(1987)1987March 10 [DEMETRIADES,J.) INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION ALEXANDROSKAMMITSIS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THE PUBLICSERVICECOMMISSION, Respondents. (CaseNo. 704/85). Public Officers—Transfers—Judicial control—Principles applicable—Summing up of. On 15.2.85therespondentCommissiondecided topromotetheapplicant tothepost ofSeniorSpecialistSurgeon.Theapplicantaccepted the relevant offer without reservation. The scheme of service for the post in question 5 provides that itsholder «isincharge of a clinicora Department ofa Medical Government Institution ..«.On 6.6.85the respondent Commission decided to transfer the applicant to Lamaca Hospital as from 15.7.85. Hence the present recourse. The applicant is a plastic surgeon. In giving evidence the Director of Medical Services told the Court that asthere was no clinicof plastic surgery intheNicosiaGeneralHospital,anditsclinicforsurgerywasalreadymanned byanotherSeniorSpecialistSurgeon,theapplicanthadtofillthevacant post of Senior SpecialistSurgeon thatexisted atthe Lamaca Hospital 10 Held, dismissingthe recourse:
(1)The principles that govern interference 15 by this Court with transier of civilservants may be summarised as follows, namely:(a)Everytransfer, unlessitisanadversetransfer, ispresumedtohave been taken for the benefit and exigencies of theservice,(b)Appreciation of the needs of the service is the province of the administration and it is not subject to review, unless there hasbeen an improper exercise of discretion, 2 0 . misconception of fact or failure to take into account a material factor, (
- c)Transfersaremade inthecontextofevaluationofthewiderneedsofabranch oftheserviceandreviewofsuchevaluationisvirtuallyanimpossibletaskand onethatwouldrendertheCourttheoverseerofadministrativeaction,(d)The exercise of the power must be preceded byan inquiry intoallrelevant facts, 2 5 including the personal and family needs of the officer concerned, but such nee.ds cannot be allowed to override an officer's commitment toservice,(
- e)The needs of the service are the foremost consideration, (
- f)The recommendation of the Head of the Department should be seriously taken into account, and (gj the object of vesting the relevant power in an 3 0 independent organ istwofold, thatisthesafeguarding of theefficiency ofthe OO/I 3 C.L.R. Kammitsisv. Republic public service and the protection of the legitimate interest of the holders of public offices 5
(2)Inthecircumstancesof thiscase therespondentswere nghtinreaching theirdecisionthattheapplicant,after acceptingtheiroffer for promotion,had tofillthevacantpost of SeniorSpecialist Surgeon inthe LamacaHospital Recourse dismissed No orderas tocost Casesreferredto Nedjabv TheRepublic, 2 RS CC 78, 10 Sentonans ν GreekCommunal Chamber,1964 C LR 300 Vafeadisv TheRepublic, 1964CLR 454, Pilatsisv 77ie/?epu6//c
(1968)3CLR 707, Piendes ν TheRepublic
(1969)3C LR 274, Papantoniouv TheRepublic
(1969)3 C LR 460, 15 Mouzounsv TheRepublic
(1972)3 C L R 43, Matheou ν TheRepublic
(1972)3 C LR 304, Lazarouν TheRepublic
(1973)3 C LR 82, Damianouv TheRepublic(\973) 3 C LR 282, Karayiannisν TheRepublic
(1980)3 C LR 39, 20 Sofocleousv TheRepublic
(1982)3 C LR 786, Isaias ν TheRepublic
(1985)3 C LR 490, Zachanou ν TheRepublic
(1986)3 C LR 969 Recourse. Recourseagainst thedecision totransfer applicantfromNicosia 25 GeneralHospitaltoLamacaHospital N.Papaefstathiou, for theapplicant. P.HadjiDemetriou, for therespondents. Cur adv. vult 385 Kammitsla v. Republic
(1987)DEMETRIADESJ. read thefollowingjudgment. Theapplicant, who is a doctor,is amember of themedical staff of the Ministry °T Health. After completing his studies and his specialization in general surgery, he was sent, on a Government scholarship, to England,tospecialise inplasticsurgery.When hereturned,hewas 5 posted as the Nicosia General Hospital and since then, that is 1973, he was entrusted with thecarrying outof plastic operations. Itis hisversion thathe has never, since then,carried outanyother kind of surgery. On the 15th Februaiy, 1985, the respondents decided to 10 promote the applicant to the post of Senior Specialist Surgeon, which is apromotionpost inthemedical services of theRepublic. An offer was made tohimtothateffect andhe accepted itwithout reservations. The scheme of service of thispost provides, interalia - 15 «Καθήκοντα καιΕυθύναι: (α) Προΐσταται Κλινικής ή Τμήματος Κυβερνητικού Ιατρικού Ιδρύματος και είναι υπεύθυνος δια την ομαλήν και αποτελεσματικήν λειτουργίαντης μονάδος της ο π ο ί α ςπροΐσταται. 20
(6)Υποβάλλει εκθέσεις, στοιχεία και εισηγήσεις επί θεμάτων α φ ο ρ ώ ν τ ω ν εις την λειτουργίαν και τας εργασίας της μονάδοςτης οποίας προΐσταται. (γ) Προγραμματίζει ή/και συμμετέχει εις την εκπαίδευσιν ιατρικού, νοσηλευτικού καιπαραϊατρικού 25 προσωπικού.
(6)Ασκεί ιατρικά καθήκοντα της ειδικότητοςτ ο υ και καθοδηγεί το υ π ' αυτόν π ρ ο σ ω π ι κ ό ν εις την άσκησιν τ ω ν καθηκόντων του. (ε) Εκτελεί οιαδήποτε άλλα καθήκοντα τα οποία 30 ήθελον ανατεθή εις αυτόν.» (cDutiesand Responsibilities: (a)He isin charge of a Clinicor a Departmentof aMedical Government Institutionandisresponsible for thesmooth and effective running of theunitwhich he directs. (
- b)Submits reports, material and suggestions on matters 386 35 3 C.L.R. 5 Kammitsis v.Republic Demetriadea J . relating tothe functioning and the work of the unitwhich he directs. (c)Programs and/or participates inthe training of medical, nursingandparamedical staff. (d)Exercises medicaldutiesofhisspecialization and guides hissubordinate staff inthe exercise of itsduties. (
- e)Performs any other duties that may be assigned to him.»). Previously the applicant was holding the post of Specialist 10 Surgeon. On the 6thJune, 1985,and after asubmission bythe DirectorGeneral of the Ministry of Health, which was made on the recommendation of the Director of Medical Services, the respondents decided to transfer the applicant to the Lamaca 15 Hospital as from the 15th July, 1985. The decision of the respondents was communicated to the applicant by letter dated the27thJune, 1985. Itisthe complaint of the applicant that as he isthe only plastic surgeon in the Medical Services of the Republic and he has not. 20 since 1973,carried outany general surgery, he ought to continue tobepostedattheNicosiaGeneral Hospitalasthemajority ofthe patientsrequiring hisservices liveinthe DistrictofNicosia. The case forthe respondentswasgivenbyDr.A.Markides,the Director of Medical Services. In giving evidence, Dr. Markides 25 acknowledged the qualities and capabilities of the applicant asa plasticsurgeon but he saidthat after the latter'spromotion and as there was no clinic for plastic surgery in the Nicosia General Hospital and itsclinicfor surgery wasalready manned by another SeniorSpecialistSurgeon,theapplicanthadtofillthevacantpost 30 ofSenior SpecialistSurgeon that existed atthe Lamaca Hospital. Inhisopinion, and veryrightlyso, there can be no two people managing the Surgical clinic of the Nicosia Hospital. In viewof this, it was his opinion that as the post of Senior Specialist in Surgery at the Lamaca Hospital wasvacant, the applicant had to 35 be transferred there tofillit.Inhisopinion the applicant can offer his specialised services at the Nicosia General Hospital if and when otherSeniorSpecialistsrequire hisservices. Aggrieved by the sub judice decision the applicant filed the presentrecoursebywhichhepraysforitsannulment.Thegrounds 387 Demetriadea J. Kammitsis v. Republic
(1987)oflaw,astheseappear intheaddressofhiscounsel,onwhichthis recourse isbased, are the following: (
- a)Thatthesubjudice decision wastaken without due inquiry. (
- b)Itisthe result of a misconception of facts. (
- c)Itwastaken inbreachofthelawormisconception oflaw,and 5 (
- d)Itwastaken contrarytothe real necessitiesand the interestof the service. Theprinciplesthatgovern interference bythisCourtin transfers ofcivilservantshave been expounded ina great number of cases and these can be summarised asfollows: 10 (a)Everytransfer, unlessitisanadversetransfer, ispresumed to have been taken for the benefit and the exigencies ofthe service. (
- b)Appreciation of the needs of the public service and departments of it and choice of the means to satisfy them are matters falling within the exclusive competence of the 15 administration not inthemselves subject to review, except where there exists improper use of the relevant discretionary power or misconception concerning the factual situation or failure to take intoaccounta material factor. (c)Transfers are made inthe context of evaluation of the wider 20 needsofabranch oftheservice.Reviewofsuchevaluation would require the Court in every case to examine how each branch of thedepartment isstaffed, virtuallyan impossibletaskand onethat would in effect render the Courts the overseer of administrative action.Whereastheirroleisconfined tothescrutinyofthelegality 25 of administrative action. Examination of the needs of the service on such wide ranging basis would deprive the administration of the flexibility necessary to respond to the ever changing needsof the service. (
- d)The exercise of the power must be preceded by the 30 necessary inquiry into the facts relevant to its exercise and that includes, inthe case of transfers, examination ofthepersonal and family needs of the officer under transfer. On the other hand, neither personal nor family circumstances can be allowed to override an officer's commitment tothe service. 35 (e)The needs of the service are the foremost consideration in thepositioningandtransfer of personnel. 388 3 C.L.R. Kammitsis v.Republic Demetrlada· J. (0 In exercising its power of transfer the Commission should alwaystake seriously into consideration the recommendationsof the HeadoftheDepartment orotherSeniorresponsible officer so that the functions of a public office should be performed in the 5 general interest of the public by the public officer best suited to perform such duties. (
- g)The object of vesting the power of transfers into an independent organ, such as the Public Service Commission, is twofold: First the safeguarding of the efficiency and proper 10 functioning ofthepublicserviceoftheRepublicand,secondly,the protection of the legitimate interest of the individual holders of public offices (see, in this respect, Nedjati v. The Republic, 2 R.S.C.C.78,Sentonarisv. TheGreekCommunal Chamber, 1964 C.L.R.300, Vafeadisv. TheRepublic, 1964 C.L.R.454, Pilatsisv. 15 The Republic,
(1968)3 C.L.R. 707, Pierides v. The Republic,
(1969)3 C.L.R. 274, Papantoniou v. The Republic,
(1969)3 C.L.R. 460, Mouzouris v. The Republic,
(1972)3 C.L.R. 43, Matheou v. The Republic,
(1972)3 C.L.R. 304, Lazarou v. The Republic,
(1973)3 C.L.R. 82,Damianou v. TheRepublic,
(1973)20 3 C.L.R. 282, Carayiannis v. The Republic,
(1980)3 C.L.R. 39, Sofocleous v. The Republic,
(1982)3 C.L.R. 786, Isaiasv. The Republic,
(1985)3 C.L.R. 490, and Zachariou v. The Republic, unreported yet, judgment given on the 21st June, 1986, in Recourse No.639/85)*. 25 Having summarised the position as regards the power of the administration totransfer civilservants from one placetoanother, Ishallnowverybriefly answerthesubmissionsoftheapplicanton the grounds of law on which he bases hiscase. I feel that alt four groundscan beanswered together. 30 Itisthe complaintoftheapplicantthatalthough heput forward tothe respondents particularsand facts which were supported by the contentsof lettersaddressed byhim and bySenior Specialists in charge of clinics of the Nicosia General Hospital (i.e. neurosurgery, paediatric,generalsurgery andorthopaedic) tothe 35 Directorof Medical Services, inwhich they emphasised the need of hispresence at thisparticular Hospital, no inquirywas carried outbytherespondentswithregardtotheircontents.Thiswasnot done, the applicant submitted, because the respondents had already decided to transfer him to Lamaca in view of his 40 promotion. •RepottmHn(19b6)3C.LR. 969. 389 ' Demetriadea J. Kammitsis v. Republic
(1987)Allthe above documents were before the respondents who,in reaching thesubjudicedecision,asitappearsfrom theminutesof t>eirmeeting, didtakethem into consideration. The simple answer to the applicant's complaint can be answered shortlyasfollows: 5 The medical services of the Republic do not have a post of a specialistplasticsurgeon, noraclinicordepartment intheservice exists. The duties and responsibilities of the post of Senior Specialist Surgeon are clearly defined and described in the relevantscheme ofserviceofthepost.Theapplicantaccepted the 10 offer of his promotion to the post without reservations, well knowing the duties and responsibilities of the post. The surgical clinic of the Nicosia General Hospital is already manned by anotherSeniorSpecialistSurgeon,whoisseniortotheapplicant. In the circumstances, Ifeel that the respondents were right in 15 reaching their decision that the applicant, after accepting their offer, had to fillthe vacant post ofSenior Specialist Surgeon that existed inthe Lamaca Hospital. In the light of my findings, I dismiss the recourse but, in the circumstances, Imake noorder astocosts. 20 Recourse dismissed No orderastocosts. 390