(1981) 3 CLR 631
[*631] 1981 July 25
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THECONSTITUTION
CONSTANTINOS OROLOGAS,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH
1. THE MINISTRY OF HEALTH AND THE DIRECTOR
OF MEDICAL SERVICES AND PUBLIC HEALTH
SERVICES,
2. THE PUBLIC SERVICE COMMISSION,
Respondents.
(Case No 230/81).
Provisional order-Rule 13 of the Supreme Constitutional Court Rules, 1962-Flagrant illegality-Posting of Medical Officer from one Section to another of the same Hospital-By Director of Medical Services who, prima fade, had no competence to do so-Posting flagrantly illegal-Suspended until final determination of the recourse-Public Service Law, 1967 (Law 33/67) section 48(2).
The applicant in this recourse challenged the decision of the Director of Medical Services to post him at the Casualty Section of the Limassol Hospital as from July 1, 1981; and he, also, applied for a provisional order suspending the effect of such decision until the final determination of the recourse. Copies of the recourse and of the application were served on the respondents but they entered no appearance.
At the material time the applicant was a Medical Officer serving at the Limassol Hospital and while posted at the Out-Patients Section he was only doing overtime work at the Casualty Section.
The complained of posting of the applicant was, apparently, made under the provisions of section 48(2) of the Public Service Law, 1967 (Law 33/67). On the basis of the material before the Court it appeared, prima facie, that in the context of the relevant administrative arrangements which were in force at[*632]the material time, the only competent authority which could have made such posting was the District Medical Officer in charge of the Limassol Hospital.
Counsel for the applicant submitted that, in the light of the relevant provisions of the Public Service Law, 1967 (Law 33/67) and of the above administrative arrangements, the Director of Medical Services had no competence to post the applicant at the Casualty Section of the Limassol Hospital and that, there-fore, the complained of posting there of the applicant was a flagrantly illegal decision.
Held, that in the absence of any argument to the contrary this Court is inclined, prima facie, to accept that quite probably the Director of Medical Services had no competence to post the applicant at the Casualty Section of the Limassol Hospital and that therefore the complained of posting was a flagrantly illegal decision; that due to the failure of the respondents to appear today there is nothing before this Court to show that the public interest will be seriously prejudiced, in any concrete way, if the applied for provisional order is granted; that, therefore, such order will be granted under rule 13 of the Supreme Constitutional Court Rules of Court, and by virtue of it there will be suspended until the final determination of this recourse the taking of effect of the posting of the applicant at the Casualty Section of the Limassol Hospital.
Application granted.
Cases referred to:
Sofocleous v. The Republic (1971) 3 C.L.R. 345;
Yerasimou v. Republic (1978) 3 C.L.R. 36 at p. 41;
Prodromou v.The Republic (1981) 3 C.L.R. 38.
Application for a provisional order.
Application for a provisional order suspending the effect of the decision of the respondent by virtue of which the applicant was posted at the Casualty Section of the Limassol Hospital pending the determination of a recourse against such decision.
A. S. Angelides, for the applicant.
No appearance for the respondents.
Cur.adv. vult.
TRIANTAFYLLIDES P. read the following decision. By means of the present recourse the applicant challenges, inter alia, the[*633]decision to post him at the Casualty Section of the Limassol. Hospital as from July 1, 1981.
Such decision was communicated to him by the Director of Medical Services, by a letter dated June 26, 1981.
The applicant has filed an application seeking a provisional order supending the effect of such decision until the final determination of the present recourse. Copies of the recourse and of the application, as well as of an affidavit of the applicant, dated July 3, 1981, which was sworn in support of such application, were served on the respondents, as it appears from the file of the proceedings before me, on July 22, 1981, but no appearance was entered on behalf of the respondents today.
At the material time the applicant was a Medical Officer serving at the Limassol Hospital and while posted at the Out-Patients Section he was only doing overtime work at the Casualty Section.
The complained of posting of the applicant was, apparently, made under the provisions of section 48(2) of the Public Service Law, 1967 (Law 33/67). It was not made by either the Minister of Health, or the Director-General of the Ministry of Health, but it was made by the respondent Director of Medical Services.
On the basis of the material before me it appears, prima facie, that in the context of the relevant administrative arrangements which were in force at the material time, the only competent authority which could have made such posting was the District Medical Officer in charge of the Limassol Hospital, Dr. A. Malliotis.
It has been submitted by counsel for the applicant that, in the light of the relevant provisions of Law 33/67 and of the aforementioned administrative arrangements, the Director of Medical Services had no competence to post the applicant at the Casualty Section of the Limassol Hospital and that, therefore, the complained of posting there of the applicant is a flagrantly illegal decision. In the absence of any argument to the contrary I am inclined, prima facie, to accept that this is quite probably so.
It has been, also, submitted by counsel for the applicant that the public interest is, in effect, adversely affected by the[*634]posting of the applicant at the Casualty Section, and by his move away from the Out-Patients Section of the Limassol Hospital, where he had been serving as from February 1978, because many patients, who were being regularly followed and treated by the applicant at the Out-Patients Section, have been deprived of the services of the applicant, who is the doctor who is familiar with the personal history and course of treatment of each one of them. Moreover, it has been contended that the applicant is suffering, as a result of his complained of posting, personal hardship and moral detriment, in that such posting is considered as a demotion, and is, also, to be regarded as a camouflaged mode of taking disciplinary action against him.
In support of this application for a provisional order I have been referred by counsel for the applicant to the cases of Sofocleous v. The Republic, (1971) 3 C.L.R. 345, Yerasimou v.The Republic, (1978) 3 C.L.R. 36, 41 and Prodromou v.The Republic, (1981) 3 C.L.R. 38, and to the textbook “Προσωρινή Προστασία στις Ακυρωτικές Διαφορές” (“Temporary Protection in Disputes for Annulment”), 1979, by V. Scouris, pp. 65, 73, 74.
Due to the failure of the respondents to appear today I have nothing before me to show that the public interest will be seriously prejudiced, in any concrete way, if I grant the applied for provisional order.
I, therefore, grant such order under rule 13 of the Supreme Constitutional Court Rules of Court, and by virtue of it, I suspend until, the final determination of this recourse the taking of effect of the posting of the applicant at the Casualty Section of the Limassol Hospital.
Of course, the making of this order does not prejudge the outcome of the recourse and, as the respondents were not heard today, I fix this case on August 27, 1981, at 9.30 a.m., so that the respondents may show because why the provisional order which I have just made should not remain in force. Of course, in the meantime, such provisional order has to be abided by.
Application granted.
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