Transfer application dismissed because the decision was not properly communicated to the applicant by the competent authority.

[*454] 1966 April 13

IN THE SUPREME COURT OF CYPRUS

ON APPEAL AND ORIGINAL JURISDICTION

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Iordanis G. Iordanou,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 82/66).

Public Officers - Transfers - Application for a Provisional Order to suspend the effect of Applicant's transfer until the determination of recourse

- Application dismissed as transfer not yet been properly communicated to Applicant so as to take effect and become a decision which he is bound to obey.

Administrative Law - Administrative decisions - Communication -

Principles of Administrative Law governing communication of an administrative decision - Communication to be made to the person

affected thereby directly or through his Department and by the organ competent to take the decision concerned, unless there exists provision by law otherwise.

Public Officers - Transfers - Communication of decision to transfer Applicant - In the absence of legislation in Cyprus on the matter, such communication ought to have emanated from the Public Service Commission.

Public Service Commission - Communication by of decision to transfer Applicant - See under "Public Officers" above.

L. Clerides with A. Triantafyllides, for the Applicant.

M. Spanos, Counsel of the Republic, for the Respondent.

DECISION

The following Decision was delivered by:-

TRIANTAPYLLIDES, J.: By this recourse, which was filed on the 14th April, 1966, Applicant challenges the validity of [*455] his transfer from Nicosia to Omdhos, with effect from today, the 18th April, 1966.

By an application, filed also on the 14th April, Applicant seeks a Provisional Order postponing the taking effect of the said transfer until the final determination of this recourse.

I have reached the conclusion that this application for a Provisional Order has to be dismissed as being premature, in the sense that the prerequisites have not yet been satisfied for the decision of Applicant's transfer to take effect and for Applicant to be bound to obey such decision.

My reasons for reaching this conclusion are as follows:-

Applicant's transfer was proposed to the Public Service Commission, on the 10th March, 1966, by the Director of the Department of Agriculture (see exhibit 6): the Commission, on the 5th April, 1966, decided, after considering the recommendations of the Department concerned, to transfer Applicant from Nicosia to Omodhos with effect from the 18th April, 1966, (see exhibit 7); on the same day, the Commission informed the Director of the Department of Agriculture that Applicant's transfer had been approved, (see exhibit 6).

On the 6th April, 1966, the Director of the Department of Agriculture wrote to Applicant that he was being transferred to Omodhos as from the 18th April, 1966, (exhibit 1). [*456]

There is nothing in exhibit 1 – and there is nothing else in the material before the Court - to show that the Applicant was informed by the Director that his transfer had been decided upon by the Public Service Commission.

It is common ground that the Applicant was not notified by the Public Service Commission either directly or indirectly, through his Head of Department, about his said transfer.

Thus, neither has the Public Service Commission communicated to Applicant its decision to transfer him, nor did Applicant come to know officially that the Commission had decided upon his transfer.

On the face of it, exhibit 1 appears to be a transfer emanating only from the Director of the Department of Agriculture, It certainly does not appear to be a communication of the Commission.

Proper communication of an administrative decision is an essential step for its taking effect; such communication must be made to the person affected thereby and must be made by the organ competent to take the decision concerned

- unless there exists provision by law otherwise. Of course, communication does not go to the validity of the decision in question, but it is only necessary for the taking effect thereof; this is, also, why the time, within which a recourse may be made against a decision, runs from its proper communication.

(Vide Conclusions from the Jurisprudence of the Greek Council of State, 192–1959, p. 193 and Kyriakopoulos on Greek Administrative Law, 4th edition,

volume II, p.397)· [*457]

In the absence of any legislation in Cyprus governing the matter of the communication of a decision such as the one relating to the transfer of Applicant, this Court can only hold, in accordance with the above principles of Administrative Law, that communication of the said decision to Applicant ought to have emanated from the Public Service Commission, the more so as the Commission is an independent public organ end not a mere Committee forming part of the Governmental administrative machinery and deciding, by way of internal arrangement, matters of transfers.

Irrespective, therefore of the validity or not, otherwise, of the transfer in question, I find that it has not yet been properly communicated to Applicant so as to take effect and to become a decision which Applicant is bound to obey.

It follows that, in the circumstances, it would be premature for the Court to decide whether or not to suspend the effect of such transfer, once such effect has not yet commenced.

It is now up to the Public Service Commission, to take, if it so wishes, appropriate steps to communicate itself properly this transfer to Applicant, so that it may take effect; this may be done either directly or through his Department.

I might add for the guidance of the Commission that it should, as in all similar cases of transfer, fix such date for its becoming effective as would appear to it to be reasonable in the circumstances of this particular case. [*458]

Regarding the costs of this application, it is hereby ordered that they should be costs in cause, in any case not against Applicant.

Section 1.01 Order in terms.

Section 1.02 Order for costs as

Section 1.03 aforesaid.

Section 1.04