clr/1978/1978_3_267.pdf

(6)(«) 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 \S(b)(ii), whenread together with regulation21, mainly, if not solely, applicable to transfers made in the normal courseof events—Factor of meeting said requestfor transfer erroneously treated as being of adecisive nature—Relevant decision reachedina 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 baJs 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 Com267 Yerasimou v. Republic

(1978)mittee rejected his objection on the ground that "his transfer was made, under Regulation I6

(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 5 18(b)(

1. 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 cir- 10 cumstances of each one of them and of the educational needs, that he had to be transferred". Hence the present recourse. Proviso (
2. 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". 15 Regulation 18(b)(

1. ii)provides: 20 (
2. b)Reasons for the applied for transfer may be (
3. 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 subjudice decision was perhaps lawful under proviso (
4. ii)to regulation 16

(3), great reliance was placed, in reaching such decision, on the provisions of regulation 18(

1. b)(
2. ii)which, when read together with those of regulation 21***, appear to be mainly, if not solely, applicable to transfers * Regulation 10 is quoted at pp. 270-71 post. ** The material parts of regulation 18are quoted at pp. 272-73 post. *** Regulation 21 provides 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 upto October; and that "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". 268 25 39 3 CX.R. 5 10 15 Ycrasimou v. Republic 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; 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 fo.xes 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. 20 25 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. 30 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 lespondent Educational Service Committee by means of which there was rejected, on February 3, 1977 (see the relevant 35 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 269 Triantafyllides P. Yeraslmoa v. Republic

(1978)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 t o Regulation 16

(3)of the Educational Officers (Teaching Staff) (Appoint­ ments, Postings, Transfers, Promotions and Related Matters) 5 Regulations of 1972 to 1974, in order to satisfy ajustified 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 (

1. ii)and (iii) of Regulation 18(
2. b)of the aforesaid 10 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 15 to be transferred. Regulation 16 of the aforementioned Regulations (see Not. 205 in the Third Supplement, vol. I, to the Official Gazette of 1972) reads as follows:"Μεταθέσει?: 20 16.-

(1)Οΐ εκπαιδευτικοί λειτουργοί μετατίθενται (α) βάσει των Εκπαιδευτικών αναγκών (β) τ η αΐτήσει αυτών δια σοβαρούς προσωπικούς ή οικογενειακούς λόγους νοουμένου οτι εξυπηρετείται και το συμφέρον της υπηρεσίας. 25

(2)ΟΊ εκπαιδευτικοί λειτουργοί, οΐτινες ύπηρετοϋσι κατά την διάρκειαν της περιόδου δοκιμασίας είς σχολεία ώς έν τ ω Κανονισμω 15 αναφέρεται, υπόκεινται είς μετάθεσιν μετά την έπικύρωσιν τοϋ διορισμού των ή επικείμενης ταύτης (α) προκειμένου περί καθηγητών, είς σχολεία αγροτικών περιοχών καί, εϊ δυνατόν, εις την αυτήν περιφέρειαν ή εις άλλην δι' ην εχουσιν εκφράσει προτίμησιν (β) προκειμένου περί διδασκάλων, είς σχολεία Γ ή, μή ϋπαρχουσών εις αυτά επαρκών κενών θέσεων, είς σχολεία Β τών τριών διδασκάλων.

(3)Οΐ κατά τ ά ανωτέρω μετατιθέμενοι εκπαιδευτικοί λει­ τουργοί υπόκεινται είς περαιτέρω μετάθεσιν, κατόπιν ϋπηρε- 270 30 35 3 C.L.R. Ycrasimou τ. Republic Triantafyllides P. σίας έπϊ χρονικόν τι διάστημα καΐ ώς ήθελον παρουσιασθη δυνατότητες διά μετάθεσιν, ώς ακολούθως; (α) ΟΙκαθηγητά!μΕτατίθενταιείςαστικάκέντρα· 5 (β) οί διδάσκαλοι μετατίθενται είς μεγαλύτερα σχολεία Β και ακολούθως, κατόπιν υπηρεσίας είςτοιαύτα σχολεία καιαναλόγως τωνπαρουσιαζομένων δυνα­ τοτήτων, μετατίθενται είς σχολεία Α: Νοείται οτι είς άμφοτέραςτάςώς άνωπεριπτώσεις- 10 15 (

1. i)ή μετάθεσις είναι είς εύμενεστέραν δια τον εκπαι­ δευτικού λειτουργόν θέσιν έκτος είςπεριπτώσειςμεταθέσεως λόγω εκπαιδευτικών αναγκών ή πειθαρ­ χικής μεταθέσεως· (
2. ii)εκπαιδευτικόςλειτουργός δέν μετατίθεται άνευ αίτήσεως αυτού πλην έάν συντρέχωσιν εκπαιδευτικοί λόγοι ήΙάνή περαιτέρωπαραμονή του είςτόαυτό σχολεϊον συγκρούηται προς δικαιολογημένον αίτη­ μα άλλου εκπαιδευτικού λειτουργού προς μετάθε­ σιν." ("Transfers: 20 16-

(1).Educational officers are transferred (

1. a)in accordance with the educational needs; (
2. b)on their own application for serious personal or family reasons, provided that the interest of the service is also served. 25

(2)Educational officers, who are serving during the probationary period inthe schools referred toin Regulation 15, are subject to transfer after the confirmation of their appointments or when such confirmation is about to take place - 30 (

1. 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; 35 (
2. b)in cases of school-teachers, to C schools, or, if there are not there adequate vacant posts, to Β schools with three teachers.

(3)The educational officers transferred as above are subject to further transfer, after having served for a certain 271 Triantafyllides P. Yerasimou τ. Republic

(1978)period of time and as possibilities for transfer may occur, as follows: (

1. a)Schoolmasters are transferred to urban centres; (
2. b)School-teachers are transferred to larger Β schools and subsequently, after serving at such schools, and depending on possibilities that may arise, are transferred to A schools: 5 Provided that in both the above instances (
3. i)the transfer is to a more favourable for the educa­ tional officer post, except in cases of transfer for educational needs or disciplinary transfers; JQ (
4. 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"). 15 Also, the material parts of the aforementioned legulation 18 read as follows:"18. Τηρουμένων των διατάξεωντων παρόντων Κανονισμών, εφαρμόζεται ή ακόλουθος διαδικασία έν σχέσει προς μεταθέσεις καθηγητών: 20 (α) Πας καθηγητής, όστις επιθυμεί μετάθεσιν, δύναται, εντός τού μηνός Φεβρουαρίου, νά ύποβάλη αίτησιν επί τού ύπό της Επιτροπής οριζομένου έντυπου. Έν αύτη δέον νά άναφέρωνται οΐ λόγοι διά τους 75 οποίους ζητείται ή μετάθεσις καΐ τό σχολεϊον ή τά σχολεία, κατά σειράν προτιμήσεως, είς τ ά όποια ό αίτών επιθυμεί νά μετατεθη. (β) Λόγοι 8Γ αΐτουμένην μετάθεσιν δύνανται νά εϊνα» (
5. i)λόγοι υγείας τού καθηγητού δεόντως πιστό- ^0 ποιούμενοι ύπό Κυβερνητικού Ιατρού καΐ ύπαγορεύοντες είδικήν θεραπείαν μή δυναμένην νά παρασχεθη είς τάν τόπον εργασίας του· (ϋ) συνυττηρέτησις μετά συζύγου δημοσίου υπαλ­ λήλου, δημοσίου εκπαιδευτικού λειτουργού, υπαλλήλου νομικού προσώπου δημοσίου δι- 272 ΙΓ 3 C.L.R. Yerasimou τ. Republic Triantafyllides P. καίου, μέλους τών δυνάμεων ασφαλείας ή της "Εθνικής Φρουράς. (iii) άλλοι σοβαροί προσωπικοίή οίκογενειακοίλό­ γοι δεόντωςαποδεδειγμένοι." ("Subject to the provisions of these Regulations the follo­ wing procedure shall apply as regards transfers of school­ masters: 10 15 (
6. 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. (
7. b)Reasons for the applied for transfer may be~ (
8. i)health reasons of the schoolmaster duly certi­ fied by a Government doctor and requiring special treatmentwhich cannotbe given where his work is; 20 (
9. 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; 25 (iii) other duly proved serious personal or family reasons."). By virtue of regulation 19(l)(
10. b)the provisions of paragraph (
11. b)of regulation 18 have been rendered applicable, also, as regards transfers of school-teachers. 30 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, aremade during the period from September 35 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)"Εκτακτοι μεταθέσειςπρος τό συμφέρον της υπηρεσίας 273 Triantafyllides P. Yerasimou v. Republic

(1978)δύνανται νά διενεργώνται κατά τήν διάρκειαν τοΰ σχολικού έτους, νοουμένου ότι έκαστη περίπτωσις θά δύναται νά έΕετάζηται είδικώς κατά τό τέλος τού 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.") 5 I propose to examine first the legality of the sub judice deci­ sion concerning the transfer of the applicant: It is necessary, in this respect, to reproduce in full the text 10 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 ένίστσται δια τήν είς Κατύδατα μετάθεσίν του. 15 'Αποφασίζεται όπως δοθή άπάντησις ότι (α) ή μετάθεσίς του έγένετο, βάσει τοΰ Κανονισμού Ι6

(3)(ιι) των περί 'Εκπαιδευτικών Λειτουργών Κα­ νονισμών 1972 καί 1974 προς ίκανοποίησιν δίκαιο- 20 λογημένου αίτήματος προς μετάθεσιν άλλης διδασκαλίσσης, έκτοπισθείσης καί συζύγου μέλους των δυνάμεων ασφαλείας (Κανονισμός 18(β)(ιι) καί (ιιι) των προειρημένων Κανονισμών). (β) Ή Επιτροπή πρίν ή άποφασίσητήν έν λόγω μετά- 25 θεσιν έμελέτησε λεπτομερώς τόσον τήν περίπτω­ σιν τού ένισταμένου όσον καί τάς περιπτώσεις άλλων διδασκάλων υπηρετούντων είς τήν περιοχήν καί έκρινεν οτι έν όψει τών προσωπικών καί οίκογενειακών συνθηκών ενός έκαστου ii αυτών καί τών 30 εκπαιδευτικών αναγκών, ούτος έδει νά μετατεθή." "(4. Yerasimou Andreas (Ρ.2918), 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)(

1. ii)of the Educational Officers Regulations 1972 to 1974, to meet a justified request for transfer of 274 35 3 CX.R. Yerasimou v. Republic Triantafyllides P. another school-teacher, who is a displaced person and the wife of a member of the security forces (Regulation 18(b)(
2. ii)and (iii) of the aforesaid Regulations). 5 10 (
3. 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 schoolteachers 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 (
4. ii)to the aforequoted regulation 16

(3), great reliance was 15 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 20 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, 25 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 30 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, interalia,Pikis v. The Republic,

(1967)3 C.L.R. 562, 574 and Spyrou and Others (No. 1) v. The Republic,

(1973)35 3 C.L.R. 478, 484). As regards costs, I order that the Republic should pay to the applicant £20 towards his costs. Subjudice decision annulled. Orderfor costs as above. 275