(1981)1981 September 3 [A. Loizou, J.] IN THE MATTER OFARTICLE 146OFTHE CONSTITUTION AGNI N. SOPHOCLEOUS, Applicant, V. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (CaseNo. 258/81). Provisionalorder—Flagrant illegality as a groundforsuspending effect of administrative act—Tobe approached with theutmost caution asitmaybetantamount todisposing thecase onitsmerits •—Recourse of educational officer against transfer—Application for provisional order suspending transfer pendingdetermination 5 of recourse—Not a case of a very obvious and unquestionable illegality—Nature of violations complainedofsuch thatapronouncementon their merits requires investigation into factualaspect of the casea matter which has to beexamined at thehearing of therecourse—No material irreparable damage because any finan- 10 cial damageto be incurred can be met by compensation under Article 146.6 of the Constitution—And no moral irreparable damagebecause it is opento the respondents, underthe relevant Regulations, to transfer applicant to a less favourableplace. Educational Officers—Transfers-—Elementary education school tea- 15 chers—Whether they canbe transferred to lessfavourable places if educatioiwlneeds sodemand—Regulation 16of the Educational Officers (Teaching Staff) (Appointments, Postings,Transfers, Promotions and Related Matters) Regulations,
- Educational Officers—Transfers—Trade union status of Officer— 20 Whethertransferinterferes with tradeunionactivities ofofficer. The applicant, an Assistant Headmistress in the Elementary Education, who hassince 1974beenposted at Strovolos Elemen360 3 CX.R. Sopbodeons τ. Republic tary School, was onJune 25, 1981 transferred by the respondent Committee to Tseri Elementary School, with effect from September 1981, after taking into consideration theeducational needs. Theapplicant challenged theabove decision by recourse and, also, applied for a provisional order staying the transfer pending the determination of her recourse. The applicant was an active trade-unionist in the Elementary School Teachers* Organization (POED) having been elected as a general representative. Her transfer did not necessarily call for a change of residence and Tseri village,which was only a few miles away from Strovolos, was served by a regular bus service.
- \ \ 1 1 10 \ \ 1 Counsel for the applicant mainly contended: \ ι (a) That the transfer may interfere with applicant's trade union activities; 15 (b) That the transfer was flagrantly illegal; 20 (c) That if the transfer is not suspended applicant and her family will suffer irreparable damage both material and moral because she will be humiliated in the eyes of her colleagues and the people by being transferred to a rural school. 25 Held,
(1)that applicant's claim that her transfer may interfere with her trade union activities, cannot really stand because of the nature of the office she holds in POED—she is called upon to vote from time to time at general meetings—and that such transfer does not call necessarily for a change of residence. 30 35
(2)(a) That though flagrant illegality of an administrative act is a ground for granting a provisional order even if no irre parable damage will be caused, if not granted, and even where serious obstacles would be caused to the administration, it is a ground to be approached with the utmost caution as it may be tantamount to disposing the case on its merits.
(2)(b) That on the face of the material available at this stage this is notacase of a very obvious and unquestionable illegality; that the nature of the violations complained of is such that a pronouncementon their merit is connectedwith a further inve stigation into the factual aspect of the case; that the aggregate effect of the complaints of the applicant with regard to her transfer is thattherehas beenaviolation of law, a wrong exercise 361 Sophodeous τ. Republic (1981 of discretion, a misconception of fact and an abuse of power; that all these complaints can only be established if the facts of the case in respect of which, or some of which,evidencemay have to be called, are examined at the hearing of the recourse proper; that it is inappropriate at this stage to pronounce on 5 the merits of the grounds of law relied upon by the applicant because of theirvery nature;accordingly the application cannot succeed on the ground of flagrant illegality.
(3)(a)Thatanyfinancialdamagetobeincurredbythe applicant can upon the successful conclusion of her recourse be met by 10 compensation under Article 146.6 of the Constitution;accord ingly the contention about material irreparable damage should fail.
(3)(b) That though under regulation 16 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, 15 Promotions and Related Matters) Regulations of 1972 transfers are made to more favourable posts for the educational officer concerned that need not be always the case as transfers to less favourable places can be effected if the educational needs call for them in addition to disciplinary transfers; that, therefore, 20 once it was open under the relevant regulation to transfer the applicant, even to a less favourable posting, assuming thatthat is so in the present case, because the educational needs so demanded, such transfer, should not be allowed to be treated by itself as causing a moral injury to the officer concerned; 25 accordingly the contention about moral irreparable damage should, also, fail. Application dismissed. Cases referred to: Sophodeous v. Republic
(1971)3 CX.R. 345; Papadopoullos v. Republic
(1975)3 C.L.R. 89; Yerasimou v. The Republic
(1978)3 C.L.R. 36; Prokopiou and Others v. The Republic
(1979)3 C.L.R. 686; Michaelides v. The Republic
(1980)3 C.L.R. 430; Prodromouv. The Republic
(1981)3 C.L.R. 38; Soteriou v. The Republic
(1981)3 C.L.R. 70; C.T.C.Consultants Ltd.,v. CyprusTourismOrganization
(1976)3 C.L.R. p. 390. 362 30 35 3 C.L.R. Sophodeous τ. Republic \ Application for a provisional order. \ Application for a provisional order staying the transfer of \ the applicant from Strovolos " C " Elementary School to Tseri \ Elementary Schoolpending thefinaldeterminationof a recourse 5 against the validity of such transfer. A. S. Angelides,for the applicant. M. Kyprianou, Senior Counsel of the Republic, for the respondent. Cur. adv.vult. 10 A. Loizou J. read the following judgment. The applicant, an Assistant Headmistress in the Elementary Education posted at Strovolos " C " Elementary School since 1974 has, together with a recourse filed against her transfer from the said school toTseri Elementary School asfrom 1st September, 1981,applied 15 under rule 13of theSupreme Constitutional Court Rules 1962, for a provisional order staying such transfer until the final determination of her aforesaid recourse. Therelevant facts as they appear in the recourse, the affidavit filed in support of this application and the various documents 20 produced as exhibits, are these: The apphcant, upon her appointment as school-mistress in the Elementary Education, was posted to Galini Elementary School and from 1959-1961 shewas transferred tohervillageKatydata. Onherown appli cation and givingas a reason her marriage to her husband who 25 asa memberof thePoliceForcewas—and has beensincethen— posted in Nicosia, where the matrimonial home was to be set up, she was transferred to Nicosia and has been serving here in various schools eversince. In fact, since 1974 she has been posted at Strovolos " C " Elementary School. 30 The applicant is an active trade-unionist in the Elementary School Teachers' Organization (POED), having been elected at theelections of POED on the24th May, 1981,for two years as a general representative. Tlie Headmaster of Strovolos " C " Elementary School is the new President of POED,whom 35 shereplaces when heisengaged with his tradeunion activities. Whilst on this point it may be said that her claim that this transfer may interfere with her trade union activities, cannot really stand because of the nature of the office she holds in POED—she is called upon to vote from timeto time at general 363 A. Lolzou J. Sopbodeoas τ. Republic
(1981)meetings—and that such transfer does not call necessarily for a change of residence. Nordoes thefact thatshe frequently acts for him because of his absence on account of his trade union activities canhave byitself abearing inthiscaseinasmuch as acting for the headmaster of a school is one of the duties 5 that under the relevant scheme of service an assistant Head master/mistress is called upon to perform. The sub judice transfer of the applicant was effected after a list of vacancies and other requirements (exhibit 1) was sent by the appropriate authority to the respondent Committee 10 and the minute of the respondent Committee dated the 25th June 1981,(exhibit2) in so far as relevant reads: "The Educa tional Service Committee having studied the applications for transfer which were submitted by educational officers of ele mentary education and having in mind (
- a)the provisions rela- 15 ting to transfers in the Educational Service Laws 1969-1979, as well as the Educational Officers* Regulations of 1972 to (No. 2) of 1974; (
- b)the general and the per school educational needs as they were communicated by thedepartment of elemen tary education decides the transfers which appear on the atta- 20 ched appendix to these minutes and which will take effect as from the 1st September 1981". It is the case for the applicant that her transfer complained of is (
- a)flagrantlyillegal and(
- b)that if this decision is not sus pended she and her family will suffer irreparable damage, both 25 material and moral. It was further contended that the rights of others will not be affected if the provisional order applied for is granted as the vacancy created at Strovolos " C " school by her transfer has not as yet been filled and a provisional stay of her transfer 30 will not cause any obstacles to the proper functioning of the elementary education. In support of this application counsel for the applicant has referred me to several regulations which are claimed to have been flagrantly violated by the respondents in taking the sub 35 judice decision. In particular I was referred to legulations 13, 14, 16, 17, 18, 19 and 21 of the Educational Officers* (Tea ching Staff) (Appointments, Postings, Transfers, Promotions and related matters), Regulations of 1972, published in Supple364 3 C.L.R. Sophodeous v. Republic A. Lobou J. ment No. 3 to the Official Gazette of the Republic No. 972, dated 10th November 1972 under Notification No. 205. I do not intend to embark on an examination of each and every regulation and the extent to which it is alleged to have been 5 violated. Suffice it to say that it is the contention of the applicant that her transfer was not effected by the respondent Committee because of the educational needs as verified by the appropriate authority and that the applicant having served in rural areas 10 should not without promotion be transferred to a less favourable post than theone shewas holding as her transfer to Tseri village is considered to be. Counselfor the respondent Committee has answered the arguments advanced on behalf of the applicant the gist of which 15 is that the transfer was effected because of the educational needs as verified by the appropriate authority and that a transfei to even a less favourable post or to a rural aita is warranted by regulation 19(c), if the educational needs demand same. The principle that the flagrant illegality of an administrative 20 act is a ground for granting a provisional order even if no irreparable damage will be caused, if it is not granted, and even where serious obstacles would be caused to the administiatior, was enunciated in the case cf Sophodeous v. The Republic
(1971)3 C.L.R. p. 345. This principle is to be found also in the cases 25 of Papadopoullosv. The Republic
(1975)3 C.L.R. p. 89; Yerasimou v. The Republic
(1978)3 C.L.R. p. 36; Prokopiou and Others v. The Republic
(1979)3 C.L.R. 686; Michaelides v. The Republic
(1980)3 C.L.R. 430; and recently in the cases of Prodromou v. The Republic
(1981)3 C.L.R. 38; and Soteriou 30 v. TheRepublic
(1981)3C.L.R. p.70.SvealsoC.T.C.Consultants Ltd., v. Cyprus Tourism Organization
(1976)3 C.L.R. p. 390. As I said in the Sophodeous case (supra), at p. 353 legarding this principle: 35 "It is,however, a ground to be approached with the utmost caution, as it may be tantamount to disposing the case on its merits, something discouraged by Rule 13 of the Supreme Constitutional Court Rules, though this rule cannot be held as divesting this Court from being the watchdog of legality". 365 A. Loizoa J. Sopbodeotts τ. Republic
(1981)I consider at this stage inappiopriate to pronounce on-the merits of the grounds of Law relied upon by the applicant because of their very nature. What hastobeexamined incases wheretheaforesaid principle is relied upor is thenatureof the violations complained of and 5 whether or not a pronouncement on their merit is connected with a further investigation into the factual aspect of the case. An examination of the various violations alleged to have been committed by the respondent Committeein reaching thf subject decision shows that this is a case that falls into the 10 aforesaid category of cases ratherthan inacaseof avery obvious andunquestionableillegalityontheface ofthematerial available at this stage. The aggregate effect of the complaints of the applicant with regard to her transfer is thai there has been a violation of Law, awrong exerciseof discretion,amisconception 15 of fact and an abuse of power. All these, however, can only be established if the facts of the case in respect of which, or some of which, evidence may have to be called are examined at the hearing of the recourse proper. The decision being so, I have come to the conclusion that 20 this application cannot succeed on this ground. I turn now to the second ground, namely that of alleged irreparable damage. In this respect it is relevant to mention that Tseri villagewhich is onlya few miles awayfrom Strovolos, is served by a regulai bus service and in addition,though I do 25 not attachmuchimportancetothis at this stage, thereaieothei school-masters who travel from Nicosia to the same school which the applicant may join, as suggested by counsel for the Republic. Any financial damage to be incurred by the appli cant, can upon the successful conclusion of her recourse be 30 met by compensation under Aiticle 146.6 of the Constitution. In all fairness to counselit hasto be stressed that more reliance, however, was placed by him in his concluding address on the moral damage that the applicant is alleged to be likely to suffer from this tiansfer. 35 It was urged that she will be humiliated in the eyes of her colleagues and thepeopleby being transfened to a ruralvillage. I donotacceptthisview,northatthatattitudeshould beencou366 3 C.L.R. Sophodeous τ. Republic A. Loizou J. raged by its light acceptance in a judgment of this Court. If anything, under regulation 16 of the aforesaid regulations, transfers are madeto morefavourable posts for theeducational officer concernedbutthatneednotbealwaysthecaseas transfers 5 tolessfavourable places canbeeffected if theeducationalneeds call for them in addition to disciplinary transfers with which we are notconcernedin this case. Therefore onceit was open, under the relevant regulation to transfer the applicant, even to a lessfavourable posting, assuming thatthatis so in thepresent 10 case,because theeducationalneeds so demanded, such transfer, should notbe allowed to be treatedby itself as causing a moral injury to the officer concerned. Therefore I am not prepared to accept this ground also. Once therefore irreparable damage has not been established, 15 IdonotthinkthatIamjustified togrant a stay, merely because therightsof othersare,as alleged, notaffected, asituationwhich ί do not know at this stagebecause thenonposting of another officer inherplace,at Strovolos " C " school does notmean that somebody else will not be placed by the additional transfers 20 to be made in the near future! But even if that was not so, that is not a reason by itself for granting a provisional order for a stay of an administrative act. Finally, the allegation that thegranting of a stay in this case will notcause obstacles to the smooth functioning of theadmi25 nistration and the elementary education in particular, has not been established inasmuch as this is a matter connected with theoverall questionof transfers includingtheadditional transfers to be made before the end of this month in the light of the general educational needs of the Republic. 30 For all the above reasons this application for a provisional stay is dismissed, but in the circumstances"I make no order as to costs. As I said in the Sophodeous case (supra)at p. 454 "though I have not accepted that irreparable damage will be caused to 35 the applicant, yet in the circumstances of this case I think it proper to deal with this recourse the soonest possible". And for thatpurpose Ifixsamefor directionsonthe 11thSeptember 1981 at 9.00 a.m. Applicationdismissed. No order 40 as to costs. 367