ιι) των περί Εκπαιδευτικών Λειτουργών Κανονισμών 1972 και 1974 προς ικανοποίησιν δικαιολογημένου αιτήματος προς μετάθεσιν άλλης διδασκαλίσσης, εκτοπισθείσης και συζύγου μέλους των δυνάμεων ασφαλείας (Κανονισμός 18(β)(ιι) και (ιιι) των προειρημένων Κανονισμών).
(β) Η Επιτροπή πριν ή αποφασίση την εν λόγω μετάθεσιν εμελέτησε λεπτομερώς τόσον την περίπτωσιν του ενισταμένου όσον και τας περιπτώσεις άλλων διδασκάλων υπηρετούντων εις την περιοχήν και έκρινεν ότι εν όψει των προσωπικών και οικογενειακών συνθηκών ενός εκάστου εξ αυτών και των εκπαιδευτικών αναγκών, ούτος έδει να μετατεθή."
"(4. Yerasimou Andreas (P.29 18), School-teacher.
By his letter, dated 13.1.77, he objects against his transfer to Katydata.
It is decided that an answer should be given that -
(a) his transfer was made, under Regulation 16(3)(ii) of the Educational Officers Regulations 1972 to 1974, to meet a justified request for transfer ofanother school-teacher, who is a displaced person and the wife of a member of the security forces (Regulation 18(b)(ii) and (iii) of the aforesaid Regulations).
(b) The Committee before deciding about the said transfer has studied in detail the case of the objector as well as the cases of other school teachers serving in the area and has decided, in the light of the personal and family circumstances of each one of them and of the educational needs that he had to be transferred.")
It is clear from the above text that though the sub judice decision of the respondent was perhaps lawful under proviso (ii) to the afore quoted regulation 16(3), great reliance was placed, in reaching such decision, on the provisions of regulation 18(b)(ii) which, when read together with those of regulation 21, appear to be mainly, if not solely, applicable to transfers made in the normal course of events under paragraph 1 of regulation 21, and to be only very remotely applicable, if at all, to special cases of transfer under paragraph 3 of the said regulation 21.
Thus, a factor mentioned in regulation 18(b)(ii), namely that the school-teacher for whose replacement the applicant was transferred is the wife of a member of the security forces, was, apparently, erroneously treated by the respondent Committee as being of a decisive nature, with the result that its relevant decision must be regarded as having been reached in a defective manner; and, this being so, I have reached the conclusion that that decision has to be annulled, without this being a case in the particular circumstances of which it is properly open to me to examine whether such decision could be upheld by me, as an administrative Court, on the basis of some other lawful reasoning (see, inter alia, Pikis v. The Republic, (1967) 3 C.L.R. 562, 574 and Spyrou and Others (No.1) v. The Republic, (1973) 3C.L.R. 478, 484).
As regards Costs, I order that the Republic should pay to the applicant £20 towards his costs.
Sub judice decision annulled.
Order for costs as above.