Headmaster's transfer application annulled due to failure to weigh family medical needs properly.

[*984] 1969 July 16

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Constantinos Carayiannis,

Applicant,

and

The Republic of Cyprus, through

1. The Ministry of Education,

2. The Educational Service Committee,

Respondent.

(Case No. 332/68).

Administrative Law - Secondary Education - Headmaster’s application for transfer on family grounds - And after serving for five years in rural school - Section 25(2) of the Masters of Communal Secondary Education Schools Law, 1963 (Greek Communal Chamber Law (10/63) - Decision of educational service committee rejecting application - Not duly reasoned - Annulled as being contrary to Law and in excess of power - The case of Petrondas v. The Attorney-General of the Republic (1969) 5 J.S.C. 642 followed.

Administrative I.aw - Secondary Education - Decision of Educational Service Committee refusing Headmaster’s application for transfer - Family circumstances - Failure of respondent Committee to give due weight to a most material consideration namely the family difficulties of applicant - Sub judice

decision annulled on this ground.

Administrative Law - Administrative acts - Need for due reasoning of - The case of Petrondas v. The Attorney-Genera1 of the Republic (1969) 5 J.S.C.

642 cited with approval.

Public Officers - Transfers - Exigencies of the Service - Family difficulties.

M. Christophides, for the Applicant.

G. Tornaritis, for the Respondent.

JUDGMENT

The following Judgment was delivered by:-

TRIANTAFYLLIDES, J.: In this case the Applicant [*985] complains against the refusal of the Respondent Educational Service Committee in the Ministry of Education - to transfer him to Nicosia, from Lapithos, with effect from the school-year 1968/1969.

The Applicant applied for such transfer on the 28th March, 1968 (see exhibit 6); and on the same date his wife, who was also posted at Lapithos, applied, too, to be transferred to Nicosia (see exhibit 7). The Applicant, at the material time, was the Headmaster of the Lapithos Gymnasium and his wife was a school-mistress serving at the same Gymnasium.

The Applicant has been serving at Lapithos since the school-year 1963/1964; in other words, at the end of the school-year 1967/1968 he was completing five years’ service there.

One of the main reasons given in support of Applicant’s application for transfer - as well as of the application for transfer of his wife - was the health of their daughter, Maria, who was just over three years old.

In a medical certificate it was stated that she had had repeated attacks of asthmatic bronchitis for which she needed continuous attention and treatment; that in order to avoid the effect of the humid climate of Lapithos she had been sent to stay with her grandparents in Nicosia for eighteen months prior to the 26th March, 1968, and, actually, this had had a beneficial effect on her health and reduced the number of asthmatic attacks; that it would be necessary for [*986] the child to stay in Nicosia for some more years, otherwise a deterioration of her condition might follow if she went back to a climate with high humidity, like that of Lapithos; and that it was, on the other hand, essential that the child be not separated from her parents because prolonged separation might have an adverse effect on her psychological world.

The said medical certificate was signed on the 26th March, 1968, by Dr. Hji Minas, the Government Specialist in Child Health; it was attached to the application for transfer of the wife of the Applicant, but reference to it was made, too, in the application for transfer of the Applicant himself.

In the Opposition the Respondent admitted as being correct the above-stated position regarding the health of the Applicant’s daughter.

It was further stated in the Applicant’s application for transfer that he had been at Lapithos, continuously, for five years and that the family home

- a house owned by the wife of the Applicant - was in Nicosia.

The refusal of the application for transfer of the Applicant was decided at a meeting of the Educational Service Committee which was held on the 1st July, 1968 (see its minutes exhibit 5). At the same meeting his wife’s application was, also, turned down.

The Applicant was informed accordingly by letter dated the 15th July, 1968 (see exhibit 1). [*987]

On the 5th August, 1968, he requested a reconsideration of the matter by the Committee (see exhibit 2).

His case was re-examined by the Committee at a series of meetings which took place between the 20th August, 1968 and the 26th August, 1968 (see the minutes exhibit 8) and it was decided not to alter the decision already taken in the matter.

The Applicant was informed of this by letter dated the 11th September, 1968 (see exhibit 3); though by the letter of the 15th July, 1968, the Applicant had been informed that his request for a transfer could

not be granted “for educational reasons”, in the letter of the 11th September, 1968, it was stated that the Committee had not been able to alter its previous

decision in view of the “absence of relevant possibilities”; and, actually, the

phrase “for educational reasons” appears as having been erased in exhibit 3. which is a cyclostyled form of letter containing “educational

reasons” and “absence of relevant possibilities” as alternative grounds for the refusal to review earlier decisions rejecting applications for transfer.

The picture presented by the relevant minutes of the Respondent Committee (exhibits 5 and 8) is anything but a satisfactory or adequate one.

The minutes of the 1st July, 1968 (exhibit 5) are the same minutes which were described in the Judgment of this Court

in Petrondas and The Attorney-General (1969, 5 J.S.C. 642) and they need not be described herein once again; the [*988] Applicant

in the present case was one of those whose applications for transfer had been

rejected on the strength of the contents of such minutes; and as found in the Petrondas case the said contents did not amount to due reasons for the decision

challenged therein; likewise, in the present case, too, they cannot be held to amount to due reasons for the sub judice, now, decision. This is so not only for the reasons set out in the Judgment in the Petrondas case, but, also, in view of the special circumstances concerning the health of the daughter of the present Applicant.

The minutes for the meetings of the Respondent Committee during the period of 20th August, 1968 till the 26th August, 1968 (exhibit 8) - during which time the case of the Applicant was reconsidered - are equally bare of adequate specific reasoning.

There can be no doubt at all that this later, decision of the Committee should have been fully reasoned, with specific reference to the case of the Applicant, who had, when seeking reconsideration of the matter (see exhibit 2), complained that the question of the health of his daughter had been overlooked, or rejected, without reasons being given; and, especially, as the Applicant had already served five years at a rural post, in the sense of section 25(2) of the Masters of Communal Secondary Education Schools Law, 1963 (Law 10/63 of the Greek Communal Chamber), and was, therefore, entitled to be transferred unless there existed cogent reasons to the contrary (see the Petrondas case supra).[*989]

Nor can it be said that the general and sweeping statements contained

in the two letters addressed to the Applicant (exhibits 1 and 3) do contain sufficient, in the circumstances of this case, reasoning

for the rejection of the application for transfer of the Applicant.

In addition to what has been stated in the Petrondas case (supra) regarding the need for, and nature of, due reasoning

useful reference may be made, in this respect, to Economou on Judicial Control of Discretionary Powers

(1965) p.p. 233 et seq., and to Decisions 206(38), 1535(50), 424(54) and 1525(58).

In the light of all the foregoing I have reached the conclusion that the administrative action which resulted in the rejection of the application for transfer of the Applicant is defective in that it is not duly reasoned, and, as such, it is contrary to law - namely, the relevant principles of Administrative Law - and was taken in abuse of powers; it is, therefore, declared to be null and void and of no effect whatsoever.

But there is more cause, still, for the annulment of the sub judice refusal to transfer the Applicant:

From the material before me it appears that no due weight has been given to a most material consideration, namely, the family difficulties of the Applicant, due to the illness of his daughter. [*990]

Such difficulties, like all family circumstances of a public officer, were a matter relevant to the exigencies of the service, in a wider sense, because they could, quite likely, affect adversely his performance in the discharge of his duties (see Vafeadis and The Republic 1964 C.L.R. 454, at p. 466).

Of course, such difficulties would have to be weighed together with the exigencies of the service, in a narrower sense, namely, in this case, the educational needs.

Originally, the Applicant was informed, by the letter dated the 15th July, 1968 (exhibit 1) that his transfer could not be effected “for educational reasons”.

In the relevant minutes of the Respondent Committee (exhibit 5) it is not stated specifically which were exactly the educational reasons which were found to be so weighty as to prevent the transfer of the Applicant to Nicosia in spite of his family difficulties, due to the illness of his daughter; nor is there, either, any direct mention, in the said minutes, of the illness of the Applicant’s daughter.

In the circumstances, it cannot be held that the family difficulties of the Applicant were duly, weighed as against the generalities stated in the opening part of the aforesaid minutes of the 1st July, 1968 (exhibit 5) - (which were stated in respect of the Applicant and twenty-three others) - and that it was, nevertheless, decided not to transfer him; proper administration required that there should have been examined, and stated, specifically why the [*991] Applicant’s family difficulties could not lead to his transfer, especially as .there were at the time two vacant posts of Headmaster in Nicosia to which there were posted, by decisions taken at the same meeting - of the 1st July, 1968 - two persons promoted there and then to the post of Headmaster from that of Assistant Headmaster.

The summary and insufficient way in which the. case of the Applicant was examined on the 1st July, 1968, is shown by the fact that, when it was reconsidered in August 1968 (see exhibit 8), it was not found that there were any educational reasons preventing his transfer to Nicosia, but that his transfer could not be effected as there were no “possibilities” - in other words, that there was not, any longer, at the time, a vacancy in a post of Headmaster in Nicosia; this is abundantly clear, from. the. letter sent to the Applicant on the 11th September, 1968 (exhibit 3) in which the expression “for educational reasons”, which appeared in such letter, was erased.

With such a state of affairs it is impossible to accept that the case of the Applicant did receive the close attention that it required and that one of its main elements, namely, the family difficulties of the Applicant, was duly weighed.

For this reason, too, therefore, the sub judice refusal to transfer the Applicant has to be annulled.

In the result, this recourse succeeds; and the Respondent should pay, also, to Applicant £10 towards costs.

Sub judice decision annulled;

order for costs as above.