Kuwait Court of Cassation principle number 525

Summary: - Jurisdiction of the Administrative Circuit of the Court of First Instance over applications to annul administrative decisions concerning civil servants. Limited to applications to annul decisions concerning appointment, promotion, termination of service, or imposition of disciplinary sanctions. Annulment of decisions concerning secondment and transfer of employees. Outside its jurisdiction. Condition thereof. They must not involve a disguised punishment that the Circuit originally has jurisdiction to consider. - Public employee. The general rule. No right arises for the employee to remain in a particular work position, even if the employee claims to derive particular experience from it that is unavailable in the position to which the employee will be transferred. Reason therefor. The employee occupies a general legal status that may be changed at any time, and the administration has discretionary authority in this respect, not subject to judicial review. Condition thereof. The transfer must aim to achieve a public interest and must not be tainted by abuse or misuse of authority, involve demotion of the employee to a grade or rank lower than the employee's grade or rank on the administrative ladder, or conceal a disciplinary punishment intended by the administration contrary to the provisions of the law. - Determining whether a transfer decision contains a sanction by which the administrative authority intended to spite the employee or retaliate against the employee. A matter for the trial court. Condition thereof. - The administrative court's finding that the transfer decision contains no disciplinary punishment. Requires it to rule that it lacks jurisdiction, on the basis that the challenge is directed against a decision not falling within the statutory provisions defining its jurisdiction. - The judgment's finding that the transfer decision contains a disguised sanction, and its consequent ruling that the Administrative Circuit has jurisdiction and that the decision be annulled, where that finding is unreasonable, unsupported by evidence in the record, and insufficient to sustain its conclusion. Vitiates it and requires its cassation. Rule: It is established in this Court's case law that the jurisdiction of the Administrative Circuit of the Court of First Instance over applications to annul administrative decisions concerning civil servants, pursuant to Article 1 of Law No. 20 of 1981 establishing a circuit at the Court of First Instance to hear administrative disputes, as amended by Law No. 61 of 1982, is limited to applications to annul decisions concerning appointment, promotion, termination of service, or imposition of disciplinary sanctions. Accordingly, applications to annul decisions seconding and transferring employees fall outside that Circuit's jurisdiction, unless they involve a disguised punishment that the Circuit originally has jurisdiction to consider. This is because, as a general rule, an employee has no right to remain in a particular work position, even if the employee claims to derive particular experience from it that is unavailable in the position to which the employee will be transferred. The employee occupies a general legal status that may be changed at any time. The administration therefore has discretionary authority to remove the employee from the position and utilize the employee in the place it wishes and in the work it assigns. The judiciary has no power to review the administration in this respect so long as the transfer aims to achieve the public interest, is not tainted by abuse or misuse of authority, and does not involve demotion of the employee to a position of a lower grade or rank on the administrative ladder than that occupied, or to a position inferior in its nature, the main occupational group to which it belongs, or the employment system governing it, or other circumstances in which the transfer conceals a disciplinary punishment intended by the administration contrary to the provisions of the law. Transfer is a power available to the administration to place the employee where it considers the public interest to be served, in the interests of the proper and regular functioning of work. Determining whether the transfer decision contains a sanction by which the administrative authority intended to spite the employee and retaliate against the employee, or whether its action seeks the public interest, is left to the trial court's assessment, which it derives from the circumstances and particulars of the case, without review, provided that it bases its judgment on reasonable grounds sufficient to sustain it. If it finds that the transfer decision was not itself used as a substitute for disciplinary punishment, it must rule that it lacks jurisdiction, on the basis that the challenge is directed against a decision not falling within the statutory provisions defining its jurisdiction. That being so, and whereas the record establishes that the respondent held the position of "Head of the Medical and Herbal Cosmetic Materials and Preparations Section" in the Medical and Herbal Medicines Registration and Control Department and was transferred to the position of "Head of the Training Section" in the Department with the same grade and supervisory position, and that there is no legal difference between the two positions, the transfer is no more than a change of workplace that would not cause injury or harm to the respondent. It was required by considerations of the interests of work. This is not undermined by the respondent's assertion that the section to which she was transferred has no employees and is not operational, and that, through this transfer, the administration intended to marginalize her role and prevent her from contributing to the development of work through the experience she had acquired. Assessment of that matter belongs to the administrative authority, and, as stated above, the employee has no right to remain in a particular work position even if claiming to derive particular experience from it that is unavailable in the position to which the employee will be transferred. The employee occupies a general legal status that may be changed at any time. The fact that this section has no employees and has not been operational since its establishment in 2005 does not justify the respondent's contention. By his letter dated 20/4/2011, following issuance of the decision, the Department Director requested from her a work plan for the Training Section and a meeting with the heads of the sections affiliated with the Department to coordinate with them and ascertain their needs for training courses. Further, the Dean of the Faculty of Pharmacy requested that the Department Director provide training for male and female students for the first semester of the academic year 2011/2012. Accordingly, the administrative authority intended to activate the role of this section, which appeared in its organizational structure with specified functions that had not been abolished. The respondent's insistence on not being transferred to this section may not prevent that. Consequently, the record contains nothing indicating that the challenged transfer decision involves a sanction. It falls within the discretionary authority of the administrative authority, and a challenge against it therefore falls outside the jurisdiction of the Administrative Circuit. Since the challenged judgment found that this decision involved a disguised sanction and consequently ruled that the Administrative Circuit had jurisdiction and annulled the decision, and since this is an unreasonable finding unsupported by evidence in the record and insufficient to sustain its conclusion, it is vitiated and must be quashed.