(1974) 3 CLR 73
1974 February 20
[*73]
[MALACHTOS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHARALAMBOS ELIA,
Applicant,
and
THE EDUCATIONAL SERVICE COMMITTEE AND ANOTHER,
Respondents,
(Case No. 385/73).
Educational Officers-Transfers-Headmaster Secondary Education- Transfer being neither a punitive one for disciplinary reasons nor an arbitrary one, the respondent Educational Service Committee was under no duty to conduct an inquiry and hear the applicant before reaching its decision to transfer him (see Sentonaris’ case, infra; and Papantoniou’s case, infra).
Transfers-Sub judice transfer a duly reasoned one and made for the needs of the service-Exigencies of the service-A factual issue within the discretion of the administration-Judicial control of such discretionary powers-Principles governing interference of the Court with exercise of discretion by administrative bodies in cases of transfer-Discretion of the administration in relation to the reasons dictating the transfer of a public officer is not subject to judicial control-Unless there exists an improper use of the discretionary power, or a misconception concerning the factual situation, or failure to take into account of material factors (see Vafeadis v The Republic, 1964 C.L.R. 454, at p 463; Sentonaris v The Greek Communal Chamber, 1964 C.L.R. 300)- Cf. supra.
Public Officers-Transfers-Transfers made for the exigencies of the service-As distinct from punitive transfers for disciplinary reasons-In the case of the former transfers no need to hear the applicant-Transfer-Discretionary powers relating to the reasons dictating transfer-Judicial control of-Scope and extent-See supra
The applicant, a Headmaster in the Secondary Education, by his present recourse is challenging the validity of the decision [*74] taken by the respondent Educational Service Committee whereby he was transferred from the Commercial and Technical School of Ayios Kassianos, Nicosia, to the Agricultural Gymnasium at Morphou.
It was argued on behalf of the applicant that the decision complained of is not duly reasoned and/or is contrary to law in that the reasons given there for are not correctly representing the facts and that, in any event, he was never given the chance of being heard before the transfer in question in order to explain his personal circumstances The learned Judge rejected the arguments set forth on behalf of the applicant; and dismissing the recourse:-
Held, (1): (After referring to and quoting the relevant minutes of the respondent Committee):
(A) Lt is quite clear from the above, that the decision was duly reasoned and, in particular, the transfer of the applicant was made for the needs of the educational service.
(B) No doubt, the issue on the exigencies of the service is a factual one and it is well established principle of administrative law that factual issues are in the discretion of the administrative bodies(see Vafeadis v The Republic, 1964 C.L.R. 454, at p 465; Sentonaris v The Greek Communal Chamber, 1964 C.L.R. 300).
(C) The effect of the principles laid down in these two cases (supra) is that the exercise of the discretion of the Administration in relation to the reasons dictating a transfer, is not subject to the control of the administrative Court except if ‘there exists an improper use of the discretionary power, or a misconception concerning the factual situation, or the non taking into account of material factors.
(D) In the present case, I do not find any such cause for interfering with the exercise of the discretion of the respondent Committee in reaching their decision to transfer the applicant.
(2) Now, in view of the of fact that the transfer of the applicant is neither a punitive one, for disciplinary reasons nor an arbitrary one, the submission on his: behalf that the respondent Committee had a duty to conduct an enquiry and hear the applicant before reaching their decision to transfer him, cannot stand (see Sentonaris’ case ubi supra; Demetra Papantoniou v. The Republic (1969) 3 C.L.R. 460, at p 464) [*75]
Cases referred to:
Sentonaris v The Greek Communal Chamber, 1964 C.L.R. 300;
Vafeadis v.The Republic 1964 C.L.R. 454, at p. 465.
Demetra Papantoniou v The Republic (1969) 3 C.L.R. 460, at p 464
Recourse.
Recourse against the decision of the respondent to transfer applicant from the Neapolis Gymnasium Nicosia, to the Agricultural Gymnasium, Morphou.
T. Papadopoullos, for the applicants.
A. Angelides, for the respondents.
Cur. adv. vult.
The following judgment was delivered by:-
MALACHTOS, J.: The applicant in this recourse is a biochemist and was first appointed as a secondary education school teacher in 1957 and was posted to the Technical School of Lefka In 1958 he was transferred to the Central Agricultural School of Morphou and in 1959 he was transferred -to the Technical School of Limassol In 1963 he was transferred to the Technical School Famagusta. In 1970 he was promoted to a headmaster and in 1971 he was transferred to the Commercial and Technical School of Ay Kassianos, Nicosia On the 1.9.73 he was transferred to the Neapolis Gymnasium. By letter dated 5.9.73, exhibit 3, the applicant was informed that as from 6.9.73 he was transferred to the Agricultural Gymnasium of Morphou The said letter reads as follows:-
“I wish to inform you that the Committee of Educational Service decided, for- educational reasons, your transfer as from 6.9.73 from the Neapolis Gymnasium to the Agricultural Gymnasium of Morphou”.
As “against, this decision the applicant filed the present recourse by which he claims a declaration, of the Court, that the act and/or decision off the respondents communicated to the, applicant by letter dated 5.9.73, by which the applicant was transfered from the Neapolis Gymnasium Nicosia to the [*76] Agricultural Gymnasium of Morphou, is null and void and of no legal effect whatsoever.
The application is based on five grounds of law which learned counsel appearing for the applicant in addressing the Court, summarised them as follows:
1. The act and/or decision of the respondents was not duly reasoned or at all and is contrary to law as the reasons given in the said decision are not correctly representing the facts of the case, and
2. The applicant was never given the chance of being heard in order to explain his personal circumstances.
It has been argued by learned counsel for the applicant that it is clear from the decision complained of, which is contained in the minutes of the respondent committee, exhibit 4, that the said decision is not duly reasoned. The said decision reads as follows:
“Transfers of Headmasters
After the non acceptance of Mr. G. Prodromou of the offer of appointment made to him for the post of Inspector Secondary Education, class1 (in philology), and the return from his educational leave abroad of Mr. K. Karayannis, a surplus is created of one headmaster in Nicosia and, consequently, the subject of transfer from Nicosia of one of them, is created.
The Committee, after studying the whole subject, and after taking into consideration all the facts and documents, as well as the views of the head of the department, who is present, as regards the educational needs of each school of Nicosia, finds that out of the headmasters poslod in Nicosia, it is necessary that Mr. Charalambos Elia be transferred So, it is decided that he be transferred from the Neapolis Gymnasium to the Agricultural Gymnasium of Morphou as from 6.9.73”.
It is clear from the above, he submitted, that the transfer of the applicant was not necessitated by the requirements of the service but it was done,as stated. there, because there was a surplus of headmasters in Nicosia He further argued that there is no reference in the minutes that the personal circumstances [*77] of the applicant and his family were taken into account, and that the applicant was not given the opportunity to be heard.
Now, in view of the fact that the transfer of the applicant is neither a punitive one for disciplinary reasons nor an arbitrary one, the submission on his behalf that the Educational Service Committee had a duty to conduct an enquiry and hear the applicant before taking a decision to transfer him, cannot stand See, inter alia, Stavros Sentonaris v The Greek Communal Chamber through the Director of Greek Education, 1964 C.L.R 300 and Demetra Papantoniou v The Republic (1969) 3 C.L.R. 460 at page 464.
As regards the submission of learned counsel for applicant that the decision of the respondent was not duly reasoned, or at all, I find no merit It is clear from the said decision, which is contained in the minutes of the Committee, exhibit 4, as set out hereinbefore in this judgment, that the decision was duly reasoned and, in particular, the transfer of the applicant was made for the needs of the service. No doubt the issue on the exigencies of the service is a factual one and it is a well established principle of administrative law that factual issues are in the discretion of the administrative bodies In the case of Costas Vafeadis v The Republic of Cyprus through the Public Service Commission, 1964 C.L.R. 454 at page 465, Triantafyllides, J. as he then was, had this to say:
“The possibility of judicial interference with the exercise of discretion by administrative bodies in cases of transfer, has been dealt with in the case of Stavros Sentonaris v. Greek Communal Chamber, 1964 C.L.R. 300 The effect of the principles adopted in that case is that the exercise of the discretion of the Administration in relation to the reasons dictating a transfer, is not subject to the control of an administrative Court except if there exists an improper use of the discretionary power, or a misconception concerning the factual situation, or the non-taking into account of material factors”.
In the present case I do not find any cause for interfering with the exercise of the discretion of the Educational Service Committee in reaching their decision to transfer the applicant. It was reasonably open to the said Committee to take the decision complained of. [*78]
For the above reasons this recourse fails.
In the circumstances of this case I have decided that there will be no order as to costs.
Application dismissed.
No order as to costs.
cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο