The procedure to be followed by those wishing to resume public service is laid down under the heading “open appointment” in Article 92 of the Civil Servants Act No. 657. The concept of a request to return to duty covers applications by two different groups: the request of those who have been subjected to the sanction of dismissal from the civil service to return to their former posts, and the request of persons who have left their post of their own volition to become civil servants once again. In addition, applications made by those who have retired within the framework of the Turkish Republic Pension Fund Act in order to enter the civil service at any institution are assessed in the same category. The readmission to the civil service of persons who have held a civil service post in the past but who do not hold the status of public official at the time of application is made possible by the procedure known as open appointment. Under this method there is no placement based on the result of a central examination; the administration announces in its own notice the qualifications it requires, and appointment is effected upon the applications of candidates possessing those qualifications. The most distinctive point on which it differs from central appointment is that the administration’s discretionary power carries a decisive weight in the process.
A request for readmission to the civil service is assessed in the light of the relevant legislative provisions, foremost among them Act No. 657, and concluded either favourably or unfavourably. Since the decision given constitutes an administrative act in terms of its legal character, persons whose application has been refused contrary to the proper procedure may apply to the administrative courts seeking the annulment of that refusal decision.
Reappointment of Those Who Left Their Post of Their Own Accord
Article 92 of the Civil Servants Act No. 657 affords the possibility of reappointment to persons whose civil service has come to an end by way of resignation:
Civil Servants Act No. 657, Art. 92
“Those who, on no more than two occasions, have resigned from the civil service of their own accord or are deemed to have resigned under the provisions of this Act and who wish to return to the civil service may, provided that there is a vacant post in the class from which they departed and that they possess the qualifications of that class, be appointed to the same step of a grade equal to the salary grade they were receiving on the date of their departure, or, by complying with the provisions of Article 71, to posts of an equal grade in another class.”
The provision affords those who have left the civil service of their own volition the possibility of returning to public service by making a fresh application. However, as is also apparent from the wording of the article, appointment is made conditional on a number of requirements being met together. The requirements sought are as follows:
- That the departure from the post was based on the civil servant’s own wish, or that the situation of being deemed to have resigned by operation of law has arisen
- That the number of resignations does not exceed two
- That a vacant post exists in the class from which the person departed
- That, as at the date on which the application is made, the candidate meets the qualifications prescribed for that class
Among these persons, those who left their post during the probationary period may apply only to their own institution, whereas those who left after passing to established civil servant status may apply by petition, as they choose, either to their former institution or to a different institution. If even one of the requirements listed is not met, the request for reappointment is concluded unfavourably. If all the requirements are met, the decision is left to the discretion of the administration; that discretion must, however, be exercised in the public interest and in accordance with the law. Where the request to return to duty is refused through an unlawful exercise of the discretionary power, the decision in question may be made the subject of an action for annulment.
For detailed explanations on the subject, the note entitled Being Deemed to Have Resigned from the Civil Service may be consulted.
Re-employment of Retired Civil Servants
In respect of persons whose civil service has come to an end by reason of retirement, the governing provision is Article 94 of the same Act:
Civil Servants Act No. 657, Art. 94
“Those who have retired under the provisions of the Turkish Republic Pension Fund Act (with the exception of those who, under Article 104 of Act No. 5434, may not be reappointed to posts connected with retirement) and who possess the qualifications set out for their class may be readmitted to the civil service under the provisions of Article 92 of the Act, provided that there is a vacant post in the institutions.”
The provision in question makes it possible for persons who have retired from the civil service to be reappointed upon application. This appointment too, however, depends on the existence of the requirements expressly set out in the article. Those requirements are that the retirement took place within the framework of the provisions of the Turkish Republic Pension Fund Act, that there is a vacant post in the class from which the person departed, and that the candidate possesses, on the date of application, the qualifications required by that class.
An appointment may be made by the administration upon the application of persons meeting the requirements listed. That said, Article 30 of Act No. 5335 introduces an important restriction. Under that provision, those who are in receipt of a retirement or old-age pension from any social security institution may not, without those pensions being suspended, be employed or serve in any post, position or duty in the offices included in the general budget, the annexed-budget administrations, the revolving funds, the funds, the municipalities, the special provincial administrations, the unions and undertakings established by municipalities and special provincial administrations, the social security institutions, the bodies receiving assistance from the budget, and the other public institutions, boards, supreme boards and bodies established by special statute, the public economic enterprises and their subsidiaries and their establishments and undertakings, and the other partnerships more than 50% of whose capital belongs to the public. The remainder of the article further sets out the professional groups that may be reappointed without their retirement pension being suspended.
The conclusion that follows is this: for a retired person to be reappointed to the civil service, either the post applied for must be among the duties excepted under Article 30 of Act No. 5335, or the retirement pension must be suspended.
Return to Duty of Dismissed Civil Servants by Court Decision
The status of civil servant comes to an end for a person who is subsequently found not to possess one of the requirements sought for entry into the civil service, or who loses one of those requirements during service. Since in both cases the termination is effected by an act established by the administration, it is possible for those acts to be brought before the courts and, if found to be unlawful, to be annulled.
The scope of the penalty of dismissal from the civil service and the situations in which it is to be applied are set out in subparagraph E of Article 125 of Act No. 657.
As is set out in detail in the note entitled Disciplinary Penalties That May Be Imposed on Civil Servants, the most severe of the disciplinary sanctions is dismissal from the civil service with no possibility of further appointment. Nevertheless, all disciplinary sanctions, including the penalty of dismissal, may be made the subject of an action for annulment. Where the annulment of the penalty is ordered at the conclusion of the proceedings, an application may be made to the institution that established the dismissal decision requesting that a fresh appointment be made.
For details on this subject, the article entitled Objection and Action for Annulment Against a Disciplinary Penalty Imposed on a Civil Servant may be consulted.
The termination of civil service on the ground that one of the conditions for entry into the civil service is found not to have existed from the outset, or has been lost in the course of service, likewise constitutes an administrative act by its nature. The person concerned may bring an action for annulment against those acts as well, asserting that he possesses the qualifications required for the civil service. If the unlawfulness of the acts is established at the conclusion of the proceedings, their annulment is ordered and the person alleged not to possess, or to have subsequently lost, one of the conditions for entry into the civil service returns to his post.
In practice, the situation most frequently encountered under this heading is the termination of a civil servant’s service on the ground of a security clearance investigation. On this subject, the article entitled A Civil Servant’s Objection to an Adverse Security Clearance Investigation and Action for Annulment may be consulted.
Action for Annulment Against the Refusal Decision
The administration faced with a request to return to duty reaches a conclusion within the framework of its discretionary power, weighing the position as to posts, the requirements of the service and the needs of the institution. That power is not, however, unlimited. The exercise of discretion is framed by the public interest and the requirements of the service; accordingly, it is accepted that the measures taken by the administration in response to a request to return to duty are open to judicial review.
It is among the settled principles of administrative law that acts based on discretion may be reviewed as regards their elements of cause and purpose. What the judicial authorities will examine is whether the administration exercised its discretion as to open appointment having regard to criteria such as the availability of posts, the needs of the institution, the requirements of the service and the personal circumstances of the applicant. On that basis, an action may be brought before the administrative court for the purpose of reviewing the lawfulness of the refusal decision given upon a request to return to duty which prejudices the applicant’s interest. The action to be brought is an action for annulment, and it is by this means that it is examined whether the administrative act is unlawful, in particular as regards cause and purpose.
Detailed information on the subject is contained in the note entitled Objections to Administrative Acts and the Action for Annulment.
Time Limit for Bringing an Action
Against the decision refusing a request to return to duty, the person concerned must bring an action for annulment within 60 days running from the day following that on which the refusal decision was served on him.
Persons whose request has been refused may also bring a full remedy action against the administration for the purpose of making good the loss they have suffered by reason of the violation of their rights. That action may be brought on its own, together with the action for annulment, or after the action for annulment has been determined. In the last case, the period for the full remedy action is 60 days running from service of the decision relating to the action for annulment or from the execution of the act refusing the request to return to duty.
For detailed explanations on the full remedy action, the article entitled The Action for Damages (Full Remedy Action) Against the Administration may be consulted.
Court With Subject-Matter and Territorial Jurisdiction
In both actions for annulment and full remedy actions, subject-matter jurisdiction belongs to the administrative courts. As there is no separate rule specific to the subject in terms of territorial jurisdiction, the general rule applies and the action is heard before the court of the place where the administrative authority that established the act is situated.
Frequently Asked Questions
Is representation by a lawyer mandatory in proceedings before the administrative court?
Turkish law affords the parties the possibility of defending themselves in person before the courts; apart from limited exceptions, representation by a legal representative is not mandatory. Nor does representation by an administrative law lawyer constitute an obligation before the administrative courts. That said, the fragmented structure of the legislation and the short and strict nature of the periods in the Administrative Procedure Act No. 2577 may give rise to errors that are difficult to remedy where the process is conducted by persons who are not lawyers. For that reason it is advisable to obtain support from lawyers practising in the field of Administrative Law before any step is taken.
May an objection be lodged with the administration against the refusal decision?
The refusal of a request to return to duty has the character of an administrative act. For that reason the objection procedure, which is the alternative means of application provided for in respect of administrative acts, may also be pursued here. The person concerned may lodge an objection, by a petition submitted within 60 days of service of the refusal decision, with the administration that refused the request.
Is recourse to the objection procedure a precondition for bringing an action?
No; pursuing the objection procedure has not been made mandatory. The person concerned may bring an action for annulment directly, without applying to the administration at all, within 60 days of service of the decision. By contrast, where the objection route is chosen first, the 60-day period for bringing an action is suspended; it resumes running from where it left off when the administration replies to the objection or, in any event, upon the expiry of 30 days.
May a reappointed civil servant be appointed to a higher grade?
Article 92 of the Civil Servants Act provides that, under the open appointment system, civil servants may, provided that there is a vacant post in the class from which they departed and that they possess the qualifications of that class, be appointed to the same step of a grade equal to the salary grade they were receiving on the date of their departure, or, by complying with the provisions of Article 71, to posts of an equal grade in another class. That provision does not constitute an obstacle to the appointment to higher grades of candidates who meet the requirements sought in subparagraph (b) of Article 68 of the same Act.
What happens if no vacant post remains in the class departed from?
Where there is no vacant post in the class from which candidates applying to return to the civil service departed, it is possible for them to be appointed under Article 45 of the Civil Servants Act, provided that they meet the other requirements sought in the Act. However, the posts indicated within the scope of Article 45 do not in any way give rise to a vested right for the person concerned.
Independent Legal Assessment
At the core of open appointment disputes lies the question of where the administration’s discretionary power ends. In applications refused on abstract grounds such as the absence of a post or the requirements of the service, whether the refusal decision rests on a concrete and reviewable cause determines the course of the proceedings. When a concrete application or action is being prepared, it is appropriate to clarify the following matters in advance:
- Determining which of the situations of resignation, being deemed to have resigned, retirement or a disciplinary sanction the manner of departure falls within
- Verifying from the records whether the number of resignations exceeds the limit of two occasions set out in Article 92
- Establishing by documentary evidence that the post applied for is vacant and that the candidate possesses the qualifications of the class
- Resolving from the outset, in cases of retirement, the question of suspension of the pension under Art. 30 of Act No. 5335
- Setting out a timetable for the date of service of the refusal decision and the 60-day period, taking into account the suspensive effect if the objection route is to be pursued
Independent Legal provides legal advisory and litigation services throughout the entire process in disputes arising from public personnel law, from the preparation of open appointment applications to the conduct of actions for annulment and full remedy actions against refusal decisions.