SANTA CRUZ DE TENERIFE, 27 Sep. (EUROPA PRESS) –
The Plenary of the Constitutional Court has unanimously estimated the question of unconstitutionality raised by the Contentious-Administrative Chamber of the Superior Court of Justice of the Canary Islands with respect to the second paragraph of article 1 of Law 18/2019, of December 2, on measures urgent planning of public employment in the Canarian administrations.
The ruling, for which Judge Ramón Sáez Valcárcel was the rapporteur, concludes that said rule is in effective contradiction with the basic legislation on public service and therefore invades the state’s jurisdiction to issue it, which leads to its declaration of unconstitutionality and nullity.
The rule in question attributed a provisional (and not definitive) nature to the ascription to the first job that is awarded to newly hired career civil servants who access the Canarian public function by virtue of the execution of public employment offers corresponding to the years 2015, 2016, 2017 and 2019.
Said provisional assignment regime had two complementary provisions, relating to the remuneration and professional promotion rights of the civil servants provisionally assigned to their first assignment and the obligation of the Government of the Canary Islands to convene the corresponding competitions for the provision of positions within a time limit. maximum.
The judgment indicates that the basic model of public function designed by Law 30/1984, of August 2, on measures for the reform of the public function – part of whose precepts continue to be applicable in the Canary Islands – includes the requirement that the secondment of the career civil servant who has just entered his job is definitive, a requirement that is also derived from the Consolidated Text of the Law on the Basic Statute of Public Employees.
Both basic rules regulate provisional affiliation as an exceptional mechanism for the provision of jobs, applicable only to those who had previously held another post, in the residual cases in which the official becomes temporarily lacking a post obtained in accordance with the normal systems of employment. provision (competition or free appointment), either because the position from which he came has been abolished, because he has been dismissed or removed from it, or because he re-enters active service without enjoying a reserved position and assignment.
The purpose of this mechanism, as it has been designed by the basic state regulations, is to guarantee in any case the performance of a job for career civil servants and, thereby, protect their administrative career, regardless of whether it serves also, indirectly, to facilitate the organizational flexibility of the public administrations. In other words, the basic state legislator has configured the provisional assignment as a mere consequence or corrective element of the incidental assumptions of dismissal, suppression of the position or re-entry into the active service of career officials. Cases in which newly hired career civil servants cannot be found in any case.
In its pronouncement, the Plenary confirmed the incompatibility between the questioned precept and the basic legislation, to the extent that the former provides for the temporary performance of the job outside the assessed cases provided for in it. The Court points out that, although the rule in question could pursue the protection of certain legitimate objectives -such as guaranteeing the immediate incorporation of newly hired officials to their posts or weighing the conflicting rights and expectations of newly hired officials and those who are had previously joined the public function-, this does not enable the regional legislator to distort the figure of provisional assignment, as it has been regulated by the basic legislator, turning it into a form of performance of a job obtained through of overcoming the procedures for access to the public function.
The sentence indicates that the declaration of unconstitutionality and nullity entails that the provisional appointments produced under the annulled norm and that still subsist, as the case may be, must be declared definitive. However, the constitutional principle of legal security (art. 9.3 CE) claims that the declaration of unconstitutionality and nullity does not allow reviewing the allocation of places under the definitive ascription regime produced through the competitions called under the annulled rule, except those in respect of which administrative procedures or legal proceedings have been initiated in relation to the provisional appointment in which no firm resolution has yet been issued.
