(1974) 3 CLR 63
1974 February 19
[*63]
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SOFOCLES SOFOCLEOUS,
Applicant,
and
THE REPUBLIC OF CYPRUS, THROUGH
1. THE MINISTRY OF EDUCATION,
2. THE EDUCATIONAL SERVICE COMMITTEE,
Respondents
(Case No 474/73)
Transfers-Educational Officers-Transfer of educational officers not involving change to the post possessed by them and the duties attached thereto, or change of place of abode-Effected by the appropriate Authority i.e. the Minister of Education (and not by the Educational Service Committee)-Section 39 (1) and (2) of the Public Educational Service Law, 1969 (Law 10/1969)-Such transfers need not be duly reasoned in the sense that they do not require special reasoning (see Decision of the Greek Council of State No. -364/57, reported in Decisions of the Greek Council of State 1957, vol. A 382, at p.383)-Decision of the Minister transferring the applicant Headmaster of Secondary School within the same town-And not involving any change to the post, duties attached thereto, supra-Not a demotion-Transfer made after taking into consideration the relevant educational needs-A duly reasoned decision-Cf. further infra.
Demotion-Transfer of applicant as aforesaid is not a demotion-Demotion involves a degrading, which is not what happened in the instant case.
Educational Officers Transfers Postings Wishes of officer concerned to be taken into consideration as far as possible Regulation 14 (1) of the. Educational Officers (Teaching Staff, Appointments, Postings, Transfers, Promotions and Connected Matters) Regulations, 1972-Reply of the appropriate organ to officer’s written objection to transfer or posting need not be in writing Regulation 22 (1) and (2) of the said Regulations But [*64] assuming that such reply should be in writing then, again, non compliance as aforesaid does not render the sub judice administrative decision (transfer) illegal or void-As the person affected may have recourse to a competent Court under the provisions of Article 29.2 of the Constitution for the appropriate redress of the detriment which he may have suffered as a result of the failure of the competent public authority to give him a written reply-further supra.
Transfers-Additional transfers due to unforeseeable educational needs May be effected exceptionally within the period September and October of the year instead of the usual period April June Regulation 21(1) of the aforesaid Regulations.
Educational Service-Educational officers-Transfers-Postings-See supra, passim.
Transfers-Postings-Educational officers-See supra, passim.
Constitutional Law Petitions, requests and complaints in writing- Right of the citizen to make such requests, complaints etc. to the Authorities Right safeguarded under Article 29 of the Constitution Failure of the Administration in the instant case to give a written reply to a written complaint (or request) of the applicant
Applicant having proceeded by a recourse in respect of the substance of his case (transfer) under Article 146 of the Constitution-Consequently his claim for a distinct and separate decision of this Court on the issue of such failure to reply cannot stand (see Kyriakides and The Republic, 1 R.S.C.C. 66).
Constitutional Law-Article 29 of the Constitution-See supra.
Technical School of Ayios Kassianos, Nicosia-Recognised by the Ministry of Education as equivalent i.e. of the same standing as other schools of secondary education.
The applicant a Headmaster in the Secondary Education, by this present recourse under Article 146 of the Constitution complains against his transfer from the Neapolis Gymnasium to the Technical School of Ayios Kassianos, both said schools being within the town of Nicosia and of equal, or equivalent standing It appears that the applicant objected in writing to his aforesaid transfer, the appropriate authority being content to reject it orally The learned Judge of the. Supreme court who heard this case, dismissed the recourse and:- [*65]
Held, (1) This is a transfer under section 39 of the Public Educational Service Law, 1969, (Law 10/1969) not involving a change to the post possessed by the applicant Headmaster and the duties attached thereto, or change of the place of abode Such transfers need not be specially reasoned (see Decision of the Greek Council of State No 364/57, supra and infra) In any event the transfer in question was made after taking into consideration the relevant educational needs; and it is a duly reasoned decision.
(2) This transfer is not a demotion Demotion involves a degrading which is not what happened in the instant case inasmuch as the Technical School of Ayios Kassianos is of the same standing as any other secondary education school.
(3) Reply to the objection in writing made by the applicant need not be in writing under the relevant Regulation 22, of the said Regulations, 1972 (supra) But assuming that such reply should be in writing, then, again, non-compliance does not render the sub judice transfer illegal or void; and the applicant is entitled to have recourse to the competent Court under the provisions of Article 29.2 of the Constitution for the appropriate redress of the detriment which he may have, suffered as a result of the failure of the Ministry to give him a reply in writing to his aforesaid objection.
(4) The sub judice transfer is an additional transfer due to unforeseeable educational needs; and as such it could be validly made outside the usual period April-June, namely during the period September-October as it was done in this case under the provisions of Regulation 21(1) of the aforesaid Regulations, 1972.
(5) The applicant having proceeded by a recourse in respect of the substance of his case under Article 146 of the Constitution, it follows that his claim for a distinct and separate decision of this Court on the issue of such failure on the part of the Ministry to give him a written reply as required under Article 29 of the Constitution cannot stand (see Kyriakides and The Republic, 1 R.S.C.C. 66)
Recourse dismissed.
No order as to costs.
Cases referred to:
Kyriakides and The Republic, 1 R.S.C.C.66; [*66]
Decision of the Greek Council of State No. 364/1957, in Decisions of the Greek Council of State 1957, Volume A, 382, at p 383.
Recourse.
Recourse against the decision of the respondents to transfer applicant from Neapolis Gymnasium to the Technical School of Ayios Kassianos.
K. Michaelides, for the applicant.
A. Angelides, for the respondents.
Cur adv vult.
The following judgment was delivered by:-
MALACHTOS, J.: The Applicant in this recourse is a philologist in the educational service, secondary education. He first served for 13 years as a teacher at the Pancyprian Gymnasium of Nicosia and after that he served for another 8 years as a headmaster Grade B at the Lefkonico Gymnasium In 1970 he was transferred to the Neapolis Gymnasium and was promoted to headmaster Grade A In 1971 he was transferred to the Evening Gymnasium of Nicosia and another headmaster was posted at Neapolis Gymnasium, namely, Mr. K Karayiannis Against this transfer the applicant filed Recourse No 327/7 1 On the 24th January, 1972, judgment was delivered in the said recourse by which the sub judice decision of the respondent Ministry of Education, to transfer the applicant, was declared null and void and of no effect whatsoever.
The applicant, however, at the request of the respondents, agreed to stay for the rest of the school year 1971-72 at the Evening Gymnasium and he was given the promise that for the next school year he would be posted to the Neapolis Gymnasium (See blues 145 to 148, inclusive, of exhibit 6, the personal file of the applicant).
In the school year 1972-73 Mr. Karayiannis went abroad on study leave and so the applicant was posted at the Neapolis Gymnasium.
By letter dated 1.9.73, exhibit 1, the applicant was transferred as from 1.9.73 from the Neapolis Gymnasium to the Technical [*67] School of Ayios Kassianos On the same day another head- master Grade B, namely, Mr. Charalambos Elia, was transferred from the Technical School of Ayios Kassianos to Neapolis Gymnasium (see exhibit 7, Transfers of Educational Officers file No 130/1970) These transfers were suggested by the Head of Secondary and Higher Education, Mr. Hji Stephanou and were made by the Minister of Education under section 39 (2) of the Public Educational Service Law, 1969 (10/69), as being the proper organ Section 39 reads as follows:
“1. Subject to the provisions of subsection (2) transfers of educational officers are effected by the Committee.
2. Transfers of Educational Officers, which do not involve change to the post possessed by them and the duties attached thereto, or change of place of abode, are effected by the appropriate authority”.
So, it is clear from the above section that transfers of educational officers are of two kinds The one effected by the Educational Service Committee and the other by the appropriate authority, who, according to section 2 of the Law, is the Minister of Education acting generally through the Director-General of the Ministry.
In the meantime, Mr. Karayiannis returned from abroad. It is the usual practice of the Ministry to post those returning from study leave abroad at their last post According to this practice Mr. Karayiannis had to return to Neapolis Gymnasium. As Mr. H. Prodromou, the headmaster of the Pancyprian Gymnasium had applied for the post of Inspector of Secondary Education, and in view of the fact that his application was approved and the relative offer was made to him, Mr. Karayiannis was in the beginning of September 1973 posted to the Pancyprian Gymnasium. However, Mr. Prodromou did not accept the said offer and Mr. Karayiannis was posted back to the Neapolis Gymnasium on 5.9.73, whereupon Mr. Charalambos Elia was transferred on the same day from Neapolis to the Agricultural Gymnasium of Morphou.
On the 6.9.73 the applicant submitted a written objection to his said transfer (exhibit 2).Having received no written reply to his said objection, the applicant filed the, present recourse claiming the following relief: [*68]
(a) A declaration of the Court that the decision of the respondents to transfer applicant from Neapolis Gymnasium to the Technical School of Ayios Kassia SOFOCLES no is null and void and of no effect whatsoever; and
(b) A declaration of the Court that the omission of the respondents to consider and/or deal with applicant’s objection dated 6.9.73 against his aforesaid transfer and communicate their decision to the applicant within reasonable time from the 22/9/73 ought not to have been made and that whatever has been omitted ought to have been done.
The application is based on the following grounds of law:
1. The purported transfer of applicant is contrary to Regulations 14 (1), 16 (1) (3), 17 (2) and 21(2) of the Educational Officers (Teaching Staff, Appointments, Postings, Transfers, Promotions and connected matters) Regulations of 1972, published in Supplement 3 to the Official Gadette No 972of 10.11.1972 under P.I. 205.
2. Respondents’ omission lo consider and/or deal with applicant’s objection to his purported transfer to Ayios Kassianos Technical School is contrary to Regulation 22 of the aforesaid Regulations.
3. The purported transfer of applicant results in the performance of duties by the applicant not included in the duties laid down in the scheme of service relating to the subsantive post which he was holding immediately prior to such transfer and it amounts in effect to applicant’s demotion.
4. Respondent exercised wrongly its discretion and acted in abuse or excess of its powers by disregarding applicant’s seniority, grade, experience and successful years of service and by taking into consideration immaterial or improper factors. Applicant’s transfer was made merely and solely for the purpose of facilitating the accommodation of Mr. Karayiannis.
5. The respordents under no circumstances were empowered to transfer applicant against his will to a Technical School. [*69]
6. The applicant further contends that the act or decision complained of is not duly reasoned;
During the hearing, the recourse against respondent No 2, the Educational Service, Committee, was withdrawn after a statement by counsel for both respondents, that the transfer in question was, effected by respondent 1.
The first point argued by counsel for applicant is that the appropriate organ in effecting the transfer of the applicant and all other transfers connected with it, did not take into consideration the wishes of the educational officers involved contrary to the provisions of regulation 14 (1) of the Educational Officers Regulations, 1972 This regulation reads as follows:
“14 (1) Postings and transfers of educational officers are effected by the appropriate organ on the basis of the educational needs as they are verified by the appropriate authority, and in this respect the wishes of the educational officers are, as far as possible, taken into consideration”.
From the wording of the above regulation it is clear that it is not imperative and does not impose on the appropriate organ in posting or transferring an educational officer to take into consideration his wishes but only if it is possible to do so, and this subject always to the requirements of the service. Furthermore, the wishes of educational officers in order to be taken into account in case of their transfer, must appear in their personal file as, for instance., in the case where they themselves apply for transfer under regulation 16 (1).
The second point raised was that, the applicant up to the date of hearing of this recourse, i.e. the 12.12.73, did not receive any notification in writing as to the examination of his written objection 1.o his transfer contrary to the provisions of regulation 22. He submitted that even if the allegation of the respondents that an oral reply was given, is accepted, this again is not in accordance with the provisions of the said regulation Such reply ought to be in writing This argument of counsel was in support of the second remedy claimed by the applicant Regulation 22 reads as follows:
“22 (1) Any educational officer may, within ten: days from the date of communicating to him his transfer, or from the date on which such transfer is published, submit to the appropriate organ an objection in writing duly [*70]
Reasoned Up to the examination of his objection he is bound to serve in the school to which he has been transferred.
(2) The objections are examined within fifteen days from the time limit referred to in paragraph 1 and the relative decisions are communicated to the interested persons as soon as possible”.
According to the evidence of Mr. Hji Stephanou, the Head of Higher and Secondary Education in the Ministry of Education, the applicant was given an oral reply to his objection of the 6.9.73, to the effect that the decision for his transfer could not be reconsidered as the school to which he was transferred was considered equal to all other schools of secondary education From the wording of regulation 22 it is clear that although the objection of the educational officer to his transfer should be in writing there is no such provision as regards the communication of the decisions taken after the examination of such objections to the interested persons But even if we assume that the communication of such decision should be in writing then, again, I am of the view that non compliance does not render the administrative decision illegal or void as the person affected may have recourse to a competent court under the provisions of Article 29.2 of the Constitution and he may claim and obtain damages if he proves that he has suffered any material detriment as a result of the failure of the competent public authority to give him a written reply.
The applicant in the present case, who admittedly has not received a written reply and who has proceeded under Article 146 of the Constitution in respect of the substance of the case, adduced no evidence to show that he has suffered any material detriment. His claim, therefore, for a distinct and separate decision of the Court on this issue cannot stand (PhediasKyriakides and The Republic of Cyprus, through the Ministry of Interior, 1 R.S.C.C. 66).
The third point raised was that the transfer of the applicant was not made within the period of April to June as provided by regulation 21(1), and, therefore, it is contrary to that regulation.
This allegation cannot stand as under the same regulation, paragraph 2, the appropriate organ has the power to make [*71] additional transfers due to unforeseeable needs of the service between September and October, as in the present case.
The fourth point argued by learned counsel for applicant is that the Technical School of Ayios Kassianos is not of the same standing as that of the Neapolis Gymnasium and it is not even recognised by the Greek Ministry of Education; therefore, this transfer demotes the applicant, who is the only headmaster grade A in Nicosia In fact, all the other head- masters of secondary education in Nicosia are grade B.
From the evidence of Mr. Hji Stephanou it is abundantly clear that the technical school in question is recognised by the Greek Ministry of Education and is of equal standing as other schools of secondary education Mr. HjiStephanou produced in Court the relative notification of the Greek Ministry of Education (exhibit 10), and further stated that the only difference between the Neapolis Gymnasium and the Technical School of Ayios Kassianos is that the subjects taught in the last three forms of the technical school are of a technical nature As regards the first three forms the subjects taught in both schools are exactly the same.
Counsel for applicant further argued on this point that the applicant being a headmaster grade A should teach in the last form but now he is obliged to teach in the first three forms only Furthermore, he is a philologist and, therefore, he cannot run a technical school because it is outside the sphere of his specialization.
Taking into consideration the evidence adduced in this respect I consider the transfer of applicant to the Technical School of Ayios Kassianos from the Neapolis Gymnasium as not being a demotion Demotion is considered to be only the degrading of an officer and his transfer or posting in a post which is equal to that he was previously holding, but which is inferior from a point of view of importance and jurisdiction, does not amount to demotion (see Case No 364/57 of the Greek Council of State reported in the Decisions of the Greek Council of State 1957, volume A, 382 at page 383).
From the evidence of Mr. Hji Stephanou it is clear that the administrative duties in all schools of secondary education are the same and it is not necessary for any head-master running such school to be specialised in any subject For example, the [*72] headmaster of the Technical School of Polis Chrysochous is a philologist and the headmaster of the Technical School of Nicosia is a mathematician.
The fifth and last point argued by counsel for applicant is that the act decision complained of is not duly reasoned.
On this point it has been argued by learned counsel for the respondents that the decision of the Minister was lawfully taken after taking all factors into account The question of transfers is a subject which is within the discretion of the organ which takes the decision The decision to transfer the applicant was taken by the Minister on the suggestion of the Head of Higher and Secondary Education Mr. Hji Stephanou, and this suggestion, according to his evidence, was made after taking into account the educational needs of all schools of secondary education in the Nicosia town This is clear from the file of transfers of educational officers, exhibit 7.
Mr. Hji Stephanou stated in evidence that in this particular case having in mind the educational needs of ail the secondary schools in Nicosia he made certain suggestions to the Director- General of the Ministry who, in turn, submitted his suggestions to the Minister of Education and he, in consultation with the Head of Technical Education, agreed to the transfer of the applicant.
So, it is clear from the above that the decision to transfer the applicant is duly reasoned.
In the present case, however, I go even further and say that decisions as regards transfers of educational officers under section 39 (2) of Law 10/69, where such transfers do not involve change of the post possessed by them and duties attached thereto, or change of place of abode, need not be duly reasoned. Transfers of this kind are indicated by the requirements of the service and in view of their nature, do not require special reasoning. This view is supported by Decision No 364/57 of the Greek Council of State, supra.
For the reasons stated above, this recourse fails.
In the circumstances, I make no order as to costs.
Application dismissed.
No order as to costs.
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