Supreme Court dismisses public officer's recourse against transfer, ruling no duty to hear family objections.

[*1344] 1969 October 23

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Demetra Papantoniou,

Applicant,

and

The Republic of Cyprus, through

the Public Service Commission,

Respondent.

(Case No. 291/69).

Administrative law - Public Officers - Tranfer - Recourse against transfer - Relevant informations, including that pertaining to family circumstances of applicant placed before Respondent - And duly considered - Applicant's objection against transfer - No duty cast on Respondent to hear applicant thereon as there was already sufficient material before them for the purpose and as transfer was not a disciplinary one.

Administrative Law - Decision relating to transfer of a Public Officer

- Duly reasoned - Reasons therefor set out fully in the relevant official records - The case of Papaleontiou and The Republic (1967) 11 J.S.C. 1273 followed.

Administrative Law - Public Officers - Transfers - Family reasons -

Family reasons becoming more serious after sub judice decision - Not a factor that can be relied upon in challenging sub judice decision.

Public Service Commission - Transfer of Public Officers - Discretionary powers - Recommendation of Head of Department regarding transfer - Treated as a proposal - There is nothing to prevent the Public Service Commission from accepting, in the proper exercise of its discretionary powers, a proposal made to it by a Head of Department regarding the transfer of one of his subordinates.

Trade Union - Public Officer - Transfer - Status of Secretary of one’s professional association, which is not functioning as a public officers' trade union, cannot affect sub judice decision relating to transfer - Position not governed by the case of Iordanou and The Republic (1967) 4 J.S.C. 453.

Transfer - Of Public Officer - See under "Administrative Law" ; "Public Service Commission"; "Trade Union".

E. Lemonaris, for the Applicant.

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

JUDGMENT

The following judgment was delivered by: -

TRIANTAFYLLIDES, J.: The Applicant, who is a female Welfare Officer in the service of the Department of Social Welfare [*1345] Services, complains by this recourse against her transfer from Nicosia to Limassol, with effect as from the 1st September,1969.

The Applicant was informed by letter of the Director of her Department, dated the 6th May, 1969 (exhibit 6), that she was liable to be transferred from Nicosia to another town.

She replied by letter dated the 22nd May, 1969 (exhibit 5) stating her objections against such transfer.

Then, a proposal for the transfer of the Applicant to Limassol was forwarded, on the 21st July, 1969 - together with other similar proposals - to the Respondent, by the Head of Department of the Applicant (exhibit 3). In such proposal the a forementioned objections of the Applicant against her transfer from Nicosia were set out and the views of her Head of Department, regarding such objections, were, also, stated.

The Respondent considered the said proposal on the 28th July, 1969 (see its minutes exhibit 2) and decided to make the transfer as proposed.

Its decision was communicated to the Applicant by letter dated the 29th July, 1969 (exhibit 1).

It cannot be disputed that the transfer was proposed and made in the interests of the service.

All relevant information, including that pertaining to the family circumstances of the Applicant, was placed before the Respondent; and there is,

indeed, nothing to show that it was not duly considered. Furthermore, I cannot agree with the Applicant’s contention that the Respondent should

have heard the Applicant in order to be able to go fully into her objections [*1346] against a transfer; in my view there was, already, before the Respondent sufficient material for the purpose, and as this was not a disciplinary transfer there was no duty cast on the Respondent to hear the Applicant.

It has been contended that the relevant decision is not duly reasoned: I do not find any substance in this sub mission because, when one reads together the proposal for the transfer of the Applicant and the decision of the Respondent (exhibits 3 and 2), it is quite clear that the relevant official records set out fully the reasons for such transfer (see, inter alia, Papaleontiou and The Republic, 1967 11 J.S.C. 1273).

Nor do I find any merit in the argument that in the present instance it was the Head of Department of the Applicant, and not the Respondent, who, in effect, decided the matter of her transfer; in other words, that the discretionary powers were exercised by the said Head of Department and not by the Respondent, in which they are vested by the relevant legislation. From the relevant minutes of the Respondent (exhibit 3) it is clear that the recommendation of the Head of Department of the Applicant was treated as a proposalas it ought to have been treated - and that it was the Respondent which "decided" regarding the transfer of the Applicant; and, of course, there is nothing to prevent the Respondent from accepting, in the proper exercise of its discretionary powers, a proposal made to it by a Head of Department regarding the transfer of one of his subordinates.

Counsel for the Applicant - who has tried very conscientiously and very hard to persuade the Court that I should [*1347] interfere with this transfer - has laid stress on the fact that, in the meantime, the family reasons (which the Applicant had put forward as a ground against her transfer from Nicosia) have become more serious because her husband was, on the 2nd October, 1969, appointed as a schoolmaster at a secondary school in Nicosia; and that, therefore, the Applicant and her husband are now posted apart from each other, in different towns.

But this factor did not exist, in its present state of affairs, at the material time when the transfer of the Applicant was proposed and decided upon (in July, 1969); and, thus, such factor cannot be relied upon by the Applicant in challenging the sub judice

decision.

It is, no doubt, open to the Applicant, in view of the said factor, to apply to the Respondent requesting to be transferred, if possible, back to Nicosia; and it is up to the Respondent to decide whether or not to accede to such request. On the other hand, it is, also, open to the husband of the Applicant to apply to the appropriate organ in the education services requesting to be posted at a secondary school in Limassol, so as to be near his wife. As for myself, I express, no opinion, either way, regarding what the competent authorities should or should not do in the circumstances.

It has been contended, too, that the transfer of the Applicant should not have been made because as she is the Secretary-General of the Social Workers' Association such transfer will make the functioning of the Association very difficult: The said Association is not a public officers' trade union, and, therefore, what was stated in this respect [*1348] in Iordanou and The Republic, 1967, 4 J.S.C., 453, cannot be regarded as governing the position in the present case. More-over, though the Applicant was the Secretary-General of the aforementioned Association at all times material to these proceedings, she never put this fact forward as a reason for which she should not be transferred from Nicosia; I have no doubt that she would have done so if, in fact, this was a factor which could be regarded, even by herself, as being weighty enough to avert her transfer.

Another of the complaints of counsel for the Applicant has been that the Applicant’s Head of Department did not grant her an interview in relation to her proposed transfer -as allegedly requested orally by the Applicant. Yet, it is perfectly clear from the letter addressed by the Applicant to her Head of Department on the 22nd May, 1969, in relation to her objections against her impending transfer (exhibit 5),that she had had, already, a personal meeting with him in the past regarding this matter and that she considered it to be quite sufficient to summarize in writing her said objections; nowhere in such letter is to be found a request for a further meeting with her Head of Department.

For the foregoing reasons, and in the light of all the circumstances of this case, I have reached the conclusion that there does not exist any reason for interference with the sub judice decision of the Respondent, even though it does entail inconvenience for the Applicant. Thus, this recourse fails and it is dismissed accordingly; but in view of the said in convenience I am not going to make any order as to costs in this case.

Application dismissed;

no order as to costs.