(1984) 3 CLR 593
[*593] 1984 June 30
[PlKIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DEMETRIOS PARASKEVAS,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE EDUCATIONAL SERVICE COMMISSION,
Respondents.
(Case No. 412/83).
Educational Officers—Transfers—Secondary School teacher—His application for transfer rejected because of absence of vacancies in that relevant posts were held by teachers on contract—Employment of teacher on contract depended on the existence of vacancies and priority for transfers directly related to seniority in the service—Regulations 15(2) and 17(1) of the Educational Officers Regulations, 1972—Absence of a vacancy as such not a conclusive answer to an application for transfer—No attention paid to this matter by respondents and no consideration given to applicant's application—Sub judice decision annulled for misconception of law, as well as lack of due reasoning and proper inquiry.
The applicant, a secondary school teacher of Gymnastics applied to be transferred to Paphos for personal and family reasons. No reply was ever given to his application; and he came to know of its rejection through a communique of the Ministry of Education in the press, announcing transfers for the year 1983-84.
On his application for transfer, there was merely a note signifying its receipt. There was no other record whatever suggesting consideration of it or indicating its outcome. The decision relevant to the transfers of secondary school teachers under consideration was very laconic respecting individual applications; and no specific reference was made to the claim of applicant [*594] for transfer in this case. Apparently, the respondents adopted the recommendations of the Director of Secondary Education, to the effect that there were no vacancies at Paphos. What the Director said was that there was an excess in the number of Gymnastics masters at Paphos and this excess included two masters of Gymnastics employed on contract.
Upon a recourse by the applicant:
Held, that the employment of the two masters of Gymnastics on contract was dependent on the existence of vacancies (see reg. 15(2) of the Educational Officers Regulations of 1972) whereas priority for transfers was directly related to seniority in service (see reg. 17(1)); that the absence of a vacancy as such was not a conclusive answer to an application for transfer because an applicant requesting transfer may have a legitimate right to be transferred to a certain place in preference to one already positioned there; that the respondents paid no attention whatever to this matter and in view of the absence of any record in the file of the applicant as to the fate of his application it is doubtful whether they did pay any consideration at all to it; accordingly the sub judice decision must be annulled for misconception of the law, as well as lack of due reasoning and proper inquiry.
Sub judice decision annulled.
Cases referred to:
Petrondas v. Attorney-General of the Republic (1969) 3 C.L.R. 214;
Lambrou v. Republic (1970) 3 C.L.R. 75.
Recourse.
Recourse against the refusal of the respondents to transfer applicant to Paphos.
A. S. Angelides, for the applicant.
R. Vrahimi (Mrs.), for the respondents.
Cur. adv. vult.
PIKIS J. read the following judgment. Applicant is a secondary school teacher of Gymnastics. He had been in the Public Educational Service for six years. On 8.2.1983 he applied to be transferred to Paphos, his native town. [*595] It was not the first time he applied to be transferred to Paphos, a transfer sought for personal and family reasons. His grounds for transfer were articulated in his letter, and cover economic reasons as well. His application was made within the time prescribed by reg. 18(a) of the Educational officers Regulations of 1972, hereafter referred to as "The Regulations". No reply was ever given to his application. He came to know of its rejection through a communique of the Ministry of Education in the press, announcing transfers for the year 1983-84. As he was not included in the list of transferees, he lodged an objection on 13.9.1983, in accordance with the provisions of reg. 22. Likes his application, his objection remained unanswered.
The present recourse is directed against the refusal to transfer him to Paphos. The annulment of the refusal to transfer him is challeged for lack of due reasoning, lack of proper inquiry and, generally, failure on the part of the respondents to give the application due consideration.
In their opposition, respondents contend the application was properly considered; it was refused on grounds of educational needs, that is, the absence of a vacancy for a Gymnastics master at Paphos. The possibility of transferring the applicant to the Paphos Gymnasium was ruled out, as stated in the opposition, for the reason that the seervice of the two female Gymnastics teachers, serving there, were educationally necessary because they taught Gymnastics to female students of the higher classes of the school. Proper appreciation of the educational needs of the school necessitated the retention of their services at Paphos, notwithstanding the fact that they served on contract and, consequently, the employment of their services was dependent upon the existence of vacancies or the necessity of their services, as provided in reg. 15(2).
Counsel for the Republic laid stress, in argument before the Court, on the provisions of reg. 13(a)(i), enjoining educational authorities to maintain a balance between the two sexes in the composition of school personnel This Regulation does not authorized preference of either sex in the teaching of any particular subject as counsel seemed to suggest, but requires educational authorities to keep an overall balance in the numbers [*596] of female and male members of the school staff. If the refusal to transfer the applicant was fashioned to the understanding of the Regulations put forward in the application, it must be annulled for misconception of the law. However, perusing the material relevant to the transfer of school teachers for the years 1983-84, the respondents do not appear to have paid distinct consideration to the request of applicant for transfer. Even that is not certain for, in the light of the material before us, no reference whatever is made by the respondents to the application of Demelrios Paraskeva for transfer.
On his application for transfer, there is merely a note signifying its receipt. There is no other record whatever suggesting consideration of it or indicating its outcome. The decision relevant to the transfers of secondary school teachers under consideration is very laconic respecting individual applications; and no specific reference is made to the claim of applicant for transfer in this case. Apparently, they adopted the recommendations of the Director of Secondary Education, to the effect that there were no vacancies at Paphos. What the Director said was that there was an excess in the number of Gymnastics masters at Paphos. We can presume, in view of the opposition, that this excess included the two masters of Gymnastics employed on contract, who could have no conceivable claim to stay at Paphos in preference to the applicant. As noted, their employment was dependent on the existence of vacancies laid down in reg. 15(2), whereas priority for transfers is directly related to seniority in service, as provided in reg. 17(1). Nor is the absence of a vacancy as such, a conclusive answer to an application for transfer. For, an applicant requesting transfer may have a legitimate right to be transferred to a certain place in preference to one already positioned there. To this matter the respondents paid no attention whatever. In fact, it is doubtful, in view of the absence of any record in the file of the applicant as to the fate of his application, whether they did pay any consideration at all to it. Their decision must inevitably be set aside for lack of due inquiry, on the one hand and, on the other, absence of proper reasoning (see, Christos Petrondas v. Atttorney-General of the Republic (1969) 3 C.L.R. 214; A. Lambrou v. Republic (1970) 3 C.L.R. 75). [*597]
In my judgment, the decision must be annulled for misconception of the law, as well as lack of due reasoning and proper inquiry.
In the result, the recourse succeeds. Let there be no order as to costs.
Sub judice decision annulled.
No order as to costs.
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