(1983)1983 March 30 [PIKIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION KLERI IOANNIDOU, Applicant, v. THE EDUCATIONAL SERVICE COMMISSION, Respondents. {Case No. 475/82). Educational officers—Transfers—Judicial control—Recommendation of Head of Department for transfer of applicant—No obligation cast on respondent Commission to reasonspecifically its departure from such recommendation—Public Educational Service Regulations, 1972 regulations 14
(1), 18 and 21. 5 Practice—Recourse for annulment—Issues raised for adjudication must be defined clearly and succintly in the application. The applicant, a secondary school teacher, challenged the omission of the respondents to transfer her from Laraaca to Nicosia and disputed the validity of their decision to transfer 10 from Larnaca to Nicosia the interested party. On the question whether it was incumbent upon the respondents to reason specifically their departurefrom the recommendations of the Head of Department for the transfer of the applicant: Held, {after stating the principles governing judicial control \$ of transfers) that no obligation is cast upon the Educational Service Committee to reason specifically any departure from the recommendations of the Head of Department; that they are the arbiters in law of who should be transferred. So long as they take into account all relevant considerations, as they have 20 done in this case, the Court cannot review the exercise of their discretion. They were under no obligation to give reasons for transferring the interested party instead of the applicant. In any 410 3 C.L.R. 5 10 15 Ioannidou v. Republic event, the competing claims of the applicant and interested party to transfer, were so finely balanced that a wide margin of discretion wouldnormally vest in theCommission to do asthey thought best in the circumstances; accordingly the recourse must fail (see regulations 14
(1), 18 and 21 of the Public Educational Service Regulations 1972). Application dismissed. Per curiam: In proceedings under Article 146.1, as indeed in any other proceedings, the issuesraised for adjudication must be defined clearly and succinctly and the Court cannot reviewa decision other than that challenged in the application. Cases referred to: Lazarou v. Republic
(1973)3 C.L.R. 82; Eliav. EducationalService Committee
(1974)3C.L.R. 73atp.77; Kyriakidesv. Republic
(1976)3 C.L.R. 364 at p.373. Recourse. Recourse against the omission of the respondent to transfer 20 the applicant from Laraaca to Nicosia and against the decision to transfer the interested party from Lamaca to Nicosia. A. S. Angelides, for the applicant. R. Vrahimi {Mrs.), for the respondent. Cur. adv. vult. 25 PIKIS J. read the following judgment. The applicant, a secondary school teacher, challenges the omission of the Educational Service Commission to transfer her from Laraaca to Nicosia and disputes the validity of their decision to transfer to Nicosia a colleague of hers, Eleni Efthymiou, the interested 30 party, from Lamaca to Nicosia. In the statement of facts accompanying the application, the decision complained of is identified by reference to a publication in the daily press of 10.10.1982, announcing the transfer of the interested party from Lamaca to Nicosia. The applicant and the interested party 35 were teachers of domestic science at the Dianellios Technical School, Laraaca, giving instruction on cutting and sewing. The interested party was, as a result of the impugned decision, 411 Pikis J. Ioannidou v. Republic
(1983)only partially transferred to Nicosia and assigned duties at the B' Technical School for four hours a week. At the outset of the hearing of thecase, Iinquired of counsel for the applicant whether the decision complained of affected anyparty other than that named inthe application asinterested 5 party. He answered that the issues raised affected two other fellow-teachers of the applicant as well, namely Anastassia Louca and Phrosso Tourva. Thereupon, I directed, in virtue ofthepowersvestedintheSupremeCourt by r.8 ofthe Supreme Constitutional Court Rules, as amended and made applicable 10 to proceedings before the Supreme Courtafter theenactmentof the Administration of Justice (Miscellaneous Provisions) Law 33/64that, noticeoftheapplication beserveduponthe aforesaid twopersons. The directions of the Court for the service of the proceedings upon a party appearing prima facie to beinterested 15 in the outcome of the proceedings, do not render such a party ipsofacto aparty totheproceedingsinthesenseofaninterested party. The Court cannot, in the absence of the decision attacked, pronounce with any certainty upon its implications or theconsequences likely toariseintheevent ofitsannulment. 20 It is a counsel of caution to direct service of the proceedings upon a party who may conceivably be affected by the outcome of the proceedings. However, when the facts become known, as they became in this case,indue course, by theproduction of therelevant records,theCourtcan rulewithconfidence whether 25 a party is likely to be affected by the outcome of the recourse, in which case he properly ranks as an interested party. The application is essentially two-pronged: The first prayer is directed against a continuing omission of the respondents to carry out a duty owing to the applicant, i.e. to transfer her. 30 By its very nature, this remedy is confined to an omission as distinct from a decision involving the transfer of anyone else. The aforementioned educationalists were transferred in virtue of a decision of the respondents dated 22.9.
- Therefore, theoutcome ofthispart oftherecoursecanhaveno conceivable 35 effect upon the rights in the service of Anastassia Louca and Phrosso Tourva, as defined after their transfer. Nor can any liability attach to any educationalist for omissions of the respondents to carry out duties allegedly owing to a felloweducationalist. 412 40 3 C.L.R. Ioannidou v. Republic Pikis J. ' The second prayer is directed against a positive act: The decision of the respondents to transfer Eleni Efthymiou instead of or in preference to applicant. The decision is elliptically identified by reference to a press publication. The decision 5 herecomplained of, asit crystallised after theproduction of the relevant records was taken on 9.10.1982; therefore, by necessary implication the only decision challenged in virtue of prayer 2, as identified in the statement of facts accompanying the prayer, is that of 9.10.
- The. decision to transfer 10 Mrs. Louca and Mrs. Tourva was taken on another occasion and constitutes a separate and distinct decision from that taken on 9.10.
- The last prayer is a subsidiary one, charging the respondents again with an omission to take a positive decision on her 15 application and is, in essence, associated with the first prayer of the application. In proceedings under Article 146.1, as indeed in any other proceedings, the issues raised for adjudication must be denned clearly and succinctly. This rule is of especial significance 20 inproceedings under Article 146,in view of the stringent timebar of 75dayslaiddownbyArticle 146.
- Touphold thesubmissionthat weshould reviewthedecision affecting Mrs.Louca and Mrs. Tourva—a decision other than that challenged in the application—would be tantamount to acknowledging a right 25 to the applicant to have reviewed judicially allactsdirectly or indirectly affecting her, that took place within 75 days prior to the institution of the proceedings. That isnot the position. TheCourtcanonlytakecognizanceof anact,decisionoromission specified in the prayer, judged in combination with the 30 statement offacts, settingforth the factual background thereto. In myjudgment, the recourse, so far as it is directed against a positive act of the respondents, isconfined to their decision of 9.10.1982, deciding the transfer of the interested party from Laraaca to Nicosia. Consequently, I shall not examine any 35 aspect of the decision of the respondents entailing the transfer of Mrs.LoucaandMrs.Tourva,thoughitmustbesaidthatthe caseagainstthem wasargued,onaccountofthedifferent factual substratum,with lessvigourcompared tothecasemadeagainst the interested party. 413 Pikis J. Ioannidou v. Republic
(1983)J. The Facts Relevanttotheapplicant andthe interested party: The applicant and the interested party were first appointed in the educational service as teachers of domestic science, in 1978 and 1979, respectively. They were both appointed in the permanent establishment on a probationary basis on 1.
- They are both married with two children each, residing with their families at Nicosia. Both were posted from the first day of their appointment at the Dianellios Technical School, Larnaca. 5 In February, 1982,the applicant as wellasthe interested party, 10 applied to be transferred to Nicosia. Their reasons in support of their application were somewhat different. Applicant wished to be transferred mainly for family reasons. Another legitimate reason for her transfer, indirectly arising from her application, wasthe office ofherhusband andposting at Nicosia. 15 Her husband is a District Judge, serving at Nicosia, a factor acknowledged by the Public Educational Service Regulations issued on 10.11.1972, as militating for transfer, so that husband and wife, members of the Public Service, be posted at the same town. The interested party based her application, in addition 20 to family reasons, on the complications on her health caused by daily travelling. A medical certificate attached thereto, confirms she has problems with her spine that are compounded by daily travelling. Other facts bearing on her application, emerging from her file and noted by the respondents, relate 25 t o her plight and that of her family, as a result of the events of
- She was, together with her family, displaced from their home in the Kyrenia district, amidst grief for the fate of many of her relations who are missing persons. / say, relevant facts for, given the realities of Cyprus, it is perfectly legitimate to 30 take into account, especially in evaluatinghardship, the implications of displacement and the likelihood of inflicting further hardship uponpersons badly tried by the events of
- The Submissions made: Counsel for the applicant submitted that the respondents 35 effected the transfer in question, in breach of the provisions of r. 14
(1)of the aforesaid Public Education ServiceRegulations, in two respects: 414 ^ 3 C.L.R. T cannidou v. Republic Pikis J. Firstly, they acted in abuse of their powers by ignoring the certification of educational needs by the Director of Technical Education that included the transfer of the applicant in satisfaction thereof and, secondly, by omitting to give reasons for 5 departing therefrom. If I understood it correctly, the first · legofthesubmissionwithregard tor.l4(l),isthatonaconsideration of itsprovisions,thepower of therespondentswith regard to transfers, is confined to confirming the recommendations ofthe Director. This submission isnot borneoutbythe word10 ing of r.l4(
- l)and is in conflict with the provisions of s.39 of the Public Education Service Law—10/69, exclusively vesting powers to transfer educationalists upon the respondents. Inthe submission ofcounsel for the respondents,the Director ofEducational Servicehadnopowerwhatever tomakearecom15 mendation about transfer of teachers, his power being solely confined toverifying existingvacancies. Iamunable to uphold this proposition on a consideration of "educational needs", as defined by r.13 of the aforesaid Regulations. The concept of educational needs, in this context, includes the amenity of 20 teachers to serve at particular places and schools. The question that must be resolved inthese proceedings, with relevance to r.l4(
- l)is, whether the decision is vulnerable to be set aside, because of failure on the part of the respondents to indicate their reasons for departing from the decision of the 25 Director. The arguments raised on behalf of the respondents with regard to r.21
(2), are still weaker. As I perceive them, they involve the proposition that, applications for transfer by educationalists submitted under r.18, must be specifically decided, divorced from the context of general or supplementary 30 transfers effected in furtherance to the powers vested in the respondents by r.21. Inmyview,this isan arbitrary construction of the regulations and totally devoid of substance. There isnothing in the regulations suggesting that a duty iscast upon the respondents to decide individually applications for transfer. 35 Far from it, the regulations, viewed as a whole and, the time at which educationalists are required to make applications for transfer, in February, suggest that the object of r.18is to pave the ground, by revealing the wishes of educationalists as to 415 Pikis J. Ioannidou v. Republic
(1983)transfer, withaviewtotheexerciseofthepowers oftherespondents under r.
- With this appreciation of the law, the remedy under prayer 1 cannot but fail for, it is founded on an alleged omission on the part of the respondents tocarry out a duty cast upon them 5 by law to decide specifically and individually applications for transfer by educationalists. The duty of the respondents was to take into consideration thewish of theapplicant for transfer. There is no suggestion that they omitted to carry out this duty. Herapplicationwasbeforetherespondents,aswellastherecom- 10 mendations of the Director, earlier referred to: The third prayer for relief cannot be divorced from the substance of thecase and isuntenable. It need concern usno further. In the statement of facts, reference ismade torepresentations 15 made by applicant, subsequent to her application for transfer. Nothing is said about any objection or any failure on the part of the respondents to reply thereto, nor was reference made to any written objection of the applicant necessitating a reply by the respondents. 20 There is only one issue of substance that must be resolved, earlier identified. That is, whether it was incumbent uponthe respondents to reason specifically departure from the recommendations of the Director for the transfer of the applicant.
- Transfers,amenity to reviewthem: 25 It is settled that transfers are, par excellence, the province of the body responsible in law for the manning of a service. Positioning of officers at the appropriate place is a complex subject that requires evaluation of the needs of the service, coordination of its activities and appreciation of particular 30 needs, of schools in this case and, individual circumstances of thosein the service. It isauthoritatively settled that limited jurisdiction vests in the Court to review decisions pertaining to transfer. The jurisdiction is limited to ensuring that the body making the transfer has not exceeded the outer limits 35 416 3 C.L.R. Ioannidou v. Republic Pikis J. of its discretion. That is, that it has not taken into account mattersextraneoustothetaskorignoredconsiderationsrelevant to the exercise of its discretion, in this case laid down inr.13, defining educational needs. (See, inter alia, Sofoclis Lazarou 5 v. Republic{Educational Service Committee)
(1973)3 C.L.R. 82; Eliav. Educational Service Committee
(1974)3 C.L.R. 73, 77; and Kyriakides v. TheRepublic
(1976)3 C.L.R. 364, 373). In the present case, there is no suggestion that the respondents omitted from consideration any factor relevant to their task 10 or took into account any irrelevant matter. They had before them the report ofthe Director and applications of educationalists for transfer. It is not competent for this Court to review the manner of the exercise of their discretion within the limits of their jurisdiction outlined above. It was a matter of 15 evaluation by the respondents of educational needs, how to fill thevacancyat theB'Technical Schoolat Nicosiaand whom to transfer thereto. . The legal framework within which they operate with regard to transfers, is separate and distinct from that applicable to 20 appointments and promotions. In that area, the knowledge and expertise of a departmental head are factors that merit distinct consideration; any departure therefrom must be specifically reasoned and weighty reasons must be advanced, outweighing in importancethevalueattachingto recommendations 25 of a departmental head. No comparable obligation is cast upon the Educational Service Committee with regard to transfers. Theyare thearbitersinlawofwhoshould be transferred. So long as they take into account all relevant considerations, as they have done in this case, the Court cannot review the 30 exercise of their discretion for the reasons already given. They were under no obligation to give reasons for transferring the interested·party instead of the applicant. In any event, the competing claims of the applicant and interested party to transfer, weresofinelybalanced that awidemarginofdiscretion 35 would normally vest in the Commission to do as they thought best in the circumstances. The recourse fails. Parenthetically, I may note that the wish of the applicant to betransferred to Nicosiais,inthelight ofher family circum417 Pikis J. Ioannidou v. Republic
(1983)stances, reasonable; one may expect that respondents will seize upon an early opportunity to satisfy it. In the result, the recourse is dismissed. Let there be no order as to costs. Recourse dismissed. No order 5 as to costs. 418