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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1981) 3 CLR 390
1981 September 19
[HADJIANASTASSIOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
NIKI CHRISTODOULIDOU-KATSIAOUNI,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTRY OF EDUCATION
AND ANOTHER,
Respondents.
(Case No; 281/81).
Administrative Law-Abuse of powers-Public officers-Termination of secondment for duty abroad-Respondents acting in abuse of powers by failing to give officer more time to settle her personal and family circumstances.
Public Officers-Personal and family circumstances-Whether they can override the public interest-Termination of secondment for duty abroad-Respondents acting in abuse of power by failing to give officer more time to settle her personal and family obligations-Sub judice decision stayed upon an application for a provisional order.
The applicant was appointed in the Educational Service of the Republic in 1965 and in 1976 she was emplaced in the Cyprus Embassy in Athens as a Cultural Officer. By a letter dated 7th August, 1981 the Acting Director-General of the Ministry of Education informed applicant that her services in the Ministry of Foreign Affairs were terminated as from the 1st September, 1981 and she should return to the Ministry of Education from where she had been seconded. Applicant was given one month's time to comply with the above letter. She was married with a child of three and a half years and her husband, who was a musician could not find a job in Cyprus.
Applicant challenged the validity of the above decision by means of a recourse and applied, also, for a provisional order suspending its effect pending the determination of the recourse, by contending mainly that the respondents acted under a misconception of fact and in excess and abuse of powers in that they did not take into, account the special personal and family circumstances of the applicant and they did not give her a reasonable notice for settling her personal and family obligations.
Counsel for the respondents agreed that in this special case a period of two and a half months was sufficient for the applicant to arrange her affairs.
Held, that though the personal problems or circumstances of the applicant cannot override the public interest this Court should carefully weigh the personal reasons and circumstances of the applicant, particularly because of the interests of applicant's child and the unity of the family as a whole and grant sufficient time to the applicant to prepare herself psychologically what to do; that, therefore, in the special circumstances of this case the respondents acted in abuse of powers because they did not give to the applicant reasonable notice for settling her personal and family obligations; accordingly an interim order will be granted staying the decision complained of until the 5th December, 1981.
Application granted.
Application for provisional order.
Application for a provisional order suspending the effect of the decision of the respondents by virtue of which the services of the applicant in the Ministry of Foreign Affairs were terminated, pending the final determination of a recourse against the validity of such decision.
L. Papaphilippou, for the applicant.
R. Karyda (Mrs.), for the respondents.
Cur. adv. vult.
HADJIANASTASSIOU J. read the following judgment. in the present recourse the applicant Niki Christodoulidou-Katsiaouni seeks a declaration of this Court that the act and/or decision of the respondent Ministry of Education dated 7th August 1981, by which her services as Cultural Officer in the Ministry of Foreign Affairs were terminated as from 1st September, 1981, and to return to the Ministry of Education is null and void and of no effect whatsoever.
The Facts:
The applicant was appointed at the Educational Service of the Republic in 1965 and after serving for a period of seven years she was seconded to the Ministry of Foreign Affairs and was emplaced in 1976 in the Cyprus Embassy in Athens as Cultural Officer. In 1975 the applicant married to a musician of classic music and the couple has now a son of three and a half years. Because the husband of the applicant is a musician, she claimed that it was impossible to find work in Cyprus according to his qualifications.
On 7th August, 1981 the Acting Director-General of the Ministry of Education addressed a letter to the applicant informing her that her services in the Ministry of Foreign Affairs are terminated as from the 1st September, 1981, and she should return to the Ministry of Education from which she was seconded. On 17th August, 1981, the applicant addressed a long letter to the Minister of Education putting forward her complaint and repeating what she said in her statement of facts that her husband would be unable to find work in Cyprus, and further alleged that the termination of her services is in effect of a vindictive nature and is not justified. There was a further correspondence by the Acting Director-General on 25th August, 1981, and a further reply by the applicant dated 28th August, 1981, and finally the applicant put forward that the giving of one month's notice to return to Cyprus was not sufficient and ought to have been granted more time to settle her affairs in Athens. The applicant in support of her complaint based her application on the following legal points:
1. The respondents acted under a misconception of facts in that: (a) They disregarded or/and did not take into account the special personal and family circumstances of the applicant. (b) Acted arbitrarily and through extraneous motives. (c) They disregarded the fact that the qualifications and experience of the applicant necessitated her stay in the service of the Ministry for Foreign Affairs, especially in view of the fact that the post in question will remain vacant during the critical months of the beginning of the academic year. (d) The return of the applicant in the Educational Service serves neither the Educational Service nor the public interest because her qualifications and her services in the Ministry of Foreign Affairs are superior to those required for the Educational Service.
2. The respondents acted in excess or/and abuse of powers in that: (a) They did not give the applicant a reasonable notice for settling her personal and family obligations. (b) No communication has taken place in advance or/and the consent of the Cyprus Embassy in Athens was not obtained. (c) Exercised a power which should had been exercised by the Educational Service Committee or/and the Public Service Commission or/ and the Ministry for Foreign Affairs.
3. The sub judice act or decision constitutes unequal treatment and serves purposes extraneous to the Educational Service.
4. The sub judice act or decision is not duly or at all reasoned.
5. The sub judice act or decision is destructive of the applicant's career and causes an inevitable separation of the applicant from her husband and her family.
6. In view of the special circumstances of the applicant the sub judice act or decision amounts to the compulsory retirement of the applicant from her service.
7. Regulation 21(1) of the Foreign Service of the Republic (Special Provisions) Regulations of 1968 are ultra vires or/and do not have any application in the present case or/and the present regulations do not fall within the jurisdiction or power of the respondents.
8. Generally the respondents acted illegally or/and without authorization of law or/and vindictively.
9. The respondents acted without due inquiry and with intent to place the applicant in an unfavourable position.
10. The applicant was subjected to unequal treatment in that on other occasions the secondment of other persons. was not discontinued in spite of the fact that such other persons stayed in the service of the Ministry for Foreign Affairs for more than 7, 14, 17 and 20 years.
In the meantime counsel on behalf of the applicant made an application seeking (a) an interim and/or provisional order ordering the suspension of the decision of the respondents dated the 7th August, 1981, by which they terminated the services of the applicant in the Ministry of Foreign Affairs as from the 1st September,. 1981, and placed her back to the Ministry of Education, until final, determination of the recourse under the above title (b) An early date of hearing of the recourse. (c) Costs.
In support of, this application of the applicant Christakis Christofides in a sworn statement said on 3rd September, 1981:
"1. I am a lawyer in the Office of Messrs. L. Papaphilippou and Co. and have instructions to state the following:
2. As I am informed by the applicant and as I believe and in order to avoid repetitions I state that the contents of the applicant's recourse are just and true. I believe that the applicant has a very good case.
3. It is the contention of the applicant and I believe that (a) No service requirement imposed the taking of the sub judice decision or act. (b) The sub judice act or decision strikes gravely the smooth, creative and unfettered functioning of the department presided over by the applicant in the Cyprus Embassy in Athens. (c) As I am informed and believe, the contents of the applicant's letter dated the .17th. August, 1981, (exhibit A in the recourse) is just and true and is, adopted for the purposes of the present affidavit (d) The sub judice decision or act strikes the applicant personally and her family in a way that causes to her and her family irreparable and incalculable material as well as moral damage.
4. The sub judice act or decision amounts to a blow on the dignity and respect of the applicant and shakes the confidence of her Colleagues and subordinates of both Mini stries in her person and her abilities.
5. The sub judice decision is, to the best of my knowledge and belief illegal, wrongful, vindictive, destructive, unreasonable and entirely contrary to the best interests of the service and the Ministry for Foreign Affairs and it will continuously harass the sense of justice because it reasonably gives the impression that the respondents profess injustice, vindictiveness and complete disregard for justice.
6. As I believe it is for the public interest that the immediate suspension of the execution of the sub judice decision or act be ordered as it is evidently and manifestly illegal and unjustified and caused confusion in the departments of the Ministry for Foreign Affairs.
7. For all the above reasons I pray that for the protection of the public interest and the lawful rights of the applicant and in order to avoid irreparable damage to the best interests of the foreign service, and for the sake of rendering real and complete justice the order applied for should be granted."
The case came before this Court on 14th September, 1981, and counsel appearing on behalf of the Ministry of Education informed the Court that she was not ready to proceed with the present application as she did not have full instructions with regard to this matter. On the contrary, counsel appearing for the applicant stressed also the matter of urgency and finally the Court fixed the case on Saturday the 19th September, 1981, for hearing of the application. On 17th September, 1981, counsel for the respondent gave notice opposing the application of the applicant and in doing so she relied on the provisions of rules 13 and 19 of the Rules of the Supreme Constitutional Court 1962 as well as on the Case Law of this Court. In support of this application Mr. Linos Shiakallis, the Acting Director-General of the Ministry of Education, in a sworn statement put forward that the transfer of the applicant to Cyprus was made because of the needs of the Ministry of Education and that in doing so they took into consideration the personal and family circumstances of the applicant, as well as the needs of the service. Furthermore, he repudiated the contents of the application of the applicant that they were based on reasons other than the needs of the service. Finally after giving further reasons in opposing the application of the applicant counsel for the respondent put forward that they acted lawfully and that they have considered all the facts of the case of the applicant and lawfully exercised their discretionary power and that having considered all the relevant elements of the case and in accordance with the law in force.
Having considered the arguments of both counsel and having read the long statement of the applicant I am afraid that she has given me the impression that her services are so important in Greece that no other person can step into her own shoes in that post. Indeed the applicant ought to have known once she has accepted to serve as a public servant that every employee of the Government is subject to transfer and the whole philosophy is that public servants are expected to serve the needs of the country. The mere fact that the husband of the applicant cannot find a job in Cyprus because he is an important musician of classic music it is a consideration which has nothing to do with the needs of the service and the applicant ought to have known that when she had decided to join the service of our country. Indeed this is the first case which came before the Court that a wife has given so much importance to the, personal problems of her husband and has not given equally sufficient importance to the needs of the service of the Ministry of Education. With that in, mind and in fairness to counsel for the applicant who presented a short but effective argument in support of the case of the applicant I would make no further comment. Equally counsel for the respondent quite rightly defended the stand that the needs of the country come first.
Having considered the arguments of both counsel and the statements made, I would add in fairness to everyone that the personal problems or circumstances of the applicant or any applicant cannot override the public interest and this must be borne in mind that public servants are there to serve the needs of their country for the proper functioning of the service. But on the contrary, in the present case, it is unthinkable that this Court should not weigh carefully the personal reasons and the circumstances why the applicant found herself in a most difficult situation to take a decision whether to return to Cyprus alone or to, leave the service and stay with her husband and with her child. With that in mind, and particularly because the applicant is the mother of a young child of three and a half years of age, I cannot but give importance to the interest of the child also and to the unity of the family as a whole, and grant sufficient time to the applicant to prepare herself psychologically what to do. I am positive that the applicant will find the answer and take a stand on this difficult problem.
For the reasons I have given, and in the special circumstances of this case, I have reached the conclusion, relying on ground 2 only, that the respondents acted in abuse of powers because they did not give to the applicant reasonable notice for settling her personal and family obligations.
With this in mind, I am indebted to both counsel for the applicant and for the respondent in helping me reach a final stand in a difficult family matter and for agreeing that in this special case a period of two and a half months is sufficient for the applicant to arrange her affairs. Finally, the interim order is granted staying the decision complained of until the 5th December, 1981, but I would most emphatically add that the present decision does not create a precedent.
In the particular circumstances of this case, I am not making an order for costs.
Application granted. No order as to costs.