KILANIOTIS ν. REPUBLIC (1986) 3 CLR 1797

Educational Officers— Transfers— The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985—Reg. 23(2)—Ultra vires and in conflict with sections 5 and 39(1) of The Public Educational Service Law, 10 j69.

Revisional Jurisdiction—Recourse for annulment—Court not bound by admissions of counsel.

The sub judice transfer of the applicant, who is an educational officer, from the First Technical School of Limassol to the Technical School of AyiosLazaros, Lar-naca, was effected in accordance with the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985. Counsel for the respondents stated that in the light of the decision Aristides v. The Republic (1986) 3 C.L.R. 466 he had advised respondent 1 to revoke the sub judice decision. In view of such statement Counsel for the applicant applied for a declaration as per his prayer of relief.

Held, annulling the sub judice decision: (1) The responsibility of annulling an administrative decision rests exclusively in this Court, which is not bound by any admissions made by counsel.

(2)The criteria for the transfer of educational officers are set out in reg. 23 of the said Regulations.

(3)The provisions of paragraph (2) of regulation 23 are ultra vires and in conflict with sections 39(1) and 5 of Law 10/69 (Aristides v. The Republic (1986) 3 C.L.R. 466 adopted).

Sub judice decision annulled.

£50.- costs in favour of applicant.

Cases referred to:

Aristides v.The Republic (1986) 3 C.L.R. 466;

HjiSavvav.The Republic (1967) 3 C.L.R. 155;

Liasiv.The Attorney-General (1975) 3 C.L.R. 558;

Antoniou v.The Republic (1978) 3 C.L.R. 308;

Platisv.The Republic (1978) 3 C.L.R. 384;

Angelidouv.The Republic (1982) 3 C.L.R. 62;

Stavros Makris Ltd. v.The Republic (1984) 3 C.L.R. 539;

Savvav.The Republic (1986) 3 C.L.R. 445.

Recourse.

Recourse against the decision of the respondents to transfer applicant to the Gymnasium of Agros village.

A. S. Angelides, for the applicant.

A. Vassiliades, for the respondents.

Cur.adv. vult.

SAVVIDES J. read the following judgment. The applicant by the present recourse challenges the decision of the Educational Service Commission to transfer him to the Gymnasium of Agros village. In fact he prays by his recourse for the following relief:

1. A declaration of the Court that the decision of the Educational Service Commission to include the applicant in the list of educationalists subject to transfer is null and void.

2. A declaration that the decision of the Educational Service Commission to transfer the applicant away from Limassol is null and void and illegal.

3. A declaration annulling the decision of the Educational Service Commission not to accept both the oral and written objections of the applicant against his transfer from Limassol.

4. A declaration of the Court that respondent 2 wrongly assessed the units computed in favour of the applicant.

The applicant is an educationalist and for the school-year 1984-85 and for a number of years prior thereto he was serving in the First Technical School of Limassol. Respondent 1 is the Educational Service Commission and respondent 2 is the Ministry of Education.

On the 9th August, 1985, respondent 1 decided to transfer the applicant from the First Technical School of Limassol to the Technical School of AyiosLazaros, Lar-naca. According to the relevant part of the minutes of respondent 1, as subsequently amended on the 23rd August, 1985, the transfer was effected for the following reasons as recorded therein:

"The following Educational Officers are transferred to posts which have become vacant due to the satisfaction of justified claims of other educationalists. The place of work is fixed on the basis of the order of priority in the list of officers subject to transfer".

The applicant made a written objection to his transfer. Respondent 1 met on the 22nd August, 1985, to consider the objections made and from what appears in the minutes, it heard the applicant in the presence of representatives of the union of Educationalists of Secondary Education. The record of such meeting reads as follows:

"Objections against transfer

The Commission hears in private interviews the^-Educationalists of Secondary Education (General and Technical), who come from the districts of Limassol and Morphou, and who submitted written objections against their transfer or non-transfer in the presence of representatives of their union as follows:"

and then the names of the persons heard are mentioned in the minutes amongst whom was the applicant.

The respondent Commission met again on the 13th September, 1985, to take a decision on the matter. . The minutes of such meeting read as follows:

"The Educational Service Commission bearing in mind the provisions of the Law and the Regulations as well as the needs of the schools as they have been submitted by the Ministry of Education and having considered (a) the applications for transfer submitted by educational officers, (b) the documents filed in by those educational officers subject to transfer and (c) the objections which were submitted on behalf of educational officers who were transferred previously (see minutes of 9.8.85) or those who were not transferred and after having heard the officers interested in the presence of representatives of their unions (see minutes of 21/8, 22/8, 23/8 and 24/8/85 decides as follows:

................

and then a list of educational officers follows whose objections were based: (1) on grounds of health after a medical certificate from a medical board; (2) serious personal and family reasons; (3) on a wrong assessment of material concerning them as it had been ascertained by the appropriate authority and submitted to the Educational Service Commission and (4) on the ground that the posts to which they were transferred could be filled by educational officers on contract, and decided to transfer the applicant from the Technical School of AyiosLazaros to the Gymnasium of Agros village in the District of Limassol.

The applicant who felt aggrieved by the way in which his objection had been determined filed the present recourse.

As it appears from the contents of the opposition the transfer of the applicant was effected for the satisfaction of a reasonable claim for transfer of another educational officer.

It is common ground that the transfer was effected in accordance with the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985 (see Notification 71 in Supplement No. Ill, Part I to the official Gazette of the 22nd February, 1985).

The criteria for the transfer of educational officers as set out in Regulation 23 of the said Regulations are as follows:

«23.- (1) Η Επιτροπή κατά τη διενέργεια των μεταθέσεων σύμφωνα με τους Κανονισμούς 19, 20 και 21 θα ακολουθεί σειρά προτεραιότητας η οποία θα καθορίζεται από τα πιο κάτω κριτήρια:

(α) Τη δυσμένεια της θέσεως στην οποία είναι τοποθετημένος ένας εκπαιδευτικός λειτουργός και που καθορίζεται από:

(i) την απόσταση του τόπου εργασίας από την έδρα·

(ii) τη χρονική περίοδο υπηρεσίας σε σχολεία εκτός έδρας·

(iii) τον τύπο του σχολείου προκειμένου για εκπαιδευτικούς λειτουργούς δημοτικής εκπαίδευσης·

(ιν) το αν ο τόπος εργασίας βρίσκεται σε αστική ή αγροτική περιοχή, όπως επίσης τις κλιματολογικές συνθήκες του τόπου εργασίας και τις συνθήκες συγκοινωνίας του τόπου εργασίας με την έδρα·

(6) τα έτη υπηρεσίας που ένας εκπαιδευτικός λειτουργός υπηρέτησε σε δημόσια σχολεία της Δημοκρατίας· (γ) τη σύνθεση της οικογένειας ενός εκπαιδευτικού λειτουργού.

(2) Η βαρύτητα που θα πρέπει η Επιτροπή να δίδει σε κάθε κριτήριο που αναφέρεται στην παράγραφο (1) του Κανονισμού αυτού καθορίζεται από το Υπουργικό Συμβούλιο με σύστημα αριθμητικής αποτίμησης των κριτηρίων αυτών σε μονάδες.»

The English translation of which is as follows:

"23.- (1) The Commission in effecting the transfers in accordance with Regulations 19, 20 and 21 shall follow the order of priority which will be determined by the following criteria:

(a) The disadvantages of the post in which an educational officer is posted which are decided on the basis of:

(i) the distance of the place of work from the centre;

(ii) the period of service in schools out of the centre;

(iii) the type of school in cases of educational officers of elementaryeducation;

(iv) whether the place of work is situated in an urban or rural area, as well as the climatological conditions of the place of work and the means of transport from the place of work to the centre.

(b)The years of service that an educational officer has served in public schools of the Republic.

(c)The composition of the family of an educational officer.

(2) The weight which the Commission must attach to each of the criteria referred to in paragraph (1) of the Regulation is defined by the Council of Ministers on the basis of a system of computation in units of such criteria."

Counsel for applicant in arguing the case expounded on his grounds of law which he classified into two main groups as follows:

(a) The transfer was the result of the application of Regulations which are ultra vires the law and violate vested rights, natural justice and the principle of equal treatment.

(b) In the alternative and/or in addition the sub judice transfer violates the Regulations (in case they are held to be ultra vires and constitutional) the general principles of administrative law and our case law.

Pending the determination of the hearing of the present ease, a decision on a similar issue was delivered by the President of this Court in case 813/85, Soterios Aristides v. The Republic (not yet reported). As a result counsel for the respondent did not file a written address to avert the contentions of counsel for applicant concerning the invalidity of the Regulations because, as he stated, in view of the judgment in Case 813/85 in which the Regulations for transfers were found as ultra vires, and in respect of which the Republic did not intend to file an appeal, he advised respondent 1 to revoke the sub judice decision, as he considered the result of the said case as binding in this case as well.

In view of such statement counsel for applicant applied for a declaration as per his prayer for relief annulling the sub judice decision.

It is well settled that irrespective of any admissions made by counsel the Court is not bound by such admissions regarding the outcome of a case but the responsibility for annulling an administrative decision remains exclusively in this Court in the exercise of its administrative jurisdiction under Article 146 of the Constitution. See, inter alia, HjiSavvav. The Republic (1967) 3 C.L.R. 155 at p. 176; Liasiv.The Attorney-General (1975) 3 C.L.R. 558 at p. 561; Antoniou v.The Republic (1978) 3 C.L.R. 308 at p. 312; Platisv.The Republic (1978) 3 C.L.R. 384 at p. 390; Angelidouv.The Republic (1982) 3 C.L.R. 62 at p. 65; Stavros Makris Ltd. v.The Republic (1984) 3 C.L.R. 539 at p. 543 and also the recent judgment in case 361/ 83, EfstathiosSavvav.The Republic which was delivered on the 8th March, 1986,_i_which_..has not yet been published and in which reference is made to a number of decided cases of this Court.

In case 813/85, Soterios Aristides v.The Republic (supra) in which the question of the validity of regulation 23 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations 1985 was in issue, Triantafylli-des, P. found that the provisions of paragraph 2 of regulation 23 are ultra vires the Law (Law 10/69) and in particular in conflict with sections 39(1) and 5 of such law and annulled the transfer, the subject matter of such recourse. In expounding the reasons for so finding he said the following:

"The effect of the provisions of paragraph (2) of regulation 23 is to deprive the Educational Service Commission of a large portion of its discretionary powers under sections 5 and 39(1) of Law 10/69 in relation to transfers and to vest instead, by delegated legislation, in the Council of Ministers a decisive regulatory role regarding transfers of educationalists. Instead of the Commission establishing the order of priority for transfer by evaluating, through the exercise of its own discretion, the criteria set out in paragraph (1) of regulation 23 the Council of Ministers is, by virtue of paragraph (2) of regulation 23, transposed, to a very large extent, in the place of the Commission and, thus, becomes an organ which, though not envisaged in this respect by Law 10/69, partakes in a decisive manner in the performance of the task of the Commission under sections 5 and 39(1) of Law 10/69, in a way which is utterly incompatible with the said sections 5 and 39(1). Consequently, regulation 23(2) had to be found to be ultra vires the relevant provisions of Law 10/69.

If the Legislature intended to deprive the Educational Service Commission of a considerable part of its discretionary powers, and to substitute in the place of their exercise by the Commission the exercise of such powers by the Council of Ministers by virtue of regulation 23(2), this could, possibly, have been achieved by amending in express terms Law 10/69, and not by means of delegated legislation such as Regulations 71/85."

It is common ground in the present case that the transfer in question was effected on the criteria for transfers as defined in s. 23 of the Regulations. I fully agree with the above dicta of TriantafyHides, P., in the case of Aristides (supra) that the provisions of paragraph (2) of regulation 23 deprive the Educational Service Commission of a large portion of its discretionary powers under sections 5 and 39 of Law 10/69 in relation to transfers and vests by delegated legislation in the' Council of Ministers a decisive regulatory role regarding transfers of educationalists. I agree with the finding of my learned brother in the above case for the reasons stated in his judgment which I adopt, that the provisions of paragraph (2) of Regulation 23 are ultra vires and in conflict with sections 39(1) and 5 of such law.

For the above reasons this recourse succeeds and the sub judice decision is annulled. Regarding costs, bearing in mind the fact that though the respondent Commission was advised by its counsel to revoke the sub judice decision it failed till today to do so I award £50.- against costs in favour of the applicant.

Sub judice decision annulled.

Order for costs as above.

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