clr/1987/1987_3_1003.pdf

(1987)After further correspondence between the Commission and the Director, the Commission did not accept the Director's proposal and, asa result the Director wrote to the applicant that histransfer had not been revoked and, thus,should take effect. Hence thisrecourse. 5 Held, annullingthesubjudice decision:

(1)There can be nodoubtthatthe motionfora transfer emanatesfrom theHead oftheDepartment concerned. Such motion ismade after he issatisfied thatthe needs oftheservicerequire the transfer of the public officer The Public Service Commission has to be satisfied that the alleged need exists and whether the proposed transfer is necessarytosatisfysucha need. 10

(2)Inthiscasethere isnothingintheminutestoshowthattheCommission paid any heed to what the Directorsaid regarding provisional arrangements fortheattendance of patientsatthePaphosHospital oranyreasonwhysuch matterwasignored. 15

(3)Inthe lightofthe above thesubjudice decision hastobeannulled for failure tocarryout a due inquiry. Subjudice decisionannulled. No orderastocosts. Recourse. Recourse against the decision of the respondent to transfer applicantfrom LamacatoPaphos. 20 A.S.Angelides, fortheapplicant. A. Papasawas, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. SAWIDES J. read the following judgment. The applicant challenges the validity of the decision of respondent No. 1 wherebyhewastransferred from LamacatoPaphos. The applicant is a specialist in General Medicine and was 30 servingatthe materialtime,atLamacaHospital.On30.5.1985, theDirectorofMedicalandPublicHealthServicesrecommended histransfer toPaphosHospital,where nospecialistwasserving, for thepurpose of facing the needsoftheservice.Theapplicant protested to his proposed transfer on account of family and 35 financial reasons.ThePublicService Commission atitsmeeting dated 11.6.1985, decided totransfer the applicanttoPaphosas 1004 25 3 C.L.B. Poyiatzisv.Republic SawidesJ . from 15.8.1985 stating that having taken into consideration his objections itfound that the reasons for hisobjection are not such as to by-pass the needs of the service. The applicant was so informed byletterofrespondent 1 dated 12.6.1985.The effective 5 date of the applicant's transfer was later postponed, upon his request, until the 2nd January, 1986 in order to give him time to solvetheproblems created bysuch transfer. On 21.12.1985, the Director wrote a letter to respondent 1. requestingthecancellation ofapplicant's transfer untilthefillingof 10 all vacancies in the posts of Medical Officer on the basis of the agreed scheme of distribution of posts in the Medical and Public Health Department. The Director mentioned in his letter that necessary arrangements for the attendance of patients at Paphos Hospital had been made inthe meantime. 15 The Commission considered the request of the Director on 10.1.1986, stating that the procedure for the filling of the post mentioned in the letter of'the Director had stopped because the only candidate did not accept the offer made to him and invited the Directortoconform with itsdecision totransfer the applicant. 20 The Director wrote again to the respondent Commission, on 10.2.1986, explaining the position regarding the distribution of thepostsofSpecialistsandSeniorSpecialistsinGeneral Medicine inthethreemajorhospitalsofCyprus,thatis,Nicosia,Lamacaand Paphos,asitstood atthetimeand howthe Department proposed 25 todistributethem after the fillingofthevacanciesinthesaidposts, posting a Senior Specialist at Paphos Hospital.The Director also stated again that the existing arrangements for the attendance of patientsintheGeneralWardofPaphos Hospitalwere satisfactory, the medical services rendered were of a high standard and 30 recommended again thecancellation oftheapplicant's transfer. The Chairman of the respondent Commission, by letter to the Directordated24.2.1986,requested toknowwhetherthescheme of distribution of posts to the hospitals concerned which was mentioned in the Director's letter was in existence at the time 35 when the latter originally requested the applicant's transfer, or whether it was a different one. The Director by letter dated 27.3.1986, replied that the scheme was the same one, but that since there was no candidate at the time satisfying the requirements of the scheme of service for the post of Senior 40 Specialist, who was to be posted at Paphos, the transfer of the applicant, whowas a specialist, wasconsidered necessary. Inthe 1005 SawtdesJ. PoyUtxlsv.Republic

(1987)meantime as stated in the same letter, two specialist-candidates had acquired the required qualifications andafter thefilling ofthe posts one of them wastobe posted at Paphos and asa result the transfer of the applicant was no longer required. Acopy of the scheme of distribution of the posts in the various hospitals was 5 attached to the above letter, which shows a post of Senior Specialist inPaphos Hospital and nopost of Specialist. The respondent Commission replied byletterdated9.4.86, the relevant part of which readsas follows: «

1. The Public Service Commission, having reconsidered 10 carefully your recommendation for the revocation of its decision forthetransferoftheofficer from LamacaHospitalto Paphos Hospital as from 2.1.1986, found that there is no reason to review its original decision. On the contrary, the Commission found thatitisnecessaryforaSpecialist{General 15 Medicine) toserve inthePaphos Hospital untilthepostingof a Senior Specialist {General Medicine) becomes possible, by the promotion which will take place in the course of the procedure that started withthe lastrequest ofthe appropriate authorityforthefillingoftwovacantpostsofSeniorSpecialist, 20 one ofwhich in General Medicine.Thisprocedure, however, willtake some time and thereafter moretimewillbe required for thesubmission and consideration ofthematterof transfer of the officer promoted.
2. Asaresultyourproposalhasnotbeen accepted andthus 25 the decision ofthe PublicServiceCommission forthe transfer of Mr. Poyatzis from Lamaca Hospital to Paphos Hospital, which was taken upon your proposal and the recommendation of the Director-General, Ministryof Health, continues to bevalid.» 30 The applicant was informed by letter of the Director dated 29.4.1986 that his transfer to Paphos was not cancelled and should take effect. The applicant filed the present recourse challenging the above decision. The sole question which poses for consideration iswhether the 35 respondent Commission acted rightly in refusing to revoke its previous decision to transfer the applicant, after the appropriate authority requested such revocation on theground thatthere was no longerany need for the transfer. 1006 3C.L.R. Poylatzisv.Republic SawidesJ. Counsel for applicant argued that the Commission has no power, under the law,toeffect a transfer on itsown initiative, but only after a request by the appropriate authority or the officer concerned;thattheassessmentoftheneedsoftheserviceiswithin 5 the competence of the appropriate authority and once such authority found that the needs of the service no longer required the transfer of the applicant the Commission could not dispute such finding and insiston thetransfer in question. Counsel for the respondent merely submitted that the 10 contention of theapplicant thatthe Commission hasno power to assessordispute theexistence ornotoftheneeds of theserviceis groundless and thatthe decision of the Commission was properly taken, without makinganyfurther legal argument. There isno doubt that when a transfer iseffected bythe Public 15 Service Commission in cases where the needs of the services so require, the motion for initiating such transfer emanates from the Head of the Department under which the Public Officer concerned serves. Such motion is made after the Head of the Department is satisfied that the needs of the service require the 20 transfer of a Public Officer. Thepower totakethedecision for the transfer vests in the Public Service Commission which has to be satisfied that the alleged need exists and whether the proposed transfer isnecessarytosatisfy such need. In the present case the motion for the transfer of the applicant 25 was initiated by the Director of Medical Services after he had verified that the needs of the service required such a transfer. Before the date that such transfer did materialise the Director, having reached the conclusion that such transfer was not necessaryanylongerinviewofcertaindevelopmentsasaresultof 30 the restructuring of the service, moved the respondent for the revocation of its previous decision. After protracted correspondence between the respondent Commission and the Directoronthematter,theDirectorinformed theCommissionthat therewasnoneedforthetransferofaspecialisttoPaphosasapost 35 of Senior Specialist for Paphos was to be filled soon and that pending such appointment adequate arrangements had been made for theattendance of patientsatPaphos Hospital. There isnothing inthe minutessuggesting that the respondent Commission payed heed to what the Director said about 1007 SawidesJ. Poyiatzis v. Republic

(1987)provisional arrangements that had been made forthe attendance of patients or any reason whysuch matterwas ignored. Itmay be inferred that the respondent failed to carry out an inquiry as to what arrangements had been made and whether such arrangements wereadequate tomeetthesituation tillthe fillingof 5 the post of Senior Specialist at Paphos Hospital, before rejecting the proposal for the revocation ofthe applicant's transfer. By failing to carry out such an inquiry the respondent, in reaching the sub judice decision, did not exercise its discretion properly and for thisreason I find that the subjudice decision has 10 tobe annulled. Having found as above. Iconsider it unnecessary to examine any other issue before me. In the result the recourse succeeds and the subjudice decision isannulled with no order forcosts. 15 Sub judice decision annulled withno order asto cost· 1008