clr/1983/1983_3_487.pdf

(1983)consequently had failed to exercise rightly their discretionary powers resulting in the annulment of the decision taken on the grounds of abuse and excess of power. (Iordanous v. Republic

(1967)3 CL.R. 245 at pp. 254, 255 followed). Held, further, that the respondent Committee failed to 5 evaluate in the proper way and/or manner the essential factors regarding the educational needs and the sub judice decision must be annulled for this reason too. Subjudice decision annulled. Cases referred to: 10 Carayiannis v. Republic

(1980)3 CL.R. 39 at p. 44; Pierides v. Republic

(1969)3 CL.R. 274; Elia v. Educational Service Committee

(1974)3 CL.R. 73; Kyriakides v. Republic

(1976)3 CL.R. 364; Iordanous v. Republic

(1967)3 CL.R. 245 at pp. 254, 255; 15 Sofocleousv. Republic

(1982)3 CL.R.

1. Recourse. Recourse against the decision of the respondent to transfer applicant from Limassol to Mitsis Commercial School at Lemythou. A. Drakos, for the applicant. G. Constantinou (Miss), Counsel of the Republic, for the respondent. Cur. adv. vult. 20 HADJIANASTASSIOU J. read the following judgment. The 25 applicant is a teacher of Gymnastics and he was appointed on contract on the 5th September,
2. Earlier he served on probation and he was confirmed to the post in question in
3. The facts It is an undisputed fact before the Court that the applicant 30 is a well known trainer engaged and was offering his services to pupil athletes and to other athletes in Limassol. He is also the national coach of the national athletes team, whose offers arebroadly recognised andwhich'have not been disputed before the Court On the 20th April; 1981, the apphcant has been elected as 488 35 3 CL.R. Mikellides v. Republic Hadjianastassiou J· a member of the Central Board of O.E.L.M.E.K. Onthe 18th September, 1981, the Public Education Service Committee decided to transfer the applicant from Limassol to the Mitsis Commercial School at Lemithou. The reasons for his transfer, 5 as appear in the minutes, were the surplus of teachers, and the relevantdecision oftheCommitteetotransfer alleducationalists serving in rural school areas for a period less than two years. The applicant objected to his transfer but his objection was overruled on 2nd November, 1981, on the ground that the 10 applicant had not fulfilled his obligation for service in rural schools. By this recourse which was filed on 4th December, 1981, the applicant attacks the act and/or decision by which his transfer was decided. Grounds for annulment 15 In this application appear the following reasons for annulment:

(1)The respondents acted unlawfully and/or in excessor abuse of power and/or contrary to the interest of education.

(2)Respondents acted unlawfully and/or unjustly and/or under 20 circumstances of discrimination against the applicant and acted without proper inquiry.

(3)Respondents failed to take into consideration and evaluate properly all relevant factors and their decision is unjustified and/or lacks reasoning and/or their reasoning is insufficient 25 and/or wrong.

(4)The respondents acted in a way punishing the applicant and/or acted in a way amounting to disciplinary measures and/ or their act intended to secure other purposes than the educational needs. 30

(5)The respondents acted contrary to the provisions of the Constitution in preventing and/or restraining the applicant from his involvement to trade-unions acts contrary to section 21 of the Constitution. Thegroundsfor theannulment ofthedecision attacked were 35 placed before this Court ina singleand solid way,themain and general argument being that the transfer of the applicant was obviously illegal. It was further mentioned and stressed by 489 Hadjianastasstou J. Mikellides τ. Republic

(1983)learned counsel of the applicant that the applicantwas elected in t.'ie Central Committeeof O.E.L.M.E.K., a fact which was totally, as his allegation was» disregarded by the Committee reaching its decision for thetransfer of the applicant, although it was an essential element to be considered. 5 Indeed, section 16 of the Educational Officers Regulations of 1972 provides for the transfer of educationalists and reads as follows: "16—

(1)Educational Officers are transferred (

1. a)in accordance with the educational needs. 10 (
2. b)Ontheir own applicationfor serious personal or family reasons, provided that the interest of the service is also served. (
3. c)Educational Officers serving during the period of their probation at schools as specified in regulation 15are liable 15 to transfer after confirmation of their appointment or in view of their impending confirmation". The term "educational needs" is defined in regulation 13 of the above mentioned regulations, as follows: "13. For the purposes of this post: 20 (
4. a)without prejudice to the generality of the meaning of the term 'educational needs' are understood mainly: (
5. b)The distribution of the teaching staff including the managerial posts, in a way safeguarding the sufficient manning of schools and thebalancedcompositions of such 25 staff regarding the qualifications, specialities and _ In the case of Headmasters there is included the need for safeguarding stability by their stay at the same school for someyears andif possible for atleast four years " There is no doubt that it is an established principle,founded 30 in our case law, that the seriousness of the grounds which are evaluated by the administration in deciding whether or not the transfer of a teacher is decided is not subect to thejudicial control. See Conclusions from Jurisprudence of the Greek Council of State 1929-59 p. 340. In his judgment in Cara- 35 yiamtis v. The Republic

(1980)3 CL.R. 39 the Honourable 490 3 C X.R. Mikellides τ. Republic Hadjianastasslou J. President of the Supreme Court Mr. Triantafyllides had this to say at p. 44: 5 10 15 "In reviewing, in the present proceedings, the exercise of the relevant discretionary powers of the Committee there must be borne in mind the principles which govern theinterventionof theCourtinacaseof thisnature, namely a recourse against a decision relating to .transfer. It is well established that the evaluation, made by acompetent organ, in relation to the factors militating for or against, as thecase may be,a transfer, is not subject to the control of an administrative Court, except where there exists improper use of the relevant discretionary powers or mis­ conception concerning the factual situation or failure to take into account a material factor". See inter alia Pierides v. Republic

(1969)3 CL.R. 274,Elia v. Educational Service Committee

(1975)3 CL.R. 73 and Kyriakidesv. Republic

(1976)3 CL.R. 364. It was the submission of learned counsel for the apphcant that theCommitteeby disregarding theelectionof theapplicant 20 in the CentralBoard of O.E.L.M.E.K.,acted inmisconception of the essential facts which result in the annulment of the administrative act. In support of his argument counsel relied on loardanous v. TheRepublic

(1967)3 CL.R. 245. The Pre­ sidentof the SupremeCourtMr.Triantafyllides said thefollow25 ing in respect of the sub judice matter at pp. 254, 255: 30 35 "The Commission has failed to pay due regard to thevery material factor of the trade union status itself of the Applicant when deciding whether or not to transfer him with theresult thatApplicant's transfer has to beannulled in any case. In my opinion, the existence and the proper and unhindered functioning of a trade union of public officers —such as the aforementioned Association—is not only a matter of fundamental rights and liberties (see Article 21 of the Constitution) but is also a matterdirectly related to the proper functioning of the public service as such;— I take theviewthatas a matterof properadministration directly related to the proper functioning of the public 491 Hadjianastassiou J. Mikellides v. Republic

(1983)service, those public officers who actively participate in the affairs of their trade union should not be transferred away from Nicosia—where is the seat of their trade union— and be, thus, prevented from attending fully to their trade union duties unless there exist compelling reasons to the 5 contrary; it follows that the Public Service Commission, in each such case, has to weigh the needs of a particular Department as against the wider interests of the Public Serviceingeneral(whichareinvolvedintheproper functioning of the public officers' trade union) and has to decide 10 in the light of all relevant circumstances which should prevail giving due reasons in support of its relevant decision". In the present case the applicant was elected as a member of the Central Board of O.E.L.M.E.K. four months prior to 15 his transfer. The Central Board of O.E.L.M.E.K. has 21 members, the participation being proportionate for every district and the conferences andmeetings areheld in Nicosia. The applicant is a member coming from Limassol district. This very fact was not considered at all by the Committee and was 20 totally disregarded. Nothing is mentioned in the decision of the Committee deciding the transfer of the applicant regarding his election and the involvement in the teacher's trade union, nor I could trace anything in the personalfileof the applicant inducing that the 25 Committee considered thisfact orevaluated itinanyway before reachingthedecision ofthetransfer, or further, thereisnothing whatsoever mentioned or justifying the expediency of the said transfer which undoubtfully makes difficult the performance of the serious duties entrusted to the applicant by his election. 30 Irepeat the unique position andthedutiesoftheapplicant in theCentral Board ofO.E.L.M.E.K. havebeentotally disregarded by the Committee contrary to Article 21of the Constitution and the protection emanating from Iordanous case (supra) as regards syndicalism activities. It has been alleged by the learned counsel appearing for the respondents that after the transfer of the apphcant special arrangements havebeenmade soastoenablehim to participate in the meeting of O.E.L.M.E.K. In my opinion this very fact 492 35 3 CL.R. Mikellides v. Republic Hadjianastflsslou J. apart from others, proves the wrong and imperfect approach of the discretionary powers of the Committee, and which is obvious of the stand followed by the Committee in this case. At any event, in accordance with the regulations all leading 5 members of O.E.L.M.E.K. are granted facilities in exercising their duties in the recognition of the serious part of their activities aswellas the significant role of their organisation regarding the educational activities. Indeed, in the present case it is evident that the Committee 10 failed toconsider a most serious and essential factor of thecase andconsequently hadfailed toexerciserightlytheirdiscretionary powers resulting in the annulment of the decision taken, on the grounds of abuse and in excess of power. But I would go further and state also that the decision of the Committee was 15 based also on the fact that the applicant has not completed a service of two years in rural areas. It was made clear in the answering letter to the objection of the applicant that the applicant "has not completed his duty to serve in rural areas". It is evident that the Committee made a wrong estimation of 20 the facts. The applicant had been appointed in 1970, then before the enactment of the Educational Officers Regulations. He was not obliged by that to serve in rural areas. He could only be transferred for reasons of "educational needs". At any event the applicant after the expiration of the probationary 25 period hewastransferred toOmodosvillage,histransfer though was eventually reversed, since his services were considered valuable and necessary for the athletics in Limassol afact which the Committee did not consider. If authority is needed, the caseof Sofocleous v. The Republic,

(1982)3CL.R. 786provides 30 the answer. Mr. Justice A. Loizou had this to say:- 35 It is upon the respondent Committee to exercise its discretion and decide as to which officer will be transferred to fill such vacancies, sothat the educational needs of each school will be satisfied. For the proper exercise of its discretion the respondent Committee must carry out a due inquiry and consider, subject totheexigenciesoftheservice astheparamount consideration, thepersonal circumstances of all officers including the hardship that it will becaused tothem aswellastheequality oftreatment between officers 493 Hadjianastassiou J. Mikellides v. Republic

(1983)and to act in accordancewith theprovisions ofthe relevant laws and regulations, including of course the general principles of administrative Law". In the light of all the facts before this Court, I find that the Committee failed to evaluate in the proper way and/or manner 5 the essential factors regarding the "educational needs", and for the reasonsstated, Iwould annul thedecision of theCommittee. Consequently the present recourse succeeds and the sub judice decision is annulled. Subjudicedecisionannulled. 10 494