3 C.L.R. 1984 July 9 [SAVVIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTrON ANDREAS PITTAKAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMITTEE, Respondent. {Case No. 527/82). 5 10 15 20 Educational Officers—Transfer—Disciplinarytransfers—Andtransfers for educationalneeds—Disciplinarytransfers arenot allowed—In caseoj doubtthe relevant transfermust be treated asbeinga disciplinary one in order to afford the officer concernedthe safeguards ensured to him through the appropriateprocedure applicable to disciplinary matters and give him a chance to be heard. The applicant in this recourse, a teacher in the elementary education, challenged the validity of the decision of the respondent to transfer him from the Elementary School of Moni to the Elementary School of Vassa Kilaniou. Though in the personal file of the applicant there was nothing tending to show that the sub judice transfer had any disciplinary character paragraph 2* of the facts in support of the opposition, which was a mere reproduction of paragraph 2 of the statement of facts prepared. apparently by the office of the respondent Commission for the use and guidance of counsel for the respondent, stated in effect that applicant had in the past committed disciplinary offences. Held,that a transfer which is not made solely for the purpose of meeting the needs of the service, but involves an element or has the character of a disciplinary measure, is not allowed; that in case of doubt the relevant transfer must be treated as being a disciplinary one, in order to afford the officer concerned Paragraph 2 of the opposition is quoted at pp. 901-902 post. 897 Pittakas v. Republic
(1984)thesafeguards ensuredtohimthroughtheappropriateprocedure applicable to disciplinary matters; that the contents of paragraph 2 of the opposition raisea doubt as to the truenature of thetransfer in question; thatsincetheoppositionwasprepared on the basis of the note sent from the office of the respondent 5 Commission it maybeinferred thatthewholesequenceofevents as mentioned therein, regarding applicant's service and the various complaints against him, was always in the mind of the members of the Commission when effecting the transfer complained of raising a strong suspicion that they may have acted 10 under the disguise ofeducational needs,whereas in fact itwasa transfer for disciplinary purposes without having given the applicant a chance to be heard; and that, therefore, there isa doubt as to the truenature of the subjudice transfer, which, in consequence, has to be annulled. 15 Sub judicedecision annulled, Cases referred to: Pillatsis v. Republic
(1968)3 C.L.R. 707; Damianou v. Republic
(1973)3 C.L.R. 282; Kyriakides v. Republic
(1976)3 C.L.R. 364; Ladaki-Philippou v. Republic
(1981)3 C.L.R.
- 20 Recourse. Recourse against the decision of the respondent to transfer applicant from the Elementary School of Moni to the Elementary School of Vassa Kilaniou. 25 A. Haviaras, for the applicant. M. Florentzos, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant by 30 this recourse prays for a declaration of the Court that the act and/or decision of the respondent communicated to him by letter dated 30.9.82 by which he was transferred from the Elementary School of Moni to the Elementary School of Vassa Kilaniou, is null and void- and of no legal effect whatsoever. 35 Also, that the omission of the respondent to transfer him to Limassol, is null and void. The applicant isa teacher in the Elementary Education having 898 3 C.L.R. Pittakas v. Republic Savvides J been so appointed in
- He is married and has two young children and his family resides in Limassol where his wife owns a house. He has served all the years, since his appointment, in rural schools, and from 1980 - 1982 at Vassa Kilaniou. 5 10 On 15.2.82 the applicant applied in accordance with the relevant Regulations, for a transfer, stating the places of his preference to be
(1)Limassol,
(2)Polemidhia,
(3)Ayia Phyla, and
(4)Ypsonas. In support of his application he set out the following reasons; (
- a)His continuous service in rural schools. (
- b)His permanent residence in Limassol. (
- c)He has a child who attends a Gymnasium in Limassol. (
- d)He has served for nine years in schools of Class 'C\ (
- e)Financial reasons. 15 The Educational Service Committee (to be referred to as the E.S.C.), informed the applicant by letter dated 2.7.82, that he was transferred, as from the 1st September from Vassa Kilaniou to Pachna (Blue 150 in his personal file, exhibit 1). Applicant accepted his transfer under protest (Blue 151). 20 On 9.9.82, applicant was then informed by letter (Blue 152) that he wastransferred asfrom the 10thSeptember, from Pachna to Moni village to which transfer applicant objected on the same day, byletter Blue 162,insistingthat hehad asked for transfer to Limassol. 25 Having served at Moni for a few days, the applicant was again informed by letter dated 30.9.82 that he was transferred from Moni to Vassa Kilaniou. Applicant objected to the above transfer, and was informed by letter dated 11.11.82 (Blue 155in exhibit 1) that: 30 " (
- a)The Committee will not effect any transfers at the present stage. (
- b)Your problem is known to the Committee and there is, therefore, no need to explain it personally, leaving your school for that purpose." 35 The above decision to transfer applicant from Moni to Vassa 899 Savvides J. Pittakas v. Republic
(1984)Kilaniou, was taken by the E.S.C. at its meeting of 27.9.82, the minutes of which read as follows: "B' ELEMENTARY EDUCATION 1. Transfers. The Educational Service Committee in continuation of its decision dated 30.6.82 and 4.9.82 and having considered the applications for transfers that have been submitted by (hose interested, as well as any objections regarding the previous transfers and having in mind (
- a)the provisions of the Law and the Regulations, 5 10 (
- b)the educational needs as submitted by the Ministry of Education and especially by document M.E. 520/82/A (27.9.82), decides as follows: C Transfers the following as from 30.9.82 for educatio nal reasons, that is those promoted to the post of Head- 15 master to Β schools for the management of those schools, Asst. Headmasters on the basis of Reg. 19(c), teachers for the balanced distribution of teaching staff and/or to cover educational vacuums and the neutralisation of surpluses (Reg. 13) and/or the need to serve in another type of school 20 and/or because their further stay in the school where they serve is in conflict with a justified claim of other colleagues of theirs (reg. 19
(2)and 16
(3)00). Teachers Pittakas Andreas Moni Vassa Kilaniou." 25 The applicant then filed the present recourse, on the 3rd day of December, 1982, which is based on the following grounds of law: "
(1)The respondent took the sub judice decision in excess and/or abuse of powers especially in that it contravenes 30 the provisions of the Public EducationalOfficers (Teach ing Staff) (Appointments, Postings, Transfers, Promo tions and Related Matters) Regulations of 1972.
(2)The sub judice act and/or decision was taken contrary to \ 900 3 C.L.R. Pittakas v. Republic Savvides J. the needs of the service and/or in any event does not serve any needs of the service. 5
(3)The sub judice act and/or decision was taken in a way constituting a defective exercise of its discretionary powers.
(4)The sub judice decision is not at all and/or adequately reasoned and/or its reasoning is defective and/or wrong in law. 10
(5)The sub judice act was taken in ignorance and/or in disregard of the personal circumstances of the applicant.
(6)The sub judice act and/or decision amounts to a disci plinary punishment and does not serve any educational purpose." Counsel for applicant has argued in his written address, in 15 support of his last ground of law, that it transpires from para graph 2 of the opposition that applicant's transfer was in fact a disciplinary measure, despite the fact that the sub judice decision refers to educational needs. Paragraph 2 of the facts in support of the opposition is in fact 20 a mere reproduction of paragraph 2 of the statement of facts prepared, apparently, by theoffice of the E.S.C., for the use and guidance of counsel for the respondent and which was attached to the opposition, and appears also in the personal file of the applicant (exhibit 1) as Blue
- This paragraph reads as 25 follows: 30 35 "
- To 1967 ο δάσκαλοςήλθε σε σύγκρουση μετη χωριτική αρχή των Κυβίδων και του επιστήθηκε η προσοχή. ΣτΙς 4.6.73 οι γονείς των μαθητών της Ανώγυρας δεν έστειλαν τα παιδιά του* στο σχολείο ζητούντες την απομάκρυνση του δασκάλου. Άπό 1.7.74 απολύθηκε από την υπηρεσία ύστερα από απόφαση του Υπουργικού Συμβουλίου. Επα νήλθε, ύστερα από την ανάκληση της απολύσεως που έγινε στις 2.8.
- Το σχ. έτος 1975/76ενώ υπηρετούσε στη Δορά, η Επιτροπή αναγκάστηκε να το μεταθέσει στη μέση του σχολικού έτους (10.1.76) ύστερα από ορισμένα επεισόδια για να προστατεύσει αφενός την ομαλή λειτουργία του σχολείου και αφετέρου τον ίδιο τον δάσκαλο. Τον Ιούλιο του 1979 τέθηκε σε διαθεσιμότηταη οποία όμωςτερματίστη901 Sawfdes J. Pittakas v. Republic
(1984)κε στις 13.2.80 ύστερα από απόφαση του Υπουργικού Συμβουλίου." The English translation reads: ("
- In 1967 the teacher came into contactwith thevillage authorities of Kivides and his attention was drawn. On 5 4.6.73 the parents of the pupils of Anoyira tefrained from sending theii children to school, seeking the removal of the teacher. As from 1.7.74 he was dismissed from the service aftet a decision of the Council of Ministers. He returned after the revocation of his dismissal which took effect on 10 2.8.
- In the school year 1975 - 1976, during his service in Dhora,the Committeehad to transfer him in the middle of the school year (10.1.76) after the occurrence of certain events, in order to protectthe smooth running of the school on the one hand,and on the other,the teacher himself. In 15 July, 1979 he was interdicted which interdiction was termi nated on 13.2.80 after a decision of the Council of Ministers"). It has been decided in a number of cases by this Court that a transfer which is not made solely for the purpose of meeting the 20 needs of the service, but involves an elementor has thecharacter of a disciplinary measure, is notallowed. It has also been deci ded that in case of doubt the relevant transfer must be treated as being a disciplinary one,in order to afford the officer concerned the safeguards ensured to him through the appropriate proce- 25 dure applicable to disciplinary matters. (See in this respect, the cases of Pilatsis v. Republic
(1968)3 C.L.R. 707, Damianou v. Republic
(1973)3 C.L.R. 282, Kyriakides v. Republic
(1976)3 C.L.R.364 andLadaki-Philippou v. Republic{m\) 3C.L.R.
- Thus, in the case of Kyriakides v. Republic (supra),it was said 30 at pp. 376, 377, restating the principles governing suspected disciplinary transfers that: "It is true, of course, that transfers could be made both for reasons.of misconduct and other reasons at the same time. I would go as far as to state that in such cases it may not 35 always be easy to draw the line between disciplinary and other transfers. But it was said that the test to be applied in such cases is to ascertain the essential nature and pre dominant purpose of the particular transfer. In case of 902 3 C.L.R. 5 10 Pittakas v. Republic Savvides J. doubt whether a transfer is disciplinary or not, then such doubt ought to be resolved by treating the transfer in question as being disciplinary in order to afford the public officer concerned or the educationalist concerned, the safeguards ensured to him through the appropriate pro cedure applicable to disciplinary matters. Such a course is to beadoptedboth by the Commission andby thisCourt when dealing within their respective competences with regard to transfers. Furthermore,it is equally important to state that in these matters there should be left noroom for speculation when the application of the principles of natural justice is at stake. (Kalisperas and The Republic & Another,3 R.S.C.C. 146 at pp. 151-152)." . In dealing with the present case, a doubt was raised in my 15 mind, in view of the contents of paragraph 2 of the opposition to which Ihave referred earlier, as to the real reason for appli cant's consecutive transfers during
- As I had no other evidence before meonthis ground, Idecided to re-openthecase and seek theproduction of thepersonalfile of the applicantand 20 invite both counsel for any further addresses which they might wish to make after such files were put before the Court. I have studied thepersonal file of the applicant very carefully andinmyviewthereisnothingthereincontainedtendingtoshow that the subjudice transfer has any disciplinary character. If Ϊ 25 hadtodecidethiscase onthecontentsof thepersonalfile of the applicant, which preceded the filing of the present recourse, I would have found thatthereis notenough evidence establishing any ground that thesub judice transfer contains an element of disciplinary punishment. I cannot however, lose sight of the 30 contentsofparagraph2oftheoppositionandthefact thatit was written inaccordancewiththenotepreparedfor thispurpose by or onbehalf of the E.S.C.,andis also containedinthefileof the applicant. Applying the legal principles already mentioned above to the 35 facts of thepresent case, Ifind thatthecontentsof paragraph 2 of the opposition raise a doubt as to the true nature of the transfer in question. Since the opposition was prepared onthe basis of the note sent from the office of the E.S.C., it may be 903 Savvides J. Pittakas v. Republic
(1984)inferred thatthewholesequenceofeventsasmentioned therein, regarding applicant's serviceand the variouscomplaints against him,wasalwaysinthemind ofthemembers oftheE.S.C.when effecting the transfer complained of, raising a strong suspicion thattheymayhaveactedunderthedisguiseofeducationalneeds, 5 whereasin fact it wasa transfer for disciplinary purposes without having given the applicant a chance to be heard. In the circumstances ofthepresentcase,Ifind that there isa doubt as to thetrue nature of the sub judice transfer, which, in consequence, has to be annulled. 10 Having reached the conclusion that the sub judice decision hasto beannulled asaconsequenceofwhichanewdecisionwill have to be taken, I find it unnecessary to examine the second part of the prayer in this recourse. Intheresultthisrecoursesucceedsand thesubjudicedecision 15 is annulled, but without any order as to costs. Subjudice decision annulled. No order as to costs. 904