(1978)1977 February 25 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION ANDREAS YERASIMOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Case No. 28/77). Provisional Order—Rule 13 of the Supreme Constitutional Court Rules, 1962—Principles applicable—Noflagrant illegality and no irreparable damage—Application for a provisional order suspending effect of transfer of schoolmaster—Not a proper case in which to grant the provisional order appliedfor, so as to protect 5 pro tempore his personal interests at the expense of the public interest which is involved in the smooth functioning of the educational service. The applicant, a school-teacher, was transferred from the elementary school of Galata to the elementary school of Katy- IQ data. After filing a recourse against the decision to transfer him he sought a provisional order, under rule 13of the Supreme Constitutional Court Rules, suspending the effect of the said decision. In support of his application for a provisional order he con- i c tended that his transfer was not decided by the respondent Committee, but by the Ministry of Education, which does not possess any competence in the matter, and that consequently, it is flagrantly illegal; and, in this connection, he referred to section 39* of the Public Educational Service Law 1969 (Law 20 10/69). He, also, argued that his transfer was made contrary * Quoted at p. 39post. 36 3 C.L.R. Yerasimou τ. Republic to the relevant provisions of regulations 16 and 21 of the Educa tional Officers (Teaching Staff) (Appointments, Postings, Trans fers, Promotions and Related Matters) Regulations, 1972 which have been made under section 76
(3)of Law 10/69. 5 10 15 20 25 30 35 Held, dismissing the application,
(1)having perused the above legislative provisions, I am not, at this stage, satisfied, on the basis of the material at present before me,that there does appear to exist such aflagrant illegality in relation to the complained of transfer of theapplicant as would render necessary the making of the applied for provisional order; it is not possible to say, definitely, on the basis of the facts placed till now before me, either that any of the aforesaid provisions has been contravened or thatthecomplained of transfer has not been made in a manner compatible with such provisions; there are matters which have to be elucidated further at the trial of the present case; as for example, whether the sub judice transfer was preceded by a temporary one under the said section 39
(2).
(2)This is not a case in which to grant a provisional order suspending the effect of the sub judice transfer, so as to protect pro tempore his personal interests at the expense of the public interest which is involved in the smooth functioning of the educational service, especially as it has been practically con ceded by applicant's counsel that any damage that his client may suffer, if the provisional order is refused, wilt not be irreparable in the sense that it cannot be compensated for by the payment of damages later on (See case-law concerning the making of provisional orders referred to in C.T.C. Consultants Ltd. v. Cyprus Tourism Organization,
(1976)12 J.S.C. 1735). Per curiam: I should not be misunderstood as being prepared to hold that in no case can a transfer of a public officer be suspended by means of a provisional order. It is, indeed, possible to do so in a proper case, when there exist special reasons related to either the facts of the specific instance or to the particular legislative provisions applicable thereto (See " Επιθεώρηση Δημοσίου Δικαίουκαΐ Διοικητικού Δικαίου", vol. 16
(1972), ρ. 270, paras. 141-143). Application dismissed. Cases referred t o : 40 C.T.C. Consultants Ltd., v. Cyprus Tourism Organization
(1976)12 J.S.C. 1735 (to be reported in
(1976)3 C.L.R.); 37 Yerasimoa v. Republic
(1978)Artemiou(No.2) v. TheRepublic
(1966)3 C.L.R. 562; lordanou (No. 2)v. TheRepublic
(1966)3C.L.R.696; Iordanou (No. 3)v. TheRepublic
(1966)3C.L.R.705; Georghiades v. TheRepublic
(1971)3 C.L.R. 309; Sofocleous v. TheRepublic
(1971)3C.L.R. 345; Papadopoullos v. The Rebuplic
(1975)3 J.S.C. 299 (to be reported in
(1975)3 C.L.R.); Pelides v. TheRepublic andAnother,3 R.S.C.C. 13at p.
- 5 Application for provisional order. Application for a provisional order, under rule 13 of the io Supreme Constitutional Court Rules, 1962, suspending the effect of the subjudice decision of the respondent Committee to transfer applicant, a school-teacher, from the elementary School of Galata to the elementary school of Kadydata. Chr. Kitromilides, for the applicant. 15 A. S. Angelides, for the respondent. Cur. adv. vult. The following decision was delivered by: TRIANTAFYLLIDES P.: The applicant isseeking a provisional order, under rule 13 of the Supreme Constitutional Court 20 Rules, suspending the effect of the subjudice decision of the respondent Committee to transfer him, as from January 10, 1977, from the elementary school of Galata to the elementary school of Katydata. The applicant is a school-teacher and this recourse was 25 filed on January 24, 1977,after the said decision had already taken effect. The main ground on which this application for a provisional order has been pursued has been that the said decision is obviously unlawful, inasmuch as,though theapplicant wasinformed 30 orally by the Ministry of Education about his transfer, andwas asked to comply with it, on January 7, 1977, in fact, according to a letter dated January 10, 1977, which is attached to the respondent's Opposition in this case, the applicant was officialy notified, by means of this letter, that he was transferred only 35 as from January 10,
- Ithasbeen contended in this respect that his transfer wasnot decided by the respondent Committee, but by the Ministry of Education, which does not possess any competence in thematter, andthat, consequently, it is flagrantly 38 3 C.L.R. Yerasimou τ. Republic Triaotafyllides P. illegal; and, in this connection, reference has been made ot section 39 of the Public Educational Service Law, 1969 (Law 10/69), which reads as follows:" 39,—
(1)Τηρουμένων τών διατάΕεων τοϋ εδαφίου
(2), μεταθέσεις εκπαιδευτικών λειτουργών ενεργούνται ύττό της Επιτροπής. 5 10 -
(2)Μεταθέσεις εκπαιδευτικών λειτουργών αϊ όποΐαι δέν συνεπάγονται μεταβολήν είς τάς ΰπ' αυτών κατεχομέναςθέ σεις καΐ τα συναφήπρος αύτάς καθήκοντα ή άλλαγήυτόπου διαμονής ενεργούνται υπό τής αρμοδίας αρχής: Νοείται δτι είς έ£αιρετικάς περιπτώσεις επειγούσης φύσεως ή αρμοδίααρχή δύναται να προβή είς προσωρινήνμετάθεσιν συνεπαγομένην άλλαγήν τόπου διαμονής δια περίοδον μή ΰπερβαίνουσαν τάς τεσσαράκοντα και δύο ημέρας." 15 20 25 30 (" 39.—
(1)Subject to the provisions of subsection
(2), transfers of educational officers shall be made by the Committee.
(2)Transfers of educational officers which do not involve a change in the offices held by them and the duties attached thereto or a change in the place of residence shall be made by the appropriate authority: Provided that in exceptional cases of urgent nature the appropriate authority may make a temporary transfer involving a change in the place of residence for a period not exceeding forty-two days.") It has, also, been argued that the transfer of the applicant was made contrary to the relevant provisions of regulations 16 and 21 of the Educational Officers (Teaching Staff) (Appoint ments, Postings, Transfers, Promotions and Related Matters) Regulations, 1972, which have been made under section 76
(3)of Law 10/69 (see Not. 205, in Supplement No. 3, Part I, to the Official Gazette dated November 10, 1972). Having perused the above legislative provisions, I am not, at this stage, satisfied, on the basis of the material at present 35 before me, that there does appear to exist such a.flagrant ille gality in relation to the complained of transfer of the applicant as would render necessary the making of the applied for pro visional order; it is not possible to say, definitely, on the basis of the facts placed till now before me, either that any of the 39 Triantafyllides P. Yerasimou v. Republic
(1978)aforesaid provisions has been contravened or that the com plained of transfer has not been made in a manner compatible with such provisions; there are matters which have to be eluci dated further at the trial of the present case; as, for example, whether the sub judice transfer was preceded by a temporary one under section 39
(2), above. 5 In C.T.C. Consultants Ltd. v. Cyprus Tourism Organization,
(1976)12 J.S.C. 1735* I had occasion to refer to our case-law concerning the making of provisional orders under the aforesaid rule 13. 1do not propose to review now our case-law all over 10 again, but 1 should statu that I have examined the present application for a provisional order in the light of such case-law and, in particular, in the light of the principles expounded in Artemiou (No. 2) v. The Republic,
(1966)3 C.L.R. 562, Iordanou (No. 2) v. The Republic,
(1966)3 C.L.R. 696, Iordanou (No. 3) 15 v. The Republic,
(1966)3 C.L.R. 705, Georghiadesv. The Republic,
(1971)3 C.L.R. 309. Sofocleous v. The Republic,
(1971)3 C.L.R. 345 and Papadopoullos v. The Republic,
(1975)3 J.S.C. 299**, which are all cases in which applications for pro visional orders in relation to transfers were considered and 20 determined. Also, I have considered the present application in the light of the approach adopted in this respect by the Council of State in Greece (see Βεγλερ/j " Ή Συμμόρφωσιςτης Διοικήσε ως εις ιάς 'Αποφάσεις τοϋ Συμβουλίου της Επικρατείας", 1934, pp. 112-117, and Τσάτσου " Ή Αίτησις Ακυρώσεως ενώπιοντοϋ 25 Συμβουλίου τής Επικρατείας", 3rd ed., pp. 423-431). Bearing all the above in mind I have reached the conclusion that this is not a proper case in which to grant a piovisional order suspending the effect of the sub judice transfer of the applicant, so as to protect pro tempore his personal interests at 30 the expense of the public interest which is involved in the smooth functioning of the educational service, especially as it has been practically conceded by applicant's counsel that any damage that his client may suffer, if the provisional order is refused, will not be irreparable in the sense that it cannotbe compensated 35 for by the payment of damages later on; and, in this respect, it is important to bear in mind that the applicant is not married and that it docs not appear that other family obligations of his are seriously affected by his transfer. * To be reported in
(1976)3 C.L.R. ** To be reported in
(1975)3 C.L.R.. 40 40 3 C.L.R. 5 10 Yerasimou v. Republic Tnantafyllides P. I should not be misunderstood as being, prepared to hold that in no case can a transfer of a public officer be suspended by means of a provisional order; the instances referred to in " Έπιθεώρησις Δημοσίου Δικαίου καϊ ΔιοικητικούΔικαίου", vol. 16
(1972), ρ. 270, paras. 141-143, and vol. 19
(1975), p. 277, para. 70, indicate that it is, indeed, possible to do so in a proper case, when there exist special reasons related to either the facts of the specific instance or to the particular legislative provisions applicable thereto; but, this is not so on the present occasion. Another reason which has militated against my deciding to grant the provisional order applied for is that the applicant may not succeed at all, eventually, in this recourse: He has objected against his transfer and has requested, under rule 22 15 of the aforementioned Regulations, a reconsideration, by the respondent Committee, of the decision to transfer him, but the Committee has resolved to maintain its said decision and he was informed accordingly by a letter dated February 4, 1977, after the filing of the present recourse. The'present recourse 20 is not aimed at the determination of his objection, but only at the initial decision to transfer him; so, in the light of, interalia, Pelides v. The Republicand another,3 R.S.C.C. 13, 17, it might be said—and I leave this question open at this stage of the proceedings—that the applicant, once he-has applied for its 25 reconsideration, is no longer entitled to challenge the initial decision to transfer him, but only the subsequent final decision of the respondent in the matter, which is not the subject matter of the present recourse. 30 35 The last point with which I have to deal is whether I should grant, in this case, an early date of trial; as I haye pointed out in the C.T.C. Consultants Ltd. case, supra, it does not follow, necessarily, that an early date of trial will be granted invariably whenever an application for a provisional order is refused; but, in the present case, 1 have decided that this case, in view of its nature, should be heard as early as possible. Regarding the costs of the present application I order that they should be costs in the cause, but in any case not against the respondent. Application dismissed. 41