(1984)1984 February 9 [TRIANTAFYLLIDES, P., L. LOIZOU, HADJIANASTASSIOU, A. LOIZOU, SAVVIDES, LORIS, JJ.] GEORGHIOS PRODROMOU, Appellant, v. THE REPUBLIC OF CYPRUS, THROUGH. THE MINISTRY OF EDUCATION AND THE MINISTER OF EDUCATION, Respondents. (Revisional Jurisdiction Appeal No. 328). Provisional order—Compliance of administration with—Provisional ordersuspending transferofapplicantfrom thePancyprianGymnasium to Acropolis Gymnasium pending the determination of the recourse—No disobedience withprovisional order merely because by a subsequent administrative decision appellant was transferred 5 not to Acropolis Gymnasium but to another Gymnasium. Administrative Law—Recourse against transfer—Provisional order suspending transfer pending determination of the recourse— Administration complying with provisional order and applicant returning to his previous post—Effect of transfer obliterated and 10 recourse deprived of its object. The appellant, a secondary education headmaster, was transferred from the Pancyprian Gymnasium, in Nicosia, to Acropolis " B " Gymnasium, in Nicosia, as from the 1st September
- Against such transfer a recourse was made and on the 10th IS December, 1980 a provisional order was made by the Court suspending, until the determination of the recourse, the transfer of the appellant from the post of Headmaster of the Pancyprian Gymnasium to the post of headmaster of the Acropolis " B " Gymnasium. On the 1st July, 1983 appellant was informed 20 that he was being transferred, for educational reasons, from the Pancyprian Gymnasium to the Makarios " C " Gymnasium as from the 1st September,
- The trial Judge dismissed his 298 3 C.L.R. Prodromou v. Republic application for an order forcing the respondents tocomplywith the above provisional order and hence this appeal. Held,per Triantafyllides P.. L. Loizou. Hadjianastassiou, Sawides and Loris JJ. concurring and A. Loizou J. givinga concurringjudgment,that it cannot be seen how there has occurred, in the least, any disobedience with the provisional order madeonthe 10thDecember 1980merelybecausebyasubsequent administrative decision in 1983 the appellant was transferred, from thePancyprian Gymnasium,not toAcropolis "B"Gymnasium, asin 1980,but toanother Gymnasium, namely the Makarios "C" Gymnasium, as from the 1st September 1983; therefore, the application in question of the appellant should have been, and was rightly, dismissed. 5 10 15 20 25 Held, further, that prior to thedatewhen the trial Judgedealt with the application the recourse of the appellant, had been deprived of its object because immediately after the provisional order was made on the 10th December 1980 the appellant was informed, by a letter dated 22nd December 1980, that he was transferred back from the Acropolis "B"' Gymnasium to the Pancyprian Gymnasium as from the 15th December 1980, when on instructions from the Ministry of Education he actually returned to the Pancyprian Gymnasium asheadmaster, and thus the effect of his transfer, which he had challenged by his said recourse, was obliterated. Application dismissed. Cases referred to: Prodromouv. Republic
(1981)3 C.L.R. 38; Sofocleous v. Republic
(1971)3 C.L.R. 345 at p. 352. Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (Malachtos, J.) given on the 29th August, 1983(Application in Revisional Jurisdiction Case No. 395/80)* whereby appellant's application for an order compelling the respondent to comply with an order of the Court dated 10.12.1980 suspend35 ing appellant's transfer was dismissed. A. S. AngelideSy for the appellant. G. Constantinou (Miss), Counsel of the Republic, for the respondents. Cur. adv. vult. 30 • Reported in
(1983)3 C.L.R. 990. 299 Prodromou v. Republic
(1984)TRIANTAFYLLIDESP. Ishall deliverthejudgment ofthis Court and mybrother Judge A. Loizou, J.will giveaconcurring judgment setting out his own views. By this Revisional Jurisdiction Appeal there is being challenged a decision ofa Judgeofthis Court dismissinganapplication 5 which wasfiled bythe appellant on 31stJuly 1983for an order forcing therespondentstocomply withaprovisional order made by the same Judge in case No. 395/80 on the 10th December
- The appellant, whoisa secondary education headmaster, was 10 transferred from the Pancyprian Gymnasium, in Nicosia, to Acropolis " B "Gymnasium, in Nicosia, asfrom the 1stSeptember 1980,and hewasinformed accordingly by means of a letter dated 16th August
- Against such transfer he filed, on the 4th November 1980,a 15 recourse under Article 146ofthe Constitution (case No.395/80) and onthe 10thDecember 1980the aforesaid provisional order was made, after counsel appearing for therespondents had conceded that thetransfer inquestion oftheappellant was flagrantly illegal. Theprovisionalorder,whichwasthusmade,wasfiamcd 20 in very clear and precise terms and it ordered the suspension, until the deteimination of his recourse, of the transfer of the appellant from thepost ofheadmaster ofthePancyprian Gymnasiumtothepost ofheadmaster oftheAcropolis"B" Gymnasium. The appellant has based his contention that the said provi- 25 sional order has been disobeyed on the fact that the appellant, by a letter dated 18thJuly 1983,wasinformed that hewas being transferred, for educational reasons, from the Pancyprian Gymnasium to theMakarios " C " Gymnasium, in Nicosia, as from the 1st September
- 30 We cannot seehowthere hasoccurred, intheleast, any disobedience with the provisional order made as aforesaid on the 10th December 1980 merely because by a subsequent administrative decision in 1983theappellant wastransferred, as aforesaid, from the Pancyprian Gymnasium, not to Acropolis *'B" 35 Gymnasium, asin 1980,butto another Gymnasium, namelythe Makarios " C " Gymnasium, as from the 1st September 1983; therefore, the application in question of the appellant should have been, and was rightly, dismissed. 300 3 C.L.R. Prodromou τ. Republic Triantafyllldes P. Moreover, we agree, too,with theview of the trial Judge that prior to the date when he dealt with such application the afore mentioned recourse of the appellant, No. 395/80, had been deprived of its object because immediately after the provisional 5 order was made on the 10th December 1980 the appellant was informed, by a letter dated 22nd December 1980, that he was transferred back from the Acropolis " B " Gymnasium to the Pancyprian Gymnasium as from the 15th December 1980, when on instructions from the Ministry of Education he actually re10 turned to the Pancyprian Gymnasium as headmaster, and thus the effect of his transfer, which he had challenged by his said recourse, was obliterated. Whether or not the appellant, as the applicant in case No. 395/80, is entitled to have determined the issue of whether his 15 transfer to the Acropolis " B " Gymnasium,which is challenged in such case, should be annulledinso far only as it relates tothe period from the 1st September 1980 to the 15th December 1980 is a matter which is not before us inthese proceedings and if the appellant wishes to pursue it he may apply to thetrial Judge to 20 fix this case accordingly so that he may decide on that issue. For the foregoing reasons this appeal is dismissed, but with no order as to its costs. A. Loizou J.: Ialso agree thatthis appeal should be dismis sed. Thejudgment just delivered by the President of theCourt 25 contains all the necessary factual background upon which Ican base my reasons for agreeing to that result and I am grateful to him for making my task easier. 30 35 The provisional older made by the learned trial Judge on the 10th December, 1980 (reported as Prodromou v. TheRepublic
(1981)3 C.L.R. p.38), was as follows:"From the facts which have been placed before me it is apparent that there exists flagrant illegality in the instant case andaccordingtotheprinciples whichhave been setout hereinabove the provisional order applied for will be made. I would, therefore, make a provisional order ordering the suspension of thetransfer of the applicant from the post of Headmaster of the Pancyprian Gymnasium Nicosia to the 301 A. Loizou J. Prodromou v. Republic
(1984)postof HeadmasteroftheB'GymnasiumAcropolisNicosia until the final determination of the recourse". Thefactshementionstohavebeenplacedbeforehimincluded a lengthystatement madebycounselfor therespondentsadmitting, - and indeed givingreasonsfor that,- that the subjudice 5 decision in that recourse, which was the one dated the 16th August, 1980,wasflagrantly illegal. Infact theappellant asan applicant intherecoursechallenged thevalidity ofthat decision and by his application for a provisional order he sought an "Interlocutory and/or provisional order orderingthesuspension 10 of the transfer of the applicant from the post of Headmaster Pancyprian Gymnasium to the post of Headmaster of the B' Gymnasium Acropolis, Nicosia, until thefinal determination of the application under that title and number". He asked for nothing more and nothing less and the provisional order made 15 by the learned trial Judge corresponded to that prayer. In arguing his present appeal, counsel for the appellant has invited ustofind that thedismissalbythelearnedtrialJudgeof hisapplication for an order for compliancewiththe provisional order waswrong in lawinasmuch as thefirst leg of that order 20 precluded the respondents from takinganydecisiontransferring hisclientfrom thePancyprian Gymnasiumuntil the determination ofhisrecourse,andnot merelythesuspension oftheexecution of the decision of the 16th August
- I donot subscribetothisargument. Whatwassuspended by 25 the provisional order wasthe execution of that concrete administrative act and the provisional ordeTmade could not beconsideredasprohibitingtherespondentsfromtakingthereafter and in fact after having dulycomplied with it, another decision for thetransfer oftheapplicant. Needlesstosaythat anysuchnew 30 decisioncould,ofcourse,bethesubject ofanewrecourseand,if the appellant deemed it necessary,he could seekits suspension by an application for a provisional order to that effect. There has been considerable argument as to whether there has beenor not arevocation,as claimed bytherespondents, of 35 the decision of the 16th August
- I need not, however, enterintothataspectofthecaseasthegrantingoftheprovisional order ontheground offlagrant illegalitymadevain apursuitof the merits and renderedthe annulment a mereformality, which 302 3 CX.R. Prodromou τ. Republic Λ. Loizou J. couldhave beenmadethereandthen,orat sometime thereafter andit is in this sense that the learned trial Judge in thepresent case has obviously felt and so concluded namely that that re course, particularly inview of theimmediatecompliance of the 5 adrrunistration, to the provisional order made, has remained without an object. When the principle of flagrant illegality was examined in relation to power of this Courttograntprovisional orders inthe case of Sofocleous v. The Republic
(1971)3C.L.R. 345 Ihadthis 10 to say at p. 352. 15 20 "In fact such a ruling on an application for a provisional order usually in the United States makes vain a pursuit of the merits. It may, therefore be said with certainty that when anadministrative actisflagrantly illegal a provisional order may be granted. It is, however, a ground to be approached with the utmost caution, as it may be tanta mount to disposing the case on its merits, something dis couraged by Rule 13 of the Supreme Constitutional Court Rules, though this rule cannot be held as divesting this Court from being the watchdog of legality." For all the above reasons the appeal should be dismissed. Appeal dismissed. 303