(1989)19S9January 26 fSAVVIDES.J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION NINA HADJIROUSSOU. Applicant, v. THE REPUBLIC OF CYPRUS.THROUGH THE DIRECTOR OF PUBLIC ADMINISTRATION AND PERSONNEL DEPARTMENT. Respondent. (CaseSo 69S/S7) Public officers — Transfers— The Public Semce Law: 1967 (Law 33/67) section 48 — "Appropriate Authority" in section 2 — Delegationol power to Director General of Ministry not. asindicatedby the word "usually", anabsoluteone — TheAppropriate Authority for transferof members of PersonnelDepartment istheHeadofthatDepartment. 5 Executory act— Internalmeasures ofadministration— Transferof public ofliceis not entailing change in duties, status and residence, not an c\ecutory act 10 B> means of the sub ludicc act the applicant was transferred b> the Director of the Personnel Department from the Medical Depanment in Nicosia to the Depanment of the Official Receiver and Registrar of Companies in Nicosia The applicant is a public ofticer in the Personnel Depanment. The transfer didnot entail change of status,duties or place 15 of residence. The principles applied b\ the Court, in dismissing the rccouisc. appear in the hereinabove Headnotcs. 20 Recoursedismissed £75 costs m la\our ofrespondent 96 3 C.L.R. Hadjiroussou A.Republic Casesreferredto: Papadopoullos v.Republic
(1975)3 C.L.R. S9. Yialloitrou v.Republic
(1976)3 C.L.R.
- Karapataki ν Republic(19S2) 3 C.L.R. SS. Xissiotou \. Republic(I9S5) 3 C.L.R.
- Recourse. Recourse against the decision of the respondent to transfer applicant from the Medical Department to the Depanmentof Official Receiver and Registrar. A. S. Angelides. for the Applicant. M. Fiourentzos. Senior Counsel of the Republic, for the Respondent. Cur. adv. wit. SAWIDES. J.readthefollowing judgment.Theapplicant by the present recourse challenges thedecision of therespondent to transfer herfrom theMedical DepartmenttotheDepanmentof Official Receiver andRegistrar as from the24th June. 19S
- It is the contention of the applicant that such transfer was in fact a disciplinary sanction disguised as an ordinary transfer in the needs of the service and that it was effected by an incompetent organ. The facts of the case are briefly as follows: The applicant is a civil servant and at the material time she was holding the post of Clerical Assistant. 1st Grade. Till the 24th June. 19S
- she was posted in the depanment of Medical Services, Nicosia and she belongs to the General Clerical Staff which is interchangeable in the Public Service. On the 3rd November, 1986 theChief Medical Officer of the 97 Savvides, J. Hadjiroussou v. Republic
(1989)Nicosia General Hospital suggested thetransfer ofthe applicant on the ground that she was creating problems in the smooth running ofthe work of theclerical staff asthere was continuous conflict between her and George Tantas, a Clerk in the same depanment. 5 Asa result ofinquiriesmadeinthecaseandafter hearingthe complaints of both parties, a suggestion was made for the transfer of both these officers from the General Hospital to other Depanments. As a result, the Director of Public 10 Administration and Personnel in the exercise of his powers. approved the suggestion and decided accordingly. As a result. the applicant wastransferred from theNicosiaGeneral Hospital to the Depanment of Official Receiver and Registrar. Nicosia. The decision is contained in a letter dated 18th June. 19S
- 15 addressedtotheapplicant thecontents of whichread asfollows: "I have been instructed to inform you that a decision has been taken for your transfer from the Medical Depanment and the Depanment of Public Health to the Depanment of 20 the Official Receiver and Registrar as from the 24th June. 19S7." The letter was signed on behalf of the Director of Public Administration andPersonnel. The decision ismainly challenged on two grounds:The first ground is that the decision taken amounts to a disciplinary sanction and it was disguised as a decision of an ordinary transfer and the second that it was taken by an incompetent 30 organ. In advancing his arguments on the second ground counsel submitted that the letter communicating the transfer of the applicant emanates -from the Director of the Public 35 Administration and Personnel Depanment and according to its contents hementions that liehadinstructions to inform herthat hertransferwasdecidedwithoutexpresslymentioningbywhom such decision was taken and who gave the instructions for communicating thedecisiontotheapplicant.Therefore,counsel 40 concluded, no proper decision was taken for applicant's transfer. 98 25 3 C.L.R. 5 Hadjiroussou v. Republic Savvides, J. In dealing with his first ground counsel submitted that the transfer in question was taken in fact as a disciplinary sanction as a result of allegedcomplaints for misconduct and as such was improperly taken in that the proper procedure for disciplinary offences was notfollowed andtheapplicant was not afforded an opponunity tobe heard. Counsel for the respondent,on the other hand,in answering the contentions of counsel for applicant, submitted that (a)the 10 decision for the transfer of the applicant was taken by the appropriate organ who inthecircumstances was the Directorof the PublicAdministration andPersonnel Depanmentactingon behalf of the Minister of Financeand (b)the sub judice decision is not an executory administrative act and as such could not be 15 challenged by a recourse. 20 25 30 35 40 From the material in the relevant file it appears that the transfer was effected on a submission made to the Director of the Public Administration and Personnel Depanment on the 13th June,1987 for thetransfer, interalia, of the applicant which was approved and decided by him and on the basis of such decision thetransfer was effected. Applicant's transfer in this case was effected under the pulsions of s.48 of the Public Service Law.
- Law 33/
- which reads as follows: "4S.-
(1)Τηρουμένων των διατάξεωντου εδαφίου
(2),με ταθέσει; υπαλλήλων ενεργούνται υπό της Επιτροπή;.
(2)Μεταθέσεις υπαλλήλων αι οποίαι δενσυνεπάγο ! νται μεταβολήν εις τα; υπ αυτών κατεχόμενα; θέσει;καιτασυναφήπρο; αυτά;καθήκοντα ήαλλαγήν τόπου διαμονή; ενεςγού\ται υπό τη; εν διαφερόμενη; αρμοδία; αρχής: Νοείται ότι ει; εξαιρετικά;περατώσει;επειγούσης φύ σεως ηενδιαφερόμενηαρμοδία αρχήδύναται ναπροβήεις προσωρινήν μετάθεσιν συνεπαγομένην αλλαγήν τόπου διαμονής όιάπερίοδονμηυπερβαίνουσαν τας τεσσαράκοντα καιδύο ημέρας." 99 Savvides. J. Hadjiroussou v. Republic
(1989)("4S. -
(1)Subject to the provisions of sub-section
(2). transfers of officers shall be made by the Commission.
(2)Transfers of officers which do not involve a 5 change in the posts held by them and the duties attached thereto or a change in the place of residence shall be made by the appropriate authorityconcerned: 10 Provided that in exceptional cases of urgent nature the appropriate authority concerned may make a temporary transfer involving a change in the place of residence for a 1 period not exceeding forty-two days.' ) 15 Section4Swas consideredby theSupremeCourtinanumber of cases: See.inter alia,Papadopoulios v.The Republic
(1975)3 C.L.R. S9: Chrrstalla Yiallourou v. The Republic
(1976)3 C.L.R. 214: Karapataki v. The Republic
(1982)3 C.L.R.SS. 20 The questions which willhave tobe answered inthis recourse are:
(1)Whether there is a decision for the transfer of the applicant and whether such decision was properly taken and
(2)whether such decision amounts to an executory administrative act. 25 On thebasis of all thematerial before me.Iam satisfied that a decision for thetransfer of theapplicant has been taken inthis case and that such decision was taken by the Director of the Depanment of Public Administration and Personnel. The 30 question was put by counsel for applicant as to whether such officer was competent totake thesub judice decision inthe light of the definition of "appropriate authority" as defined by s.2 of Law 33/67. In his submission the decision should have been taken by the Director-Generalof theMinistn-'of Financeacting 35 on behalf of theMinistn·". The term "appropriate authority" is defined by s. 2 of Law 33/67as follows: 40 '"αρμοδία αρχή' σημαίνει τον .... Υπουργόν ενεργούντα συνήθως 6ιά του ΓενικούΔιευθυντούτου Υπουργείουαυ- 100 3 C.L.R. Hadjiroussou v. Republic Savvides, J. τού (ο;προ;το Υπουργείον αυτούκαιπανΤμήμαυπαγόμενον εις το Υπουργείον αυτού ..." 5 ('"appropriate authority" means the Minister usually acting through the Director-General of such Ministn' in respect of his Ministry and any depanment which is subject to his Ministn" ") A reading of this section clearly shows thatthe delegation of 7 10 power totheDirector-Generalof the Ministn isnotan absolute one as in the said definition. What is mentioned is that the Minister ^usually" actsthrough theDirectorof his Ministn .The use of theword "usually" does notexclude theexercise of power of any otherhead of a division, the Directorof theDepanment 15 of Public Administration and Personnel in the present case, to whom such powers are delegated. 20 25 30 35 40 From the various annexes and other material before him it emanates that any matters of transfers of public officers of the GeneralClerical Staff from one depanmentto anotheris within the competence of the Director of the Public Administration andPersonnel DepanmentthroughwhomtheMinisterhasbeen acting in these matters. In Karapataki v. The Republic (supra) at p.94 we readthe following in this respect: " The authority competentto effect transfers of members of the staff of the Personnel Depanment is, where the decision does not entail any change of residence,theheadof the Personnel Depanment and not the Public Sen'ice Commission as it was contended for by the applicant. Any doubts that might be entenained on the subject, were dispelled bv the decisions of the Supreme Coun in the cases of Chr. Yiailourou v. The Republic
(1976)3 C.L.R. 220 andPapadopoulos v.The Republic
(1975)3C.L.R.89 atp. 95. Evidently, the legislature entrusted to the Personnel Depanment the assignment of duties to members of its staff within the same town, taking the view that the Personnel Depanment is best suited to appreciate the needs of the service inthis area." 101 Sawides, J. Hadjiroussou v.Republic
(1989)The answer to the first question, therefore, is that the Director of Public Administration and Personnel was the competent authority to takethe subjudice decision. I come next to consider the submission of counsel for the 5 respondent that the sub judice decision is not an executor»' administrative act. In the case of change of posting of public officers from one depanment to another in the same town, though conceivably 10 coming within the very wide notion of transfer, as there is no change inthe dutiesto be performed or change inthe residence it has been held repeatedly bythis Coun that such act does not amount toanexecutory onebutitismerelyaninternal measure of administration which cannot be challenged by a recourse. 15 Relevant in this respect are the case of Yiailourou v. The Republic (supra): Karapataki v. The Republic (supra) and Nissiotou v. The Republic
(1985)3 C.L.R. 1335 (though the latter case is concerned with the transfer of educationalists effected under s. 39of Law 10/69). 20 In Yiailourou r. TheRepublic (supra) at pp.220.221 and 222 wereadthe following: "It isclear, in my view,that though the change of posting of 25 the applicant does, conceivably, come within the very wide notion of 'transfer' in subsection
(1)of section 48,it didnot have, in view of subsection
(2)of section 48,to be effected byvirtueofadecision ofthePublicSendeeCommission;and themere fact that even such change of posting iscovered by 30 thewidenotion of 'transfer' in subsection
(1)of section 48for the purpose of enablingthemaking of the differentiation contained insubsection
(2)of thesame section -doesnot,in my opinion, render, automatically, the act or decision of applicant's Head of Depanment, by means of which it was 35 effected, an executory one,sothat it couldbe challengedby thepresent recourse. An administrative measure of internal nature does not amount to an executory act (see Conclusions, supra, p.238, 102 3 C.L.R. 5 Hadjiroussou v. Republic Savvides, J. and Odent on 'Contentieux Administratif. 1970-1971, vol. Ill pp.771.772. as well as the decision of the GreekCouncil of Stateincase 1461/57): anditwas heldthatanactordaining a mere change of posting of a public officer, without an alterationof hisstatus ("πραξις διατάσσουσα τηναπλήνμε τακίνηση' υπαλλήλου άνευ μεταβολής τη; υπηρεσιακή; αυτού καταστάσεω;") is aninternal administrative measure which cannot be challenged by means of a recourse (see Conclusions,supra,p.238). 10 15 Inview of all theforegoing, andespecially of thefact that the applicantafter herposting attheCentralNews Service hasto perform duties -specified in the relevant scheme of service which she was earlier performing at the Foreign Press Service, Γ have reachedtheconclusion thatherposting atthe Central News Service is notof anexecutory nature,beingan internal measure of administration, and, consequently, it cannot be challenged by the present recourse under Article 146 of the Constitution." 20 In Karapatakis v.The Republic(supra)at p.94we readthe following: 25 30 35 40 " The transfer of the applicant did not amount to an executor)' act amenable to the jurisdiction of the Court. It didnotbring about any alterationtothestatus or position of the applicant in the service, and was, under any circumstances,nonproductive oflegal results. 'Legal' inthis context, has a wide connotation and encompasses the position and standing of the applicant in the service viewed from an objective angle. Obviously, the decision did not bring about any change in theposition of the applicant. She continued to hold the same position, that is, stenographer 2ndgrade, andcontinuedto perform theduties envisaged by the relevant scheme of service. Nordidthe transfer had any repercussions detrimental to the position of the applicant. and,cenainly,itdidnotentailanychangeofresidencefor the discharge of herduties. Itwas for thePersonnel Department tojudgetheneeds of theservice; therefore,theapplicanthad no legitimate interest to seek that she be positioned in any particular governmental department. Consequently, the recourse must be dismissed for this reason as well." 103 Savvjdes, J. Hadjiroussou v. Republic
(1989)Finally in Nissiotou v. The Republic (supra) which was a Full Bench decision,we readthe following at pp. 1347-134S: '• we are of the opinion that the refusal to transfer the respondent, as well as the decision to transfer interested 5 party Prodromou. are. in the light of all the particular circumstances of the present case, internal measures of administration, which cannot be challenged by a recourse underArticle 146(see.inter alia,in thisrespect. Yiailourou r. The Republic
(1976)3 C.L.R. 214. 220, 221 and 10 Karapataki v.TheRepublic
(1982)3 C.L.R. 88.94).Itisto benotedinthisconnectionthat itwascommon groundatthe trial ofthepresent recoursethat thetransfers of headmasters which were decided, as aforesaid, on the 16th July 1983. did not entail a change in their status; and. in our opinion, this 15 was rightly thought to be the correct position because, notwithstanding anyotherdifferences between aGymnasium and a Lyceum, it cannot besaid that there is any substantial difference as regards the status of headmasters who are in chargeof schools ofsecondary education of either ofthesaid 20 twotypes. Ofcourse,inthepresentjudgmentweneed,andwill,notdeal exhaustively with the question of whether or not transfers effected under section 39
(2)of Law 10/69 are always to be 25 treated as internal measures of administration; and, indeed. there have been in our case-law occasions on which such transfers were subjected to judicial scrutiny because the Supreme Court was invited to deal with their merits without there having been raised any objection that their validity 30 couldnot bechallenged bymeans ofarecourseunderArticle 146because they were internal measures of administration; and it is not for us to decide now, ex post facto, whether in each one of those instances the transfer which was made the subject-matter of a recourse was or was not an internal 35 measure of administration (see, inter alia, in this respect, Sofocleous (No. 1) v. The Republic
(1972)3 C.L.R. 56, Kyriakopoulou v. The Republic
(1973)3 C.L.R. 1, Sofocleous v. The Republic
(1974)3 C.L.R. 63, Karayiannis v. The Republic
(1974)3 C.L.R. 420, 40 Michaeloudes v. The Republic
(1979)3 C.L.R. 56 and Prodromou v.TheRepublic
(1981)3C.L.R. 38)." 104 3 C.L.R. Hadjiroussou v. Republic Savvides, J. It is clear in the present case that in the particular circumstances the transfer of the applicant does not involve a changeinher statusorposition or inher placeof residence and. therefore, hercomplaint aboutsuchtransfer cannot substantiate 5 arecourse under Article 146.1of the Constitution being merely an internal measure of administration which cannot be challenged by arecourse under Article 146. For all the above reasons, this recourse fails and is hereby 10 dismissed with£75.-against costs in favour of the respondent. Recourse dismissed with £75.costsinfavourof therespondent. 105