clr/1966/1966_3_696.pdf

(1965)3 C LR 392 applied— Tins is a (use whew 1he pei sonal applicant has to h· subjected to the puhlu inteiest of inteiest—Piousionaf Order as applied for tefused but tiansfei suspended f01 a shoii period of imu shoit of the final dctei mutation of the lecourse in oidei to asoid undue intcifeience with the applicants tiade union cutis tries Piactice—Piousional Oidcis suspending nistiatne decision—Pi maples Officeis abo\i Oidei and undei the effect of an admi- applicable—See 4dnunisiiati\e under Public Law Pio\isionaf below idministiatne wiouise Law—Acts 01 decisions undei Aiffile 146 of the b\ Couit h\ means of a piousional the instant tasc inteifeiatce of a ordei in pent onh—//; in pan onh with decision to nans ft 1 applicant - Coin u justified ciiciinntaiHes sublet 1 mattei Constitution—Inteifcience in \u w of the special e\isting in this case -See also abo\c and below PioMsional Ordei mstiaihc onh --Oencial iniaesf Wheiebx the Couit mteifcied decision with the adnu- of in tin wcoiiise in pail pimaples —Special ciuumstantcs Peisonal to \ield befoie the public inteiest—See also undei the ihiee heading Public inteiest tomplamed aho\e Personal inteiest Pei sonal inteiest to he subjected lo the public inteiest -See under the foui headings 69b abuse Cases referred to: CleanthisGeorghiades (No. I) and The Republic,

(1965)3 C.L.R. 392. principles laid down as to the issue of provisional orders applied. 1966 June 24 July 1 lORDAMS G . !ORDANOU(No. 2) and Application. Application for a provisional order directing that the transfer ofApplicant from Nicosia to Omodhos be postponed until the hearing andfinaldetermination ofa recourse against such transfer. L. Clertdes, for the Applicant. M. Sponos,Counselofthe Republic,for the Respondent. Cur. adv. villi. The following Decision was delivered by:TRIANTAPYLLIDES, J.: In this recourse Applicant, an Assistant Agricultural Officer, challenges the validity of his transfer from Nicosia to Omodhos as from the 1st July. 1966. Such transfer was communicated to him by letter of the Respondent dated 23rd May. 1966, which reached him on the 1st June. 1966 (see exhibit 1). By an application dated the 17th June. 1966. and filed simultaneously with this recourse. Applicant applies for a provisional order directing that his transfer should be postponed until the hearing and final determination of this Case. Hehassworn anaffidavit insupport of his application which is dated 17th June. 1966. Applicant's application for a provisional order is based mainly:(

1. a)on the contention that his transfer, as made, should be annulled because it is really a disciplinary transfer, which resulted in view of Applicant's activities asoneof the officials of the Pancyprian Trade Union of Civil Servants, and also because of friction between Applicant and his superiors; (
2. b)on the contention that he is at present, in Nicosia. engaged in very important experiments or demonstrations with fertilizers, which will be left incomplete—and which cannot be completed by anyone else, because Applicant istheonly qualified specialist in the particular field concerned 697 THE REPUBLIC OF CYPRUS. THROUGH T H L PUBLIC SFRVICF COMMISSION. 1966 June 24 July I —whereas a more junior officer could be posted in the rural area ofOmodhos; and (URIIAMS G. IOKOANOU(No. 2) (
3. c)on the contention that his transfer will interfere seriously with Applicant's family life, especially as his wife is a schoolmistress teaching literature at a Nicosia secondary school, and she is suffering, also, from low blood pressure and is under constant medical attention. and T H E REPUBLIC OF CYPRUS. THROUGH T H E PUBLIC SERVICE COMMISSION The relevant principles governing an application for a provisional order, in proceedings such as the present recourse. have been set out in previous jurisprudence of this Court. and especially in Cleanthis Geoighiades (No. 1) and the Republic (

(1965)3-C.L.R. p. 392), and need not be repeated herein again. I have carefully weighed whatever has been urged on behalf of Applicant, in support of his application for a provisional order, but ihave not been convinced that, ifthe transfer of Applicant to Omodhos is not postponed until the final determination of this recourse, he will suffer irreparable damage which cannot be compensated for eventually, under the provisions of Article 146

(6). in case Applicant succeeds. in theend. in this recourse. On the other hand it does appear that this is a case where if Applicant's transfer is postponed, as applied for. it will cause obstacles to the proper functioning of the Administration. I am of the view, on the material ai present before me. that though no doubt the taking of effect of the transfer of Applicant will involve some inconvenience for him and his family—as any transfer invariably docs, more or less—this is a Case where his personal interest has to be subjected to the general public interest. Concerning, in particular, the allegation of Applicant that his transfer, if it takes place now, will seriously interfere with important work with which he is dealing at the Headquarters of his Department, in Nicosia. I take the view that this was primarily a matter for his superiors to consider. who arc the persons responsible for the efficient functioning of the Department; once they have decided, apparently. to recommend his transfer, it is not really open to Applicant to seek a postponement of such transfer on the ground of any work he may be doing at present. This point may. however, be relevant to the issueof whether or not the transfer of Applicant, asrecommended and decided upon, was properly made in the interests of the service; but we are not concerned 698 with such issue at present; its consideration will take place during the hearing of this recourse on the merits 1966 June 24 July 1 It iscorrect that ontheface ofthe recourse there do appeal serious allegations, by which Applicant is challenging his transfer, but they do not amount, on the material before me at present, to such a case of flagrant illegality of the transfer in question, as would make it necessary for this Court to intervene and prevent it from taking effect, at this stage; they are matters to be gone into properly at the trial of this recourse lORUANIS G 10RDAN0U(N0 2) For the above reasons, 1 have reached the conclusion that a provisional order, as applied for. should not be made I have, on the other hand, considered whether or not there does exist any ground for interfering, /// pan onh. with the effect of the transfer in question, t.e whether 01 not there does exist any ground for postponing to a futuie date, shoit of the final determination of this recouise, the effect of the transfer of Applicant Such a course should only be resorted to. of course, in special circumstances, in my opinion, such special circumstances do exist in the present Case because of the allegation of Applicant—made first m his Application and then on oath in his relevant affidavit—to the effect that his transfei is due, partly at least, to Ins activities as an official of his Hade union I am not at present deciding whether 01 not such allegation is correct But bearing in mind that Hade unionism is expressly safeguarded under Article 21 of the Constitution, and wishing to avoid any possibility of Applicant's transfer being allowed to interrupt abruptly his trade union activities, if it was evei calculated to do so. I ha\c decided tosuspend theeffect of his transfer fora short period of time so as to definitely enable him to make such arrangements with regard tohis trade union activitiesasarenecessitated by. and compatible with, his posting at Omodhos I am. thus, hereby making a piovisional older preventing the transfer of Applicant from taking effect before the 15th July,1966. Bearing in mind that the Omodhos post has been, inany case, empty for at least the last sc\cn months, and is being attended tobytheofficer at near-by Pera Pedhi. Iam certain that any inconvenience to be caused for the next two weeks in thefunctioning of the Department of Agriculture, through 699 and T u t REPUBLIC OF CYPRUS THROUGH THE PLBLIC SERVICE COMMISSION 1966 June 24 July I IORIMMS G IORDANOU ( N O . 2) and T H E RFPUBLIC OF CYPRUS. THROUGH T H E PUBLIC SERVICE COMMISSION the postponement of the taking of effect of the transfer of Applicant, is outweighed by the public interest to be served by ensuring that arrangements may be made to avoid any interference with any trade union work which Applicant may have in hand. I am also directing that there shall be an early date of trial of this Case and I fix it for hearing on the 31st August. 1966. at 10 a.m. Orderin terms. 700