In the working life of civil servants, spouses finding themselves in different provinces may come about in several ways: two civil servants serving in different cities marrying, a married civil servant being made subject to compulsory transfer, or a civil servant being appointed to another province at their own request. The result is the same in all three scenarios; the spouses are in fact separated, and the unity of the family, guaranteed by Article 41 of the Constitution of the Republic of Türkiye, is placed at risk of harm.
The legislation provides a solution designed to remove that risk. A civil servant in respect of whom there is no impediment to appointment may request to be transferred to the place where their spouse serves. This possibility is not confined to cases in which both spouses are civil servants; even where only one of the spouses is a public official, a transfer on grounds of spousal status may be requested provided that the conditions laid down in the legislation are met. Here too, of course, a valid reason justifying the transfer must be established.
Where the administration refuses that request, the civil servant is not left empty-handed; irrespective of whether the spouse is a civil servant, the route of an action for annulment against the decision of refusal is open. Below we examine the bases of the action, the conditions required and the procedure to be followed.
The Constitutional Basis of the Right to Transfer on Grounds of Spousal Status
The guarantee relating to the protection of the family is set out in Article 41 of the Constitution and imposes a concrete obligation on the State in this respect:
Constitution of the Republic of Türkiye, Art. 41
“The family is the foundation of Turkish society. The State shall take the necessary measures and establish the necessary organisation to ensure the peace and welfare of the family, especially the protection of the mother and children, and the teaching and application of family planning.”
The aim of this provision, considered important enough to be protected at constitutional level, is to prevent the break-up of the family, to keep its members together and to secure the continuity of peace within the family. The provision has a second function as well: to make it possible for public officials to perform their duties efficiently, effectively and healthily in an environment free from family anxieties. For that reason, a refusal by the administration of a transfer request based on spousal grounds is in most cases incompatible with the constitutional guarantee and, where the conditions are met, may be set aside by a court decision.
The Procedure for a Transfer Request and the Conditions Required
Article 72(2) of the Civil Servants Act No. 657 allows the other spouse to request a transfer on grounds of spousal status where one of the spouses is appointed to another province.
Civil Servants Act No. 657, Art. 72(2)
“In appointments to be made anew or by way of transfer, with a view to preserving the unity of the family, the necessary coordination shall be secured between the institutions and the appointment of the other spouse who is a civil servant shall, upon that spouse’s request, be made, within the framework of the principles set out in the Act, to the place to which the civil servant subject to appointment has been appointed.”
Proceeding from the wording of the provision, the following elements must be present together in order for a transfer request based on spousal grounds to be granted:
- The other spouse, being a civil servant, must have expressed an intention to be transferred, that is to say the request must be put forward by the person concerned in person
- There must be an act in the nature of a new appointment or a transfer
- The public institutions concerned must secure the necessary coordination between themselves
- The spouse to be transferred must be appointed in accordance with the principles set out in Articles 74 and 76 of the Act
One further matter must be added to these elements. It is required that, in the place to which the civil servant subject to appointment has been sent, there be a post suitable for the other spouse within the organisation in which that spouse is to be assigned. Where such a post exists, granting the request is not an option left to the discretion of the administration but a statutory obligation.
The settled case law of the Council of State in this field points the same way. Its decisions emphasise that living together as a family is a constitutional right and that the State is under a duty to have regard to that right; indeed, it may be seen that in some cases in which the conditions were not fully met, transfer on grounds of spousal status was nonetheless ordered to be granted.
Transfer Requests Where the Spouse Is Not a Civil Servant
By the amendment made to Article 14 of the Regulation on the Appointment of Civil Servants by Way of Transfer, the requirement that both spouses be civil servants in order for a transfer on grounds of spousal status to be granted has been abolished.
The article, as amended, reads as follows:
Regulation on the Appointment of Civil Servants by Way of Transfer, Art. 14
“A civil servant requesting a transfer on grounds of family unity is obliged to submit to their institution a document showing that their spouse works as public personnel in public bodies and institutions, or that, in the place to which the appointment is requested, the spouse has paid 360 days of social security premiums within the last two years as at the date of application and is currently working on their own account or, under a contract of employment, in the service of an employer. In addition, a document proving the marriage must be attached to the transfer application.”
The provision affords the civil servant the possibility of requesting a transfer in two separate scenarios. Where the spouse is public personnel, the civil servant may request a transfer to the place where that spouse is located if there is an impediment to the spouse being appointed by way of an in-house transfer, or if the spouse holds a post subject to compulsory transfer under the legislation. Where the spouse is not public personnel, it is required that the spouse has paid 360 days of social security premiums within the last two years, taking the date of application as the reference point, in the place to which the transfer is requested, and that the spouse is currently working on their own account or, under a contract of employment, in the service of an employer; once those conditions are met, the transfer may be made to the place where the spouse is located.
That possibility has been afforded to all civil servants without distinction. The fact that the spouse relied on as the ground of the request works in a job other than public service does not change the outcome; what is decisive is that the conditions required by the legislation are met.
To Which Spouse’s Place of Duty the Appointment Is Made
In cases in which both spouses are civil servants, which of the two places of duty is to be taken as the basis for the transfer may in practice give rise to hesitation. Article 14 of the Regulation answers that question. The appointment of a civil servant requesting a change of place on grounds of family unity may be carried out in accordance with the following criteria:
- Where the spouse who is public personnel has no possibility of being appointed by way of an in-house transfer, or holds a post subject to compulsory transfer under the applicable legislation, to the place where that spouse serves
- Where both spouses work within the same institution, to the place where the institution’s need for services is greater
- Where the spouses serve in separate institutions, to the place where both have a priority need for services, the necessary coordination being secured between the two institutions
- Where the spouse who is not public personnel has, in the place to which the transfer is requested, paid 360 days of social security premiums within the last two years as at the date of application while working on their own account or, under a contract of employment, in the service of an employer, and continues to work there, to the place where that spouse is located
- Where the spouse is a member of parliament, a mayor, a headman or a notary, to the place where that office is performed
The Right to Leave Arising Where the Conditions Are Not Met
Article 72 of the Civil Servants Act No. 657 provides a second solution that comes into play where a situation arises in which a transfer is not possible. The article provides that, where there is no organisation at all in the place to which the civil servant subject to appointment has been sent to which the spouse could be appointed, or where, although such an organisation exists, there is no post matching the spouse’s qualifications, leave may be granted to the requesting spouse, limited to the duration of the other spouse’s term of duty.
The payment to be made to a civil servant on such leave is calculated by reference to the equivalent of their salary (including base salary and seniority salary), their supplementary indicator and their increments and allowances. A given proportion of the net amount remaining after statutory deductions is met by the institution from post savings, according to the region in which the spouse serves:
- For those whose spouse serves in the provinces within the scope of the State of Emergency Region or in provinces designated as adjacent to those provinces, the proportion is 60%.
- For those whose spouse serves in areas classified as priority areas of the 1st degree in development, the proportion is 50%.
- For those whose spouse serves in priority areas of the 2nd degree in development, the proportion falls to 25%.
For spouses serving in areas outside these, no payment arises; the civil servant concerned is treated as being on unpaid leave.
The Action for Annulment Against the Decision of Refusal
Where a transfer request that has been submitted in accordance with the legislation and whose conditions are met is refused by the institution, recourse may be had to the courts for the annulment of that decision of refusal. This is because the refusal of a transfer request is, by its nature, an administrative act; it is therefore assessed within the scope of objections to administrative acts and of actions for the annulment of administrative acts.
It is true that the administration has a discretionary power in adopting this act; that power is not, however, unlimited. In exercising its discretion, the administration must have regard to the provision of the Constitution requiring the protection of the unity of the family. In other words, the administration is obliged to exercise its discretion within a framework consistent with the law and with the public interest.
The Court With Subject-Matter and Territorial Jurisdiction
The route to be followed by a civil servant whose transfer request has been refused even though the conditions we have set out in this note are met is clear: the action is brought before the administrative court for the place in which the administration that gave the decision of refusal is situated.
The Time Limit for Bringing the Action
An action for annulment against a decision of refusal that is in the nature of an administrative act must be brought within 60 days, taking as the reference point the date on which the decision was served in writing on the person concerned.
Frequently Asked Questions
May an objection be lodged with the administration against the decision of refusal?
Since the refusal of a transfer request is an administrative act, the objection route laid down in respect of administrative acts may also be used for this act. The person concerned may apply to the administration that refused the request by a petition submitted within 60 days of service of the decision of refusal on them.
Is it mandatory to pursue the objection route?
No. Pursuing the objection procedure is an optional possibility; if the civil servant so wishes, they may bring an action for annulment directly within 60 days of service, without applying to the administration at all. If, on the other hand, the objection route is chosen first, the 60-day period is suspended. When the administration replies to the objection, or even if it does not reply, at the end of 30 days the time limit for bringing an action resumes running from where it stopped.
May a stay of execution be requested while the proceedings are pending?
It is possible for a stay of execution to be ordered until the action is concluded. For the administrative court to give such a decision, two conditions must be satisfied together: the act must be manifestly unlawful, and damage that is difficult or impossible to remedy must be liable to arise if the act is implemented.
What appeal routes are available against a judgment given against the claimant?
Where the action heard before the administrative court is decided against the claimant, an appeal may be lodged with the regional administrative court within 30 days of service of the judgment. In respect of the judgment given by the regional administrative court, an appeal on points of law may likewise be brought before the Council of State within a period of 30 days from service.
The Independent Legal Assessment
In these disputes the decisive factor is often not so much the strength of the legal argument as the completeness of the application file. A missing document relating to the number of premium days, to whether the employment is continuing, or to proof of the marriage may be used by the administration as a ground of refusal. The second critical point is the management of time limits; although the objection route suspends the period, where the administration remains silent a loss of rights may arise if the moment at which the period resumes running is overlooked.
In drawing up a road map in a particular file, it is appropriate to give priority to the following points:
- Documenting the date of service of the decision of refusal for the purposes of the time limit for bringing an action
- Clarifying which set of conditions applies according to whether the spouse is public personnel
- Where the spouse is not public personnel, supporting the 360-day premium condition with a record of service
- Investigating whether a suitable post exists in the place to which the transfer is requested, and pleading this in the petition
- Substantiating the allegation of damage that is difficult to remedy so as to make out the grounds for a stay of execution
Independent Legal provides advisory and litigation services in disputes concerning the appointment and transfer of public personnel, from the administrative application stage through to review on appeal.