(1982)1981 December 16 [MALACHTOS, J.] JN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION LEDA GEORGHIADOU DEKATRI, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. (Case No. 419/81). Provisional Order—Rule 13 of the Supreme Constitutional Court Pules, 1962—Discretion of the Court—Principles applicable. Educational Officers—Transfers—Educational needs—Verification of under regulation 14
(1)of the Educational Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and 5 Connected Subjects) Regulations of \912~~Refers to the needs of the Schools in general as regards the number of the teaching personnel requiredfor a particular lesson—And not to the person whoisgoing tofill apost, amatter whichisleft withtherespondent Committee—Section 39
(1)of the Public Educationd Service 10 Law, 1969(Law 10/69)—Regulation 16
(3)of theabove Regulations —It concerrs Officers applying for trartsfer but does net apply to transfers decided by the Committee for educational neeas —Proviso to regulation 16
(3). The applicant, a teacher of French in Secondary education, 15 was on June 26, 1981 transferred from the 5tb Gymnasium Limassol to the 2nd Gymnasium of Phaneromeni and the Technical School in Nicosia with effect from the 1st September,
- On October 12, 1981 she was transferred, in addition to tht said two Schools, to the Makarios III Gymnasium, 20 Nicosia; and on October 14, 1981 she was transferred by the respondent Committee from Nicosia to the 4th Gymnasium Limassol with effect from the 15th October,
- As against 8 3 C.L.R. 5 Dekatri τ. Republic thislast transfer applicant hied a recourse and,at thesametime, shefiledan application under rule 13 of the Supreme Constitu tional Court Rules, 1962, for a provisional order suspending the effect of the sub judice transfer pending the final dettrmination of the recourse. Counsel for the applicant contended: 10 15 20 25 30 35 (a) That the decision complained of was flagrantly illegal because there was no verification of the educational needs by the appropriate authority in accordance with regulation 14
(1)* of the Educational Officers (Teaching Personnel)(Appointments,Postings, Transfers, Promo tions and Connected Subjects) Regulations of 1972. (b) That the decision complained of was flagrantly illegal because it was contrary to regulation 16
(3)** of the above Regulations, which provides that Educational Officers are subject to further transfer after having served ''for some time" and that these words must be taken to mean at least for a period of one School year. On the application for a provisional order: Held, (after stating the principles governing the grant of a provisional order—vide p. 11 post) that under regulation 14
(1)the appropriate authority makes submissions as to the needs of the Schools in general with regard to the number of the teaching personnel required for every lesson, their specialities and the like; that the person who is going to fill the post and anyfurther transfers to meetthesituationcreated by the original transfers is entirely left with the respondent Committee as provided by section 39
(1)of Law 10/69; that in the present case no verification was required from the appropriate authority for the respondent Committeeto make this particular transfer; that as regards regulation 16
(3)this concernseducational officers who apply for transfer butdoesnotapply as regards the transfers decided by the respondent Committee for educational needs (see the provisos to regulation 16
(3)); that, therefore, the sub * Regulation 14
(1)is quoted at p. 12 post. · · Regulation 16
(3)is quoted at pp. 12-13post. 9 Dekatri v. Republic
(1982)judice decision was notflagrantlyillegal; accordingly the application for a provisional order should fail. Application dismissed. Cases referred to: Aspri v. The Republic,4 R.S.C.C. 57; Procopiouand Others v. The Republic
(1979)3 C.L.R. 686; Sofocleousv. The Republic
(1981)3 C.L.R.
- 5 Application for a provisional order. Application for a provisional order suspending the effect ofthe decision ofthe respondent byvirtue of which theapplicant 10 was transferred from Phanetomeni 2nd Gymnasium, 1st Technical School and the GymnaJum Makarios III in Nicosia to the 4th Gymnasium of Limassol pending the final determination of the recourse against the validity of such decision. A.S. Angelides, for the applicant. 15 E. Papadopoullou (Mrs.), for the respondent. Cur. adv. vult. MALACHTOS, J. read the following judgment. The applicant in this lecourse, a teacher of French, in secondary education, filedon the 11th November, 1981,the present recourse claiming, 20 as stated therein, a declaration and/or decision of the court that the decision and/or act of the respondents, which was communicated to the applicaat orally on the 14lh October, 1981, by virtue of which ihey transferred the applicant as from 15.10.1981 from the Phaneromeni 2nd Gymnasium, the 1st 25 Technical School and the Gymnasium Makaiios III in Nicosia to the 4th Gymnasium of Limassol, is void and illegal and of no legal effeci whatsoever. At the same time, she filed an application under rule 13 of the Supreme Constitutional Court Rules 1962,for a provisional order suspending the effect of the said decision pending the final determination of the recourse against the validity of such decision. The relevant facts as regards the application for the issue of a provisional order, with which we aie concerned, shortly put are the following: The applicant was first appointed on contract as a teacher 10 30 35 3 C.L.R. Dekatri v. Republic Malachtos J. of French in jecondary education in
- In 1980 she was appointed on probation and was posted at the 5th Gymnasium in Limassol. By a decision of the respondent committee dated 26.6.1981 the applicant was transferred as from 1.9.1981 from 5 the 5th Gymnasium of Limassol to the 2nd Gymnasium of Phaneromeni and the Technical School in Nicosia. On the 12th October, 1981 the appropriate authority by virtue of section 39
(2)of the Educational Service Law of 1969 (10/69), transferred the applicant for educational reasons in 10 addition to the 2nd Gymnasium Phaneromeni and the Technical School, to the Makarios III Gymnasium, Nicosia. On 14.10.1981 the respondent committee issued the decision complained of transferring the applicant from Nicosia as from 15.10.1981 back to Limassol and posted her at the 4th Gymna15 sium. The principles on which a provisional order may be issued have been expounded and applied in a series of cases starting from the case of Aspri v..The Republic, 4 R.S.C.C. 57up to the case of Procopiou and Others v. The Republic
(1979)3 C.L.R. 20 686 and the recent case of Agni Sofodeous v. The Republic
(1981)3 C.L.R. 360, and are the following: 25 "The making of a provisional order under rule 13involves the exercise ofjudicial discretion onthe basis ofthe circumstancesoftheparticular caseand inthelight ofthe principles which should guide an administrative court when dealing with such application". It is clear from the said principles that an applicant in order to succeed in an application for a provisional order under rule 13 of the Supreme Constitutional Court Rules, 1962, must 30 show to the court that his application is likely to prevail on the merits and that the non making of the order willcause him irreparable damage. It goes without saying that flagrant illegality of an administrative act militates strongly to the making of a provisional order even though irreparable damage has not 35 been proved. Counsel for applicant at the outset of his address in support of his case made it clear that he would confine himself on one point only,that is, that the decision oftherespondent committee 11 Malachtos J. Dekatrl v. Republic
(1982)complained of is flagrantly illegalas taken contrary tothe Educa tional Officers (Teaching Personnel) (Appointments, Postings, Transfers, Promotions and Connected Subjects) Regulations of 1972 and, particularly, regulations 14
(1)and 16
(3). These regulations read as follows: 5 "14.
(1)Ai τοποθετήσεις και μεταθέσει εκπαιδευτικών λει τουργών διενεργούνται Οπό τού αρμοδίου οργάνου βάσει των εκπαιδευτικών αναγκών ώς αύται βεβαιούνται υπό της αρμοδίας αρχής, έν τω πλαισίω δέ τούτων λαμβάνονται κατά τό δυνατόν ύπ* όψιν και αϊ προτιμήσεις τών έκπαιδευ- 10 τικών λειτουργών.
(2)Οϊ εκπαιδευτικοί λειτουργοί υποχρεούνται νά ύπηρετώσιν Οπου τοποθετούνται ή μετατίθενται.
(3)Είς έκπαιδευτικόν λειτουργόν δύναται νά άνατεθή υπηρεσία είς πλείονα τοΰ ενός σχολεία βάσει τών έκπαι- 15 δευτικών αναγκών ούχΐ δμως είς πλείονας τών βύο τόπων. 16.
(1)Οί εκπαιδευτικοί λειτουργοί μετατίθενται— (α) βάσει τών εκπαιδευτικών αναγκών (β) τη αίτήσει αυτών διά σοβαρούς προσωπικούς ή οίκογενειακούΐ, λόγους νοουμένου 6τι εξυπηρετείται καΐ τό συμφέρον της υπηρεσίας. 20
(2)Οί εκπαιδευτικοί λειτουργοί, οίτινες ΰπηρετοΰοι κατά τήν διάρκειαν της περιόδου δοκιμασίας είς σχολεία ώς έν τώ Κανονισμώ 15 αναφέρεται, υπόκεινται είς μετάθεσιν μετά τήν έπικΰρωσίν τού διορισμού των ή επικείμενης ταύτης- 25 (α) προκειμένου περί καθηγητών, ε!ς σχολεία αγροτικών περιοχών καΐ εί δυνατόν, εϊς τήν αυτήν περιφέρειαν ή els άλλην δι' ην έχουσιν εκφράσει προτίμησιν. (β) προκειμένου περί διδασκάλων, είς σχολεία Γ ή, μή ύπαρχουσών είς αυτά επαρκών κενών Θέσεων,είς σχολεία Β τών τριών διδασκάλων.
(3)Οϊ κατά τά ανωτέρω μετατιθέμενοι εκπαιδευτικοί λειτουργοί υπόκεινται είς περαιτέρω μ&τάθεσιν, κατόπιν υπηρεσίας επί χρονικόν τι διάστημα καΐ ώς ήθελον παρουσιασθη δυνατότητες διά μετάθεσιν, ώς ακολούθως: (α) 01 καθηγητά! μετατίθενται είς αστικά κέντρα· 12 30 35 3 C.L.R. Dekatri v. Republic Malnehtos J. (β) Οί διδάσκαλοι μετατίθενται είς μεγαλύτερα σχολεία Βκαΐ ακολούθως,κατόπινυπηρεσίαςείςτοιαύτασχολεία καΐ αναλόγως τών παρουσιαζομένων δυνατοτήτων, μεηατίθενται είς σχολιΐσ Α: 5 Νοείται δτι είς άμφοτέρας τάς ώς άνοττεριπτώσεις(ι) ή μετάθεοις είναι είςεΰμενεστέραν διάτόν έκπαιδευτικόν λειτουργόν θέσιν έκτος είς περιπτώσεις μεταθέσεως λόγω εκπαιδευτικών αναγκώνήπειθαρχικήςμεταθέσε&ν 10 15 20 (ιι) εκπαιδευτικός λειτουργός δένμετατίθεται άνευ αιτήσεως αυτού πλην έά*» συντρέχωσιν εκπαιδευτικοί λόγοι ή έάν ή περαιτέρω παραμονήτουείςτό αυτό σχολεϊον συγκρούηται προςδικαιολογημένον αίτημα άλλου εκπαι δευτικού λειτουργού προς μετάθεσιν". (u14.'(l) Postings andtransfers of educational officers are made by theappropriate organ onthebasis of the educa tional needs as verified by the appropriate authority, and in this respect the preferences of the educational officers are, as far as possible, taken into consideration.
(2)Educational officers are bound to serve at the place where they are posted or transferred.
(3)To an educational officer service may be assigned to more than one school according to the educational needs but in not more than two places.. 16.—
(1)Educational officers are transferred- 25 (
- a)in accordance with the educational needs; (
- b)ontheir ownapplication for serious personal or family reasons, provided that the interest of the service is also served. 30 35
(2)Educationalofficers, who are servingduring the probationary period in theschools referred to in regulation 15, are subject to transfer after the confirmation of their appointments or when such confirmation is about to take place(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; 13 Malachtos J. Dekatri v. Republic
(1982)(b) in cases of school-teachers, to C schools, or, if thsre are not there adequate vacant posts, to Β schools with three teachers.
(3)The educational officers transferred as above aie subject to further transfer, after having served for some time and as possibilities for transfer may occur,as follows: 5 (
- a)Schoolmasters are transferred to urban centres; (
- b)School-teachers are transferred to larger Β schools and subsequently, after serving at such schools, and depending on possibilities that may arise, are trans- 10 ferred to A schools: Provided that in both the above instances(
- i)thetransfei is toa morefavourable for theeducational officer post, except in cases of transfer for educational needs or disciplinary transfers; 15 (
- ii)an educational officer is not tiansferred without an application on his part except if theie existeducational reasons orif hisfurther stay atthesameschool conflicts with a justified lequest of another educational officer for transfer"). 20 Counsel for applicant submitted that inthe present casenot only there was no verification in accordance with regulation 14
(1)by the appropriate authority, which according to the interpretation section of Law 10/69 is theMinister of Education acting usually through the Director-Geneial of the Ministr,, 25 for the transfer of the applicant from Nicosia to Limassol for educational needs,but,onthecontiaiy,therewas verification that on the 12th October, 1981 the services of the applicant were required in Nicosiaand,therefore, thedecision complained of taken by the respondent committee was flagrantly illegal. 30 It is clear from the documentary evidence adduced, exhibit2, dated 10/12/1981,signed bytheHeadof theTechnicalEducation and the Head of the Higher and Secondary Education,ihat the applicant was posted at the 2nd Gymnasium Phaneromenis, the Technical School and the Makarios III Gymnasium in 35 Nicosia. Counsel for applicant further submitted that the decision complained of was also contrary to the provisions of regulation 14 3 C.L.R, Dekatrl v. Republic Malachtos J. 16
(3)as the service of the applicant in Nicosia after her transfer from Limassol was so short, in fact, she served in Nicosia for about a month. The words "for some time" "epi chronikon ti diastima" must be taken to mean at least for a period of one 5 school year. I have carefully considered the submissions of counsel for applicant and I must say that I entirely disagree with the interpretation given by him to both regulation 14
(1)and 16
(3). To my mind under regulation 14
(1)the appropriate authority makes submissions as to the needs of the schools in gsneral as regards the number of the teaching personnel required for every' lesson, their specialities and the like. The person who is going to fill the post and any further transfers to meet the situation created by the original transfers is entirely left with the respondent committee as provided by section 39
(1)of the Law. In the present case no verification was required from the appropriate authority for the respondent committee to make this particular transfer. 20 As regards regulation 16
(3), this concerns the educational officers who apply for transfer but does not apply as regards the transfers decided by the respondent committee for educational needs. This is clear from the provisos to regulation 16
(3). 25 For the above reasons the application for the issue of a provisional order is hereby dismissed. On the question of costs I make no Order. 30 The case is fixed for directions on 29lh December, 1981 at 9.30 a.m. Application dismissed. No order as to costs. ' 15