1977 Sept. 17 — ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) [A. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANTONIS MAVROMMATIS, Applicant, , THE REPUBLIC OF CYPRUS, THROUGH THE COMMANDER OF POLICE, Respondent. (Case No. 199/75). Administrative Law—Administrative decision—Reasoning—May be supplemented from the material in the file. Transfer—Police officer—Refusal to transfer from one station to another—Refusal not disciplinary in nature—Safeguards ensured through the appropriate procedure applicable to disciplinary transfers need not be afforded to the officer concerned —Kalisperas and The Republic, 3 R.S.C.C. 146. Equality—Principle of—"Equal before the Law" and "discrimination" in paragraphs 1 and 2, respectively, of Article 28 of the Constitution—Meaning—Mere fact that officers of equal rank as the applicant are serving at Ktima but his application for transfer thereto was refused does not establish a case of discrimination. 5 \Q On October 10th, 1975, the applicant, a police sergeant in charge of Archimandriita Police Station, applied to the Chief 15 of Police for his transfer to Ktima Police Station for family reasons. In forwarding his application to the Chief of Police, by letter* dated October 16, 1975, the Divisional Commander stated, inter alia, that whilst applicant was serving at Peyia station he engaged in illegal transactions with Turkish Cypriots 2 0 and in consequence he received a disciplinary punishment; that he faced the•possibility of a criminal prosecution for receiving stolen property; that he was [transferred to Archimandrita on account of his said activities; and that on account of ithe aforesaid the time has -not come for his transfer from Archiman- 2 5 drita. *Quoted at pp. 383-384 post. 380' 5 On October 23, 1975 the respondent refused applicant's application for transfer by writing .the following in his personal file: "To be notified that the transfer of Police.Sergeant A. Mavrommatis is not approved". This decision was communicated to the applicant on October 24, 1975.and hence thepresent recourse. Counselfor theapplicant contended: (a) That the sub judicedecision was not duly reasoned; 10 15 20 25 30 35 (b) That from the reasons given in the letter of the Divisional Commander of October 16, 1975, it emanated that the applicant's transfer from Peyia to Arohimandrita was a disciplinary one and therefore his prolonged posdng at Archimandrita was due to disciplinary reasons and that the refusal of his application for transfer to Ktima was also due to disciplinary reasons. (c) That the sub judicerefusal amounted to discrimination, contrary to Article 28 of the Constitution, in that 8 other officers of equal rank have at all times been postedand served at Ktima. Held,
(1)that the reasoning of an administrative decision may besupplemented from the material in the file (seeHadjisavva v. Republic
(1972)3 CL.R. 174 at p. 205); that the reasoning of the sub judicedecision is to be found in the file and in particular in the letter of October 16, 1975 containing •the comments and opinions of the Divisional Commander; and that, accordingly, the sub judice decision was a duly reasoned one.
(2)That whatever the reasons were for the decision to transfer applicant from Peyia to ATchimandrita which was never challenged by him, the refusal to transfer him from thereto Ktima, was not disciplinary in nature so that it would require the administrative authority concerned to afford him the safeguards ensured to an officer through the appropriate procedure applicable to disciplinary transfers (seeKalisperas andRepublic, 3R.S.C.C. 146).
(3)That the material placed before the Court does not establish discrimination as -the term "equal before the law" in para. 1 and the term "discrimination" in.para. 2 of Article 381 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF 'POLICE) 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) 28, safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things; that there is nothing in this case to suggest what is the intrinsic nature of things and what are the interests of the service ithat call for the posting 5 of the said officers in the .town as compared with the circumstances that led to applicant's posting at Archhnandrita; that the mere fact that officers of equal rank as the applicant are serving at Ktima does not establish a case of discrimination; thalt there are so many individual characteristics relating to JQ each officer, both with regard to the performance of one's duties and to one's personal circumstances that it cannot be said that they are equal and, therefore, a matter of discrimination arises; and that, accordingly, the contention about discrimination mustfail. \5 Application dismissed. Cases referred to: Hadjisavvav. The Republic
(1972)3 C.L.R. 174 at p. 205; Kalisperasand The Republic, 3R.S.C.C.
- Recourse. 20 Recourse against therefusal of the respondent totransfer applicant from Archimandrita toKtima PoliceStation. L. Papaphilippou, for the applicant. Gl.Michaelides, for therespondent. Cur.adv.vult. 25 Thefollowing judgmentwasdeliveredby:A. LOIZOU, J.: By the present recourse the applicant seeks a declaration that the refusal of the respondent to transfer him from Archimandrita to Ktima Police Station, isnullandvoidandof noeffect whatsoever. 30 The applicant joined the Cyprus Police Force in 1959 and with the exception of the first few months, he has been all along serving in rural stations in the Paphos Division. In 1970 he was made Officer-in-charge with the rank of Acting Sergeant, first of Fiti and then of Panayia 35 Police Stations.Whilst there,hewaspromoted to therank of PoliceSergeant. Onthe 1stAugust, 1974,hewastransferred toYialia PoliceStation and then toPeyia, wherehe 382 served as Officer-in-charge until the 27th March, 1975, when he was transferred to Archimandrita Police Station again as Officer-in-charge. On the 10th October, 1975,he applied to the Chief of 5 Police through his Divisional Commander, for transfer to Paphos town so that, as he put it, he would be able to be near his family, give proper upbringing to his young son and also help his aged parents by taking them near him. He mentions in the said application that he is a family 10 man with three minor children and that at Archimandrita village there is no house available for hire, hence his family was obliged to remain in the village of Houlou, a distance of 35 miles from him; as a consequence, his son has to travel daily to school, covering a distance of 30 15 miles at the expense of £.3.500 mils monthly. Reference was also made in the said application that several Sergeants and Acting Sergeants served in Paphos town for many years who,in his opinion, had no serious reason or obligation for thecontinuation of their stay there and that 20 healwaysservedinthedistrict. By letter dated the 16th October, 1975, the Divisional Commander forwarded thesaid application totheChiefof Police. He wrote therein that the application for transfer from Archimandrita toPaphos wasmainly for family rea25 sonsandwentontosay: 30 35 40 "
- Since his transfer from Panayia to Yialia, the applicant established his family in owned house in the village of Houlou and applied for the grant of therelevant rent allowancewhichwasgranted tohim asfrom the1stSeptember, 1974.Consequently hisallegation that he keeps his family away from him on account of the non-existence of suitable house at Archimandrita does not stand. He himself chose to be away from his family as from August,
- I further mention that the applicant before his transfer, to Archimandrita served at Peyia Station which is considered asone of the best of the district on account of its short distance from the town. Unfortunately, however, he engaged in illegal transactions with Turkish Cypriots and in consequence he received adisciplinary punishment and alsofaced the 383 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) possibility of a criminal prosecution for receiving stolen property etc. I understand that he was trans ferred to ATchimandrita on account of his said acti vities.
- On account of the aforesaid, I do not think that the time has come for his transfer from Archi mandrita". 5 The sub judice decision of the respondent was taken on the 23rd October, 1975 and it reads: "To be notified that the transfer of Police Sergeant A. Mavrommatis is 10 not approved". (SeePersonal file of applicant, exhibit 'X', blue 249). This decision was communicated to the appli cant on the 24th October, 1975 (Annex Έ ' to the Appli cation). Before dealing with the legal aspect of the case, it 15 should be mentioned that the applicant on the 21st June, 1975 was sentenced to the totalfine of £22.-for discipli nary offences involvingneglect of duty. As a result of this punishment his last two good-conduct allowances were forfeited in accordance with Regulation 23
(2)(b) of the 20 Police (General) Regulations. In the personal file of the applicant (exhibit 'X', blue 226), opposite entry No. 5 dated 13.3.1975, the follow ing note is to be found addressed to the Divisional Police Commander from oneof his officers. Itreads: "The afore- 25 said for your information. Sergeant 1013 destroyed Peyia Police Station,hehas nocooperationwith themenserving under him and his transfer from the Station is called for in theinterest of thePolice".The applicantwho is referred to in the minute as Sergeant 1013, was transferred as 30 from 28.3.1975from Peyia to Archimandrita. Furthermore, as shown in the Police Investigation Docket (exhibit 'Z'),the applicant faces the possibility of criminal prosecution for receiving during the period of 31.10.1974—22.11.1974, stolen property. In fact, this 35 Docket containing the suggestions of the officers involved therein, was sent to the Attorney-General on 18.9.1975 for advice, whether, as the facts were, there could be any criminal prosecution against Sergeant 1013, A. Mavrom matis. The opinion of the Attorney-General which was 40 against such a prosecution, was given on the 9th March, 384 1976. The applicant, therefore, on the 16th October, 1975, when theletter of that date of the Divisional Commander was written, was in fact facing the possibility of criminal·prosecution for receiving stolen property. The 5 contention, therefore, of learned counsel for the applicant that this statement contained in the said letter was not true andamounted to a misconception, if not a distortion of material facts, is not born out by the material in the file to which I have referred. With this, I dispose of one 10 of thegrounds of law relied uponby applicant in support of thepresent application. The next ground of law is that the sub judicedecision is not duly reasoned and that in any event from thereasons given in the letter of the Divisional Commander of 15 the 16th October, 1975, it emanates that the applicant's transfer from Peyia to Archimandrita was a disciplinary transfer and therefore hisprolonged postingat Archimandrita is due to disciplinary reasons and that the refusal of his application for transfer to Ktima is also due todis20 ciplinaryreasons. It has been stated time and again that the reasoningof an administrative decision may be supplemented from the material in the file and if any authority is needed for this , proposition, onemay find it, among others,in the caseof 25 Georghios Hadjisavva v. The Republic
(1972)3 C.L.R., 174, at p.
- The reasoning of the sub judicedecision is to be found in the material in the file and in particular in the letter of the 16th October, 1975, containing the comments and opinions of the Divisional Commander.
- Further, whatever the reasons were for the applicant's transfer from Peyia to Archimandrita with which we are not concerned at thisstage, and which decisionwasnever challenged bythe applicant, therefusal to transfer theapplicant from there to Ktima, was not disciplinary in na35 ture, so that it would require the administrative authority concerned to afford to him the safeguards ensured to an officer through the appropriate procedure applicable to disciplinary transfers, as was the case in Kalisperas and TheRepublic,3R.S.C.C.p. 146.The applicant hasasked 40 for transfer and gave certain reasons for it, mainly, family reasons. They were commented upon by the Divisional Commander in his letter of the 16th October and in so far as there was reference in the said letter to facts, 385 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE) they were true and accurate, as already shown in explaining the facts of this case and in so far as he was expressing an opinion regarding the reasons for the applicant's transfer from Peyia to Archimandrita, the correct facts were as hereinabove set out, contained in the personal file of the applicant (exhibit 'Z'), in which both the applicant's letter and the Divisional Commander's comments are to befound; there was nothing in all this that called for any explanation by the applicant and in so far as they related to the conduct of the applicant that led to his disciplinary punishment the matter had already been investigated and adjudicated upon by the appropriate organs and it was final in character. Therefore, this ground fails. Connected with this ground is the contention that the family circumstances of the applicant which were serious and which had to be taken into consideration by the organ deciding upon the transfer, did not seem from the material on record to have been sufficiently considered, or at all. I do not subscribe to this view as it appears from .the file that the family circumstances of the applicant put forward in his application were commented upon by the Divisional Commander in his letter and onemay safely infer that they were not found sufficient for a decision in favour of the transfer of the applicant which was decided upon, having regard to theinterests of the Force. The last ground of law relied upon on behalf of the applicant is that of discrimination. In the written address filed in support of thisground, itis stated: "The following officers have at all times been posted and served at Ktima Police Station: (a) Andreas Nicolaides, (b) Andreas Makris, (c) Costis HjiCostis, (d) Kyriacos Kokkinos, (e) Yiannakis Tsapparillas, (f) Demetris Erotokritou, (g) Savvas Sivitanides and (h) Sofoclis HjiSofokli. Most of these officers are junior to the applicant. Furthermore, they have no special reasons for being posted at Ktima. The treatment of these officers by the respondent vis-a-visthe applicant is discriminatory and contrary to Article 28 of the Constitution. (Vide Mikrommatis and The Republic 2 R.S.C.C. 125, and Nishan Arakian v. The Republic
(1972)3 C.L.R. 294)". This material placed before me does not establish dis386. 10 15 20 crimination as the term "equal before the law" in para. 1 and the term "discrimination" in para. 2 of Article 28, safeguards only against arbitrary differentiations and does notexcludereasonabledistinctions whichhavetobemade 5 in view of the intrinsic nature of things. In the present casethereisnothing to suggestwhatistheintrinsic nature of things andwhat are theinterests of theservicethat call for the posting of the aforesaid officers in the town as compared with the circumstances that led to the appli10 cant's posting at Archimandrita. The mere fact that other officers of equal rank as the applicant, are serving at Ktima, does not establish a case of discrimination. There are so many individual characteristicsrelatingto each officer, both with regard to theper15 formance of one'sduties and toone'spersonal circumstances, that it cannot be said that they are equal and, therefore, amatter of discrimination arises. 20 In the result, the present recourse is dismissed, but I makenoorder astocosts. Application dismissed. No orderas tocosts. 387 1977 Sept. 17 ANTONIS MAVROMMATIS v. REPUBLIC (COMMANDER OF POLICE)