HADJIROUSSOU ν. REPUBLIC (1989) 3A CLR 96

Public officers - Transfers - The Public Service Law, 1967 (Law 33/67) section 48 - "Appropriate Authority" in section 2 - Delegation of power to Director General of Ministry not, as indicated by the word "usually", an absolute one - The Appropriate Authority for transfer of members of Personnel Department is the Head of that Department.

Executory act - Internal measures of administration - Transfer of public officers not entailing change in duties, status and residence, not an executory act.

By means of the sub judice act the applicant was transferred by the Director of the Personnel Department from the Medical Department in Nicosia to the Department of the Official Receiver and Registrar of Companies in Nicosia. The applicant is a public officer in the Personnel Department. The transfer did not entail change of status, duties or place of residence.

The principles applied by the Court in dismissing the recourse, appear in the hereinabove Headnotes.

Recourse dismissed. £75 costs in favour

of respondent.[*97]

Cases referred to:

Papadopoullos v. Republic (1975) 3 C.L.R. 89,

Yiallourou v. Republic (1976) 3 C.L.R. 214,

Karapataki v. Republic (1982) 3 C.L.R. 88,

Nissiotou v. Republic (1985) 3 C.L.R. 1335.

Recourse.

Recourse against the decision of the respondent to transfer applicant from the Medical Department to the Department of Official Receiver and Registrar.

A. S. Angelides. for the Applicant.

M. Flourentzos, Senior Counsel of the Republic, for the Respondent.

Cur.adv. vult.

SAVVIDES, J. read the following judgment. The applicant by the present recourse challenges the decision of the respondent to transfer her from the Medical Department to the Department of Official Receiver and Registrar as from the 24th June, 1987.

It is the contention of the applicant that such transfer was in fact a disciplinary sanction disguised as an ordinary transfer in the needs of the service and that it was effected by an incompetent organ.

The facts of the case are briefly as follows:

The applicant is a civil servant and at the material time she was holding the post of Clerical Assistant, 1st Grade. Till the 24th June, 1987, she was posted in the department of Medical Services, Nicosia and she belongs to the General Clerical Staff which is interchangeable in the Public Service.

On the 3rd November, 1986 the Chief Medical Officer of theNicosia General Hospital suggested the transfer of the applicant on the ground that she was creating problems in the smooth running of the work of the clerical staff as there was continuous conflict between her and George Tantas, a Clerk in the same department.

As a result of inquiries made in the case and after hearing the complaints of both parties, a suggestion was made for the transfer of both these officers from the General Hospital to other Departments. As a result, the Director of Public Administration and Personnel in the exercise of his powers approved the suggestion and decided accordingly. As a result the applicant was transferred from the Nicosia General Hospital to the Department of Official Receiver and Registrar, Nicosia. The decision is contained in a letter dated 18th June, 1987, addressed to the applicant the contents of which read as follows:

"I have been instructed to inform you that a decision has been taken for your transfer from the Medical Department and the Department of Public Health to the Department of the Official Receiver arid Registrar as from the 24th June, 1987."

The letter was signed on behalf of the Director of Public Administration and Personnel.

The decision is mainly challenged on two grounds: The first ground is that the decision taken amounts to a disciplinary sanction and it was disguised as a decision of an ordinary transfer and the second that it was taken by an incompetent organ.

In advancing his arguments on the second ground counsel submitted that the letter communicating the transfer of the applicant emanates from the Director of the Public Administration and Personnel Department and according to its contents he mentions that he had instructions to inform her that her transfer was decided without expressly mentioning by whom such decision was taken and who gave the instructions for communicating the decision to the applicant. Therefore, counsel concluded, no proper decision was taken for applicant's transfer.

In dealing with his first ground counsel submitted that the transfer in question was taken in fact as a disciplinary sanction as a result of alleged complaints for misconduct and as such was improperly taken in that the proper procedure for disciplinary offences was not followed and the applicant was not afforded an opportunity to be heard.

Counsel for the respondent, on the other hand, in answering the contentions of counsel for applicant, submitted that (a) the decision for the transfer of the applicant was taken by the appropriate organ who in the circumstances was the Director of the Public Administration and Personnel Department acting on behalf of the Minister of Finance and (b) the sub judice decision is not an executory administrative act and as such could not be challenged by a. recourse.

From the material in the relevant file it appears that the transfer was effected on a submission made to the Director of the Public Administration and Personnel Department on the 13th June. 1987 for the transfer inter alia, of the applicant which was approved and decided by him and on the basis of such decision the transfer was effected.

Applicant's transfer in this case was effected under the provisions of s. 48 of the Public Service Law, 1967, Law 33/67, which reads as follows:

"48.- (1) Τηρουμένων των διατάξεων του εδαφίου (2), μεταθέσεις υπαλλήλων ενεργούνται υπό της Επιτροπής.

(2) Μεταθέσεις υπαλλήλων αι οποίαι δεν συνεπάγονται μεταβολήν εις τας υπ' αυτών κατεχομένας θέσεις και τα συναφή προς αυτάς καθήκοντα ή αλλαγήν τόπου διαμονής ενεργούνται υπό της ενδιαφερόμενης αρμοδίας αρχής:

Νοείται ότι εις εξαιρετικός περιπτώσεις επειγούσης φύσεως η ενδιαφερόμενη αρμοδία αρχή δύναται να προβή εις προσωρινήν μετάθεσιν συνεπαγομένην αλλαγήν τόπου διαμονής διά περίοδον μη υπερβαίνουσαν τας τεσσαράκοντα και δύο ημέρας."'

("48. - (1) Subject to the provisions of sub-section (2), transfers of officers shall be made by the Commission.

(2) Transfers of officers which do not involve a change in the posts held by them and the duties attached thereto or a change in the place of residence shall be made by the appropriate authority concerned:

Provided that in exceptional cases of urgent nature the appropriate authority concerned may make a temporary transfer involving a change in the place of residence for a period not exceeding forty-two days.")

Section 48 was considered by the Supreme Court in a number of cases; See, inter alia, Papadopoullos v. TheRepublic(1975) C.L.R. 89; ChrystallaYiallourou v.The Republic (1976) 3 C.L.R. 214; Karapataki v.The Republic (1982) 3 C.L.R. 88.

The questions which will have to be answered in this recourse are: (1) Whether there is a decision for the transfer of the applicant and whether such decision was properly taken and (2) whether such decision amounts to an executory administrative act.

On the basis of all the material before me, I am satisfied that decision for the transfer of the applicant has been taken in this case and that such decision was taken by the Director of the Department of Public Administration and Personnel. The question was put by counsel for applicant as to whether such officer was competent to take the sub judice decision in the light of the definition of "appropriate authority" as defined by s.2 of Law 33/67. In his submission the decision should have been taken by the Director-General of the Ministry of Finance acting on behalf of the Ministry.

The term "appropriate authority" is defined by s. 2 of Law 33/67 as follows:

'"αρμοδία αρχή' σημαίνει τον .... Υπουργόν ενεργούντα συνήθως διά του Γενικού Διευθυντού του Υπουργείου αυτου ως προς το Υπουργείον αυτού και παν Τμήμα υπαγομενον εις το Υπουργείον αυτού ...."

("appropriate authority' means the.. Minister usually acting through the Director-General of such Ministry in respect of his Ministry and any department which is subject to his Ministry...")

A reading of this section clearly shows that the delegation of power to the Director-General of the Ministry is not an absolute one as in the said definition. What is mentioned is that the Minister "usually" acts through the Director of his Ministry. The use of the word "usually" does not exclude the exercise of power of any other head of a division, the Director of the Department of Public Administration and Personnel in the present case to whom such powers are delegated.

From the various annexes and other material before him it emanates that any matters of transfers of public officers of the General Clerical Staff from one department to another is within the competence of the Director of the Public Administration and Personnel Department through whom the Minister has been acting in these matters.

In Karapataki v. The Republic (supra) at p. 94 we read the following in this respect:

"...The authority competent to effect transfers of members of the staff of the Personnel Department is, where the decision does not entail any change of residence, the head of the Personnel Department and not the Public Service Commission as it was contended for by the applicant. Any doubts that might be entertained on the subject, were dispelled by the decisions of the Supreme Court in the cases of Chr. Yiallourou v. The Republic (1976) 3 C.L.R. 220 and Papadopoulos v. The Republic (1975) 3 C.L.R. 89 at p. 95. Evidently, the legislature entrusted to the Personnel Department the assignment of duties to members of its staff within the same town, taking the view that the Personnel Department is best suited to appreciate the needs of the service in this area."

The answer to the first question, therefore, is that the Director of Public Administration and Personnel was the competent authority to take the sub judice decision.

I come next to consider the submission of counsel for the respondent that the sub judice decision is not an executory administrative act.

In the case of change of posting of public officers from one department to another in the same town, though conceivably coming within the very wide notion of transfer, as there is no change in the duties to be performed or change in the residence it has been held repeatedly by this Court that such act does not amount to an executory one but it is merely an internal measure of administration which cannot be challenged by a recourse Relevant in this respect are the case of Yiallourou v. The Republic (supra); Karapataki v.The Republic (supra) and Nissiotou v.The Republic (1985) 3 C.L.R. 1335 (though the latter case is concerned with the transfer of educationalists effected under s. 39 of Law 10/69).

In Yiallourou v. The Republic.(supra) at pp. 220, 221 and 222 we read the following:

"It is clear, in my view, that though the change of posting of the applicant does, conceivably, come within the very wide notion of 'transfer' in subsection (1) of section 48, it did not have, in view of subsection (2) of section 48, to be effected by virtue of a decision of the Public Service Commission; and the mere fact that even such change of posting is covered by the wide notion of 'transfer' in subsection (1) of section 48 - for the purpose of enabling the making of the differentiation contained in subsection (2) of the same section - does not, in my opinion, render, automatically, the act or decision of applicant's Head of Department, by means of which it was effected, an executory one, so that it could be challenged by the present recourse.

An administrative measure of internal nature does not amount to an executory act (see Conclusions, supra, p. 238,and Odent on ContentieuxAdministratif', 1970-1971. vol. III pp.771, 772. as well as the decision of the Greek Council of State in case 146 1/5.7); and it was held that an act ordaining a mere change of posting of a public officer, without an alteration of his status ("πράξις διατάσσουσα την απλήν μετακίκησην υπαλλήλου άνευ μεταβολής της υπηρεσιακής αυτού καταστάσεως") is an internal administrative measure which cannot be challenged by means of a recourse (see Conclusions, supra, p. 238).

In view of all the foregoing, and especially of the fact that the applicant after her posting at the Central News Service has to perform duties - specified in the relevant scheme of service which she was earlier performing at the Foreign Press Service,. I have reached the conclusion that her posting at the Central News Service is not of an executory nature, being an internal measure of administration, and, consequently, it cannot be challenged by the present recourse under Article 146 of the Constitution."

In Karapatakis v The Republic (supra) at p. 94 we read the following:

"...The transfer of the applicant did not amount to an executory act amenable to the jurisdiction of the Court It did not bring about any alteration to the status or position of the applicant in the service, and was, under any circumstances, non productive of legal results. 'Legal" in this context, has a wide connotation and encompasses the position and standing of the applicant in. the service viewed from an objective angle. Obviously, the decision did not bring about any change in the position of the applicant. She continued to hold the same position, that is, stenographer 2nd grade, and continued to perform the duties envisaged by the relevant scheme of service. Nor did the transfer had any repercussions detrimental to the position of the applicant, and, certainly, it did not entail any change of residence for the discharge of her duties. It was for the Personnel Department to judge the needs of the service; therefore, the applicant had no legitimate interest to seek that she be positioned in any particular governmental department. Consequently, the recourse must be dismissed for this reason as well."

Finally in Nissiotou v. The Republic (supra) which was a Full Bench decision, we read the following at pp. 1347- 1348:

"...we are of the opinion that the refusal to transfer the respondent, as well as the decision to transfer interested party Prodromou, are in the light of all the particular circumstances of the present case, internal measures of administration, which cannot be challenged by a recourse under Article 146 (see. inter alia, in this respect, Yiallourou v. The Republic (1976) 3 C.L.R. 214, 220, 221 and Karapataki v.The Republic (1982) 3 C.L.R. 88, 94). It is to be noted in this connection that it was common ground at the trial of the present recourse that the transfers of headmasters which were decided, as aforesaid, on the 16th July 1983, did not entail a change in their status; and, in our opinion, this was rightly thought to be the correct position because, notwithstanding any other differences between a Gymnasium and a Lyceum, it cannot be said that there is any substantial difference as regards the status of headmasters who are in charge of schools of secondary education of either of the said two types.

Of course, in the present judgment we need, and will, not deal exhaustively with the question of whether or not transfers effected under section 39(2) of Law 10/69 are always to be treated as internal measures of administration; and, indeed, there have been in our case-law occasions on which such transfers were subjected to judicial scrutiny because the Supreme Court was invited to deal with their merits without there having been raised any objection that their validity could not be challenged by means of a recourse under Article 146 because they were internal measures of administration; and it is not for us to decide now, ex post facto, whether in each one of those instances the transfer which was made the subject-matter of a recourse was or was not an internal measure of administration (see, inter alia, in this respect, Sofocleous (No. 1) v. The Republic (1972) 3 C.L.R. 56, Kyriakopoulou v.The Republic (1973) 3 C.L.R. 1, Sofocleous v.The Republic (1974) 3 C.L.R. 63, Karayiannis v.The Republic (1974) 3 C.L.R. 420, Michaeloudesv.The Republic (1979) 3 C.L.R. 56 and Prodromou v.The Republic(1981) 3 C.L.R. 38)."

It is clear in the present case that in the particular circumstances the transfer of the applicant does not involve a change in her status or position or in her place of residence and, therefore, her complaint about such transfer cannot substantiate a recourse under Article 146.1 of the Constitution being merely an internal measure of administration which cannot be challenged by a recourse under Article 146.

For all the above reasons, this recourse fails and is hereby dismissed with £75.- against costs in favour of the respondent.

Recourse dismissed with £75,-

costs in favour of the respondent.

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