3 CUR. 1987April H (PIKIS J] IN THEMATTER OFARTICLE 146OFTHECONSTITUTION GEORGHIOSGEORGHIADES, Applicant, υ THEREPUBLICOFCYPRUS.THROUGH 1 THEEDUCATIONALSERVICE COMMISSION, 2 THEMINISTRYOF EDUCATION, Respondents (CaseNo 598/86) ActsordecisionsinthesenseofArt 146oftheConstitution—Jusbciabihty—Does not dependon duration of prejudicial effects, buton nature and direct prejudice occasioned to thesubject thereby — Transferofan educational officer—Re-transfershortlythereafter— Transfersblljusticiable 5 Educabonai Officers — Transfers — TheEducabonal Officers (Teaching Staff) (Appointments, Posbngs, Transfers, Promobons and Related Matters) (Amending)Regulations 71/85—Regulation25—Ambit—Misconception byrespondentsofuienatureandextentoftheirpowersthereunder 10 15 The applicant, a secondary school teacher, was transferred at the commencementoftheacademic yearinSeptember, 1986 from theSolea GymnasiumtotheGymnasiumofPedhoulas Thedecision was takenunderReg 25oftheaforesaidRegulations, which empowers the respondent Commission to transfer exceptionally educationalists inthemonthofSeptember,providedsuchcourse isdictated by unforeseeable needs of theservice andthe decision authorising the transfer isdutyreasoned The complain! of the applicant is not confined tothesaid transfer, but extendstohisnontransfer toPaphosforwhichheappliedthepreviousyear, presumablypursuanttoReg 24
(1)20 Itmustbe notedthaton2 1086theapplicantwasre-transferred toSolea A «faint» suggestion was made that the re-transfer put an end tothe justiciabilityofthesub-]udlcetransfer 343 Georghladesv. Republic
(1987)Held, annulling the sub-judide decision
(1)The justiciability of an administrative actdoesnotdependonthedurationof theprejudicial effect of the administrative action, but on the character of the decision and direct prejudice, if any,occasionedtothesubject thereby
(2)Applications for transfer aredealtwith,asprovidedbyReg 24,thelatest in May and objections theretoin July To the extent this recourse aims to challenge the failure or omission totransfer theapplicantto Paphositisout oftime 5 {3} Reg 25 isnotintendedtoby pass theordinaryprocedurefor transfers, butitisconfinedtotheconfermentofpower togaugegapsintheservice and 1 0 thereby afford abreathingspace to bndge themona morelasting basis
(4)Inthiscasetherespondentsdidnotaddress themselves tomeetinggapsin the service, but extended their inquiry as if free at the beginning of the academicyeartocontinuetheprocessoftransfersenvisaged bythepreceding regulations Inso doing they laboured undera misconceptionof thenature, ambit andextentof theirpowers underReg 25 15 Subjudice decisionannulled No orderasto cost Casesreferredto Ansbdes ν TheRepublic
(1986)3 CLR 466 20 Recourse. Recourse against the decision of the respondents to transfer applicant from Solea Gymnasium to Pedhoulas Gymnasium. A S.Angelides, for the applicant. Ρ Clerides,for the respondents. 25 Cur. adv. vult. P1KISJ. read the following judgment. The applicant, a secon dary school teacherof philology,was posted with hiswife,a fellow teacher, at the Solea Gymnasium. At the commencement of the academic year in September 1986, he was transferred on short 30 noticetotheGymnasium of Pedhoulas. As may be gathered from the time at which the transfer was made and the precedure follo wed, the decision was taken under Reg. 25 of the regulations governing the transfer of educationalists*. The Educational Officers (Teaching Personnel) (Appointments, Postings,Transfers, Promotions and Related Matters)(Amending)Regulations 1985— 1985Official Gazette, Supplement3— 71/85,ρ201. 344 3 C.L.H. Georghlades v. Republic PlklsJ. Regulation 25(l)(a) empowers the Educational Service Commission to transfer exceptionally educationalists in the month of September, provided such course is dictated by unforeseeable needs oftheserviceandfurther provided thedecision authorising 5 the transfer is duly reasoned. Seemingly, in exercise of these powerstherespondentson4thSeptember, 1986,decidedtotransfer the applicant toPedhoulas.Within two days ofbeing notified ofthedecision,thatis,withinthethree-daytimelimitenvisagedby Reg. 25
(2), the applicant lodged objection to his transfer for the 10 reasons indicated inhisletter raisingobjection.Twodayslaterhis objection was dismissed and his transfer affirmed. We stress that only Reg. 25 confers power on E.S.C. to make transfers at the commencement of the academic year. Applicant challenged his transfer by the present recourse 15 instituted on 26th September, 1986.Soon after, on2nd October, 1986,hewasre-transfenred toSoleawhereathepresentlyserves. Afaint suggestion wasmadethatthe re-transfer ofthe applicant putanendtothejusticiabilityofthecomplaintraisedinthepresent proceedings.Isay«faint»becausethecontention wasnotpursued 20 tothe end,rightlyso, for the justiciability of an administrative act doesnotdepend ontheduration oftheprejudicial effects ofadministrative action but on the character of the decision and direct prejudice, ifany, occasioned tothe subject thereby. Consequently,thesubjectmatteroftherecourse isamenabletotherevisionar 25 jurisdiction of the Supreme Court and as such it must be duly heeded. Asmaybesurmisedfrom thefinaladdressmadeonbehalfofthe applicant, his complaint is not confined to the challenge of the decision immediatelygivingrisetotherecourse,butextendstohis 30 non transfer to Paphos for which he applied the previous year, presumably pursuant to the provisions of Reg. 24
(1). This grievance cannot be heeded for the sub-judice decision does not purporttodealwithhisapplication ormeetapplications of educationalistsfor transfer within the framework ofbalancingthe needs 35 oftheserviceandthewishesofeducationalists.Such applications are dealt with, as provided in Reg. 24, the latest in Mayand any objections thereto in July of the same year. To the extent the 345 PildsJ. Georghladen v. Republic
(1987)recourse aimstochallenge anysuchdecision,failure ofomission it is out of time The subject-matter of the impugned decision was not the satisfaction of the ordinary needs of secondary education or the adjustment of such needs with the wishes of those in the service The decision purported to meet the extraordinary needs 5 of educationearlier unforeseeable, madewithin theframework of the powers vested in the respondents by Reg 25 Such transfers should necessanly be of short duration lasting no longer than necessary toenable the parties to^meettheneeds of educationon a more lasting basis within the context of the powers vested in 10 them by the regulations preceding Reg 25 Regulation 25 is not intended tobypass the ordinary procedure for transfers Itsambit isconfined totheconfermentofpower togaugegaps intheeduca tional service and thereby afford abreathing space tobnclge them on a more lasting basis 15 Examination of thereasoning of thesubjudice decision persua des me that the respondents did not exercise their power within the limits of their discretion underReg 25 They did not address themselves tomeeting gaps intheservice onatemporarybasisbut extended theirinquiry as iffree atthebeginning of theyear tocon- 20 tinue the process for transfers envisaged by thepreceding regula tions Inso doing they laboured under a misconception as tothe nature, ambit and extent of their powers, a misconception that vitiated decision taken thereunder, including the transfer of the applicant Consequently, the sub judice decision must be 25 annulled This being my decision, itis unnecessary toexamine or debate the amenity of therespondentstoquantify numencallythe weight that should be given to the vanous factors specified in Reg 23(l)(a), (b) and (c),governing the exercise of their discretion or 30 consider the implications of thedecision inAnstides ν The Rep ublic* on the exercise of the powers of the Educational Service Commission to make transfers Being satisfied as I am thatappli cants acted inexcess of oroutside thecontextof thepowers given them by Reg 25,1contendwith annulling thesubjudice decision 35 leaving consideration of otherissuesraised intheseproceedings at a future opportuneoccasion *
(1986)3CLR 466 346 3C.L.R. Gaotghted*·v.Republic PikUJ. The sub judice decision is wholly annulled, pursuant to the provisionsofArt.146.4(b).Lettherebenoorderastocosts. Subjudicedecision annulled. Noorder astocosts. 347