3 C.L.R. 1986March 22 [TRIANTAFYLLIDES Ρ] IN T H E M A A E R O F ARTICLE 146 OF T H E C O N S T I T U T I O N CLEOPATRA KOTSONI, Applicant, ν T H E REPUBLIC OF CYPRUS, T H R O U G H T H E E D U C A T I O N A L SERVICE C O M M I S S I O N , Respondent (Case No 830/85) Educational Officers — The Educational Officers (Teaching Staff) (Appointments, Postings Promotions Transfers and Related Matters) (Amendment) Regulations 71/85—Reg 23
(2)—Ultra viresenabling law—Anshdes ν The Republic
(1986)3 C L R 466 followed 5 Executory act — Partial transfer of educational officer altenng such officer's obligations in relation to theperformance of her duties—An executory act The applicant,who isaschoolmistressofmusicinthesecondary education, was posted at Paphos •Gymnasium B» By a decision dated 9 8 85 the applicant was, also, posted(or partof each week at the Polemi Gymnasium 10 15 20 By means ofthe subjudicedecisiontheapplicantwas postedforpartofthe week at Kato Pyrgos, instead ofat Polemi Thisdecision was taken under the aforesaid Regulation 23
(2)in order to satisfy the pnonty claim of another educationalist Held, annulling the subjudice decision
(1)Kato Pyrgos is by far a more distant place from Paphos than Polemi The applicant resides in Paphos It follows that the subjudice decisionalteredthe obligations of theapplicant in relation to the performance of her duties and it is, therefore, an executory decision
(2)Reg 23
(2)of the aforesaid regulations is ultra vires the enabling law (Aristfdes ν The Republic
(1986)3 C L R 466 adopted) Subjudice decision annulled No order a>to costs 1809 Koteonlv.Republic
(1987)Casesreferredto: Aristidesv.TheRepublic
(1986)3C.L.R.
- Recourse. Recourse against the decision of the respondent to transfer applicant from Paphos to K. Pyrghos for eight teaching periods 5 per week. N. Clerides, for the applicant. N. Charalambous,. Senior Counsel of the Republic, with E. PapadopouIIou (Mrs.), for the respondent. Cur.adv. vult 10 TRIANTAFYLLIDES P. read the following judgment. The applicant challenges the decision of the respondent Educational Service Commission to partly transfer her from Paphos to Kato Pyrgosfor eightteachingperiods per week. The applicant is a schoolmistress of music and she has been 15 serving inSecondary Education for about twenty-four years. On 9 August 1985 the respondent Commission decided to partly transfer the applicant from the «Gymnasium B»in Paphos, where she was posted at the time, to the Polemi Gymnasium for part ofeach weekand shewould remainatthe«GymnasiumB»in 20 Paphos for the remaining part of the week. Then, on 13September 1985,theCommission decided to post the applicant at Kato Pyrgos, instead of at Polemi, for eight teaching periods per week; and against this partial transfer the present recourse was made on 27 September
- 25 It may be judicially noticed that Kato Pyrgos is by far a more distant place from Paphos than Polemi and the applicant, who resides with her husband in Paphos and teaches there at the «Gymnasium B»for part of each week, was definitely affected to herdetrimentbybeingmadetotraveltoKatoPyrgos,insteadofto 30 Polemi, for the performance of her part-time duties away from Paphos. It follows ihcXthe decision of the respondent Commission, dated 13September 1985,whichradicallyalteredthe obligations ofthe applicant inrelation tothe performance of herduties, isan 35 executory decision which could be challenged by means of the present recourse, even though itisa decision for partial transfer, and not for a full transfer, ofthe applicant. 1810 3CUR. Koteoni v. Republic TriantafyllJdea P. Forthereasonssetoutinthejudgment whichIhavedelivered inthe closelyrelated case ofAristides v.TheRepublic (caseNo. 813/85)*Iholdthattheaforesaid decisionof 12September1985 has to be annulled inasmuch as, from the material before meit 5 appears that there was taken into account, in reaching such decision,thepriorityclaimtomorefavourable thantheapplicant treatment, as regards transfer, of another educationalist, D. Panayides,whowaspostedatPolemiintheplaceoftheapplicant who,consequently,wasmovedtoKatoPyrgos. 10 Thesaidprioritywasdeterminedinaccordancewithregulation 23
(2)oftheEducationalOfficers (TeachingStaff) (Appointments, Postings, Transfers, Promotions and Related Matters) (Amendment) Regulations 1985 (Regulations 71/85), which I havefoundinmyjudgmentintheAristidescase,supra,tobeultra 15 viresthePublicEducationalServiceLaw, 1969(Law10/69). Consequently,thisrecoursesucceeds;but1willmakenoorder astoitscosts. Subjudice decisionannulled. Noorderastocosts. •Reportedin
(1986)3C.LR. 466. 1811