(1969) 3 CLR 214
1969 April 23
[*214]
[TRIANTAFYLLIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTOS PETRONDAS,
Applicant,
and
THE ATTORNEY-GENERAL OF THE REPUBLIC,
Respondent.
(Case No. 320/68).
Administrative Law-Secondary Education-Transfer-Headmaster’s application for transfer-Section 25(2) of the Masters of Communal Secondary Schools Law, 1963 (Greek Communal Chamber Law No. 10 of 1963)-Headmaster’s request for transfer made after serving for five years in rural school (in Morphou)-Decision of the Educational Service Committee rejecting said application for transfer-Not duly reasoned and contradicted by the relevant administrative records-Undue weight given to the views of the Abbot of Kykko Monastery under section 24(2) of the said Law No. 10 of 1963-Decision of the Educational Service Committee annulled as being contrary to law and in excess and abuse of powers-See also herebelow.
Collective Organ-Educational Service Committee-Decision rejecting Headmaster’s application for transfer-Requirement that it should be duly reasoned-General principles of administrative law-See also section 4(7) of the Masters, Teachers and Employees of Communal Schools (Exercise of Administrative Competence) Law, 1963 (Greek Communal Chamber Law, No. 8 of 1963) and sections 7 and 8 of the Greek Communal Chamber (Transfer of Competence) and Ministry of Education Law, 1965 (Law No. 12 of 1965)-See also herebelow.
Secondary Education-Transfer of Headmasters etc. etc.-Decision of the Educational Service Committee relating to posting of Headmasters under section 24(2) of the said Law No. 10 of 1963-Affecting correlated matters such as the Committee’s refusal to transfer the Applicant in this case-Refusal in abuse and excess of powers for the additional reason that the said Committee attributed decisive weight to the relevant views of the Abbot of [*215] Kykko Monastery, instead of attaching paramount importance to the “general educational needs” referred to in the said section 24(2).
“General educational needs”-Meaning scope and effect-See also herebelow.
Secondary Education-Transfer of Secondary Education Headmasters (and Schoolmasters) after five years’ continuous service at a “rural school” -Section 25(2) of the aforesaid Greek Communal Chamber Law No. 10 of 1963-Under the provision of this section 25(2) such Headmaster (or Schoolmaster) is entitled to request to be transferred in a town-And though it cannot be said that such Headmaster etc. has a right to be transferred in any case-Still there must be cogent reasons to the contrary in order that his request can be validly refused.
Transfer-Transfer of Secondary Education Headmasters and Schoolmasters-See above.
Rural school-Transfer therefrom in a town after five years’ continuous service-See above.
Reasoning-Due reasoning of administrative decisions especially decisions (a) of collective organs (b) adverse to the citizen-Principles applicable-Specific reasons should be given-Vague generalities reproducing the relevant statutory provisions cannot be regarded as amounting to due reasoning-See also hereabove.
Administrative Acts or Decisions-Due reasoning of-General principles applicable-See above.
Administrative Acts or Decisions-Contrary to law and -in excess and abuse of powers-See above.
Abuse and Excess of powers-See above.
Excess and abuse of powers-See above.
Words and Phrases-’‘General Educational needs” in section .24(2) of the aforesaid Greek Communal Chamber Law No.10 of 1963-Meaning, scope and effect.
Headmasters-Transfer-Application for-See above.
Morphou-Is a rural area within section 25(2) of the said Greek Communal Chamber Law No. 10 of 1963.
In this recourse the Applicant a Headmaster, Grade ‘A’ is challenging the decision of the Educational Service Committee, [*216] in the Ministry of Education, dated July 1, 1968 whereby they rejected his application dated March 5, 1968 for transfer from Morphou (where he was posted at the time) to Nicosia as from the commencement of the school-year 1968-1969.
The Applicant was at the material time the Headmaster of the Morphou Gymnasium which is a public secondary school and was posted there from the school-year 1963-1964. It is common ground that even though Morphou has become a developing urban area, it is still considered to be a rural area for the purposes of section 25(2) of the Masters of Communal Secondary Schools Law 1963 (Greek Communal Chamber Law No. 10 of 1963), which provides that a schoolmaster (and this term includes a “Headmaster”) is entitled, after five years’ continuous service at a rural school, to request to be transferred to a school in a town. At the material time the Committee had in mind that two Headmasters posted at the Kykko Boys’ Gymnasium and the Kykko Girls’ Gymnasium (both at Nicosia) respectively would be retiring on the 31st August, 1968 in other words at the end of the school-year 1967-1968.
The Applicant was not transferred to either of such posts when vacated; and at the same meeting of the Educational Service Committee, when his application for transfer was rejected (on July 1, 1968, supra), the Committee proceeded to promote to Headmaster, Grade ‘B’, an Assistant Headmaster Mr. Persianis, and to post him at the aforesaid Kykko Boys’ Gymnasium and an Assistant Headmistress, Mrs. Nissiotou to Headmistress, Grade ‘B’, posting her at the Phaneromeni Girls’ Gymnasium (Nicosia); to the vacant post at the said Kykko Girls’ Gymnasium having been moved, from the Phaneromeni Girls Gymnasium its Headmistress, Miss Kokkinou.
No specific reasons were given in the minutes of the relevant meeting of July 1, 1968 or indeed, appear to exist in any other official record why the application for transfer of the Applicant was rejected.
Annulling the decision complained of, the Court:-
Held, (1). The Applicant was entitled, under section 25(2) of Law No. 10 of 1963 (supra), to request a transfer to a town after five years’ service at a rural Gymnasium (supra); and though of course it could not be said that he had a right to be transferred in any case, there should have existed cogent reasons to the contrary in order that his request could be [*217] refused; otherwise section 25(2) would be meaningless; because any educator is free to apply for transfer at any time, even without having served, first, for five years at a particular post.
(2) The fact, therefore, that in the present instance there was before the Educational Service Committee an application transfer by someone who was, prima facie, entitled to favourable consideration of his case, plus the fact that a decision adverse to him was taken and that such decision emanated from a collective organ-the said Committee-rendered it, in my opinion necessary for the sub judice decision to be duly reasoned. Moreover, such a requirement appears to exist when one reads section 4(7) of the Masters, Teachers and Employees of Communal Schools (Exercise of Administrative Competence) Law, 1963 (Greek Communal Chamber Law No. 8 of 1963), together with sections 7 and 8 of the Greek Communal Chamber (Transfer of Competence) and Ministry of Education Law, 1965 (Law No. 12 of 1965).
(3) From the generality of the statements appearing in the relevant minutes it is not possible to know with any certainty at all which were the particular reasons which led to the rejection of the Applicant’s application for transfer; thus the sub judice decision cannot be regarded as duly reasoned (see, inter alia, Constantinides v. The Republic (1967) 3 C.L.R. 7). Moreover, the aforesaid statements are, to a large extent, vague generalities based on the contents of the relevant statutory provisions in Law No. 10 of 1963 (supra) and therefore according to well established principles of Administrative Law, such statements cannot he regarded as amounting to due reasoning for the individual decision affecting the Applicant (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 186).
(4) I am therefore, driven to the conclusion that the decision to refuse the Applicant’s application for transfer should be annulled as not being duly reasoned, and as being, therefore, contrary to law and in abuse of powers.
(5)(a) I have looked in all the relevant official records, which were produced at the hearing, in an effort to find out whether the absence of due reasoning in the minutes of the relevant meeting of the 1st July 1968 (supra) could be said to be cured-by anything found in such records. Not only I have found nothing to that effect but whatever I have found [*218] therein indicates that there were reasons militating in favour of the transfer of the Applicant to Nicosia, instead of filling the two relevant vacancies which, eventually, came to exist in Nicosia (supra) through promotions of an Assistant Headmaster and an Assistant Headmistress.
(b) In the course of good administration one would have expected a person such as the Applicant, who was already a Headmaster, Grade ‘A’, and who was admittedly a good educator and who, also, was entitled to favourable consideration under section 25(2) of Law No. 10 of 1963 (supra) to have been preferred in relation to the said vacancies, instead of persons like Mr. Persianis and Mrs. Nissiotou, who had just been promoted to Headmaster, Grade ‘B’.
(c) On the basis of the foregoing, I have been led to conclude that the sub judice decision should be annulled for another reason too, namely, as being in abuse and excess of powers, in that even the vague reasoning which has been recorded in an omnibus manner, concerning ten unsuccessful Applicants, in the. minutes of the Committee’s said meeting of July 1, 1968, appears in the case of the Applicant, to be contradicted by the relevant administrative records such as the recent Confidential Reports on the work of the Applicant as compared to that of Mr. Persianis and Mrs. Nissiotou (see, inter alia, Jacovides v. The Republic (1966) 3 C.L.R. 212).
(6)(a) Lastly, a further ground for annulment is to be found in the picture as presented by the evidence of Mr. Vrahas, the Head of the Department of Secondary and Higher Education in the Ministry of Education: It appears that the views of the-Abbot of Kykko Monastery, who was consulted regarding the filling, inter alia, of the vacant post of Headmaster at the Kykko Boys’ Gymnasium, in Nicosia were the decisive factor regarding the choice of Mr. Persianis who as a result of such views was promoted and posted as Headmaster of the said Gymnasium.
(b) Under the provisions of section 24(2) of the said Law No. 10 of 1963 (supra) the views of the Abbot of Kykko are taken into account “as far as possible” provided that “they are not “in conflict with the general educational needs.” In my opinion the notion of “general-educational needs” is ‘wide enough to include the need to transfer an educator coming within the ambit of the aforementioned’ section 25(2) “of Law [*219] No. 20 of 1963-such as the Applicant-when there is nothing militating against him as a person or as an educator, and when his application for a transfer to Nicosia is looked upon as a genuine case meriting priority treatment soon (see again the evidence of Mr. Vrahas).
(c) It seems thus, that the Educational Service Committee, in its approach to the correlated matters of the filling of the vacancy of the post of Headmaster at the Kykko Boys’ Gymnasium in Nicosia, and of the application for transfer by the Applicant, as Headmaster to Nicosia acted in a manner contrary to the letter and spirit of the relevant legislative provisions and in abuse and excess of powers through attributing, wrongly decisive weight to the relevant views of the Abbot of Kykko Monastery, instead of attaching paramount importance to the “General educational needs”.
(7) For all the above reasons the sub judice decision has to be declared null and void and of no effect whatsoever; but the postings of Mr. Persianis and Mrs. Nissiotou remain unaffected as they have not been challenged by this recourse.
Sub judice decision annulled;
order for £20 towards costs in
favour of Applicant.
Cases referred to:
Constantinides v. The Republic (1967) 3 C.L.R. 7;
Jacovides v. The Republic (1966) 3 C.L.R. 212.
Recourse.
Recourse against the rejection of Applicant’s application for transfer from Morphou to Nicosia as from the school-year1968-1969.
G. Ladas, for the Applicant.
G. Tornaritis, for the Respondent.
Cur. adv. vult.
The following judgment was delivered by:-
TRIANTAFYLLIDES, J.: In this recourse-(which has been instituted against the Attorney-General as the organ represent [*220] ting in litigation the Republic)-the Applicant complains against the rejection, on the 1st July, 1968, by the Educational Service Committee, in the Ministry of Education, of his application for transfer from Morphou to Nicosia, as from the school year 1968/1969.
Such application was submitted by letter dated the 5th March, 1968 (see exhibit 1), and it was, in effect, a renewal of past similar applications, which were made in 1966 and 1967 (see exhibit 9).
The Applicant was, at the material time, the Headmaster of the Morphou Gymnasium, which is a public secondary school; and he was a Headmaster, grade ‘A’.
The Applicant was posted at Morphou as from the school-year 1963/1964.
It is common ground that even though Morphou has become a developing urban area, it is still considered to be a rural area for the purposes of section 25(2) of the Masters of Communal Secondary Schools Law, 1963 (Greek Communal Chamber Law l0/63).
Under the said provision, a Schoolmaster (and this term includes a “Headmaster”) is entitled, after five years’ continuous service at a rural school, to request to be transferred to a school in a town.
The Applicant at the end of the school-year 1967/1968 would had completed five years’ continuous service at Morphou; thus, when applying for transfer to Nicosia with effect as from the forthcoming school-year 1968/1969 he was an educator coming within both the letter and the spirit of section 25(2) of Law 10/63.
The sub judice decision of the Educational Service Committee, refusing the Applicant’s application for transfer, was taken at its meeting of the 1st July, 1968 (see the relevant minutes exhibit 6).
In the opening paragraph of the material part of such minutes it is stated that the Committee completed its examination of applications for transfer by Headmasters and Assistant Head-masters, and it is added that having taken into account the posts which were becoming vacant through retirements, the educational needs of the various schools, the reasons put [*221] forward by those seeking to be transferred, the relevant service data, and, as far as possible, the recommendations of the School Committees and, particularly, regarding the Kykko Gymnasia, the views of the Abbot of Kykko Monastery, decidcd, inter alia, not to accept ten applications for transfer made by Headmasters and Assistant Headmasters, one of the being the Applicant.
The names of the said ten educators are set out seriatim without any specific reason being given as to why the application of any of them was rejected; they follow after the names of fourteen Headmasters and Assistant Headmasters whose applications for transfer were granted.
As it appears from previous minutes of the Committee, dated the 30th April, 1968 (see exhibit 8), the Committee had in mind since then-and soon after the Applicant had applied in March, 1968, for transfer, as a Headmaster, to Nicosia-that two Headmasters, Mr. Charalambous and Mr. Xioutas, posted at the Kykko Boys’ Gymnasium and the Kykko Girls’ Gymnasium, Nicosia, respectively, would be retiring on the 31st August, 1968, in other words at the end of the school-year 1967/1968.
The Applicant was not transferred to either of such posts when vacated; and. at the same meeting of the Educational Service Committee, when his application for transfer was rejected (on the 1st July, 1968), the Committee proceeded to promote to Headmaster, grade B, an Assistant Headmaster, Mr. Persianis, and to post him at the Kykko Boys’ Gymnasium, and an Assistant Headmistress, Mrs. Nissioutou, to Headmistress, grade B, posting her at the Phaneromeni Girls’ Gymnasium; to the vacant post at the Kykko Girls’ Gymnasium having been moved, from the Phaneromeni Girls’ Gymnasium, its Headmistress, Miss Kokkinou.
In the course of the proceedings the explanation has been put forward that the posting of Mrs. Nissiotou, as Headmistress at the Phaneromeni Girls’ Gymnasium, was made in accordance with a policy, adopted by the educational authorities, which aimed at having, as far as possible, Headmistresses in charge of Girls’ Gymnasia; but it was admitted that this was not an inflexible policy, which could not be departed from in a proper case, and, actually, it appears from the minutes of the 1st July, 1968, that a Headmaster, Mr. Anagnostopoulos, was transferred, [*222] on his application, from the Larnaca Boys’ Gymnasium to the Famagusta Girls’ Gymnasium; and this at a time when the Applicant was not transferred to either of the two vacant posts in Nicosia, namely, at the Kykko Boys’ Gymnasium or at the Kykko Girls’ Gymnasium, though as very fairly stated in evidence by Mr. Vrahas-(the Head of the Department, of Secondary and Higher Education in the Ministry of Education, and a member, at the material time, of the Educational Service Committee)-the grounds on the basis of which the Applicant had asked to be transferred to Nicosia were never doubted and the Applicant is a very good educator and there could be no educational reason militating against him, either as a person or as an educator.
As it has been pointed out earlier on, the Applicant was entitled, under section 25(2) of Law 10/63, to request a transfer after five years’ service at a rural Gymnasium; and, though, of course, it could not be said that he had a right to be transferred in any case, there should have existed cogent reasons to the contrary in order that his request could be refused; otherwise section 25(2) of Law 10/63 would be meaningless; because any educator is free to apply for transfer at any time, even without having served, first, for five years at a particular post.
The fact, therefore, that in the present instance there was before the Educational Service Committee an application for a transfer by someone who was, prima fade, entitled to favourable consideration of his case, plus the fact that a decision adverse to him was taken and that such decision emanated from a collective organ-the said Committee-rendered it, in my opinion, necessary for the sub judice decision to be duly reasoned. Moreover, such a requirement appears to exist when one reads section 4(7) of the Masters, Teachers, and Employees of Communal Schools (Exercise of Administrative Competence) Law 1963-Greek Communal Chamber Law 8/63-together with sections 7 and 8 of the Greek Communal Chamber (Transfer of Competence) and Ministry of Education Law, 1965 (Law 12/65).
From the generality of the statements made as a preface to the lists of transfers decided upon and applications for transfers rejected (in exhibit 6) it is not possible to .know with any certainty at all which were the particular reason or reasons which led to the rejection of the application of the Applicant [223] for transfer; thus the sub judice decision cannot be regarded as being duly reasoned (see, inter alia, Constantinides v. The Republic (1967) 3 C.L.R. 7). Moreover, the aforesaid statements are, to a large extent, vague generalities based on the contents of the relevant statutory provisions in Law 10/63, and, therefore, according to well established principles of Law, such statements cannot be regarded as amounting to due reasoning for the individual decision affecting the Applicant (see Conclusions from the Jurisprudence of the Greek Council of State 1929-1959, p. 186).
I am, therefore, driven to the conclusion that the decision to refuse the application of the Applicant for transfer should be annulled as not being duly reasoned, and as being, therefore, contrary to law and in abuse of powers.
I have, indeed, looked in all the relevant official records, which were produced at the hearing, in an effort to find whether the absence of due reasoning in the minutes of the 1st July, 1968, (exhibit 6) could be said to be cured by anything found in such records.
Not only I have found nothing to that effect, but whatever I have found therein indicates that there were reasons militating in favour of the transfer of the Applicant to Nicosia-instead of filling the two relevant vacancies which, eventually, came to exist in Nicosia, through promotions of an Assistant Headmaster and Assistant Headmistress:
In the course of good administration one would have expected a person, such as the Applicant, who was already a Headmaster, grade A, and who was admittedly a good educator (see the evidence of Mr. Vrahas referred to earlier) and who, also, was entitled to favourable consideration under section 25(2) of Law 10/63, to have been preferred in relation to the said vacancies, instead of persons like Mr. Persianis and Mrs. Nissiotou, who had just been promoted to Headmaster B and Headmistress. B, respectively; unless, of course, the interests of education dictated otherwise. But, even the interests of education seem to have pointed in favour of the Applicant, because from the most recent Confidential Reports of Education Inspectors on the work of the Applicant and that of Mr. Persianis and Mrs. Nissiotou it is to be seen that all three had been rated very highly as educators but the Applicant was rated higher than the other two. [*224]
On the .basis of the foregoing, I have been led, in the light of the material before the Court, to conclude that the sub judice decision should be annulled for another reason too, namely, as being in abuse and excess of powers, in that even the vague reasoning which has been recorded in an omnibus manner in the minutes of the 1st July, 1968 (exhibit 6) appears, in the case of the Applicant, to be contradicted by the relevant administrative records (see, inter alia, Jacovides v. The Republic (1966) 3 C.L.R. 217).
Lastly, a further ground for annulment is to be found in the picture presented by the evidence of Mr. Vrahas:
It appears that the views of the Abbot of Kykko Monastery, who was consulted regarding the filling, inter alia, of the vacant post of Headmaster at the Kykko Boys’ Gymnasium, in Nicosia, were the decisive factor regarding the choice of the educator to be posted thereto, and as a result of such views Mr. Persianis was promoted and posted as Headmaster of the said Gymnasium. As the post concerned was one of those to which the Applicant could ‘have been posted on transfer from Morphou it follows that the decisive weight given by the Educational. Service Committee to the preference of the Abbot of Kykko regarding Mr. Persianis resulted, in an effective way, in minimizing materially the chances of the Applicant being transferred to Nicosia-especially as the other relevant vacant post in Nicosia was at a Girls’ Gymnasium and it was filled, in accordance with existing policy, by a Headmistress.
Under the provisions of section 24(2) the views of the Abbot of Kykko are, taken into account “as far as possible” provided that they are not “in conflict with the general educational needs”; and the notion of “general educational needs” is wide enough ‘to include the need to transfer an educator, coming within the ambit of section 25(2) of Law 10/63-such as the Applicant-when there is nothing militating against him as a person or as an educator, and when his application for a transfer to Nicosia is looked upon as a genuine case meriting priority treatment soon (see again the evidence of Mr. Vrahas).
It seems, thus, that the Educational Service Committee, in its approach to the correlated matters of the filling of the vacancy of the post of Headmaster at the Kykko Boys’ Gymnasium, in Nicosia, and of the application for transfer by the Applicant, as Headmaster, to Nicosia, acted in a manner contrary to the letter and spirit of the , relevant legislative [*225] provisions and in abuse and excess of powers, through attributing, wrongly, decisive weight to the relevant views of the Abbot of Kykko, instead of attaching paramount importance to the “general educational needs”.
For all the reasons which I have endeavoured to explain in this judgment the sub judice decision has to be declared to be null and void and of no effect whatsoever; but the postings of Mr. Persianis and Mrs. Nissiotou remain unaffected as they have not been challenged by this recourse.
The matter of the application of the Applicant for transfer to Nicosia has now to be re-examined and decided upon in the course of the proper exercise of the relevant discretionary powers.
Regarding costs, I have decided to award to the Applicant £20.-towards costs.
Sub judice decision annulled;
order for costs as aforesaid.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο