Cyprus Supreme Court annuls a school transfer decision due to respondent's failure to oppose and lack of reasoning.

[*299] 1970 March 10

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Andreas Lambrou,

Applicant,

and

The Republic of Cyprus, through

the Educational Service Committee,

Respondent.

(Case No. 407/69).

Administrative Law - Recourse for annulment under Article 146 of the Constitution - Is made against the act or

decision which is its subject-matter - And not against any party as such -Absence of any party need not prevent the Court from examining validity of the subjectmatter of a recourse.

Practice - Recourse for annulment / Absence of respondent - Decision on the validity of the sub judice decision, notwithstanding such absence - Past attitude of the respondent towards applicant and failure to file opposition taken into consideration.

Administrative Law - Secondary education - Decision of Educational Service Committee refusing school-master's application for transfer - No opposition to recourse and failure of respondent to appear on day of hearing - Sub judice decision treated as not a duly reasoned one, as being contrary to law and in excess and abuse of powers,

Administrative Law - Recourse for

annulment - Conduct of Respondent and especially failure to file opposition and defend the case an element which can

duly be taken into account in annulling the sub judice decision.

E. Lemonaris, for the Applicant.

No appearance for the Respondent.

JUDGMENT

The following judgment was delivered by:

TRIANTAFYLLIDES, J.: In this case the Applicant complains against the decision of the Respondent [*300] Educational Service Committee not to

transfer him from the Xeros Technical School to Larnaca.

The history of the matter is shortly as follows:-

On the 7th August, 1968, the Applicant filed a recourse (272/68) against a decision by the Respondent "transferring" him from the Evrychou Gymnasium to the said Technical School.

In the body of the Application in such recourse there were stated reasons far which the Applicant should have been transferred to Larnaca, instead of to Xeros, By the Opposition in that case (see its file exhibit 2) it was stated that the Applicant from 1966- 1968 was posted at both the Evrychou Gymnasium and the Xeros Technical School and that all that had taken place was that he had been posted only at the Xeros Technical School. It was stated, further, that he could not be transferred to Larnaca - (where he had served in the past) - because the Larnaca School Committee, by a document quoted in the Opposition, and dated the 18th June, 1968, had requested that the Applicant should not be posted at Larnaca.

It might be observed at this stage that the said document is drafted in most vague terms, it Is full of generalities and contains no cogent reasons at all.

On the 30th August, 1968, case 272/68 was withdrawn because the Applicant intended to take further steps, [*301] before the Respondent, in pursuing his request for a transfer to Larnaca.

On the 3rd April, 1969, the Applicant submitted a new application for transfer from the Xeros Technical School to Larnaca, on the ground of both family and financial reasons; he adopted thereby all that was stated in his previous recourse, 272/68.

On the 1st September, 1969, the Applicant, having not heard anything in reply to his application, filed a new recourse, 281/69. (His said application is exhibit 3 in the file of recourse 281/69, which is exhibit 3 in the present proceedings).

Case 281/69 was heard on the 19th November, 1969 and it was then found out that the aforementioned application of the Applicant, dated the 3rd April, 1969, had not been dealt with up to the date of the filing of Case 281/69.

As a result judgment was given in that case* - in the presence of counsel for Respondent - by means of which the Respondent was found guilty of an omission to deal with, and reply, in due time to the application for transfer of the Applicant.

Eventually, on the 24th November, 1969, a letter was addressed by the Respondent to the Applicant (exhibit 1) which informed him that his said application could not be granted "for educational reasons". [*302]

As a result the present recourse, 407/69, was filed on the 30th December, 1969, and it was served on the Respondent on the 3rd January, 1970.

On the 21st January, 1970, when the case came up for directions, it was fixed, in the presence of counsel for Respondent, for hearing at 10 a.m. on the 10th March, 1970 - today - and it was directed that the Opposition be filed within a month's time. This was not done; and, so, by notice dated the 2nd March, 1970 - copies of which were sent to both the Respondent and to its counsel - it was fixed for today, at 9 a.m. for directions "in view of the failure of Respondent to file the Opposition".

No Opposition was filed, and until

9.25 a.m. this morning nobody appeared on behalf of the Respondent. In the circumstances it was directed that the case should proceed to be heard at 10 a.m. today, as fixed.

A recourse under a jurisdiction such as that provided for under Article 146 of the Constitution is made, in effect, against the act or decision which is its subject-matter; it is not made as against any party, as such (see, also, Cyprus Transport Co. Ltd and another and The Republic, 1969 12 J.S.C. 1428). It follows from this premise that absence of any party need not prevent the Court from examining the validity of the subject-matter of a recourse (see Tsatsos on the Recourse for Annulment, 2nd edition, p. 238).

Having, therefore, heard counsel for the Applicant and nobody having, as yet, appeared for the Respondent, I think that it is, indeed, proper - (in view, too, of the past attitude of the Respondent towards the application for [*303] transfer of the Applicant and the failure of Respondent to even file an Opposition in the present recourse) to proceed, at once, to decide on the validity of the sub judice decision on the material that exists before me and in spite of the absence of the Respondent from today’s hearing.

Bearing in mind the grounds on which the Applicant has based his request for a transfer, and looking upon such grounds in the light of some of the relevant principles referred to by this Court in Petrondas and The Attorney-General (1969 5 J.S.C. 642), Carayiannis and The Republic (1969 7 J.S.C. p. 984) and Yiallourides and The Republic (1969 8 J.S.C. p. 1126), and not having before me even an Opposition to the present recourse but only the sweeping statement that the Applicant's transfer could not be made "for educational reasons" (as set out in exhibit 3). I cannot but treat the sub judice decision, on the basis of the material at present before me, as a not duly - in the circumstances - reasoned decision, as being contrary to law and in excess and abuse of powers.

As a matter of fact the whole conduct of the Respondent in this matter, and especially the failure to file an Opposition and defend this case so as to put before the Court ail relevant material, is an element which I can duly take into account in annulling the sub judice decision; this view is, I think, in accordance with the spirit of the decisions of the French Council of State in the cases of Barel (on the 28th May, 1954) and Coulon (on the 11th March, 1955). [*304]

The decision of Respondent, challenged by this recourse is, therefore, declared to be null and void and of no effect whatsoever. It is now up to the Respondent to deal with this matter in compliance with all relevant principles.

Respondent to pay to the Applicant £25.- costs.

Sub judice decision annulled.

Order for costs as above.

* Published in this part at p. 252 ante.