clr/1984/1984_3_593.pdf

(2)and 17

(1)of the Educational Officers Regulations, 1972—Absence of a vacancyas such not aconclusive answer to an application for transfer—No attention paid to this matter by respondents and no considerationgiven to applicant's application—5tifr judice decision annulled for misconception of law. as well as lack of due reasoning and proper inquiry. The applicant, a secondary school teacher of Gymnastics applied to be transferred to Paphos for personal and family reasons. No reply was ever given to his application; and he came to know of its rejection through a communique of the Ministry of Education in the press, announcing transfers for the year 1983-84. On hisapplication for transfer, there was merely anote signifying its receipt. There was no other record whatever suggesting consideration of it or indicating its outcome. The decision relevant to the transfers of secondary school teachers under consideration wasvery laconic respecting individual applications; and no specific reference was mado to the claim of applicant 593 Paraskevas v. Republic

(1984)for transfer in this case. Apparently, the respondents at'opted the recommendations of the Director of Secondary Education, to the effect that there wereno vacancies at Paphos. What the Director said was that there was an excess in the number of Gymnastics masters at Paphos and this excess included two masters of Gymnastics employed on contract. 5 Upon a recourse by tlie applicant: Held, that the employment of the two masters of Gymnastics on contract was dependent on the existence of vacancies (see reg. 15

(2)of the Educational Officers Regulations of 1972) iO whereas priority for transfers was directly related to seniority in service(see reg. 17

(1));that the absence of a vacancy as such wasnot a conclusiveanswer toanapplicationfortransfer because an applicant requesting transfer may have a legitimate right to be transferred to a certain place in preference to one already 15 positioned there;thattherespondentspaidnoattentionwhatever to this matter and in view of the absence of any record in the. file of the applicant asto thefate ofhisapplication itis doubtful whether they did pay any consideration at all to it; accordingly the sub judicc decision must be annulled for misconception of 20 the law, as well as lack of due reasoning and proper inquiry. Subjudicedecision annulled. Cases referred to: Petrotulas v. Attorney-General of the Republic

(1969)3 C.L.R. 214; Lambrouv. Republic

(1970)3 C.L.R.

1. Recourse. Recourse, against the refusal of the respondents to transfer applicant to Paphos. A. S. Angelides, for the applicant. 30 R. Vrahimi (Mrs.), for the respondents. Cur. adv. vult. PIKIS J', read the following jugdment. Applicant is a secondary school teacher of Gymnastics. He had been in the Public Educational Service for six years. On 8.2.1983 35 he applied to be transferred to Paphos, his. native town. 594 25 3-C.L.R; Faraskcvas ν: Republic Pikis J. It.was-not-the:first'time,he;applied':to -be'transferred-to-Paphos', a.transfer:sought:forpersonaland'family reasons: His grounds for transfer were.-articulated.in-rUs'letter, and-covereconomic reasons, as welK His application, was--made-within-the time 5" prescribed'by reg: 18(a) of.the Educational'Officers-Regulations of'l972!,.hereafter referred to as."The:Regulations".- No reply was ever, given1 to his apphcation. He--came-to- know of its rejection:through.a-communique-of'the:Nlunistry. of Education in" the.press,, announcing'transfers-: for the-year 1983-84: As10- he.-was notincludednn'therust'of-transferees; he-lodged ari'otrjection.on-13:9:1983"; in"accordance:with therprovisions- of-reg. 2Z Like;his-application, his' objection'remairred' unanswered'. The-presentrecourse-is-directediagainst'the-refusal-to'tiansfer Him-to PapKos.. THeannuIment.ofrthe:refusal to transfer'him
2. is^challeged.for lack of- due-reasoning;. lack- of proper inquiry and;,generally, failure-on.the--pait: of the-respondents to givethe application"due'consideration." In*their."opposition; tespondents contend-the-application was' properly considered; it'was refused'· on'grounds^of educational 20 needs;that'is,the absence.of a-vacancytfor a Gymnastics master at* Paphos." The' possibility, of"transferring- the applicant to the-Paphos:-Gymnasium was mled.out,'.as-stated in the-oppositionifor.thetreasonthatthe:service;of'thc.two-female-Gym nasties" teacheis;"- serving-:theie; were·-educationally- necessary· because25' they-taught:.Gymnastics:to"female students of ihVhigher classesof'the*school. Properrappreciation1"of^the*uducational needs" of'the^school--necessitated the-retention*of.their services'- at' Paphosf-notwithstanding-:the^factUhat"they.served' on contiactand, consequently, theiemployment-of their*services-was dc-30 pendent"upon" the-existence of-'vacancks- or- the-necessity- of'theirr services,- as- piovided- in- reg." 15

(2). Counsellor:the-Republic-laidistress.-in-argument* before·theCourt,-on-the.provisions of'reg, 13(a)(i), enjoining*educational authorities,to maintain'* a-balance-'between*the- two-sexes in' 35," the-.'compositionsof' school·-personneh - This- Regulation' docs' : not'authorize^preference^ of' either:sex" in therteaching'-oft any; , particular"subject," as>counsel*seemed?to.' suggest, b u r requireseducationarauthorities"to"keep:aCoverall b"alancean'the:numbcrs.: 595i Pikis J . Parasknas v. Republic

(1984)of female and male members of the school staff. If the refusal to transfer the applicant was.fashioned to the understanding of the Regulations put forward in.the application, it must be annulled for misconception of the law. However, perusing the material relevant to the transfer of school teachers for the 5 years 1983-84, the respondents do not appear to have paid distinct consideration to the request of applicant for transfer. Even that is not certain for, in the light of*the material before us, no reference whatever is made by the respondents to the application of Demetrios Paraskeva for transfer. 10 On his application for transfer, there is merely a note signifying its receipt. Thcie is no other record whatever suggesting consideration of it or indicating its outcome. The decision relevant to the transfers of secondary school teachers under consideration is very laconic respecting individual applications; 15 and no specific reference is made to the claim of applicant for transfer in this case. Apparently, they adopted the recommendations of The Director of Secondary Education, to the effect that there were no vacancies at Paphos. What the Director said was that there was an excess in the number of Gymnaslics 20 masters at Paphos. Wecan.presume,in view of the opposition, that this excess included the two masters of Gymnastics employed on contract, who could have no conceivable claim to stay at Paphos in preference to the applicant. As noted, their employment was dependent on the existence of vacancies 25 laid down in reg. 15

(2),whereas priority for transfers is directly related to seniority in service, as provided in reg. 17

(1). Nor is the absence of a vacancy as such, a conclusive answer to an application for transfer. For, an applicant requesting transfer may have a legitimate right to be transferred to a certain place 30 in preference to one already positioned there. To this matter the respondents paid no attention whatever. In fact, it is doubtful, in view of the absence of any record in the file of the applicant as to the fate of his application, whether they did pay any consideration at all to it. Their decision must inevitably 35 be set aside for lack of due inquiry, on the one hand and, on the other, absence of proper reasoning (see, ChristosPetrondas v. Atttorney-General of the Republic

(1969)3 C.L.R. 214; A. Lambrou v. Republic

(1970)3 C.L.R. 75). 596 3 C.L.R. Paraskevas v. Republic Pikis J . In my judgment, the decision must be annulled for misconception of the law, as well as lack of due reasoning and proper inquiry. In the result, the recourse succeeds. Let there be no order as to costs. Sub judice decision annulled. No order as to costs. * • - * " 597