clr/1983/1983_3_963.pdf

(1983)5 The Public Service Commission after considering the proposal of the Head of Department and applicant's letter decided to transfer applicant to the Trade Centre of Cologne in West Germany and hence this recourse in which it was mainly 10 contended that in accordance with his terms of service, on the basis of his appointment, hewas subject to transfer only within the Republic. Counsel for the respondent Commission has raised a preliminary objection that in view of the contents of his above letter 15 ofthe27thJuly 1983the applicanthaslostanylegitimateinterest having consented unreservedly to the issue of the sub judice administrative act. Held,

(1)on the preliminary objection: That there does not exist a legitimate interest in order to 20 attack an administrative act if it is issued on the application or at the request or with the consent of the applicant as well as if there is acceptance of an act which must be in any event unreserved and free and must not have taken place under thepressure offorthcoming injurious consequences for the applicant; 25 that inthe present casealthough thetenorof that letterwassuch as to convey to the respondent Commission the impression of the applicant accepting or at least not objecting to his transfer to Cologne, yet, it was couched in such terms and connected with two conditions that the submissionthat this isa casewhere 30 there was an unreserved acceptance of the administrative act in question which would in the circumstances deprive ihe applicant of his legitimate interest cannot be upheld. Held, (II) on the merits of therecourse: That since by the offer of appointment the schemes of service 35 including its part referring to the duties and responsibilities were made part of the conditions of service of the applicant; and that since Trade Centresfunction only overseasthe decision 964 3 C.L.R. Michaelides v. Republic to transfer applicant was lawfully taken being himself under the conditions of his service liable to an overseas posting; accordingly the recourse should fail. 5 10 15 Held,further, that when the offer of appointment says "he will also be liable to transfer within the island" that does not exclude an overseas posting for the purpose of performing the duties of assisting the Commercial Counsellor at any one of the Trade Centres of the Ministry of Commerce and Industry whichthe Government oftheRepublichasormaysetup abroad operating as part of our diplomatic missions in other countries; and that in this way effect is given, as it ought to, to all provisions of the relevant documents. Application dismissed. Cases referred to: MetaforikiEteria AyiosAntonios etc.v. Republic

(1981)3C.L.R. 221 at p.

1. Recourse. Recourse against the decision of the respondent to transfer applicant from the Ministry of Commerce and Industry to the 20 Cyprus Trade Centre, Cologne. A. S. Angelides, for the applicant. A. Vladimirou, for the respondent. Cur. adv. vult. A. Loizon J. read the following judgment. The applicant 25 who wasalready inthegovernment service wasappointed by the respondent Commission on the temporary Ordinary post of Commercial Assistant 1st Grade on the 15th March
2. Theoffer to him is contained in a letter dated the 24th February 1979which isto befound inhispersonal file (exhibit 1,- red 14) 30 and attached thereto were the "Conditions of service at present attaching to appointment to the temporary (Ord.) post of Commercial Assistant 1st Grade in the Ministry of Commerce and Industry." (Exhibit 1, red 13). In the said document which is in cyclostyled form and filled 35 in where appropriate it is stated inter alia under the heading "Appointments;" He/she will also be liable to transfer within the Island according to the exigencies of the service." 965 Λ. Loizou J. Michaelides v. Republic

(1983)And under the heading "Duties" it is stated: "The duties are the usual duties attaching to the post of CommercialAssistant 1stGradeintheMinistryofCommer­ ce and Industry as laid down in the approved Scheme of Service for this post." Upon the applicant accepting the said offer (exhibtt 1,red 18 the appointment of the applicant was communicated to him by letter of the Chairman of the respondent Commission, dated 28th April 1979 (exhibit 1,red 22), "on theconditions set outin my offer No. P. 18249 of the 24th February 1979." 10 In the relevant scheme of service as published in the Official Gazetteof theRepublic of the2ndJune 1979 underNotification 1044 and in respect of which vacancies advertised thereby the applicant submitted his application for appointment to the service-(see paragraph 6 ofhis application wherehespecifically 15 says, "No. 1044 2nd June 1978"), there appears a notein para­ graph 2 thereof under the heading "The duties and responsibi­ lities of the officer." Which reads: "Those appointed will be posted originally, one at the Trade CentreCologne, oneat theTrade CentreDubai and 20 the others at the Ministry of Commerce and Industry. During the overseas service of those appointed it will be paid to them such annual allowance as would be approved by the Council of Ministers." Thisnotedoes notappearinthecopy of theschemeof service, 25 Appendix 12 attached to the Opposition but in both Schemes under the same paragraph 2 there appears in paragraph (b) thereof the following:- "Assists the Commercial Counsellor at anyone of the Trade Centres of the Ministry of Commerce and Industry in the execution of his duties." 30 The salary at the time was that provided by scale 12, i.e. £1092X42-1512X48-

1. In 1981 a new scheme of service was prepared (Appendix 13) in which the expression "Assists the Commercial Counsellor at anyone of the Trade Centres of the Ministry of Commerce 35 and Industry in the execution of his duties" does not appear undertheheading "Duties andResponsibilities" but a notewas 966 5 3 C.L.R. Michaelides τ. Republic A. Lolzou J· inserted "that theperson appointed may be posted at any Trade Centre of the Ministry of Commerce and Industry abroad depending on theneeds of the service." Thepost was renamed as Commerceand Industry Assistant 1st Grade. The salary is 5 scaleA8 starting at£2272X111-3493andrisingtoA9£2821X136 -
2. It is accepted that the appellant has since this revision of salaries been placed on these scales, as it appears from a letter dated 21st July 1981, exhibit 1,red 38, which the respon­ dent Commission addressed to him and it reads. 10 15 "I have instructions to inform you that in accordance with theSupplementary Budget Law (No.4)of 1980(Law45/80), the title of thetemporary (Ord. Budg.) post of Commercial Assistant 1st Grade which you hold, has been substituted withthetitle 'Commerceand Industry Assistant, 1stGrade', as from 1st January
3. 20 2.Therelevant order which hasbeenissuedunderSection 3 of the Change of Titles Law, Cap.40,has been published under number 354/80in thefirst part of the Third Supple­ ment to the Official Gazette of the Republic of the 12th December 1980." Copy of this letter was addressed to the Director-Generalof the Ministry of Trade and Industry, to theAuditor-General and to the Accountant-General and it is obvious that it is by virtue of this actof therespondent Commission that theapplicant has 25 beenplaced inthenewpost and isreceiving thesalary of thenew revised scale. On the25th July 1983, the Director-Generalsubmitted apro­ posal to the respondent Commission for the transfer of theap­ plicant from Cyprus to the Trade Centre of Cologne in West 30 Germany as from 1st October 1983 (Appendix I),in order to replace Mr. C. Lemoniatis and stated therein that "his duties will be to assist the Commercial Counsellor in Cologne". It is further said that he had been informed about his transfer one month earlier andhehad notuntil thensubmitted hisviewsand 35 that the Ministry considered that the transfer be made without any further delay. As regards his family conditions it is men­ tioned that he is married with two children 2 1/2 years of age. On the 2nd August 1983 the Director-General of the said 967 A. Loizou J. Michaelides v. Republic

(1983)Ministry forwarded to the respondent Commission with his commentsaletteroftheapplicant dated27thJuly 1983,(Appendix 3), with the Iatter's observations regarding his transfer. It is headed "George Michaelides, Commerce and Industry, Assistant 1st Grade Control and Protection of Consumers 5 Service" and it reads: "I refer to theoral communication whichhas beenmade to me regarding my intended transfer to the Trade Centre Cologne and inform you the following: First I would like to thank you for your proposal that I 10 serve at a Trade Centre and in particular in Cologne. I always had the desire to serve at a Trade Centre, but I hoped that this term of service of mine would be made in conjunction with my promotion to the post of Trade Counsellor. 15 My wife is a Civil Servant. In the case of my transfer, both mywife and my twochildren willaccompanymeprovided that the Public Service interests of my wife will be safeguarded. If not, this will have as a consequence the impossibility of my wife and myself personally, to face our 20 obligations and debts towards third persons and I confess that my service at the Trade Centre will be under pressure. My children (twins, Girl/Boy) are to-day two years and eight months old. In three years they will be enrolled in Elementary Education, consequently there is a probability in three years time to ask for my return to Cyprus. 25 In spite of the fact that the aforesaid real problems will ariseintheevent ofmytransfer (aswellasother secondary) yet I shall try to respond, provided that there is no other choice and given that my transfer will not become a re- 30 straining factor to my career and progress. I hope and wish that at least in the forthcoming filling of the post of Counsellor, I shall be appointed to one of the advertised vacanciessothat myserviceattheTrade Centrewill satisfy both the Service and myself. 35 At your disposal for further information, With Honour, (Signed)." 968 3 C.L.R. Michaelides τ. Republic A. Loizou J. The subject decision was taken at the meeting of the respon­ dent Commission of the 12thAugust 1983 at which othertrans­ fers of theMinistry of Commerceand Industry were examined. It referred in its minute of that meeting- Appendix 4, to the 5 letter of the Director-Generalof. the 2nd August, by which he forwarded the letter of the applicant of the 27th July herein­ above set out and then its minutes read: 10 15 20 25 30 35 " hementionedthathe alwayshad thedesire to serve as theTrade CentreCologne,but hoped thathis term of office would be made in conjunction with his promotion to a higher post and provided that his transfer would be an obstacle to his career and progress. In the same letter the officer mentioned that in the case of his transfer to the Trade CentreCologne, both his wife and his twin children agedtwoyears andeight monthswould follow him provided that the public service interests of his wife will be safeguar­ ded. Otherwise it will be impossible for his wife andhim­ self to meet their obligations and debts and his service in Cologne will be under pressure. TheDirector-General commentingon the contentsof the said letter of Michaelides mentioned in his aforementioned letter that the question of the promotion of the officer was irrelevant to his proposed transfer. The Commission taking into consideration the aforesaid, decided that the question of the protection of the public service interests of the wife of Michaelides does not come within the competence of the Commission and that the question of his promotionto the post of Trade Counsellor is irrelevant to the proposed transfer. Consequently the Commission, on the basis of all material before it decided to transfer Georghios Michaelides from the Central Service of the Ministry of Commerce and Industry Nicosia to the TradeCentreCologneinWestGermanyasfrom 1stOctober 1983." By letter dated the 16th August, Appendix 5, the respondent Commission communicated to him their decision to transfer himfrom theMinistry of CommerceandIndustry tothe Cyprus Trade Centre Cologne as from 1st October 1983. With regard to the safeguarding of the Civil Service interests 969 A. Loizou J. Michaelides v. Republic

(1983)ofhiswifeaswellasthequestionofhispromotiontothepostof Trade Counsellor which he raised in his aforementioned letter of the 27th July, they informed him that the first question did not comewithin thecompetence ofthe Public ServiceCommission and that the second one was irrelevant to the present 5 transfer. On the 2nd September the said Director-General forwarded to the Chairman of the Public Service Commission by letter (Appendix 6),the objections oftheapplicant tohissaid transfer as contained in his letter of the 1st September (Appendix 7),in 10 which he had raised the question that in accordance with his terms of service on the basis of his appointment he was subject to transfer only within the Republic and it was on that ground that he objected to his decided transfer and asked for itsannulment or revocation and reserved thereby fully his rights. 15 a Thecomments oftheDirector-General on the said objections ppear in paragraph 2 of Appendix 6 which reads: "The Ministry having examined the allegations of Mr. Michaelides in conjunction with theapproved Schemes of Service of the Commerce and Industry Assistant 1st 20 Grade which provide among other things that the person appointed may be posted at any Trade Centre of the Ministry of Commerce and Industry abroad depending ODthe needs of theservice,hedoesnotfind his allegation justified and for that reason suggests the dismissal of his objection 25 to his transfer to the Trade Centre Cologne." Therefollowed are-examinationofthequestionofthe transfer of the applicant in view of hisapplication to that effect and the respondent Commission at its meeting of the 13th September 1983examined the matter inits minutes of that date (Appendix 30 8) and it says inter alia, after referring to the objection of the applicant dated 2nd September 1983 and the views of the Director-General that:"In accordance with the material kept at the office of the Commission, Michaelides was appointed to the post of 35 Commercial Assistant 1st Grade on the 15th March 1979. IntheSchemeofServiceofthatposttherewasnoprovision for transfer abroad. Thepost wasre-named to Commerce and Industry Assistant 1stGrade asfrom 1stJanuary 1980. 970 3 C.L.R. 5 10 Michaelides v. Republic A. Loizon J. In accordance with an advice of the Deputy AttorneyGeneral of the Republic under No. 34(C)/61/5 dated 14th July 1981givenonaprevioussimilarcaseregardinganother post, the holder of a public office is bound to serve and abroad if that arises from the nature of the duties and responsibilities of the post. The Commission having in mind the aforesaid legal adviceaswellasthenatureofthedutiesandresponsibilities of the post of Commercial Assistant 1st Grade as defined in the relevant Scheme of Service, confirmed its previous decisionfor thetransfer of GeorgeP.Michaelidesfrom the Headquarters of Commerce and Industry Nicosia to the Trade Centre Cologne as from 1st October 1983." Counsel for the respondent Commission has raised an 15 objection that in view of the contents of his letter of the 27th July(Appendix3)hereinabovesetout, theapplicanthaslostany legitimate interest having consented unreservedly to the issue of the subjudice administrative act. In support of this proposition I was referred to the case of "Metaforiki EteriaAyios 20 Antonios etc., v. TheRepublic

(1981)3 C.L.R. p. 221 at p. 235 and the authorities therein cited. No one disagrees with the propositionthat theredoesnotexistalegitimateinterestinorder to attack an administrative act if it isissued on the application or at the request or with theconsent of the applicant as well as 25 if there is acceptance of an act which must be in any event unreserved and free and mustnot havetakenplaceunder thepressure of forthcoming injurious consequences for the applicant. Inthe present case,however, although thetenor ofthat letter was such as to convey to the respondent Commission the im30 pressionoftheapplicant acceptingoratleastnotobjectingtohis transfer to Cologne, yet, it wascouched in suchtermsand connected with two conditions that I cannot uphold the submission that this isa case where there was an unreserved acceptance of the administrative act in question which would in the circum35 stances deprive the applicant of his legitimate interest. If anything, however, it disclosed the knowledge of the applicant that he was liable to an overseas posting at a Trade Centre, which situation isrelevant to theexamination of thecase on its merits. 971 A. Loizou J. Michaelides v. Republic

(1983)It is true that in the original offer of appointment to the applicant there was attached the cyclostyled document (exhibit 1, red 13) a form of general use with the essential parts filled in with typewriter and which isentitled "Conditions of service at present attaching to appointment __" and it contains inter alia under the heading "Appointment" the words "He/She will also be liable to transfer within the Island according to the exigencies of the service", which were left intact. 5 On the other hand under the heading "Duties" it is stated "The duties are the usual duties attaching to the post of Com- 10 mercial Assistant, 1st Grade,in the Ministry of Commerce and Industry aslaid downin theapproved scheme ofservicefor this post. He/she may be required to perform any other duties which may be assignedto him/her. Theofficer willberequired diligently and faithfully to perform his/her duties and to act in 15 all respects in accordance with the instructions or directions given to him/her by the Head of his/her Department or other duly authorized officers, devoting thereto the whole of his/her time and attention and without engaging directly or indirectly in, or undertaking any private work." 20 Consequently the Scheme of Service, including of course its part referring tothedutiesandresponsibilities oftheofficer was thus made part of the conditions of service of the applicant. In the present case among the duties and responsibilities of the applicant arethoseset outinparagraph(b)oftheSchemeof 25 Servicewhichprovidesthat he"assiststheCommercial Counsellor atanyone oftheTrade CentresoftheMinistryofCommerce and Industry in the execution of his duties." There is no doubt, - and the contention of counsel for the respondent Commission to that effect whichhasinnowaybeen 30 contradicted and in fact is duly supported by the contents of exhibit 2, - that Trade Centres function only overseas. Moreover the note which was inserted in the Scheme of Service as published under Notification 1044in the Official Gazette of the 2nd June 1978,earlier referred to in thisjudgment that "those 35 appointed will be posted originally one at the Trade Centre Cologne, one at the Trade Centre Dubai and the others at the Ministry ofCommerceand Industry, leadsonetotheconclusion 972 3 C.L.R. Michaelides v. Republic A.Lolzou J. thatitwaspart oftheconditions ofserviceoftheapplicant atthe timeofhisappointment that hewasliableto servealsoat Trade Centres abroad. It should be noted that this notification speaks that "those 5 appointed will be posted originally" which means that subsequently theremight beeffected changesand transfers from the Ministry to the Trade Centres and vice versa. What might on theface of it appear to be a contradiction and conflict between the Scheme of Service on the basis of which the applicant had 10 appliedandtheconditionscontained inthefirst paragraphofthe document attached to the offer of appointment, is in substance not contradictory inasmuch as when it says "he will also be liable to transfer within the island" that does not exclude an overseas posting for the purpose of performing the duties of 15 assisting the Commercial Counsellor at any one of the Trade Centres of the Ministry of Commerce and Industry which the Government oftheRepublichasormaysetupabroad operating as part of our diplomatic missions in other countries. In this way effect is given, as it ought to, to all provisions of the re20 levant documents. This recourse should therefore fail as the decision to transfer the applicant was lawfully taken being himself under the conditions of his service liable to an overseas posting. Having come to this*conclusion I need not comment on the 25 contents of the new Scheme of Service, (exhibit 13) which has come into existence as part of the revision of salaries'(that took place and which did not only bring about the renaming of the posttheapplicant washoldingwhoalsoacquiredthesalaryscale on which the applicant was placed and draws the advantages. 30 For all the above reasons this application isdismissed but in the circumstances I make no order as to costs. Application dismissed. Noorder asto costs. 973