3 CUR. 1985June 15 t irRIANTAFYLUDES PI INTHEMATTEROFARTICLE 146OFTHECONSTITUTION NICOSELLINAS, Applicant, ν THEREPUBLICOFCYPRUS,THROUGH 1 THEMINISTRY OFEDUCATION, 2 THEDIRECTOR OFSECONDARY EDUCATION 3 THE EDUCATIONAL SERVICE COMMISSION, Respondents (Case No 401/83) Legitimate interest—Failure toreply incontravention ofArt 29 ofthe Constitution — Once the refusallist'/was challenged andthe applicant didnot sufferany matenal detnment byreason of such failure, theapplicant cannot pursue his complaint againstthe failure to reply 5 1() 15 20 Legitimate interest — Transfer of Educational Officers — Decision to transfer interested parties not reached after tompanson between them and the applicant regardingtheir suitability fortransfer—Subjudice decision didnot affectadversely anddirectly applicant's legitimate interest Timewithin which tohiearecourseunderArt 146of the Constitution—Objection againsttherefusal to transferapplicant to Paphos andthe decision to transfer to Paphos two other Educational Officers — The Educational Officers (TeachingStaff) (Appointments, Postings, Transfers, Promotions and Related Matters)Regulations 1972, Reg 22— Said objection outside scope of Reg 22—ft follows thattime didnotstop torunbyreason of the objection Educational Officers — Transfers — The Educational Officers (Teaching Staff) (Appointments, Postings, Transfers, Promotions and Related Matters) Regulations 1972, Reg 22 — Scope of Reg 22 The applicant challenges the refusal of the respondent Commission to transfer himtoa Gymnasiumin Paphos, andhealso, complains againstthe decision oftheCommission totransfertoaGymnasiuminPaphos interested partiesA Papageorghiou andA Kangallis 2127 EUInas v. Republic
(1987)Th„ transfe-s of thetwo interested parties were published inthepress on 3 July 1983 and the applicant, on realizing that his application for transfer to Paphos had been turned down, lodged an objection to the respondent Commission on9July 1983 complaining thathehad notbeen transferred to Paphos and, also, complaining that the two interested parties had been transferred toPaphos ,- The Commission rejected applicant's objection The applicant was informed about the rejection of his objection on 29 September 1983 The applicant filed the present recourse on 4 October 1983 Counsel for the applicant submitted that the aforementioned objection of the applicant was lodged under the said regulation 22 and, inview of its provisions, it has to be held that the time for filing the present recourse began to run only as from the rejection of the objection |Q Held,dismissingtherecourse (1JTheprovisions of regulation 22cannotbe invoked in the present instance as they appear toapply only toan objection 1 5 by an educationalist against his own transfer and notalso toan objection by an educationalist against the refusal to transfer him or against the transfer of another educationalist Itfollows thatthepresent recourse isout of time
(2)Thedecision totransfer the interested parties hasnotbeen reached after a companson of the applicant and the interested parties as regards their 2 0 suitability for transfer to Paphos and, consequently no legitimate interest of the applicant was adversely and directly affected Recoursedismissed No orderas to costs Casesreferred to 25 Kynakides ν TheRepublic, 1RS C C 66, Pitsillosv TheCyprusBroadcastingCorporation,
(1981)3CLR 614,and on appeal {1982)3 C L R 208, Pitsillosv TheMunicipalityof Nicosia
(1982)3 C L R 754, Republic ν Nissiotou
(1985)3 C LR 1335 30 Recourse. Recourse against therefusal of thetherespondentsto transfer applicant from a Gymnasium in Polis Chrysochous to a Gymnasiumin Paphos. Ph.Valiants, fortheapplicant. 2128 35 3 C.L.R. EUlnas v. Republic R Vrahimt (Mrs),for the tespondents Cur adv vult 5 TRIANTAFYLLIDES Ρ read the following judgment The applicant challenges the refusal of the respondent Educational Service Commission totransfer himfronra GymnasiuminPolistis Chrysochous toaGymnasium inPaphos,andhe,also, complains against the decision of the Commission to transfer to a GymnasiuminPaphosinterestedpartiesA Papageorghiou andA Kangalhs ΙΟ He has complained, too, that in relation to his request to be transferred to Paphos he did not receive a reply within thetimelimitof thirtydaysprescnbed by Article 29 of theConstitution,but he has notpursued thiscomplaint when thiscase was heard,and, indeed, he could not have done so once he has proceeded to 15 challenge the refusal itself to transfer him to Paphos and since he has notshown thathehassuffered matenaldetnmentthroughthe failure toreply tohimwithin thirtydays (see,interalia, Kynakides ν The Republic, 1 RS C C 66, 77, Pitsillos ν The Cyprus Broadcasting Corporation,
(1981)3 C L R 614, 619 and on 20 appeal
(1982)3 C LR 208, Pitsillos ν The Municipality of Nicosia,
(1982)3 C L R 754, 762 and TheRepublic of Cyprusν Nissiotou,(ί985) 3 C LR 1335 The applicant is a headmaster in Secondary Education and at the matenal time he was posted at a Gymnasium in Polis tis 25 Chrysochous and he had asked repeatedly to be transferred toa Gymnasium in Paphos Likewise interested parties Papageorghiou and Kangalhs had applied to be transferred toa Gymnasium in Paphosand bothof them were Headmasters in Secondary Education The first one 30 was, at the time, serving at the Gymnasium of Polemi and the other one atthe Gymnasium of Panayia On 1 July 1983 the respondent Commission examined the applications for transfer of theapplicant and of thetwo interested parties and decided to transfer both interested parties to Paphos 35 for health reasons which they had invoked Though from the relevant minutes of the respondent Commission there appears that itexamined as wellon thatdatetheapplication for transfer of theapplicant thereisnothingstated thereinabout thefate of such application and itisonly by implicationthatitistobe denvedthat 40 itwas notgranted 2129 TrianUfyllldesP. Ellin»v.Republic
(1987)The tmnsfer of the twointerested partieswere published inthe press on 3 July 1983 and the applicant, on realizing that his application for transfer to Paphos had been turned down, lodged an objection to the respondent Commission, on 9 July 1983, complainingthathehadnotbeentransferred toPaphosand,also, 5 complainingthatthetwointerested partieshadbeentransferred to Paphos. Asitappears from itsrelevant minutesthe Educational Service Commission met on 9 September and 27 September 1983 and considered objections in relation totransfers. Though no specific 10 reference ismadeinsuchminutestotheobjection oftheapplicant it is to be presumed that his objection was dealt with and was rejected bythe Commission. Asitappears from thecontextof theApplication inthe present recourse the applicant was informed about the rejection of his 15 objection on 29September 1983. Theapplicantfiledthepresentrecourseon4October1983;and counsel fortherespondentssubmitted that,astheapplicant knew since 9 July 1983 that his request for a transfer has not been granted and that the interested parties had been transferred, this 20 recourse isout of time because it was filed after the lapse of the period of seventy-five days envisaged by Article 146
(3)of the Constitution. Counsel for the applicant has referred to regulation 22 of the Educational Officers (Teaching Staff) (Appointments, Postings, 25 Transfers, Promotions and Related Matters) Regulations, 1972 (see No.205,Third Supplement, Part I,to the Official Gazetteof 10 November 1972) and submitted that the aforementioned objection oftheapplicantwaslodgedunderthesaidregulation 22 and, inviewofitsprovisions,ithastobeheldthatthetimeforfiling 30 thepresent recoursebegantorunonlyasfrom therejection ofthe objection. Iam of the opinion thatthe provisionsof regulation 22 cannot beinvoked inthepresentinstanceastheyappeartoapplyonlyto an objection byan educationalist against hisown transfer and not 35 also to an objection by an educationalist against the refusal to transferhimoragainstthetransferofanothereducationalist.Ifthis wasacaseofatransfer towhichregulation 22couldbetreated as beingapplicable itmightbesaidthatthetime-limitof seventy-five 2130 3 C.L.R. c EUlnaa v. Republic T r i a n U f y l l l d e · P. days had to be computed as from the date of the rejection of the objection of the applicant, but as regulation 22 isinapplicable in the present instance the time under Article 146.3 of the Constitution istobecomputed asfrom9July1983and, therefore, the present recourse isout of time both against the refusal of the Commission to transfer the applicant, as well as against the transfers of the interested parties. Inany event, the complained of decision ofthe Commission to transfer the interested parties cannot be challenged by the IQ applicant because such decision has not been reached after a comparison of the applicant and the interested parties as regards their suitability for transfer to Paphos and, consequently, no legitimate interest of the applicant was adversely and directly affected, inthesenseofArticle 146.2oftheConstitution, entitling 15 him to file this recourse against the transfers of the interested parties. Forthisreason, too,the recourse of the applicantinsofar as it challenges the transfers of the interested parties has to be dismissed. Before concluding thisjudgment Iwould like to say that, even 20 assumingthat the present recourse wasnot out of timeasregards therefusal oftherespondent Commission totransfer the applicant to a Gymnasium at Paphos, there appears from the text of the relevant minutesofthe Commission ofitsmeetingon 1 July 1983 thatthe Commission had atthetimeinmindtheapplication ofthe 25 applicant for transfer to Paphos and the reasons put forward by him in support of it and carried out a sufficient inquiry into the matter;andonthematerialbefore itthedecision nottotransferthe applicant to Paphos wasreasonably open toit. Inthe light of allthe foregoing the present recourse fails andit 30 isdismissed accordingly, butwith no order as toitscosts. Recoursedismissed. No order astocosts. 2131