clr/1986/1986_3_2436.pdf

(1)!he piCiequisilt·for cranting a provisional ordei aie (

1. a)The act sought to be stayed must be flagrantly illegal and (
2. b)Ineparable damage will be caused to the applicant if the order is nU granted In deciding whether there is a flagrant illegally the Court must avoid going into the merits of the case

(2)In the light of the complexity of the ISMICS ι.ι M.-II in this case, it is impossible to examine the issue of fla­ grant illegaht\ without soing into the merits of the case

(3)Moreovei the applicant tailed to iubstantiate litι allegation with retard to irreparab'e damage The incon­ venience she will suffer by her tiansfer does not amouii. io irreparable damage 4pphcation dismissed Costs aeainst applicant Appl'^ation for a provisional order 20 ^τΐ'ιΐιιΐη lor a provisional ι.ider staying ιΐκ unpk men Ίιοη ol .snondents' decision to transloi apoliu>t'M troni Sole.t Co mna^iuir >o Pedhoulas Gvninasium 4 S Angehdes A for 'he applicant VI»d\ip<>oi< for the respondents' Cur 25 ads \ //// 30 DiMHRiADt-s J read the following ruling B\ means m her recourse the applicant challenges amonsst others, t1 L validity of 'he decis-on of the respondent Commission wh'ch was ">ken on fhe 2nd Octobet 1986 and bv whiui ••he wns transferred from Hv Solea Gvmnasum 1 to tru Gymnasium of Pedhoul;^ 35 The applicant, togethei with hu reuniis. h k d an apphcat on b\ which she oravs for a provisional oider staving the implementation of the respondents" decision till the final determination ot her rccouise In her affidavit vvhiJi accompanies her said application, the applicant alleges that 2437 Demetriades J. Georghiadou v. Kepublic

(1986)the decision of the respondent Commission for her transfer is flagrantly illegal and that if the order applied for is not granted she may suffer irreparable damage. The applicant, a Secondary Education School teacher. was, until the 5th October, 1986, posted at the Gymnasium 5 of Solea. As <*. result of a decision taken by the respondent Commission on the 2nd October, 1986, she was transferred to the Gymnasium of Pedhoulas as from the 6th October, 1986. It is well established that in order to grant a provisional 10 order an applicant has to satisfy the Court that the act or decision sought to be stayed is flagrantly illegal and that irreparable damage will be caused to the applicant if the order applied for is not granted. However, in deciding whether flagrant illegality was committed, the Court must 15 avoid going into the merits of the case, especially where the granting of the order will dispose of the case on its merits. Counsel for the applicant submitted that the respondent Commission could not, in October, 1986, take the sub judice decis:on in view of the combined effect of regulations 20 18 and 25 of the Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations, 1985 (see Notification 71 in the Third Supplement, Part I, to the Official Gazette. dated the 22nd February, 1985), by which transfers 25 of educationalists are regulated; that under regulation 18 all educational officers are subject to transfer in order to serve educational needs as these are certified by a reasoned submission of the appropriate authority; that under regulation 25 transfers of educational officers during a current 30 school year can only be effected if it is absolutely necessary for educational needs and that in such a case the respondent Commission had to give a reasoned decision for doing so. Counsel for the applicant further submitted that the de- 35 cision taken by the respondent Commission is not reasoned, as provided in regulation 25

(1), and that it was taken during the running of the current school year without the appropriate authority having certified that the transfer of -2438 3 C.L.R. 5 Georghiadou v. Republic Demetriades J. the applicant was required in order to serve educational needs. On the contrary, he soid, the decision of the respondent was based on other consideration. He had further alleged tha' the consideration which the Commission invoked P.Sthe-reason for reaching .its decision was based on regu'ations which are ultra vires. Counsel for the respondents submitted that although the transfer of the applicant took place during the school year. the respondent Commission's decision could not be con10 s:dered as flagrantly illegal in view of the fact that the Commission has the power to transfer educational officers whenever the interest of service so requires. From the facts that are before me. it appears that the respondent Commission decided the transfer of the app'i15' cant basing itself not on the provisions of regulations 18 and 25. but on the fact that, as it is stated in its relevant decision (see Appendix C to the Opposition), after a review of the units and the years of service of the applicant she should have priority on the list of those educational 20 officers vvho were subiect to transfer to places other than the "lace of their residence. Thereafter, the Commiss;on. hav:ng reached the conclusion that under regulation 20(a) of the relevant Regulations the applicant could be transferred to a place other than the 25 place of her residence, decided to transfer her from the So'ea Gymnasium to the Gymnasium of Pedhoulas. Counsel for the respondent Commission argued that when the list of those to be transferred was prepared, the Commission was labouring under a misconcept:on as regards 30 the un:ts of the applicant, which units, having been reviewed at a later stage, afforded to the Commission the justification to transfer her at this time of the school year. He appl:ed for leave to adduce evidence as to the circumstances under which such review was made so as to >up35 port his contention that the r.ub iudice decision was lawfully reached by the Commission. In view of the complexity of the issues raised in the present case, I feel that it is imposs;ble to be decided, at this stage, at least prima facie, that the sub judice decision 2439 Demetriades J. Georghiadou v. Republic

(1986)is flagrantly illegal without going into the merits of the case and have a full hearing of all the issues on their whole. Moreover, although in her aforesaid affidavit the applicant had alleged that she will suffer irreparable damage if the provisional order applied for is not granted, she failed 5 to substantiate her said allegation during the hearing of the present application. In any event, if by her allegation that she will suffer irreparable damage the applicant means the inconvenience she will suffer by her transfer. I must here say that in my view her allegation cannot stand as it is the 10 duty, under the terms of service of each civil servant or teacher, to serve at such place as the needs of the service require. Personal inconvenience does not constitute irreparable damage in the context of the law. Therefore, on the basis of the aforesaid, I have decided not to grant the application for a provisional order. 15 Costs of this application to be paid by the applicant. Application refused. Costs to be paid by the applicant. 2440