[*42] 1963 March 29
(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)
(August 23, November 29, December 24, 1962, January 11, February 19, March 29, 1963)
Hussein Djahit Balman,
And
The Turkish Communal Chamber, through the Director of Turkish Education.
(Case No. 135/62)
Art. 192—Para. 1 does not apply to the holders of offices which came by operation of the Constitution within the competence of a Communal Chamber—Only para. 5 applies to teachers.
Circulars—Not within definition of “law” in Art. 188.5—Did not continue in force after 16/8/60—Circular No. 203 of 4/4/57 by the Director of Education superseded by s. 14 of the Turkish Communal Chamber Public Service Law, No. 2 of I960.*
Turkish Communal Chamber Public Service Law, No. 2 of 1960*—s.14 renders all permanent officers, including teachers, liable to transfer.
The Applicant, who was previously Headmaster of the Lefka Turkish Elementary School, was appointed in September 1957, Headmaster of the Attaturk Elementary School, Nicosia, but was transferred in August, 1962, again as Headmaster, to the Geunyeli Elementary School, a much smaller school than the previous one, at the outskirts of Nicosia. In both cases the post was one of 1st class Headmastership. The full facts of this case appear in the Judgment that follows.
It was the Applicant’s contention that his transfer was null and void and of no effect whatsoever.
An application for a Provisional Order was withdrawn upon a statement in Court on behalf of the Respondent that the transfer of the Applicant was only “a temporary mesure” and that it had not been made “for disciplinary or other reasons by way of demotion or punishment”.
Held : (a) Art. 192.1 did not apply to the holders of offices which came, by operation of the Constitution, within the competence of a Communal Chamber {vide Ali Suleyman and The Republic (Minister of Finance & another), 2 R.S.C.C., p. 93 at pp. 95-96) and for whom special provision had been made in Art. 192.4.5;
(b) Art. 192.4 did not apply to teachers to whom the only constitutional provision applicable was Art. 192.5, and only to the effect that they were entitled to receive from the Republic any retirement pension, gratuity or other like benefit to which they would have been entitled in respect of the period of their service before the 16th August, 1960; [*43]
(c) the circular in question did not come within the definition of “law” in Art. 188.5 and, therefore, it did not continue in force after the coming into operation of the Constitution, and was, in any case, superseded by the express provisions of s. 14 of the Turkish Communal Chamber Public Service Law, No. 2 of 1960, which made all officers of the Turkish Communal Chamber, including teachers, statutorily liable to transfer;
(d) the transfer was not made in excess or in abuse of powers.
The Application was dismissed.
Cases referred to :
Ali Suleyman and The Republic (Minister of Finance & another), 2 R.S.C.C.
A. M. Berberoglou for the Applicant.
H. Ali Riza for the Respondent.
Cur. adv. vult.
March, 29. The Judgment of the Court was read by:
FORSTHOFF, P. : The Court declares—
This Application cannot succeed and is dismissed accordingly.
The Applicant was appointed as the Headmaster of the Ataturk Elementary School (hereinafter referred to as “the School”) at Nicosia in September, 1957. Prior to this appointment he had been the Headmaster of the Lefka Turkish Elementary School.
On the 4th April, 1957, the then Director of Education issued a circular No.203 (hereinafter referred to as “the Circular”) in which it was, inter alia, stated, under the heading “PERMANENT HEADMASTERSHIPS”, that the posts of Headmasters who had completed four years or more service as Headmaster in schools in which eight or more teachers were employed would be declared vacant. Applications were invited by the Circular from among all 1st Class Headmasters. It was further stated therein that the appointments to the said post would be made by a Selection Board. The Circular went on to state that any headmaster who was appointed to one of the said posts would be able, if he so wished, to retain his post until he was retired, subject to his services being satisfactory.
Upon the receipt of the Circular the Applicant duly applied thereunder for appointment to the post of Permanent [*44] Headmaster. He was interviewed by a Selection Board, which was established for the purpose, and having been found suitable was duly selected and appointed. The letter of his appointment as Headmaster of the boys’ section of the School is dated the 5th July, 1957.
In 1960 upon the retirement of the Headmistress of the girls’ section of the School the Applicant assumed the duties of Headmaster of the girls’ section as well.
By a letter of the Director of Turkish Education dated the 10th June, 1961, the Applicant was informed that the Executive Committee of the Turkish Communal Chamber, at its meeting held on the 11th May, 1961, had decided that the Applicant was liable to transfer but that nevertheless until a new Turkish Elementary Education Law came into operation it was decided that the Applicant would not, if he so wished, be transferred elsewhere for the ensuing school year.
The Applicant replied to the said letter of the 10th June, 1961, by letter dated the 15th June, 1961, accepting to continue serving at the School for the ensuing school year and, at the same time, reserved his rights under the Circular.
The Director of Turkish Education issued a circular dated the 7th May, 1962, to all headmasters of elementary schools, to which was attached a list of vacant headmaster- ships for the school year 1962-1963. The Applicant also received a copy of such circular of the 7th May, 1962, in which the recipients were asked to state on a form attached to the circular to which of the vacant posts they preferred to be transferred. The list in question included, amongst the 1st Class Headmasterships, the post of Headmaster of the Ataturk Elementary School of Nicosia (Male), the post of Headmistress of the Ataturk Elementary School of Nicosia (Female) and the post of Headmaster of the Geunyeli Elementary School. By letter dated the 10th May, 1962, the Applicant replied stating that he was not liable to transfer and that he insisted on continuing to serve as the Headmaster of the “Nicosia Ataturk Girls and Boys School”.
On the 24th August, 1962, the Director of Turkish Education wrote a letter to the Applicant informing him that he was being transferred to the Geunyeli Elementary School as headmaster. The Applicant had in fact earlier seen a publication in the local press in which it was stated that he was being transferred to the Geunyeli Elementary School and accordingly filed this recourse on the 16th June, 1962, when he became aware of the press publication in question and before he had actually received the aforesaid notification of his transfer. [45]
The school to which the Applicant was transferred is in a village in the outskirts of Nicosia, but it is much smaller than the previous school, from which he was transferred.
†The Application in this Case was filed on the 16th June, 1962, and by the motion for relief contained therein the Applicant seeks a declaration that the decision in question of the Respondent to transfer him from the Ataturk Elementary School to the Geunyeli Elementary School, is null and void and of no effect whatsoever.
An application for a Provisional Order which was made on the 16th June, 1962, was withdrawn on the 23rd August, 1962, upon a statement made in Court on behalf of the Respondent that the transfer of the Applicant was only “a temporary measure” and that it was not made “for disciplinary or other reasons by way of demotion or punishment”.
The Opposition was filed on the 3rd September, 1962.
A Presentation of the Case took place before a Judge of the Court on the 29th November and 24th December, 1962, and the 11th January, 1963.
The hearing of the Case took place on the 19th February, 1963.
The issues to be determined in this Case are as follows :-
(1) whether or not the provisions of paragraph 1 of Article 192 apply to teachers, such as the Applicant;
(2) whether or not the Circular had been issued ultra vires by the then Director of Education;
(3) whether or not, even if the Circular was validly issued at the time, it ceased to have legal effect after the coming into operation of the Constitution and particularly as the result of the enactment of the Turkish Communal Chamber Public Service Law, Law 2/60;
(4) whether or not the Respondent acted in excess or in abuse of its powers in transferring the Applicant from the Ataturk Elementary School to the Geunyeli Elementary School.
Issue (1) :
In its Decision of the 29th September, 1961, in the case of Ali Suleiman and The Republic (Minister of Finance & another), 2 R.S.C.C., p. 93 at pp. 95-96, this Court has held -
“that the provisions of paragraph 1 of Article 192 of [*46] the Constitution apply to, and are designed to safeguard the rights of, those persons who, immediately before the date of the coming into operation of the Constitution, held an office in the public service of the former Colony of Cyprus and who continue in the public service of the Republic on or after that date. That this was the intention of the drafters of the Constitution appears to be abundantly clear from the expression ‘and those terms and conditions shall not be altered to his disadvantage during his continuance in the public service of the Republic’, which appears in that Article”.
There can, therefore, be no question of paragraph 1 of Article 192 applying to the holders of offices which came, by the operation of the Constitution, within the competence of a Communal Chamber, and for whom special provision is made in paragraphs 4 and 5 of Article 192 (vide Ali Suleiman and The Republic etc., supra, at p. 96).
It is clear that the said paragraph 4 applies to the holders of all such offices, other than teachers, regarding whom special provision is made in paragraph 5. In the opinion of the Court, therefore, the only provision of Article 192 which applies to a teacher, such as the Applicant, is paragraph 5 thereof. The said paragraph does nothing more than to provide that such a teacher shall be entitled to receive from the Republic any retiremenent pension, gratuity or other like benefit to which he would have been entitled in respect of the period of his service before the date of the coming into operation of the Constitution.
It follows, therefore, that the Applicant is not entitled, after the date of the coming into operation of the Constitution, under paragraph 1 of Article 192, to be immune from being transferred even if he might have had non-transferable status, by virtue of the Circular, before such date.
In view of the conclusions, hereinafter stated, which the Court has reached on Issue (3) it is not necessary for the Court to determine this Issue.
Whatever legal effect, if any, the Circular may have had, before the coming into operation of the Constitution, with regard to the transferability of the Applicant from the School, the Court is of the opinion that such a circular does not come within the definition of “law” in paragraph 5 of Article 188 of the Constitution and does not, therefore, continue in force, as such, after the coming into operation of the Constitution, by virtue of the said Article. In this connection it may also be observed that the term “public instrument”, which is [*47] contained in the aforesaid definition of “law”, is defined in section 2 of the Interpretation Law, CAP 1, and circulars, of the nature of this Circular, do not come within the said definition of “public instrument”.
In any event, even if the Circular could have been regarded as having had any legal effect on the transferability of the Applicant from the School since the coming into operation of the Constitution without having had the actual force of law, the Circular has been superseded by the express provisions of section 14 of Law 2/60, which expressly makes provision for the transfer of all officers of the Turkish Communal Chamber from one “post, Office or place” to another. “Officer” is defined in section 38 of the said Law as meaning, unless the context otherwise requires, a member of the permanent public service of the Turkish Communal Chamber and thus includes teachers such as the Applicant.
It follows, therefore, that, by virtue of the express statutory provisions contained in section 14 of the said Law, the decision in question of the Respondent to transfer the Applicant could have been lawfully made under the said section.
Issue (4):
It has not been established to the satisfaction of the Court, in the circumstances of this Case, that the Respondent has acted in excess or in abuse of its powers in transferring the Applicant from the Ataturk Elementary School to the Geunyeli Elementary School in exercise of the powers vested in it by the aforesaid Law 2/60. Furthermore, the Court is satisfied that, so long as the post to which the Applicant was transferred was also a 1st Class Headmastership, located very close to Nicosia, the mere difference in the relevant size of the schools does not render such transfer a demotion.
For the Reasons given above the Court declares as stated in The Order.