Supreme Court dismisses application for provisional order against transfer due to lack of manifest illegality and proven irreparable damage.

[*1146] 1971 September 2

(A. LOIZOU, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the

Constitution

Sofocles Sofocleous,

Applicant,

and

The Republic of Cyprus, through

The Ministry of Education,

Respondent.

(Case No. 327/71).

Education Service - Secondary

Education - Director Grade 'A' - Transfer - Recourse against transfer -

Provisional Order - Application for a provisional order staying transfer until

final determination of the recourse - No manifest or flagrant illegality - No

proof of the irreparable damage by law required - Application dismissed.

Administrative Law - Acts or

decisions subject matter of a recourse under Article 146 of the Constitution -

Provisional orders suspending effect of - Principles upon which such orders may

be granted - Merits of the recourse - Irreparable damage - Flagrant illegality.

Administrative Law - Practice -

Provisional order - Flagrant illegality - A ground for granting a provisional

order even if no irreparable damage has been proved and even when serious

obstacles will be caused to the Administration - However, it is a ground to be

approached with the utmost caution, as it may be tantamount to disposing the

case on its merits - Rule 13 of the Supreme Constitutional Court Rules, 1962.

Administrative Law - Practice - Provisional order suspending effect of

Administrative Act - On the ground of "irreparable damage" - Damage

alleged to result must be specified in the application in a concrete way -

Moreover, even if irreparable damage is proved a stay is not a matter of right

- It is an exercise of judicial discretion. [*1147]

Provisional Order - See under

"Administrative Law" - "Education Service".

Flagrant illegality - Provisional

order - See under "Administrative Law" - "Education

Service".

Irreparable damage - Provisional

order - See under "Administrative Law" - "Education

Service",

Supreme Constitutional Court Rules

,1962 - Rule 13 - See under "Administrative law".

K. Michaelides, for the

Applicant.

A. Angelides for G.

Tornaritis, for the Respondent.

DECISION

The following decision was delivered

by: -

A. LOIZOU, J.: By this recourse the applicant, a director Grade 'A' in the

Education Service – [*1148] headmaster

of Neapolis Gymnasium for the last two years - challenges the validity of his

transfer and/or posting from the said Gymnasium to the Evening Gymnasium of

Nicosia, and seeks a declaration that the said decision of the respondent is

null and void and of no effect whatsoever.

The grounds of law upon which the

application is based are the following:-

"(1) In accordance with section 39 of the

Public Education Service Law 10 Of 1969 the Committee of the Education Service

effects transfers of education officers.

(2) The purported transfer of the Applicant by

Respondent is contrary to section 39 of Law 10 of 1969 and consequently illegal

as same is not within the ambit of para. 2 of section 39.

(3) The purported transfer and/or posting 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 substantive post which was holding

immediately prior to such transfer and it amounts in effect to Applicant’s demotion.

(4) Even if Respondent was empowered to make the decision

complained of, the Respondent wrongly exercised its discretion and acted in

abuse or [*1149] 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 transfer to Neapolis Gymnasium

of Mr. Karayianis".

This recourse was filed on the 25th

August, 1971, together with an application for a provisional order staying applicant’s

transfer until the final determination of the aforesaid recourse.

In support of the said application

the applicant filed an affidavit, the tenor of which is that the said transfer

amounts to a demotion in view of the nature and size of the Evening Gymnasium

as compared with the Neapolis Gymnasium; that he is of ill health and cannot

teach in the evening; his transfer was not made by the competent organ and in

any event "for the

reasons set out in the recourse such transfer is illegal and that the said

transfer will cause him damning and irreparable damage". In addition to

the contents of this affidavit the applicant produced a copy of a certificate

from Dr, Constantinides the Government Chest Specialist, which said that

"applicant suffers from hypertasis and holisteronaemia and that the transfer

has had adverse effects on the psychological condition and health of the [*1150]

applicant in general, having been interpreted by the applicant as degrading for

his prestige and his long career in education".

In arguing the case for the

applicant, his learned counsel has made it clear that he is relying more οn the

ground that the transfer is so flagrantly illegal that a stay should he ordered

to prevent the illegality, than that the applicant will suffer irreparable

damage if the transfer is not postponed by a provisional order.

According to counsel for the applicant,

under our law the flagrant illegality of an administrative act is in itself

sufficient ground for the Court to order stay of execution. This, he argued, is

deducted from passages in two judgments of a judge of this Court, namely, (a) Cleanthis

Georghiades v. The Republic,(1965) 3 C.L.R. p. 392, where at page

395 it is stated:-

"There is no doubt that serious questions, mainly

questions of law, arise for determination in the present Case. So, this is not

a Case where the claim of Applicant is so obviously unfounded as to lead the

Court to the conclusion that it is not proper in any case to grant the

provisional order applied for. But it is not either a case where the claim of

Applicant is clearly bound to succeed; had it been so this could have been a

factor militating strongly [*1151] in favour of the making of the provisional

order. The merits of the Case, therefore, cannot have a decisive effect on the

outcome of the application for a provisional order.

It is a cardinal principle of administrative law

that where a provisional order is sought in an administrative recourse and

where on the one hand the non-making of the order will cause damage, even

irreparable, to the Applicant but on the other hand the making of such an order

will cause serious obstacles to the proper functioning of the administration

then the personal interest of the applicant has to be subjected to the general

interest of the public and the provisional order should not be granted. It goes

without saying that where the non-making of the provisional order will not

cause to an Applicant irreparable damage such an order will not be made, in any

case, on the strength of the application made by Applicant for the purpose.

And (b), Iordanou v. The

Republic, (1966 ) 7-8 J.S.C. p.949, where at

p.952 it is stated:

It is correct that on the face of the

recourse there do appear serious allegations by which applicant is challenging

his transfer but they do not amount, on the material before me at [*1152] present, to such a case of flagrant

illegality of the transfer in question, as would make it necessary for this

Court to intervene and prevent it from taking effect at this stage. They are

matters to be gone into properly at the trial of this recourse".

In my opinion it is correct to say

that the merits of a recourse for annulment of an administrative act are

factors to be taken into consideration in deciding whether or not a provisional

order for a stay will be granted. The flagrant illegality of an administrative

act is a ground for granting a provisional order even if no irreparable damage

has been proved and even when serious obstacles will be caused to the

administration. This, it appears, is also a view propomaded in Greece, as can

be seen from the following passage in the textbook ,by Professor Tsatsos 'The

Recourse for Annulment before the Council of State', 2nd Ed, page 284:-

*"Ταύτα πάντα όλως ασχέτως προς το

βάσιμον ή μη της αιτήσεως ακυρώσεως, η οποία επιβάλλεται μεν να έχη προηγηθή

της αιτήσεως αναστολής, αλλ' αποτελεί τυπικήν μόνον προϋπόθεσιν αύτης. Εν η

περιπτώσει όμως η αίτησις ακυρώσεως είναι προδήλως απαράδεκτος ή αβάσιμος

συγχωρείται η περί τούτου γνώμη της Επιτροπής να επηρεάση την περί του κατ'

ουσίαν απαραδέκτου της αιτήσεως αναστολής κρίσιν αύτης, και αν ακόμη η ζημία

του αιτησαμένου την ακύρωσιν είναι ανεπανόρθωτος, ως και αντιστρό- [*1153] φως εάν είναι προδήλως παραδεκτή και βάσιμος η περί

ακυρώσεως αίτησις αυτού, είναι δηλαδή προδήλως άκυρος η προσβαλλομένη πράξις,

συγχωρείται να διαταχθεί η αναστολή και αν ακόμη εκ της αναστολής επέρχεται

πρόσκομμα εις την λειτουργίαν της διοικήσεως ή τα εκ της εκτελέσεως της πράξεως

αποτελέσματα δεν είναι ικανά να προξενήσωσιν ανεπανόρθωτον ζημίαν. Τούτο

προκύπτει εκ του νόμου, διότι ναι μεν, εφ' όσον ουδέν ορίζεται σχετικώς, η

Επιτροπή δέον να λάβη λόγους υπ' όψιν αμέσως και, ούτως ειπείν αποκλειστικώς

προς το αίτημα της αναστολής συνδεομένους, αλλ' εφ' όσον είναι πρόδηλον το

απαράδεκτον ή το αβάσιμον ή το παραδεκτόν και βάσιμον της αιτήσεως, ε.π. εξ

αποφάσεως του Συμβουλίου της Επικρατείας επί ομοίας υποθέσεως, συγχωρείται, ίνα

μη

______________________

* An English translation of this text appears at pp.

1158-59 post.

επέρχωνται ασκόπως ανωμαλίαι εις την

λειτουργίαν της διοικήσεως, να λαμβάνωνται και τα στοιχεία ταύτα υπ' όψιν. Η

αντίθετος εκδοχή ήθελεν αγάγει την ερμηνείαν του νόμου εις αποτελέσματα

προδήλως αντίθετα του κυρίου σκοπού, ον επιδιώκει".

The same view is favoured by Ph.

Vegleri, in "The Compliance of the Administration to the Decisions of the

Council of State", 1934,

where at pages 112 to 114 he deals with the question of provisional orders for

the stay of administrative acts and in particular at page 114 he says·- [*1154]

*"Όλαι αι αποφάσεις αύται

αναγνωρίζουν εις τας περί αναστολής διατάξεις του νόμου χαρακτήρα εξαιρέσεως

εις τον κανόνα της αμέσου εκτελεστότητος των διοικητικών πράξεων, εκ του

χαρακτήρος δε τούτου αρύονται τα αυστηρά πλαίσια του κριτηρίου, επί τη βάσει

του οποίου αποφαίνονται επί των περί αναστολής αιτήσεων. Γενικές

δε η νομολογία αύτη αποφεύγει να ερευνήση το ζήτημα της βασιμότητας της

προσφυγής, ωσεί αποφεύγουσα να προδικάση οπωσδήποτε την επικειμένην απόφασιν

της Ολομελείας. Μόνον εις τας περιπτώσεις, όπου η

εκκρεμούσα προσφυγή φαίνεται καταδήλως αβάσιμος, σταθμίζεται το στοιχείον

τούτο, το ξένον προς το κριτήριον της ανεπανορθώτου αποκαταστάσεως

(42/1933)".

And at page 115 the same Author concludes:

-

*"Εν τη παρούση περιπτώσει, είναι

αναμφίβολον ότι το βάσιμον ή μη της προσφυγής οφείλει και τούτο να σταθμισθή,

επ' ευκαιρία της περί την αναστολήν συζητήσεως, εν τελευταίοι ούτως ειπείν

βαθμώ της κρίσεως της επιτροπής. Η συνδρομή όλων των προϋποθέσεων της

αναστολής - βλάβη ανεπανόρθωτος, ουχί ματαίωσις σπουδαίων σκοπών της

διοικητικής λειτουργίας - δεν θα ήρκει προ καταδήλως ανυποστάτου προσφυγής. Ήδη

δε, ως και ανωτέρω ελέχθη, η νομολογία εστάθμισε και τον παράγοντα, τούτον προ

(εν τη 19/1933) και, εν τινι μέτρω, μετά (εν τη 42/1933) την [*1155] υπ' αρ. 21/1933

απόφασιν αυτής, Θάττον δε

ή βράδιον θα θυσιάση ακόμη σαφέστερον εις τον παράγοντα

τούτον".

The principle that the manifest

illegality of an administrative act is a ground upon which an order for a stay

may be granted has also been accepted in American jurisprudence, more

explicitly than in the jurisprudence of other countries. It can be seen in

Jaffe "Judicial Control of Administrative Action" p.692, where it is

stated that where the administrative action is illegal the concern with the

public interest is on its face easily resolved. The American authorities for

this proposition are: Group v. Finletter 108F Supp.327 (D.D.C.

1952), and Armour v. Freeman, 304F 2d. 404 (D.C. Cir. 1962). In

fact such a ruling on an application for a provisional order usually in the

United States makes vain a pursuit of the merits. It may, therefore be said

with certainty that when an administrative act is flagrantly illegal a

provisional order may be granted. It is, however, a ground to be approached with the utmost caution, as it

may be tantamount to disposing the case on its merits, something discouraged by

Rule 13 of the Supreme Constitutional Court Rules, though this rule cannot be

held as divesting this Court from being the watchdog of legality.

What remains to be considered,

therefore, is whether the grounds upon which this recourse is based are such as

to justify me in saying outright, on the material [*1156] adduced for the purposes of the

provisional order only, that the transfer of the applicant

______________________

* An English translation of the

above texts appears at pp. 1160-61 post.

is so

manifestly illegal that this reason should outweigh the secondary factor of

irreparable damage.

The grounds are the illegality of the

transfer, on account of it having been made by an incompetent organ, and abuse

of power. The first ground is closely interwoven with the schemes of service

and the obligations of the applicant under the terms of his employment, the determination

of which to some extent will depend on the evidence to be adduced, and that

material is not as yet before me. The ground of abuse of power has already been

conceded by counsel for the applicant that it cannot be entertained at this

stage, as for that ground the burden of proof is on the applicant and there has

been no attempt to discharge it at this stage. The applicant, therefore, cannot

succeed on this ground, as there is no manifest illegality.

I turn now to the second ground,

namely that the applicant will suffer irreparable damage if his transfer is not

postponed. Before proceeding any further, I would like to observe that it is a

well established principle of administrative law that the damage alleged to

result from the imminent execution of the administrative act complained of must

be specified in the application in a concrete way. Vague allegations about it

are not capable of its proper appreciation and for this reason alone the

application for a provisional order can be dismissed. This principle has been [*1157] accepted

in a number of decisions of the Committee of Stays of the Greek Council of

State and I need only mention one, namely, E.A.13. I could on this ground alone

dismiss the present application as well, but I felt that I should not do so and

that I should examine whether the allegation of ill health made by the

applicant in his affidavit, coupled with the medical certificate produced,

Exhibit 1, hereinabove referred to, amounts to proof of the irreparable damage

by law required. I am afraid I have not been satisfied on this ground. But even

if irreparable damage was proved to have been caused, this is not in itself

sufficient to justify a Court in granting a provisional order. As it was said

in the case of the Virginia Railways Corporation v. U.S.A.,272 U.S. 658 "... a stay is not a matter of right, even if

irreparable injury might otherwise result to the appellant. It is an exercise

of judicial discretion". In the exercise of this discretion the

irreparable damage has to be weighed by the Court as against the serious

obstacles that the making of the order for stay will cause to the proper

functioning of the administration. As stated in Tsatsos (supra) at page 285

para. 236:-

*"Η αναστολή της διαταχθείσης

μεταθέσεως του δημοσίου

υπαλλήλου κατ' αρχήν παρεμβάλλει προσκόμματα εις την εύρυθμον λειτουργίαν της

διοικήσεως. Δέον όθεν όχι μόνον η

ζημία εκ της μεταθέσεως να είναι

ιδιαζόντως μεγάλη, αλλά και ν' αποβαίνη βεβαία ή μη παρεμβολή ουσιώδους προσκόμματος εις το έργον της διοικήσεως

εκ της αναστολής ίνα η σχετική αίτησις γίνη δεκτή". [*1158]

But there is something more to be

said. As stated by Tsatsos (supra) p.284, "even in cases where irreparable

damage will inevitably be caused on account of the duration of the sub judice

act, the speedy trial of the recourse may lead to the dismissal of the

application for stay". Though I have not accepted that irreparable damage

will be caused to the applicant, yet, in the circumstances of this case, I think it proper to deal with this

recourse the soonest possible and I fix same for directions on the 11th

September, 1971, at 9 a.m.

For

all the above reasons the application for a provisional order is dismissed.

__________________________

* An English

translation of ths text appears at p. 1161 post.

Regarding

costs they should be respondent's costs in cause.

Application for provisional

order dismissed. Order for

costs as above.

TRANSLATION

This is an English translation of the

Greek texts, published at pp. 1152, 1153, 1154, 1155 and 1157 ante, as

prepared by the Registry:

(a) Text of pp. 1152-1153.

"All these quite independently from the

question of the merits or not of the recourse for annulment which should

preceed the application for stay, but constitutes only a formal prerequisite

thereof. In case, however, the recourse for annulment is [*1159] manifestly

unacceptable or unfounded it is permitted, if such view is taken by the

Committee about the recourse, to affect also its judgment on the unacceptability

of the merits of the application for a stay, even if the damage to be caused to

the applicant for the annulment is irreparable, and vice versa if the

application for annulment is manifestly acceptable and well-founded, that is to

say the sub judice act is obviously void, it is permitted if a stay is ordered

even if such a stay places obstacles to the functioning of the administration

or the effects from the execution of the act are not capable of causing

irreparable damage. This is derived from the law, because, since nothing is

provided in this connection, the committee should take into consideration

grounds which are directly, and so to speak, exclusively related to the

application for stay, but when it is evident that the recourse is unacceptable

or unfounded or acceptable and well-founded e.g. on account of a decision of

the Council of State in a similar case, it is permitted if such matters are

taken into consideration, so as not to create undue anomalies to the

functioning of the administration. The opposite view would lead the

Interpretation of the law to such results as are evidently contrary to the main

intent aimed at". [*1160]

(b) First text of p. 1154.

"All these decisions recognise that in the

provisions of the law dealing with stay there exists a character of exception

to the rule of direct executability of administrative acts and it is from this

character that the strict framework of the criterion, on the basis of which the

application to stay is decided, is drawn. Generally these decided cases avoid

entering into the merits of the recourse, as if they were avoiding in any case

to prejudice the impending decision of the Full Bench. Only in cases where the

pending recourse appears to be manifestly unfounded this element, which is foreign

to the criterion of irreparable re-establishment, is considered. (42/1933).

(c) Second text of pp. 1154-1155.

In the instant case, it is beyond all doubt that,

in the course of the hearing regarding the stay, it has to be considered also

whether the recourse is well-founded or not, in a final, so to speak, stage of

the judgment of the Committee. The existence of all prerequisites for the stay

- irreparable damage, non-frustration of important aims of the administrative

functioning – would [*1161] not be sufficient to balance a manifestly unfounded

recourse. Decided cases have already, as stated above, considered this factor

too,(in Case 19/1933) and, in a way, (in Case 42/1933) after their decision in

Case No. 21/1933. Sooner or later decided cases will move more clearly towards

this direction".

(d) Text of p. 1157.

"The stay of the decision for the transfer

of a public officer in principle causes obstacles to the proper functioning of

the administration .But for the relevant application to be granted the damage

arising from the transfer should not only be exceptionally high, but also it

should be certain that there would be no serious obstacles to the work of the

administration on account of the stay."