(1987)1987December11 iSAWIDES J] INTHEMATTEROFARTICLE146 OFTHECONSTITUTION PANAYIOTIS STAVRINIDES, Applicant, ν T H E REPUBLIC OF'CYPRUS, T H R O U G H THE MINISTER O F H E A L T H , Respondent (CaseNo390/87) Public Officers — Transfers — Competence — Transfer from one District to another, involving changeofduties— ThePublic Service Law 33/67, section 48(2} Public Officers — Transfers— Effectingatransferfordisciplinary reasons underthe guise of the needs of theservice without affording theofficer an opportunity of being heard — Illegal The applicant is a Dentist, 1st Grade, and he was posted partly at the Nicosia General Hospital and partly at the new Government Hospital at Lamaca By thesubjudice decisionhewastransferredfromLamaca Hospital and Nicosia General Hospital tothe outpatientssectionofStrovolos Hospital and Nicosia General Hospital From the contents oftwo letters which were addressed by the Director of Dental Services to the Director-General of the Ministry of Health it clearly emanates that the transferof theapplicant fromLamaca and Nicosia General Hospital tothe outpatientssectionofStrovolosandNicosiaGeneralHospital was in facttaken as adisciplinary sanction under the disguise of the needs of the service 5 \Q J5 Held, annulling the sub)udice decision
(1)The subjudtce decision was not taken by a competentorgan A transfer of a medical officer from onedistrict to another is not a matter within the competence of the Director of Dental 2 0 Services as he is not theappropnate authonty under section48
(2)asdefined ins2ofLaw 33/67 especiallywhen adifferentiationofdutiesisalso involved
(2)In the circumstancesof the present case no room for doubt isleft that the transfer ofthe applicant and/or the assignment ofdifferentduties tohim was illegalandthatitwas noteffectedforthepurposeofsatisfyingtheneedsofthe 2 5 1900 3 C.L.R. Stavrlnldes v. Republic servicebutitwasclearly adisciplinarysanctiontakenbytheDirectorof Dental St?r\ices, without affordinghim the opportunityto be heard Subjudice decision annulled. Costsin favour of applicant. 1 CA-L - wtered to ** Kalisperas ν The Republic 3 R S C C 146 Pilatsisv TheRepublic
(1968)3C.L.R
- Pittakasv The Republic (1984}3 C L R 897 Recourse. Recourse against thedecisionoftherespondent totransferand/ 10 or post the applicant at the outpatients section of Strovolos Hospital for fourdays aweek and atthe outpatients section of the Nicosia General Hospital for two days a week. A. Ladas.for the applicant. 15 A Papasawas, Senior Counsel of the Republic, for the respondent Cur. a_dv vult. SAWIDES J. read the following judgment. By this recourse applicant challenges the decision of the Director of Dental Services of the Ministry of Health to transfer and/or post the 2Q applicant at the outpatients section of Strovolos Hospital for four days aweek and at the outpatients section of the Nicosia General Hospital for two days as from the 16th March,
- The sub judice decision is contained in a letter dated 6th March, 1987 signed by the Director of Dental Services which reads asfollows: 25 30 «I wishtoinformyou that forthe needs of theservice,ithas been decided that as from 16th March, 1987 you should perform the duties of your post every Monday, Wednesday, Th"rsday andSaturday intheoutpatientssectionof Strovolos Hospital and every Tuesday and Friday in the outpatients section of the Nicosia GeneralHospital.» The applicant is a Dentist, 1st Grade,andhe wasposted partly atthe Nicosia GeneralHospital andpartlyatthenew Government Hospital at Larnaca. By the above-mentioned letter he was transferredfromLarnaca Hospital andNicosiaGeneralHospital to 35 theoutpatients sectionofStrovolos HospitalandNicosia Genera) Hospital. 1901 SawtdesJ. Stavrinldeev. Republic
(1987)Itisthe contention ofthe applicant thatthe subjudice decision wastaken forpunitiveandrevengeful reasonsemanatingfrom the fact thatasasecretaryofthebranchofdentistsofthePA.SY.DYhe came into conflict withthe Director ofthe Dental Services, which ledto two unsuccessful disciplinary proceedings against him. 5 Counsel appearing for the respondent did not oppose this application and made thefollowing statement: «Having considered and having advised the respondent accordingly I wish tostate that I shall not defend thiscase as I do not support thelegalityofthe subjudice decision.» 10 He produced, however, two letters of the Director of Dental Servicesdated 28th September, 1987 and 11th November, 1987 which were relevant to the present case to enable the Court to arrive at its decision bearing in mind all the materia! facts of the case. 15 Counsel for the applicant submitted that from the contents of the said letters it clearly emanates that the transfer and/or new assignment of duties tothe applicant wasnot in reality necessary in the needs of the service and was in fact a disciplinary sanction taken against him underthe disguise ofthe «needs ofthe service» 20 without affording him theopportunity todefend himself. Fromthe contentsoftheaforesaid letterswhichwere addressed by the Director of Dental Services to the Director-General of the Ministry of Health it clearly emanates that the transfer of the applicant from Larnaca and Nicosia General Hospital to the 25 outpatientssection ofStrovolosandNicosiaGeneralHospitalwas in fact taken as a disciplinary sanction under the disguise of the needs of the service. Some extracts from the said letters are indicative of such intention. Inthe letterof 11th November, 1987 we read the following: 30 «Mydecision for theslightmodification of the dutiesof Mr. ,PanayiotisStavrinideswastaken underthepressureof events and hisrelationsontheone hand withhisimmediate superior Mrs.Ek. Kostea,Senior Dental Officer and on theother hand with Mrs. Chr. Vassiliou, Dental Officer, 2nd Grade, who is 35 engaged in addition to her general duties with therapy after operation. Itisknown that Mrs.Ek. Kostea on the one hand reported him to the Ministry for improper conduct and Dr. Pan. Eliades, Senior Medical Officer, was appointed as an 1902 3 C.L.R. Stavrinidc· v. Republic SawldeaJ. Investigating Officer and on the other hand he was also reported byMrs.Chr.Vassilioutothepolice forassault. 5 10 J5 20 My first reaction to the relations created between Mr. P. Stavrinides and the aforesaid persons was to call Mr. P. Stavrinides to myofficeandtalk thematter inaneffort to find a way to settle the question of his relations with his other colleagues. The result was that Mr. Stavrinides expressedhis surprise and advanced his own views on the question of his relations andhisservice responsibilities. ItwaswiththeaboveinmindthatIdecidedtoresorttothe. within inverted commas in the recourse, 'due to the requirements of the service' because in fact after consideration for months I should as Director of Dental Services make the less painful for everybody corrective movement which wasthe slight modification of the duties of P. Stavrinides for thebenefit oftheservice,of himself andof theothersinvolvedinmattersofcommunicationand-elations having ascommon factoralwaystheapplicant » The Director of DentalServices concluded hisletter asfollows: «The future will depend upon the elimination of the negativefactorsofthepastandthepresentinthesectorofreal cooperation and collectiveness for the correct facing of specialincidents of the Dental Services.» 25 It is clear from the above that the Director of Dental Services admits that thereisamodification of theduties oftheapplicant.It is surprising however how the Director of Dental Services describes the transfer of the applicant from Lamaca Hospital where he was partially engaged to the outpatients section of 30 Strovolos Hospitalasaslight modification of hisduties.A transfer of a medical officer from one district to another is not a matter within thecompetence of the Director of DentalServicesasheis nottheappropriateauthority undersection48
(2)asdefinedins.2 of Law 33/67 especially when a differentiation of duties is also 35 involved. In Kalisperas v. The Republic, 3 R.S.C.C. 146 we read the followingatp.151: 1903 SavvldeeJ. Stavrinldea v.Republic
(1987)«Itis,ofcourse,possiblefortransfers tobemade,invarying degrees, both forreasonsof misconduct and otherreasonsat thesametime.Insuchcasesitmaynotalwaysbeeasytodraw the line between disciplinary and other transfers. The test to beapplied insuchcasesistoascertaintheessentialnatureand 5 predominant purpose of the particular transfer. In case of doubt whether atransferisdisciplinaryornotthensuch doubt ought to be resolved by treating the transfer in question as being disciplinary in order to afford the public officer concerned the safeguards ensured to him through the 10 appropriate procedure applicable todisciplinary matters.» The above was cited with approval in Pilatsis v. The Republic
(1968)3 C.L.R. 707 where atp.713weread the following: «Itseems to me thatinthelightofallthecircumstancesthis is clearly a disciplinary transfer disguised as a transfer on 15 educational grounds mainly because, due to the unwillingness of vital witnesses to testify, there was no evidence to support disciplinary measures against the Applicant. But in any case, whichever way one looks at the case, it cannot in myview be said that the question whether 20 the transfer was disciplinary or not can in any way be considered tobefree from doubtandthat,therefore, itshould betreatedasdisciplinary.» See alsoPittakasv.Republic
(1984)3 C.L.R.897 atp.902. Inthecircumstancesofthepresentcasenoroomfordoubtisleft 25 thatthetransfer oftheapplicantand/ortheassignmentof different dutiestohimwasillegalandthatitwasnoteffected forthe purpose ofsatisfying theneedsoftheservicebutitwasclearlyadisciplinary sanctiontakenbytheDirectorofDentalServiceswithout affording him the opportunity to be heard. Furthermore the transfer of the 30 applicant from Lamaca toStrovoloswastaken byan incompetent organ. In the result the sub judice decision is annulled with costs in favour ofthe applicant. Sub judice decision annulled.Costsinfavour otapplicant. 1904 35