clr/1987/1987_3_1181.pdf

(1),14

(2), 24

(3)and4 — Whetherrespondents could weighnumencallyinaunifomimannerthecntenalaiddown byReg 23

(1)— Question answered in the affirmative — Anshdes ν The Republic

(1986)3CLR 466distinguished—A unifomicoderelatingtotransfersisthe best way to ensure equality of treatment and exclude favountism or the semblance of favountism — Theaforesaid way in which the respondents acted didnot,inthecircumstances, excludetheirdiscretion toactdifferently in the face of compelling circumstances — Reg 14(2} does not have retrospectiveeffect and,therefore,isnot ultra virestheenablinglawonthat ground— Thetimelimitmregulation24

(3)isofanindicativenature—Reg 4 does not change thenatureofsuch hmelimitbynecessaryimplication AdministrativeLaw— Timelimit—Implicationsofnon adherence to—Distinction between time limitsconcerning the subject and time limitsconcerning the Administration—In theformercasetheirnatureismandatory,whereasinthe latterindicative RetrospecDvity of a law — Principles applicable to determine whether an enactment hasretrospectiveeffectornot 20 AdministrativeLaw—Discretion ofAdministration—Guidelinesforitsexerase — Administrationentitledtoevolve suchguidelines,provided room islefttoact otherwise inthefaceofcompellingcircumstances In makingtransfers of educationaliststhe respondentswereguidedby the criterialaiddownbyReg 23(l)oftheaforesakiRegulatkxa.Inevaluaflngthe 1181 Tlngiildoav. Republic

(1987)importance of these cntena and their impact upon the transferability of members of the Educational Service they evolved a uniform formula, whereby theimportance ofthesecntenawasweightednumencallyand then duly adjusted to reflect the liability to transfer of individual members of the service 5 Asa result,theapplicant(AssistantHeadmasterSecondary Education)was transferred toLamaca,andfollowing herobjection, toDhali Applicant challengesthevalidityof hertransfer on thefollowing grounds, namely (a) There was no sanction in law for the course, which the respondents 1 0 followed and,furthermore, theweighting systemneutralized theirdiscretion, thereby alienating their competence as the sole arbiter of the liability of membersof theserviceto transfer (b)Reg 14

(2)of theaforesaid Regulationsisultravirestheenablinglawin that it has retrospective effect In the submission of applicant's counsel retrospectivitydenvesfromthefactthattheseatofeducationalistsisdiscerned byreference toevents,whichoccurred before itsenactment, and 15 (c)Failureon thepart oftheAdministrationtocompilethetableof transfer withinthe second fortnight ofApnlasprovided byReg 24

(3)Held, dismissing the recourse (A)

(1)In this case the Court isrequired to 2 0 decide whether itwascompetent fortherespondents,intheexerciseoftheir discretion to weight numencallythe significance ofthe cntena envisaged by Reg 23

(1)as a yardstick for the exercise of the their power to transfer An ancillary question iswhetheritwascompetent fortherespondentsto evolve a uniform formula for the determination of the transferability of 2 5 educationalists

(2)ThedecisioninAnstfdesv The flepubk:

(1986)3C LR 466shouldbe distinguished from the present case, because its ratio was confined to the validityof Reg 23

(3)It is settled that the Administration may lay down guidelines for the exercise of itsdiscretion,provided room isleft todo otherwise inthefaceof compelling circumstances 30

(4)ThecriteriaofReg 23

(1)areobjective Thelegislatureintendedtomake the transfer of educationalists subject to objective cntena However, the importance of the vanous criteria and their interaction was left to the 3 5 discretion of the respondents The respondents were not incompetent to adopt the uniform system of weighting numencally the aforesaid cntena Uniformity of treatment is, in the light of Art 28 of the Constitution, mandatory The establishment of a uniform code regarding transfers closes the doortofavouritism andtoa semblanceoffavountism andtsthebestway 4 0 toachieve equalityof treatment 1182 3C.L.R. Tingiridouv. Republic

(5)As itisevidentfromthefactthattherespondents,followingobjectionb^ applicant,changedtheplace ofhertransfer, therespondentsdidnotalienate theirdiscretion todepart from such uniform code intheface of extraordinary circumstances -5 10 15 Β Alaw is not regarded as retrospective merely because itsapplicationis made dependent on past events The law becomes retrospective only if it upsets rightsthatcrystallized andvested underthe law before theimpugned legislation C Administrative law distinguishes between the implications of non adherence to time limits by the subject on the one hand and the Administration on the other Time limits are mandatory for the subject whereas theyare only indicative for theAdministration Itfollows that failure to comply with thetimelimitof Reg 24

(3)does notinvalidate thesub judice decision Reg 4, providing thatthetimelimitof Reg 23

(2)is indicative only forthefirstyearcannotbeconstruedasrendenngbynecessary implicationan action subsequent totheexpiration of thetime limitnulland void Recourse dismissed Casesreferredto Anstides ν TheRepublic

(1986)3 CLR 466 20 Georghiadesv TheRepublic

(1987)3 CLR 343, Kilamotis ν TheRepublic

(1986)3 C LR 1797, Kynacou ν Republic

(1986)3 CLR 1845, Vassihou v.Republic

(1982)3 C LR 220, Santisand Othersν Republic

(1983)3 C LR 419, 25 Republic ν Menelaou

(1982)3 CLR 419 Recourse. Recourse against the decision of the respondents to transfer applicant from Nicosia to Lamaca and following her renewed objections,to Dhali. 30 A.S.Angelides, fortheapplicant. E. Loizidou(Mrs), fortherespondents. Cur. adv. vult. PIKIS J. read the following judgment. Olga Tingiridou, an educationalist (Assistant Headmaster secondary educahon), 35 questionsintheseproceedingsthelegitimacy ofhertransfer from 1183 PikUJ. Tingiridouv. Bepublic

(1987)Nicosia to Lamaca and following her renewed objections, to Dhali. In February 1986she signified to the authorities her opposition toherbeingtransferred from Nicosiaonaccountofher age.Therespondentsconsideredtransfer ofeducationalistsforthe ensuing academic year attwo meetings held on29th April and 5 10th May, 1986.Atthose meetingsfirm criteria were evolvedfor thedetermination ofthetransferability ofteachersandatablewas compiled in exercise of thepowers vested in them underReg. 24

(3)oftheRegulations*;andadecision wastaken totransfer the applicant from Nicosia toLamaca.Thistime she raised objection 10 to her transfer forfamily and health reasons. Her objectionsshe articulated at an interview with the respondents held on 23rd June, 1986.Followingherrepresentationsagainsther transfer.the decisionwasmodifiedandDhaliwassubstitutedforLamacaasthe new place of herwork. Evidently thechange was approved in 15 order toshorten thedistance that applicant would have totravel dailyinorder toattend toherduties. In making transfers, including that of the applicant, the respondents were guided bythe criteria laid down in Reg.23

(1). Inevaluating the importance ofthese criteriainthe contextofthe 20 educational serviceand theirlikelyimpactupon the transferability of members ofthe service, they evolved a formula wherebythe importance of these criteria was weighted numerically andthen duly adjusted to reflect the liability to transfer of individual members of the service. In their task they were aided by a 25 mathematician whowasseconded forthepurposebytheMinistry toassistthem intheir work. The foremost ground uponwhich the applicant challenges her transfer affects the legitimacy of the system adopted forthe determination ofthe liability ofeducationalists totransfer. Inthe 30 contention of applicant there wasno authority in law forthe respondents to streamline the exercise of their discretion ina predetermined and inflexible manner byattachingafixed weight totheconsiderationsindicatedbylawasrelevanttotheexerciseof theirdiscretion.Thecoursefollowed hadnosanctioninlawandin 35 the absence ofspecific authorization itwasarbitrary on their part to measure numerically the impact of the different criteria set 'Educational Officers (Teaching Personnel) (Appointments, Placements, Transfers, PnmotloimandRelatadMattel iAmexSng) Regulations1985,officialGazette 22.2.1985, Suppi.No.3.Not7I/85- 1184 3C.L.R. Tingiridouv. Republic PlkleJ. down by law for the liability of educationalists to transfer. Furthermore the weighting system adopted neutralized their discretion, as submitted, thereby alienating their competence as sole arbitersof the liabilityof members of theservice to transfer. 5 Counsel sought to derive support for the submissions stated above from the decision of TriantafyHides, P., in Aristides v. The Republic*. Inthat case the learned President declared Reg.23

(2)ultraviresthe enabling law,The Educational Service Law 10/69. inasmuch asthe regulation purported toempower the Councilof 10 Ministers to weight the importance of the criteria laid down by Reg. 23

(1), whereas the enabling law vested sole competence in mattersof transfer tothe Educational ServiceCommission**. The caseofAristides(supra)doesnotlendsupport tothe submissions ofcounsel fortheapplicantforitsratioisconfined tothevalidityof 15 Reg. 23

(2). A similar question to the one posed in these proceedingswasraisedinGeorghiades v.TheRepublic***but the matter was left open as resolution of it was considered unnecessary for the determination of that case. The question arising for decision in this case is wholly different from that in 20 Aristides (supra). We are required to decide whether it was competent for the respondents, inthe exercise oftheir discretion, toweight numerically the significance of the criteria envisagedby Reg.23

(1)asayardstickforthe exerciseoftheirpower to transfer educationalists. Aquestion ancillary to the above but bound up 25 with it,iswhether itwascompetent forthe respondents to evolve a uniform formula for the determination of the transferability of educationalists. Thetwoarguments advanced for the nullification of the process, are to recapitulate (

1. a)lack of statutory authorization, and (
2. b)neutralization of the discretion of the 3 0 respondentstorespond tothemeritsofthesituationof individual members of theservice. To begin, it is settled that the Administration may lay down guidelines for the exercise of its discretionary power provided room is left to do otherwise in the face of compelling 35 circumstancesjustifying departure therefrom****. Inthiscase the '

(1986)3C.L.R. 466. **ThedecisioninAristideswasfollowedbySowides,J.,inKUanlotisv. TheRepublic

(1986)3C.LR.i797. "*

(1987)3C.LR.343. •***Kynacouv.Republic

(1986)3C.L.R. 1845. Vassiliouv.Republic

(1982)3C.LR. 220, 227.228. 1185 PiklsJ. Tingiridouv.Republic

(1987)question issomewhat different in that the legislator did lay down the criteria that should govern the exercise of the discretionary power of the respondents.Weareaskedtodecidewhether itwas competent in the exercise of their discretion to attach a differing importancetothevariouscriteriafirstly,and secondlyadoptthem as a uniform code for the determination of the transfers of educationalists. 5 The criteria laid down byReg. 23

(1)are objective in the sense that they relate mainly to verifiable factors applicable to all educationalists. It can be validly presumed that the legislature 10 intended to make the transfer of educationalists subject to objective criteria in the interest of uniformity of treatment; a salutary objective it must be added more so as we are concerned witha branch ofthe publicservice withthousands of officers. The importance of thevariousfactorsandtheirinteractionisrightlyleft 15 to the discretion of the competent authority. Asthe lawstands,it isvery much for the respondents to evaluate these cirteria and attach to them such importance as the determining factors for transfer astheymay deem appropriate inthe lightof theneedsof the service and their experience in that area. The first question I 20 must ask myself is whether it would be incompetent for the respondents to adopt the weighting system they did for the determination of an individualapplication for transfer. Myanswer isunhesitatingly no;the lawleavesthe application of the relevant criteria to the respondents including power to evaluate their 25 impact as they may judge appropriate. Isthe system invalidated because of the generality of itsapplication? In the first place, the legislature intended thattransfers should be made on the basisof objective considerations. Secondly and more importantly, uniformity of treatment ofthe employees of theAdministration is 3 0 not only a desirable objective but in the case of Cyprus a mandatory one in view of the provisions of Art. 28.1 of the Constitution. The adoption of a uniform code for the determination of the liability of educationalists to transfer, in accordance with the criteria laid down by the law, was not only 3 5 permissible but, in my judgment, salutary too. Adherence to a preordained code closes the door to favouritism and just as importantly to a semblance of favouritism, equally damaging to the image of the Administration and faith in itsimpartiality. If the weightattached tothecriteriaprovidedbylawwasunreasonable, 40 any decision founded thereon mightbevulnerable tobeset aside on that account. No such suggestion was made in this case nor 1186 3C.L.R. Tingiridouv. Republic PlkisJ. doesthesystem evolvedappeartomeinanyway unreasonable or irrelevant totheneeds of the educational service The establishment of auniform guide for thepreparation of the tables determiningihetransferability of educationalistsis probably 5 thebest way toensure equality of treatment,a factor of very great importance considenng the magnitude of the service It is evident from the fact that the respondents modified their decision following theobjections of theapplicantthatthey didnot rule out the possibility of responding to individual needs of 10 educationalists They did not alienate their discretion to depart from the code in the face of extraordinary circumstances Of course, any such departure must be duly mentedand the burden is on the respondents tojustify deviation from the norm Else the objectivity theysought toinject inthesystem would be destroyed 15 In the light of the above, I dismiss the submission that the adoption of auniform system for theevaluation of theimportance of the cntenalaid down inReg 23

(1)was eitheroutsidethe ambit of the enabling law orameasureresulting from abuse orexcessof power 20 Two other grounds were put forward for the annulmentof the sub judice decision The first was that Reg 14

(2)is ultraviresthe enabling law in that contrary to the provisions of the statute, a retrospective legislative measure was enacted thereby Retrospectivity denves, as counsel submitted, from the fact that 25 theseat of educationalists isdiscerned by reference toevents that occurredpnortothe enactmentof thelaw This is, with respect, a fallacious understandingof thepnncipteofretrospectivity Alaw is not made retrospective merely because its application is made dependent onpastevents* Thelaw becomes retrospective onlyif 30 itupsets nghtsthatcrystalized andvested underthelaw before the enactment of the impugned legislation Ifind this ground to be devoid of mentand as such itis dismissed Lastly, the transfer is impugned for failure on the part of the Administration to compile the table of transfers provided for by 35 Reg. 24

(3)within the second fortnight of Apnl Inthe submission of counsel thiswas amandatoryrequirementof the law inviewof the provisions of Reg 4 providing that time limits should be *SanbsandOthersv Republic

(1983)3CLR 419 Repubbcν Menefeou

(1982)3CLR 419 1187 PildsJ. Tingiridouv. Republic

(1987)indicative only for the first year. Itwas argued thatReg.4 should, by necessary implication, be construed as providing that time limitswere mandatoryfor the ensuing years. Administrative law distinguishss between the implications of non adherence totimelimits by thesubject on the one handand 5 the Administration on theother. Inthecase of theAdministration time limits are invariably indicative of the time within which the Administration must act. Departure from the limit prescribed by law does not invalidate administrative action,save inexceptional circumstances where thedelay is such as to cast the action taken 10 thereby wholly outside the framework of the law (Conclusions f romDecisions of the GreekCouncilof State, pages 105,108and 95). To render time limits for the Administration mandatory Ould often prove tobe aformula for inactivity on theirpart.On leotherhandtimelimitsaremandatoryforthesubject andfailure 15 )adhere thereto disentitles him from asserting his rights before ie Administration. In my judgment Reg. 4 aimed to relieve ducationalists from the consequences of failure to comply with ie time provisions of the regulations considering thatthey were nacted in the middle of theacademic year 1984-1985, notably, 20 η 22nd February, 1985. I cannot presume that the legislator [tended by theenactment of Reg.4 andas a matterof necessary nplication to invalidate the action of administrative authorities ikensubsequent to thetimelimits ordainedby the regulations. Intheresulttheapplicationisdismissed. Thesubjudicedecision 25 confirmed pursuant to the provisions of Art. 146.4(b) of the constitution. Recourse dismissed. No orderas to costs. 1188