clr/1987/1987_3_1159.pdf

(1987)Held, dismissing the recourse:

(1)The case of Kotsoni v. Educational Service Commission

(1986)3C.L.R.2394should bedistinguished from this case,becausetheretheCourtfoundthattheapplicantwasentitledtotreather objection as rejected. In this case, there is no indication that applicants' objectionsagainsttheirtransfershouldbedetermined.Onceanobjectionwas pending against the decision of 16.6.86, its executory character was suspendeduntila finaldecisionistaken,inwhichitwouldthen merge. 5

(2)The decision of 23.4.86, which is of an executory nature, was taken under Reg. 25(l){b). In virtue of thisregulation transfers are effected, when 'they are absolutely necessary in the interests of the service. In the 1 0 circumstancesofthiscasethedecisionof23.4.86wasreasonablyopentothe respondents. Recoursedismissedwithcosts. Casesreferredto: Kotsoniv.EducationalService Commission

(1986)3C.L.R.2394. 15 Recourse. Recourse against the decision of the respondent to transfer applicants 1 and 2 to Ayios Ioannis Agrou and Lamaca, respectivelyandapplicant3toAnglisides. AS. Angelides,fortheapplicants. 20 A. Vassiliades, fortherespondents. Cur. adv. vult. SAWIDESJ.readthefollowingjudgment.Theapplicantspray foradeclarationoftheCourtthatthefollowingactsordecisionsof therespondentshouldbedeclarednullandvoid:25

(1)The decision toincludethe applicants, onthe basis of Reg.24

(3)inthelistofofficers subjecttotransfer.

(2)Thedecision,communicatedtotheapplicantsinApril, 1986, for their temporary transfer from, or non transfer fo LimassoluntiltheendofJune. **

(3)Thedecisiondated16.6.1986wherebyapplicants1and 2 were transferred to Ayios Ioannis Agrou and Lamaca respectively and applicant No. 3 to Anglisides, as from 1.9.

1. 1160 3 C.L.R. VlronosandOthersv.Republic S a w J d e · J. The applicants are Headmasters in the Elementary Education. By a decision taken in 1985 the respondent transferred applicants 1 and 2 from Limassol, where they were serving, to AyiosIoannisand Pelendri respectively. Italso refused to accede 5 totherequestofapplicant No.3for histransfer from Kyperounda to Limassol. The applicants challenged the above decisions by recourses, as a result of which the decisions challenged were annulled by the Supreme Court in 1986 on the ground that the regulations on which they were based were ultra vires the law 10 and unreasonable. As a result respondent met again to consider the situation created by the annulments. At its meeting of 23.4.1986, the respondent first revoked its previous decisions and proceeded next to post the applicants again, by means of extraordinary 15 temporary transfers at the same schools on account of the needs of the service until the end of the school year, when a reconsideration of all cases was to take place. Atitsmeeting of 16.6.1986,the respondent decided to transfer applicant No. 1from Limassol to AyiosIoannis Agrou, applicant 20 No. 2 from Limassol to Lamaca and applicant No. 3 to Anglisides, as from 1.9.
2. The applicants filed written objections to the said transfers in accordance with the regulations and the respondent heard them during personal interviews on 2.7.1986 in support of their 25 objections. Whilst the objections of the applicants were pending they filed the present recourse on 25.6.1986 challenging their aforesaid transfers. The grounds raised in support of the recourse are mat the sub judice decisions were taken by virtue of Regulations which are 30 ultra vires the law, in abuse and/or in excess of powers, in the absence of any inquiry, in violation of the principles of Administrative Lawand good and proper administration and mat they lack due reasoning. 1161 9awldesJ. VlronosandOthersv.Republic

(1987)By his opposition counsel for the respondent raised the preliminary objection that the sub judice decision does not amount toan executory administrative act.Subject tothe above, he contended that the subjudice decision was properly taken in accordance with the law and Regulations and in the proper 5 exercise of the discretionary powers of the respondent. I shall deal first with the preliminary objection raised by counsel for the respondent. Imust clarify now that there are two separate decisions which are challenged bythepresent recourse. The first one is that of 23.4.1986 concerning the temporary 10 transfers of the applicants and the second one is that of 16.6.1986 by which the applicants were transferred as from 1.9.1986. From the material before me it isapparent that all applicants filed objections against their second transfers which were still 15 under consideration by the respondent Commission at the time this recourse was filed. In fact on 2.7.1987 the applicants were interviewed bythe respondent and were heard insupport oftheir objections. In the case of Thelma Kotsoni v. The Educational Service 20 Commission (Case No. 852/85), in which judgment was delivered on 28.11.1986, not yet reported*, I had the opportunity of dealing with the position when a decision is objected to and the matter is considered afresh by the Educational Service Commission. ' 25 The following are stated inthe above case:«In the Conclusions from the Case Law of the Council of State in Greece (1929-1959), itisstated atpp. 241-242, that actsagainstwhichanobjection ismade,mergeinthedecision disposing of the objection and loose, as a result, their 30 executory character. Thisstand was taken by the Council of State in a number of cases (see the cases referred to in the 'Reportedin

(1986)3C.LR.2394. 1162 3C.L.R. 5 10 15 VlronosandOthersv.Republic SawtdesJ. Digest of Case law of the Council of State in Greece, 19611970,Vol. 1,p. 172,paragraphs 1698,1704,1709; also the Digestof Case Lawfortheyears 1971-1975,Vol.1,pp. 104, 108 and ^specially paragraphs 1816, 1821, 1825, 1849, 1852,1853,1864,1867 -1869,1907 and 1923). The same view has been expressed by our Courts in a number of cases: (See Economides & Others v. Republic

(1978)3 C.L.R. 230, at p. 235; Mitidou v. CYTA

(1982)3 C.L.R.555;Demetriou &Others v.Municipal Committee of Lamaca

(1983)3C.L.R.1315atpp. 1321,1322,where other casesarealsomentioned; Polyviou v.Improvement Boardof Ayia Napa

(1985)3 C.L.R. 1058 at pp. 1066-1067; Strongiliotis, v. Improvement Board of Ayia Napa

(1985)3 C.L.R.1085atp. 1090)». I then proceeded, in the Kotsoni case, having regard to the specialcircumstancesofthecase,totreatthesubsequent decision ontheobjection ashavingbeenchallengedbythesamerecourse. Counsel for the applicant sought to relyon the case of Kotsoni and claim that because the objections have not yet been 20 determined, the recourse against the sub judice decision could proceed. Iwishtodraw adistinction between thecaseofKotsoniand the present one. Inthe case ofKotsoni Ifound thatthe applicant was entitled to treat her objection as rejected, having regard to the 25 circumstances of the case; besides, she was also challenging, by her recourse, the rejection of her objection. In the present case, therewasno indication thatthe objections had been determined. Onthecontrary,theapplicantsknewthattheirobjectionswerestill under consideration having regard to the fact that they had been 30 invited toan interviewon theirobjections. The following passage from theKotsoni case isalso relevant: 35 «Ifan objection ismade in accordance with the provisions oftherelevantlawagainstanyadministrativeactandthetime prescribed bytherelevantlawfordeterminingsuch objection (or if no time is prescribed the time provided by the 1163 SawidesJ. Virono*andOthersv.Republic

(1987)Constitution) haselapsed without any decision having been reachedorcommunicatedtotheapplicant,theapplicantmay filearecourseagainstthesilentrejection oftheobjection and if after the filing of the recourse but before its hearing a decision isreached ontheobjection,such decisionistreated 5 as being challenged by the same recourse. (See Decisions Nos.617,618,925/73).» InthecircumstancesofthepresentcaseIfindthattherecourse oftheapplicantsagainstthedecisionof 16.6.1986waspremature inviewof the fact that theirobjections were totheirknowledge 10 under consideration by the respondents. The applicants should have waitedtilltheir objections were determined and then filea recourse against such final decision. Once an objection was pending theexecutory character ofthedecision objected towas suspendeduntilafinaldecisionwastaken,inwhichitwouldthen 15 merge. In view of the above, I find that this part of the recourse challengingthedecisionof16.6.1986shouldbedismissedonthis ground. The first part of the recourse challenging the decision of 20 23.4.1986 concerning the temporary transfers of the applicants remains, however, unaffected by the abovefindingand Ishall proceedtoexaminethevalidityofthesaiddecision. Itisobviousfrom thedocumentsannexed totheoppositionas Appendices «A» and «B» that the transfers in question were 25 extraordinary temporary transfers. These transfers are effected under Regulation 25(1}(b)when they are considered absolutely necessaryfortheinterestsoftheservice. It is explained in the aforementioned appendices that the respondent had to reconsider the transfers of the applicants in .30 viewof thedecisions of the Courtannulling same.Afterinviting and considering the views of the Director of Elementary Education,therespondentconcludedthatitwasnecessary,inthe interests of the service, for the applicants to be transferred temporarily,untiltheendoftheschoolyear,totheplaceswhere 35 theywerealreadyservingsincethebeginningoftheschoolyear. 1164 3 C.L.R. 5 Vironos and Othersv.Republic S a w i d e s J. Indeciding sothe respondent took intoconsideration thefact that due to the short time left until the end of the school year any changes in the teaching staff of schools would create serious problems in the smooth running and functioning of the schools concerned. Ifind that the respondent was entitled to reach the sub judice decision havingregardtothe circumstances ofthe caseand thatit was reasonably open to itto do so, and this part of the recourse should, therefore, fail. 10 Intheresultthisrecoursefailsandisherebydismissedwithcosts infavour ofthe respondent. Recourse dismissed. Costsinfavourof respondents. 1165