clr/1987/1987_3_1585.pdf

(1987)3C.L.R. 1574 adopted, 5 Educational Officers — Transfers— The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotion and Related Matters) (Amendment) Regulations — Effecting a normal transfer(Reg 20(a))under the disguise of an extraordinary transfer — Ground of annulment — Georghiades v. TheRepublic

(1987)3 C.L.R 343adopted. 1 0 Subsidiary legislation — Retrospectivity of— Theofanous v. The Republic

(1987)3C.L.R. 1574 adopted. Natural Justice — No one can be a Judge tn his own cause — Theofanous v. Republic

(1987)3 C.L.R.1574 adopted. 15 20 The applicant challenges the decision of the Educational Service Commission to transfer her from Limassol to Lamaca, and to dismiss her objectionsto suchtransfer. The applicant reliedin supportof her case on five main grounds The first four grounds are the same as the grounds put forward by the applicant in Theofanous v. The Republic

(1987)3 C.L.R. 1574. The fifth is that the procedure followedforthesubjudicetransferwasnottheproperonebearing in mind the fact that this was in fact an extraordinary transfer, under Regulation 25

(1)(a). 1585

(1987)Payiasl v. Republic The Court dismissedthe first fourgrounds for the same reasonsas those expounded in Theofanous case, supra and Held, further, annulling the sub judice decision, that in the light of the minutes of the respondent Commission, there can be no doubt that in this case theCommission effected a transfer onthebasisof Reg 20(a)underthe 5 disguiseandpretext of anextraordinary transfer Inthelight of thedecisionin Georghmdes v.TheRepublic

(1987)3CLR 343 thesubjudicedecision has to be annulled Subjudicedecision annulled 10 No orderas to costs Cases referredto Anstidesv TheRepublic {1986)3 C LR 466, Theofanous ν TheRepublic

(1987)3 CLR 1574, Georghmdes ν TheRepublic

(1987)3 C LR 343 Recourse. 15 Recourse against the decision of the respondent to transfer applicant from Limassol to Lamaca. A. S.Angehdes, for the applicant. A. Vassiliades, for the respondents. Cur. adv. vult. 20 SAWIDES J. read the following judgment. The applicant challenges thedecision of theEducationalService Commissionto transfer her from Limassol to Lamaca, and to dismiss her objections tosuch transfer TheapplicantisaSecondary School teacherand was servingat 25 the material time prior to the sub judice decision, at the Sixth Limassol Gymnasium. Consequent to the judgment of this Court in the case of Aristides v. The Republic

(1986)3 C L.R. 466, whereby Regulation 23

(2)of the Educational Officers (Teaching Staff) 30 (Appointments, Postings, Transfers, Promotions and Related Matters)Regulations, 1972-1985, was declared ultraviresthe law, the E.S.C. met in April and May, 1986 in order to consider the position regarding the evaluation of the criteria set out in Reg. 23

(1). As a result a formula was evolved for the numerical 35 1586 3C.L.B. Payiaslv.Republic SawidesJ. evaluation of the said criteria, on the basis of which a table was compiled of the educationalists subject totransfer, in accordance with Regulation 24

(3)in which the name of the applicant was included. 5 On 10th February, 1986, the applicant filled in a form in accordance with Regulation 24

(2),statingthat she didnotwish to be transferred on account of health reasons of herself and members of her family. Her case was referred to the Medical Board,inaccordance withRegulation22(a)whichadvisedthatthe 10 health reasonsadvanced byherdidnotjustify her non-transfer. The respondent E.S.C. decided, at itsmeeting of 4.9.1986, to transfer the applicant from Limassol to Lamaca. The applicant objected tohertransfer bylettersettingoutthereasonsinsupport ofher objection.Atitsmeeting of 11.9.1986the E.S.C. dismissed 15 her objection onthe ground that hertransfer away from her place of residence was made on the basis of her order on the list of educationalists subject to transfer away from home and the prerequisites of Regulations 22(a)or22(b)did not exist. Asa result the applicant filed the present recourse. 20 25 30 The legal grounds advanced by counsel for applicant are the same as those raised in the case of Theophanous v. Republic (Case No.577/86) inwhichjudgmentwasdelivered bymeon the 6th October, 1987,*and are briefly the following:(a) The numerical system adopted by the E.S.C. for evaluating the criteria set out in Regulation 23

(1)and determining the transferability of educational officers has no sanction inLawandistherefore ultraviresthelawand hinders theproper exercisebythe E.S.C. of itsdiscretionary power. (b) Regulation 14

(2)referring to the determination of the place of residence of educationalists violates against the rule of non retrospectivity. (c)The objection oftheapplicant wasdecided bythe same organwhich tookthe original decision. 35 (d)The applicant was not afforded therighttobe heard in support of her objection. 'Reported in

(1987)3 C.L.R.1574. 1587 SawldesJ. PaytasIv.Republic

(1987)The above grounds have been decided by me in the case of Theophanous (supra) in which Ihave held that Regulation 14

(2)andthenumericalevaluationbytheE.S.C.ofthecriteriasetoutin Regulation 23

(1)arenotultraviresthelawandthattherehasbeen no violation of the rules ofnaturaljustice. ^ I adopt fully what Ihave said in the above case regarding the above groundsand have nothing more to add. Inthisrespect these groundsare, therefore, dismissed. There is,however, an additional ground which israised inthe present recourse, more specifically, that the procedure followed 10 forthe subjudicetransfer wasnotthe proper one bearinginmind the fact that this was an extraordinary transfer, under Regulation 25(l)(a). The minutes of the meeting ofthe respondent Commission, in which thesubjudice transfer wasdecided, read, inthisrespect, as 15 follows: «Transfers. After the completion oftheconsideration ofthe objections (see min. 3/9/86) which have been submitted by educational officers of Secondary Education for theirtransfer the Commission having 20 in mind:(

1. a)the provisions of the Regulations concerning educational officers, 1972 to 1985 as well as the decision of the Educational Service Commission dated 10/5/86 on the basis of which the lists of applicants and those subject to 25 transfer were compiled, (
2. b)the educational needs as they have been conveyed by the Ministry of Education in itsdocument No. 520/86 dated 28/8/86, (c)theapplication fortransferaswellastheformsfilled inby 30 the educational officers subject to transfer the Commission decides the following extraordinary transfers of educational officers of Secondary Education asfrom 10/9/86: A B. The following are transferred away from their home 35 residence inaccordance with the provisions of Reg.20(a)on the 1588 3 C.L.R. Payiasi v.Republic S a w i d e e J. basis of their serial order on the list of those subject to transfer (Reg.24

(4)): ASSISTANTHEADMASTERS 5 Payiasi-Sawidou Maria6th Gymn. L/ssol Mak.C Gymn. L/ca. Also in the minutes of 11/9/1986, where the objection of the applicant wasdismissed, we read the following:«TheCommission having in mind10 (

1. a)the provisions of the Educational Officers Regulations 1972to 1985, (b)itsdecision dated 10/5/86 onthe basisof which thelists of the applicantsand thosesubject totransfer was compiled, 15 20 (c)the educational needsasthey havebeen conveyed bya document of the Ministry of Education No. 520/86 dated 28/8/86 and after studyingtheobjections fortransfer whichhavebeen made by educational officers of Secondary Education after the extraordinary transfers (see min. 4/9/86) decides as follows:(
2. a)(
3. b)25 (c)Theobjections ofthe following are dismissed sincetheir transfer away from residence was made on the basis of their serial order on the list of those subject to transfer away from residenceandtheprerequisitesofRegulations22(a)and22(
4. b)do not exist.» The name of the applicant then appears. Havingconsidered carefully thecontentsofthevariousminutes 30 of the meetings of the respondent Commission, especially the extracts cited above, there isno doubt inmymind thatthe E.S.C. effected in fact a normal transfer on the basisof Regulation 20(
5. a)under the disguise and pretext of extraordinary transfer. Useful 1589 Sawldes J. Paylasl v. Republic

(1987)reference in this respect may also be made to the case of Georghios Georghiades and the Republic (Case No. 598/86 in whichjudgment wasdeliveredon 11.4.1987,stillunreported)*by which a similar decision of the E.S.C. also dated 4.9.1986, concerning the transfer ofanother educationalist waschallenged. PikisJ. said the following inthis respect:- 5 «Examination of the reasoning of the sub judice decision persuades me that the respondents did not exercise their powerwithinthelimitsoftheirdiscretionunderReg.25.They did not address themselves to meeting gaps inthe service on 10 a temporary basis but extended their inquiry as if free at the beginning of the year to continue the process of transfers envisaged by the preceding regulations. In so doing they laboured under a misconception as to the nature, ambit and extentoftheirpowers,amisconception thatvitiateddecisions 15 taken thereunder, including the transfer of the applicant. Consequently, the subjudice decision must be annulled.» I,therefore, find, forthereasonsstatedabove,thatthisrecourse should succeed on this ground. Inthe result thisrecourse succeeds and the subjudicedecision 20 isset aside with no order forcosts. Sub judice decision annulled.No orderas tocosts. 'Reportedin

(1987)3CL.R.343 1590