Supreme Court annuls public service transfer decision where applicant proved the commission acted under a misconception of material facts.

[*741] 1969 May 26

(HADJIANASTASSIOU, J.)

REVTSIONAL JURISDICTION

Nicos Pierides,

Applicant,

and

The Republic of Cyprus, through

The Public Service Commission,

Respondent.

(Case No. 170/68).

Administrative Law - Transfer of Public Officer by Public Service Commission - Article 125 of the Constitution - Discretion of Public Service Commission - Judicial Review of transfers and interference with discretion of Public Service Commission - Principles applicable,

Administrative Law - Transfer of Public Officer - Made for the benefit and exigencies of the service - Recourse for annulment - Onus on applicant - Applicant failed to discharge such onus.

Administrative Law - Transfer of Public Officer - Decision to transfer taken under a misconception of the real facts - Annulled.

Administrative Law - Transfer - Recourse for annulment of a transfer on the ground that the respondent acted -under a misconception of the real facts - Onus on the applicant to prove misconception - Approach of the Court to the matter.

Transfer - Transfer of a public officer - See under “Administrative Law”.

J. Kaniklides, for the Applicant.

L. Loucaides, Senior Counsel of the Republic for the Respondent.

JUDGMENT

The following Judgment was delivered by. -

HADJIANASTASSIOU, J.: In this case the applicant, under Article 146 of the [*742] Constitution, seeks to challenge the validity of the decision of the respondent commission, communicated to him by letter dated March 13, 1968, to transfer him, from Famagusta to Larnaca as from the 1st April, 1968.

The facts, as shortly as possible, are as follows: -

The applicant joined the public service and was posted to Famagusta in the Lands District Office on November 1, 1943 where he remained until November 31, 1957, On December 1, 1957, he was transferred to Limassol, where he remained until April 10, 1960; and on April 11, 1960, he was transferred to Nicosia where he remained until August 31, 1960. On September 1, 1960, he was again-transferred to Famagusta where he stayed until March 30, 1968. From June, 1967, till the 29th February, 1968, he was acting as a District Lands officer.

From 1945 to 1952 he was carrying out the duties of land valuation officer for compensation purposes, as well as other duties in his department. From 1952 to 1957 he was attached exclusively to the post of a value for valuations of land in connection with compulsory acquisitions and for taxation purposes. He has carried out a large number of cases involving thousands of pounds; particularly he has dealt with compulsory acquisition of lands acquired for the improvement and development of Famagusta port. He has also dealt with the cases of Karaolos Kant one, which has been compulsorily acquired by the military authorities of England. The amounts of compensation involved in this particular project, were over £300,000. He further carried out the general valuation of, the properties of the biggest part of the Town of Famagusta. [*743]

On March 1, 1968, he was promoted to the post of land officer from the post of land clerk, 1st grade. On the same day, Mr. Ieronimides, the acting director of the department of lands and surveys, submitted to the chairman of the Public Service Commission proposals for the transfer of four officers in his department, including the applicant. The reasons given for the said transfers were due to the exigencies of the Service.

On March 12, 1968, the Public Service Commission at its meeting, dealt with the transfers of those four officers. An extract from the minutes of the meeting reads: -

"The Ag, Director of the Dept, of Lands and Surveys-has proposed the following transfers:-

(a) Kyriacos Onoufriou, Land Clerk 2nd Grade, from District Land Office, Larnaca, to the Headquarters, Nicosia;

(b) Nicolaos Pierides, Land Officer, from District Land Office, Famagusta, to the District Land Office, Larnaca.

(c) Ioarmis Eouros, Land Officer, from. Headquarters, Nicosia, to the District Land Office, Famagusta; -

(d) Kyriacos Papadopoulos, Land Clerk, 1st Grade, from District Land Office, Larnaca to the Headquarters, Nicosia.

The Commission decided that the above transfers be made w.e.f. 1.4.68.” [*744]

On March 13, 1968, the secretary of the Public Service Commission wrote to the applicant informing him of his transfer to Larnaca. On March 15, 1968, the applicant, before receiving the said letter, wrote a long letter, exhibit 3, to the Public Service Commission protesting about his proposed transfer because, as he alleged, it was unjust, hard and inhuman, and in effect it amounted to a punishment to himself and his family.

On March 19, 1968, the acting director, in forwarding the letter of the applicant, wrote exhibit 4 to the chairman of the Public Service Commission. It reads:-

"Η Μετάθεσις του αιτητού εις Λάρνακα έχει ήδη εγκριθή υφ' υμών τιθεμένη εν ισχύϊ από

1ης Απριλίου, 1968, (η υμετέρα 9/60/Α/ΙΙΙ της 13ης Μαρτίου, 1968, είναι

σχετική). Οι λόγοι δια την μετάθεσιν ταύτην καθώς και δι' εκείνην του κ. Ι.

Κούρου, επίσης Κτηματολογικού Λειτουργού, εδόθησαν κατά την υποβολήν των

σχετικών προτάσεων δια μεταθέσεις. Δεν συμφωνώ ότι η μετάθεσις του αιτητού έχει

τιμωρητικήν ιδιότητα ως ούτος ισχυρίζεται εις την αίτησίν του. Ουδείς άλλος λόγος συντρέχει δια την μετάθεσίν του

πλην εκείνου των αναγκών της Δημοσίας Υπηρεσίας. Αι προηγούμεναι μεταθέσεις του εις Λεμεσόν και Λευκωσίαν είναι τελείως άσχετοι προς την

προκειμένην περίπτωσιν. Ούτος κατείχε τότε την θέσιν του Κτηματολογικού

Γραφέως, 1ης τάξεως, και, ασφαλώς, αι ανάγκαι της υπηρεσίας υπέβαλον και τα

μεταθέσεις εκείνας. Είναι αληθές ότι η μετάθεσίς του εις Λεμεσόν κατά το 1957

είχεν ωρισμένας θλιβεράς επιπτώσεις επί [*745] της οικογενειακής του ζωής αλλά το γεγονός τούτο δεν έχει ούτε πρέπει να έχη οιανδήποτε σχέσιν με την εν προκειμένω μετάθεσιν του ως Κτηματολογικού

Λειτουργού."

As a result of the representations of the applicant* the Public Service Commission met on April 12, 1968, and after considering his case, decided to turn down his application. An extract from the minutes of the meeting - exhibit, 4a - reads as follows

"Mr. Pierides has now protested against this transfer which will have most unfavourable consequences and which he considers as unjust, hard and inhuman and equivalent to a punishment. Mr. Pierides refers with praise to his services with the Government the Police Force and the Civil Defence and wonders why he should be transferred more often than any other officer of his department. As a consequence, to his transfer to Limassol in 1957, his family was dissolved. He is now married to another woman, each having a child from their previous marriage staying with them. Mr. Pierides fears that if his transfer takes effect his family will meet with another disaster. He does not see why the officer that will be transferred to Famagusta - Mr. I. Kouros - could not be transferred to Larnaca instead.

In forwarding Mr. Pierides' above-mentioned letter the Director, Dept, of Lands & Surveys, states that no other reason exists fear this [*746] officer's transfer to Larnaca except the exigencies of the service. The Director' accepts that Mr. Pierides' transfer to Limassol had sorrowful consequences on his family hut his previous transfers have nothing to do with his present transfer as a Land Officer.”

On April 24, 1968, the Commission wrote to the applicant informing him that after considering, his representations decided to turn down his application.

On May 24, 1968, the applicant, feeling aggrieved, made this recourse to the. Supreme Court, and his application was based on the following grounds of law: -

(a) That the decision: of the respondent complained of, was taken in excess or abuse of powers and/or contrary to law, namely the-relevant-principles of the administrative law.

(b) That respondent failed to exercise ‘the relevant discretion on a proper basis and in a proper manner as they have failed to take into account, inter alia, material considerations respecting applicant.

(c) That the respondent made an improper use of their discretionary power and/or acted under a misconception concerning the factual situation in general'.

The opposition was filed on June 21, 1968, and is to the effect that the decision complained of was properly taken after all relevant facts and circumstances were taken into consideration. [*747]

The main contention of counsel for the applicant was that the Public Service Commission, in the exercise of its discretionary power to effect the transfers, has acted under a misconception of the real facts, viz., that the applicant had no large experience in the valuation of land; and that there was a multitude of important cases for assessing compensation of land for development projects.

Counsel for the respondent, on the contrary, has contended that the onus remains on the applicant to show that the Public Service Commission has acted under a misconception of the real facts, and that those facts were material to their decision. Furthermore, counsel argued that the applicant has failed to satisfy the court that his transfer was not made for the benefit and the exigencies of the Public Service.

I would like to state that the object of para. 1 of Article 125, includes not only the safeguarding of the efficiency and proper functioning of the Public Service, but also the protection of the legitimate interest of public officers. In exercising its powers of transfer, the Commission should always take seriously into consideration the recommendations of the head of the department or other senior responsible officer, so that the functions of a public office should be performed in the general interest of the public, by the public officer best suited to perform such duties.

In the present case the Commission, in transferring the applicant from. Famagusta to Larnaca, has clearly acted on the recommendation of Mr. Ieronimides, and this court would not [*748] interfere with the discretion of the Commission, if it was reasonably and. properly exercised, unless it can he shown that such discretion has been exercised in disregard of the true factual situation or of any law, or in excess or abuse of power.

The question, therefore, which is posed before me is: - Are there any grounds justifying the annulment of the transfer of the applicant.

The principle adopted and followed by this court in reviewing the question of transfers is to be found in the well-known textbook of Kyriakopoulos on the Greek Administrative Law, 4th edn. Vol. 3 at p.312. It reads in English: -

“Except for an adverse transfer, every other transfer amounts to a simple administrative measure, which is presumed to have been taken for the benefit and the exigencies of the Service.”

See also the decisions of the Greek Council of State D in the cases 315/1940 and 518/1941.

It would be observed that, according to the same author, the decision of the administration concerning the reasons dictating the transfer, is not subject to the control of the annulling court, unless there exists an improper use of the discretionary power or a misconception of facts. See also on this issue the decisions of the Greek Council of State appearing under note 11 at p.

312 in the same textbook.

As I have said earlier, the Commission, in reaching, its decision, had before' it all the submissions made by the then acting director of the department. I, therefore, propose [*749] quoting extracts from the two submissions only. - Exhibit 2 is in these terms in Greek: -

"Εις το Κτηματολόγιον Αμμοχώστου υπάρχει και πληθώρα

σοβαρών υποθέσεων εκτιμήσεως αποζη­μιώσεων εν σχέσει προς έργα αναπτύξεως. Ο κ.

Κούρος έχει μεγάλην πείραν εις εκτιμήσεις

και συνεπώς αι υπηρεσίαι του θα είναι περισσότερον χρήσιμοι εις το

Κτηματολόγιον Αμμοχώστου παρά εκείνων του κ. Πιερίδη όστις δεν έχει μεγάλην

πείραν εις εκτιμήσεις. Ο κ. Κούρος είναι Κτηματολογικός Λειτουργός από της

1.5.63.

Οικογενειακή κατάστασις του υπαλλήλου (σύνθεσις

οικογενείας, αριθμός τέκνων, και ηλικίαι αυτών) και οιαιδήποτε άλλαι σχετικαί

πληροφορίαι:

Ύπανδρος με δύο τέκνα 4 και 2 ετών. Η σύζυγος του κατάγεται εξ Αμμοχώστου."

The submission with regard to the applicant reads as follows: -

"Λόγοι προτεινομένης μεταθέσεως:

Δια να διευθύνη το Επαρχιακόν Κτηματολόγιον Λάρνακος εις αντικατάστασιν του νυν εκεί υπευθύνου, όστις θα μετατεθή

εις Λευκωσίαν δι' υπηρεσίαν ως Λειτουργός Εγγραφής εις τα Κεντρικά Γραφεία του Τμήματος.

Ο κ. Πιερίδης προήχθη εις Κτηματολογικόν Λειτουργόν κατά την 1.3.68, θα

αντικατασταθή δε εις Αμμόχωστον υπό του κ. Ι. Κούρου [*750] Κτηματολογικού

Λειτουργού, δια την μετάθεσιν του οποίου υποβάλλεται ταυτοχρόνως πρότασις.

Οικογενειακή κατάστασις του υπαλλήλου (σύνθεσις οικογενείας,

αριθμός τέκνων, και ηλικίαι αυτών) και οιαιδήποτε άλλαι σχετικαί πληροφορίαι:

Ύπανδρος με εν τέκνον, ηλικίας 13 ετών."

Pausing there for a moment, it would he observed that in substance, the reasons put forward for the transfer of the applicant were that in the Lands Office, of Famagusta there was a multitude-of important cases of assessment of compensation for development projects and that Mr. Kouros had large experiencein valuation of land and that his services would he more useful to. the department in Famagusta than those of the applicant, who had no large experience in. valuation.

I would like further to state that it was made very clear to the Court that the transfer of the applicant was not a case of an adverse nature, hut simply a transfer made for the benefit and the exigencies of the Public Service, In fairness, therefore, to the director of the department, Mr. Ieronimides, who had recommended the applicant for promotion to the post of land officer, the applicant cannot now complain that his director has been unfair to him and that he treated him differently in. recommending his transfer to Larnaca.

As I have said earlier, the onus to prove that the transfer was not made for the benefit and the exigencies of the service, is on the applicant, and in the light of all the material before me, including the evidence of [*751] Dr. Andreas Georghiades, I have reached the conclusion that he has failed to prove to my satisfaction that the decision of the commission to transfer him to Larnaca was not made for the benefit and the exigencies of the service.

Although the applicant has my sympathy, it is clear from the contents of exhibit 4A, that the Public Service Commission had before them the true personal circumstances of the applicant in reconsidering his representations, and particularly with regard to the question of his older daughter, viz-a-viz her serious psychological upset as a. result of the transfer of her father to Larnaca. Nevertheless, once the Commission has considered and has taken into account the personal circumstances of the applicant, and although I repeat that those circumstances may be deemed to promote the efficiency and output of a public officer - admittedly in the general interest of the public - quite rightly, however, as it has been decided in a number of cases, the personal circumstances of on officer cannot become the paramount consideration. Once all these circumstances, along with the other exigencies of the service, have been properly weighed, in my view, it was reasonably open to the Commission, in the light of all the material before them, to reach the decision to transfer the applicant to Larnaca.

In reviewing, therefore, the decision of the Commission on this issue, I am satisfied that they have properly exercised their discretionary power to transfer the applicant. In the light of this finding, I would, therefore, dismiss the submission of counsel on this point. [*752]

I shall now turn to deal with the main contention of counsel for the applicant, viz., that the decision of the Public Service Commission was taken under a misconception of the real facts.

It is now an accepted administrative principle that the onus of proof that the Public Service Commission has acted under a misconception of the real facts, remains on the applicant in those cases in which the court cannot find such misconception of facts from, the file before it.

Counsel for the applicant, quite properly in my view, has called his client to give evidence in order to show to the Court that the reasons for his transfer to Larnaca were based on a misconception of the real facts, viz., that there was, at the material time, a multitude of important cases of assessment of compensation in Famagusta; and that Mr. Kouros possessed a vast experience in valuation. I propose, therefore, reading extracts from the evidence of the applicant which shows that the work for the assessment of compensation is virtually carried out not by the District Land Officer, -but by the valuation clerk and by the valuation section leader. Furthermore, the evidence will show that the volume of work of the value during his time was so diminished, that it made it possible to reduce the number of the staff working on valuations.

I quote: -

"When I was working as a valuation. Clerk the procedure I used to follow in making the calculations was in accordance with the instructions from the Head Office and this was so since August, [*753] 1955. The instructions were contained in a circular DLS 239/53 dated 13th August, 1955; and there was also another circular with supplementary instructions DLS 140/43/2 dated 13th October, 1956.

After I have carried out the valuations which I have described earlier on, I had submitted them, to the Valuation Section Leader, who has been styled later on as Valuation Section Leader, who in his turn after scrutinizing the valuation of the Valuation .Clerk, submitted the papers through the D.L.O. to the Valuation Officer in Nicosia, The practice followed by the D.L.O. when the valuations were submitted to him was to write I am submitting the valuations for the approval of the appropriate authorities in Nicosia. I followed this practice myself when I was both acting and when I was also appointed as a District Lands Officer. I repeat that it was the practice followed by my predecessors: in Famagusta and in Larnaca where am now working. It has never been pointed out to me or as far as I am. aware to the others, that I ought to have followed a different, procedure i.e. that I ought to have checked personally the valuations carried out by the Valuer Clerk and by the Valuation Section Leader. The reason why the District Lands Officer did not check the work of the other two officers is because here was a separate department dealing exclusively with the valuations a£ lands both for compensation purposes and for taxation. Prom my personal knowledge, I am in a position to state that when I was transferred from Famagusta to Larnaca I found in [*754] Larnaca that tie volume of work with regard to valuations for compensation purposes was greater than in Famagusta.

I would like to mention that the reason for this is the acquisition of lands for constructing the port in Larnaca and also for the industrial area, which is now being zoned outside Larnaca. Although I have not had time to consider and finish the work of how much these compensation cases will cost, I may not be wrong in giving the round figure of £-300,000. Reverting to Famagusta, as I said earlier on, most of the work had been completed, and as a matter of fact, even q the Head Office had reduced the staff working in the Valuation Section."

In answer to counsel for the respondent, he said that he agreed that it is a part of a land officer’s duty to supervise and watch over the work of the employees in that department including, of course, the work of the valuation section staff. The lands officer must also be ready and competent to advise all the staff on matters arising and connected with the exercise of their duty.

Later on he said: -

"I would like to finish by saying that if the Director will issue a circular assigning to us the duties of supervising completely and going over the valuations carried out by the two officers in the department, of course we shall carry this out." [*755]

Counsel for the respondent called the present director of the department, Mr, Ieronimides, and in his evidence he had this to say: -

“I do agree with the evidence of the applicant that the valuation of lands, in the first instance, is carried out by the section leader in the office of the district, hut the overall responsibility remains always with the District Officer himself, I would further state that it is his responsibility to solve and decide on the spot all problems which arise or enquiries which are connected with the work of the section leader. Moreover, he must have an active participation in negotiations for settlement of compensations. That, of course, implies that he has to follow the work of the section leader,”

Later on he says: -

"I quite agree that owing to some special circumstances, vis-a-vis when an acquisition of land for a project will take effect in the district of Larnaca, it might create more work for the D.L.O. to carry out in Larnaca, but as I said earlier, the district of Famagusta is a much larger district and has a lot of valuation work, Larnaca being a smaller town, it is only to be understood that the volume of work has always been much less than Famagusta District,”

In answer to counsel for the applicant he said: -

“It is true that I anticipate in Larnaca that if the acquisition for the harbour and for the [*756] industrial zone will take effect, I anticipate a bigger volume of work than in Famagusta, I cannot, without actually carrying out some calculations, tell the value of the acquisition of the lands in Larnaca. for the two projects I have mentioned earlier. I cannot say offhand whether at the time I was making the recommendation for the transfer from Nicosia to Famagusta of a more experienced man in Famagusta, whether I had this fact in mind that Larnaca District would have an increase in the volume of work for valuation, because of the two. acquisitions.”

Later on he says: -

"I agree that for the time being we have reduced the number of valuers from four to two. I agree that this shows that there has been a reduction of work.”

Questioned further he said: -

“I honestly say that one cannot remember how many cases there are in Famagusta, Larnaca or Nicosia district, because as an Acting Director I was dealing with the whole of Cyprus. I do say, however, that at the time I was writing there were no pending cases in Larnaca district. When I was writing my letter I must have had in mind the valuation of Kennedy Avenue, as well as the lands known as 'Golden Sands’ in Famagusta, which the Government intends to take over from the Brutish Military Authorities.” [*757]

The witness went on to say: -

"As far as I can remember, the applicant has been dealing with all the cases connected with what we call 'Karaolos Acquisitions’ in Famagusta, as well as the project of the Port, again in Famagusta, and a big number of other cases which I cannot recollect offhand. The amounts involved in this case run into hundreds of thousands of pounds.

It becomes evident that a man who has completed such a large number of cases must have acquired at that time experience and knowledge with regard to land valuation. I agree that I have mentioned nothing about the experience of the applicant, although I have made observations with regard to the experience of the interested party.”

Later on he said: -

"I want to make this clear, when I said that the applicant lacks, experience vis-a-vis the experience of the interested party, I wanted to make it clear that he did not possess experience on that particular period. I did not convey that he did not have any experience. I mean it is, obvious that, because the applicant was promoted that he had the experience, required as a D.L.O.”. [*758]

Pausing there for a moment, it would be observed that Mr. Ieronimides, quite fairly, admits, in his evidence that he has mentioned nothing to the Public Service Commission about the experience of the applicant in carrying out valuations for cases of compulsory acquisition. Furthermore, he has admitted that he did not intend to convey to the Commission that the applicant did not possess any experience, because, as he put it, he has the experience required as a District Lands officer.

In the light of all the material before me, and in the absence of a duly reasoned decision by the Public Service Commission, either on March 13, 1968 or on April 12, 1968, and in view of the fact that there is no evidence that the annual confidential reports of the parties were before them, I have reached the conclusion that the applicant has succeeded to discharge the onus cast upon him, that the decision of the Public Service Commission was taken under a misconception of the real facts, and that those facts were material to the aforesaid decision.

In my view, at the material time, not only there was not a multitude of important cases pending, but on the contrary, the volume of the work was so diminished, as to warrant reduction of the valuation staff in Famagusta, Moreover, it is clearly admitted by the director of the department, that the Public Service Commission was never told that, because of the two projects viz,, the construction of the harbour and the industrial zone in Larnaca, and that the volume of work for valuation purposes at that time would have increased more [*759] in Larnaca. Por these reasons, I have reached the conlusion to uphold counsel’s submission on this issue.

However, I would like to make it clear, that even if my finding on the issue of misconception is wrong, that I would go further and state, having in mind all the circumstances of this case, that I would be prepared, even if it had only appeared reasonably probable and not certain that the aforesaid decision was reached on a misconception of the true factual situation, to annul the

decision in order to enable the Commission to ascertain the real facts without leaving room for doubt. Indeed, I take the view that it will afford the Commission a full opportunity of reaching a new decision, after establishing with certainty all the relevant facts in the light of this judgment.

In reaching this conclusion, to annul the decision of the Public Service Commission, I have adopted and followed a passage from the well-known textbook on the Law of Administrative Acts by Stassinopoulos, 1951 edn. at p.

305. The effect of this passage is that the presumption in favour of the correctness of the finding of fact by the administration, is weakened, once the litigant succeeds in rendering the misconception possible, that is, simply to create doubts in the mind of the Judge about the correctness of the findings of fact by the administration. In such cases, the Judge, finding himself in doubt, is not inclined to follow the aforesaid presumption, but he resorts to the one of the two courses; that is, he either (a) directs production of evidence, or

(b) he annuls the act so that the administration may ascertain the actual circumstances in a way not leaving doubts. [*760]

As I said earlier, the applicant has further succeeded in the light of all the material Before me, to create doubts in my mind about the correctness of the findings of fact by the Public Service Commission, and therefore, I would declare the act to be taken in abuse of their powers and to be null and void and of no effect whatsoever.

With regard to costs, I have decided, under the circumstances of this case, and in view of the fact that counsel for the respondent has indicated during the early stages of the hearing of this ease that the Commission would have been prepared to re-examine this case, to award the applicant an amount of £12.- only towards his costs.

Sub judice decision annulled;

order for costs as aforesaid.