MICHAEL YIORKAS v. THE REPUBLIC OF CYPRUS, THROUGH THE DIRECTOR OF PERSONNEL DEPARTMENT (1963) 5 RSCC 56

[*56] 1963 April 8

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(January 31, April 8, 1963)

Michael Yiorkas,

And

The Republic of Cyprus, through the Director of Personnel Department.

(Case No. 304/62)

General Clerical Staff—Clerical Assistants—Interchangeable staff^:—Transfer of —When may be made by the Director of Personnel Department.

The Applicant has been a Clerical Assistant in the General Clerical Staff since the 1st September, 1956, was posted to the Ministry of Justice in May, 1959, and was transferred, by direction of the Director of Personnel Department, to the District Office, Nicosia, with effect from the 3rd December, 1962.

According to a scheme of service approved by the Council of Ministers on the 15th December, 1960, the Director of Personnel Department acts as Head of Department for all interchangeable staff which includes, inter alia, members of the General Clerical Staff, who though belonging to the Personnel Department, may be posted for work either in the Personnel Department itself, or in any other Department or Ministry of the Republic.

It was the Applicant’s contention that his transfer was null and void as not having been made by the Public Service Commission.

Held : (a) in view of the very nature of the interchangeable staff, a pool from which its members are, on request, assigned by the Director to various Ministries or Departments, according to their varying needs, the Personnel Department should be regarded as a “Department” for the limited purposes of the notion of transfer “within one and the same Department” (Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C., p. 78 at letter A p. 79, affirmed);

(b) the transfer of the Applicant, being within one and the same Department, and neither resulting in the performance of duties different to those laid down in the scheme of service relating to the substantive post held by him prior to such transfer, nor necessitating a change of residence, was not a “transfer” in the sense of Art. 125.1, but one within the competence of the Director as Head of the Personnel Department.

The Application was dismissed.

Cases referred to :

Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C. [*57]

L. Clerides for the Applicant.

K. C. Talarides, Counsel of the Republic, for the Republic.

Cur. adv. vult.

April, 8. The Judgment of the Court was read by:

FORSTHOFF, P. : The Court declares—

†This Application cannot succeed and is dismissed accordingly.

The Applicant, who has been a Clerical Assistant in the General Clerical Staff of the public service since the 1st September, 1956, had been posted to the Ministry of Justice in Nicosia as a Clerical Assistant since May, 1959.

The Director of the Personnel Department (hereinafter referred to as “the Director”) by a letter dated the 27th November, 1962, informed the Applicant that he was being transferred to the District Office, Nicosia, with effect from the 3rd December, 1962.

By a scheme of service approved by the Council of Ministers on the 15th December, 1960, it is provided that the Director shall, inter alia, “act as Head of Department for all interchangeable staff (i.e. Administrative Assistants, members of the General Clerical Staff and Messengers)”. Such members of “inter-changeable staff” do not, however, unlike the officers belonging to other Departments, actually perform their duties in the Personnel Department itself but in the Ministry or Department to which they happen to be posted for the time being.

The Application, which was filed on the 3rd December, 1962, seeks a declaration that the decision of the Respondent “to transfer the Applicant from the Ministry of Justice to the District Office, Nicosia, communicated to Applicant by Respondent on the 27th November, 1962, is null and void and of no effect whatsoever”, as not having been made by the Public Service Commission.

The Opposition was filed on the 20th December, 1962, and it is contended therein that the transfer in question is not a “transfer” in the sense of paragraph 1 of Article 125.

The hearing of the Case took place on the 31st January,

In its Judgment in the Case of Ahmed Nedjati and The Republic (Chief Customs Officer), 2 R.S.C.C., p. 78 the Court has held that the transfer of a public officer “within one and [*58] the same Department”, in such circumstances as laid down and specified in the said Judgment, is not a “transfer” in the sense of paragraph 1 of Article 125. It has to be determined in this Case whether the transfer of the Applicant is such as, in accordance with the aforesaid Judgment, not to fall within the ambit of paragraph 1 of Article 125.

One of the fundamental issues to be resolved is whether or not the Personnel Department, of which the Director is the Head, can be regarded as the “Department” of the officer concerned, for the purposes of the notion of a transfer “within one and the same Department”, as used in the above- mentioned Judgment, when such officer is not, in fact, actually performing his duties in the Personnel Department.

It is not necessary, for the purposes of this Judgment, to determine whether or not the Personnel Department is a Department for all administrative purposes and especially for the purposes of making the Director, as its Head, the officer responsible for exercising day-to-day control and supervision over public officers who belong to such “Department” but who are in fact, at a given time, posted to other Ministries and Departments.

In view of the very nature of the interchangeable staff, which constitutes a pool from which public officers belonging to it are, on request, assigned by the Director to various Ministries and Departments according to the varying needs thereof, the Court is of the opinion that the Personnel Department must be regarded as a “Department” at any rate for the limited purposes of the aforesaid notion of transfer “within one and the same Department”.

Applying, therefore, the test laid down in the aforesaid Judgment, the transfer of the Applicant in this Case, being “within one and the same Department”, and neither resulting in the performance of duties by the Applicant not included in the duties laid down in the scheme of service relating to the substantive post which he was holding immediately prior to such transfer nor necessitating a change of residence by him, is not a “transfer” in the sense of paragraph 1 of Article 125 and it was, therefore, within the competence of the Director, as Head of the Personnel Department, to effect the transfer in question of the Applicant.

For the Reasons given above the Court declares as stated in The Order.