← Κύπρος

clr/1981/1981_3_390.pdf

(1981)1981 September 19 [HADJIANASTASSIOU, J.] JN THE MATTER OF ARTICLE 146OF THE CONSTITUTION NIKI CHRISTODOULIDOU-KATSIAOUNI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF EDUCATION AND ANOTHER, Respondents. (CaseNo. 281/81). Administrative Law—Abuseof powers—Public officers—Termination of secondment for duty abroad—Respondents acting inabuse ofpowers byfailing togive officer more timetosettleherpersonal andfamilycircumstances. Public Officers—Personal andfamily circumstances—Whether they can override the public interest—Termination of secondment for duty abroad—Respondents acting inabuse ofpowerbyfailing togiveofficer moretime tosettleher personal andfamily obligations—Sub judice decisionstayed upon an application for a provisional order. The applicant was appointed in the Educational Service of theRepublicin 1965andin 1976shewasemplacedintheCyprus Embassy in Athens as a Cultural Officer. By a letter dated 7th August, 1981 the Acting Director-General of the Ministry of Education informed applicant that herservicesin the Ministry 15 of Foreign Affairs were terminated as from the 1st September, 1981 and she should return to the Ministry of Education from whereshehad been seconded. Applicantwasgivenone month's time to comply with the above letter. She was married with a child of three and a half years and her husband, who was a 20 musician could not find a job in Cyprus. Apphcant challenged the validity of the above decision by 390 5 10 3 CUR. 5 10 15 20 25 30 \ Katstaounl τ. Republic means of a recourse and applied, also, for a provisional order suspending its effect pending the determination of the recourse, by contendingmainly thattherespondents actedundera miscon­ ception of'fact and in excess and abuse of powers in that they did nottakeintoaccountthespecial personal andfamily circum­ stances of the applicant and they did not give her a reasonable notice for settling her personal and family obligations. ·. Counsel for the respondents agreed that in this special case a period of two andahalf monthswas sufficient for theapplicant to arrange her affairs. Held, that though the personal problems or circumstances of the applicant cannot override the public interest this Court should carefully weigh the personal reasons and circumstances of the applicant, particularly because of the interests of applicant's child and the unity of the family as a whole and grant sufficient timeto the applicant to prepare herself psycholo­ gically what to do; that, therefore, in the special circumstances of this case the respondents acted in abuse of powers because they did not give to the applicant reasonable notice for settling her personal and family obligations; accordingly an interim order will be granted staying the decision complained of until the 5th December, 1981. Application granted. Application for provisional order. Application for a provisional order suspending the effect of the decision of the respondents by virtue of which the services of the applicant in the Ministry of Foreign Affairs were termi­ nated, pending the final determination of a recourse against the validity of such decision. L. Papaphilippou, for the applicant. R. Karyda (Mrs.), for the respondents. Cur. adv. vult. 35 HADJIANASTASSIOU J. read the following judgment. In the present recourse the applicant Niki Christodoulidou-Katsiaouni seeks a declaration of this Court that the act and/or decision of the respondent Ministry of Education dated 7th August 1981, by which her services as Cultural Officer in the Ministry of Foreign Affairs were terminated as from 1st September, 391 Hadjiaoastassioa J. Katsiaoani v. Republic
(1981)1981,and to return totheMinistryofEducation isnullandvoid and of no effect whatsoever. The Facts: The applicant was appointed at the Educational Service of the Republic in 1965 and after serving for a period of seven 5 years she was seconded to the Ministry of Foreign Affairs and was emplaced in 1976 in the Cyprus Embassy in Athens as Cultural Officer. In 1975the applicant married to a musician of classic music and the couple has now a son of three and a half years. Because the husband oftheapplicant isamusician, 10 she claimed that it was impossible to find work in Cyprus according to his qualifications. On 7th August, 1981 the Acting Director-General of the Ministry of Education addressed a letter tothe applicant informing her that her services in the Ministry of Foreign Affairs 15 areterminated as from the lit September, 1981, and she should return to the Ministry of Education from which she was seconded. On 17th August, 1981, the applicant addressed a long letter to the Minister of Education putting forward her complaint and repeating what she said in her statement of 20 facts that her husband would beunable tofindwork in Cyprus, and further alleged that the termination of her services is in effect of a vindictive nature and is not justified. There was a further correspondence by the Acting Director-General on 25th August, 1981, and a further reply by the applicant dated 25 28th August, 1981,and finally the applicant put forward that the giving of one month's notice to return to Cyprus was not sufficient and ought to have been granted more time to settle heraffairs inAthens. Theapplicant insupport ofhercomplaint based her application on the following legal points: 30 1. The respondents acted under a misconception of facts in that: (a)They disregarded or/and did not take into account the special personal and family circumstances of the applicant. (
  1. b)Acted arbitrarily and through extraneous motives, (
  2. c)They disregarded the fact that the qualifications and experience 35 oftheapplicant necessitatedherstayintheserviceoftheMinistry for Foreign Affairs, especially in view of the fact that the post in question will remain vacant during the critical months of the beginning of the academic year, (
  3. d)The return of the 392 3 C.L.R. \ Katsiaouni r. Republic Hadjianastassloo J. applicant in the Educational Service serves neither the Educational Service nor the public interest because her qualifications and her seryices in the Ministry of Foreign Affairs are superior to those required for the Educational Service. 5 2. The respondents acted in excess or/and abuse of powers inthat: (a)Theydid not givetheapplicant a reasonable notice for settling her personal and family obligations, (
  4. b)No communication has taken place in advance or/and the consent of the Cyprus Embassy inAthens wasnot obtained, (c)Exercised 10 a power which should had been exercised by the Educational Service Committee or/and the Public Service Commission or/ and the Ministry for Foreign Affairs. 3. The subjudice act or decision constitutes unequal treatment and servespurposesextraneous to the Educational Service· 15 4. Thesubjudiceactordecisionisnotdulyoratallreasoned. 5. The sub judice act or decision is destructive of the applicant's career and causes an inevitable separation of the applicant from her husband and her family. 6. In view of the special circumstances of the applicant 20 the sub judice act or decision amounts to the compulsory retirement of the applicant from her service. 7. Regulation 21
(1)of the Foreign Service of the Republic (Special Provisions) Regulations of 1968 are ultra vires or/and donothaveanyapplicationinthepresentcaseor/andthepresent 25 regulations do not fall within the jurisdiction or power of the respondents.
  1. Generally the respondents acted illegally or/and without authorization of law or/and vindictively.
  2. The respondents acted without due inquiry and with 30 intent to place the applicant in an unfavourable position.
  3. The applicant was subjected to unequal treatment in that on other occasions the secondment of other persons was not discontinued in spite of the fact that such other persons stayed intheserviceofthe Ministryfor ForeignAffairs for more than 7, 14, 17 and 20 years. 393 Hadjianastassioo J. Katsiaouni τ. Republic
(1981), In the meantime counsel on behalf of the applicant made an application seeking (
  1. a)an interim and/or provisional order ordering thesuspension of thedecision of therespondents dated the 7th August,. 1981, by which they terminated the services of the applicant in the Ministry of Foreign Affairs as from the 5 1st September, 1981, and placed her back to the Ministry of Education, until final determination of the recourse under the above title, (
  2. b)An.early date.of hearing of the recourse, (
  3. c)Costs. In support of this application of the applicant Christakis Christofides in a sworn statement said on 3rd September, 1981: "1. 10 I am a lawyer in the Office of Messrs. L. Papaphilippou and Co. and have instructions to state the following: 2. As I am informed by the applicant and as I believeand in order to avoid repetitions I state that the contents 15 of the applicant's recourse are just and true. I believe that the applicant has a very good case. 3. It is the contention of the applicant and I believe that: (
  4. a)No servics requirement imposed the taking of the sub judice decision or act. (
  5. b)The sub judice act or 20 decision strikes gravely the smooth, creative and unfet­ tered functioning of the department presided over by the applicant in the Cyprus Embassy in Athens, (
  6. c)As I am informed and believe, the contents of the appli­ cant's letter dated the 17th August, 1981, (exhibit A 25 in the recourse) is just and true and is adopted for the purposes of the present affidavit, (
  7. d)The sub judice decision or act strikes the applicant personally and her family in a way that causes to her and her family irrepa­ rable and incalculable material as well as moral damage 30 4. The subjudice act or decision amounts to a blowonthe dignity and respect of the applicant and shakes the confi­ dence of her colleagues and subordinates of both Mini­ stries in her person and her abilities. 5. The subjudice decision is, to the best of my knowledge 35 and beliefillegal,wrongful, vindictive, destructive, unrea­ sonable and entirely contrary to thebest interests of the service and the Ministry for Foreign Affairs and it will 394 3 C.L.R, Katsiaouni v. Republic Hadjianastassiou J. continuously harass the sense of justice because it rea-. sonably givesthe impression that therespondents profess injustice, vindictiveness and complete disregard for justice.\ 5 6. , AsIbelieveit isfor thepublicinterest that theimmediate suspension of the execution of the subjudice decision or act be ordered as it isevidently and manifestly illegal and unjustified and caused confusion in the departments of the Ministry for Foreign Affairs. 10 7. For all the above reasons I pray that for the protection ofthepublicinterestand thelawful rightsoftheapplicant and in order to avoid irreparable damage to the best interests oftheforeign service,andfor the sake ofrendering real and complete justice the order applied for should be granted."' 15 The case came before this Court on 14th September, 1981, and counsel appearing on behalf of the Ministry of Education informed the Court that she was not ready to proceed with the present application as she did not have full instructions 20 with regard tothis matter. On thecontrary, counsel appearing for the applicant stressed also the matter of urgency and finally the Court fixed thecase on Saturday the 19th September, 1981, for hearing of the application. On 17th September, 1981, counsel for the respondent gavenoticeopposingthe application 25 of the applicant and in doing so she relied on the provisions of rules 13and 19of the Rules of the Supreme Constitutional Court 1962aswellasontheCaseLawofthisCourt, Insupport of this application Mr. Linos Shiakallis, the Acting Director^ General of the Ministry of Education, in a sworn statement put 30 forward that the transfer of the applicant to Cyprus was made because of the needs of the Ministry of Education and that in doing so they took into consideration the personal and family circumstancesoftheapplicant,aswellastheneedsoftheservice. Furthermore, he repudiated the contents of the application of 35 the applicant that they were based on reasons other than the needs of the service. Finally after giving further reasons in opposing the application oftheapplicant counselfor therespondent put forward that they acted lawfully and that they have considered allthefacts of thecase of the applicant and lawfully 40 exercised their discretionary power and that having considered 395 Hadjianastasslou J. Katsiaooni v. Republic
(1981)all the relevant elements of the case and in accordance with the law in force. Having considered the arguments of both counsel and having read thelongstatement of theapplicant I amafraid that shehas given me the impression that her services are so important in 5 Greece that no other person can step into her own shoes in that post. Indeed the applicant ought to have known once shehasaccepted toserveasapublicservantthateveryemployee of the Government is subject to transfer and the whole philosophy is that public servants are expected to serve the needs 10 of thecountry. Themerefact that thehusband ofthe applicant cannotfindajob inCyprus becauseheisan important musician of classic music it is a consideration which has nothing to do with the needs of the service and the applicant ought to have known that when she had decided to join the service of our 15 country. Indeed this is the first case which came before the Court that a wife has givensomuch importance to the personal problems of her husband and has not given equally sufficient importanceto the needs of theservice ofthe Ministry of Education. With that in mind and in fairness to counsel for the 20 applicantwhopresentedashortbuteffectiveargumentinsupport of the caseof the applicant Iwould make no further comment. Equally counsel for the respondent quite rightly defended the stand that the needs of the country comefirst. Having considered the argument of both counsel and the 25 statements made, I would add in fairness to everyone that the personal problems or circumstances of the applicant or any applicant cannot override the public interest and this must be borne in mind that public servants are there to serve the needs of their country for the proper functiom'ng of the service. But 30 on the contrary, in the present case, it is unthinkable that this Court should not weigh carefully the personal reasons and the circumstanceswhytheapplicant found herself ina most difficult situation to take a decision whether to return to Cyprus alone or to leave the service and stay with her husband and with her 35 child. Withthatinmind,andparticularlybecausetheapplicant is themother of a youngchild of three and a halfyearsofage, I cannot but give importance to the interest of the child also ?nd to the unity of the family as a whole, and grant sufficient time to the applicant to prepare herself psychologically what 40 396 \ \ \ \ 3 C.L.R. * Katsiaouni v. Republic HadjianastassiouJ. \ to do. I am positive that the applicant will find the answer and take a stand on this difficult problem. For thereasons Ihave given,and inthespecial circumstances of this case, I have reached the conclusion, relying on ground 5 2 only, that the respondents acted in abuse of powers because they did not giveto the applicant reasonable noticefor settling her personal and family obligations. Withthisinmind,Iamindebtedtobothcounselfor theapplicant and for the respondent in helping me reach a final stand 10 in a difficult family matter and for agreeing that in this special caseaperiod oftwoand a halfmonths issufficient for theapplicanttoarrangeheraffairs. Finally,theinterim order isgranted staying the decision complained of until the 5th December, 1981,but I would most emphatically add that the present deci15 sion does not create a precedent. In theparticular circumstances of this case, Iam not making an order for costs. Application granted. Noorder as to costs. 397

🔗 Στην επίσημη πηγή

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.