The High Court rejects the appeal presented by the Administration against a judgment of the Supreme Court that overturned the competition for these appointments
The Murcian Health Service (SMS) has had a problem of the first order in hospitals after the Supreme Court has rejected the appeal for cassation presented against a sentence of the Superior Court of Justice (TSJ) of the Region that in 2020 overthrew the merit contest for which 46 heads of service were appointed. After this last cartridge, the procedure is confirmed as null.
The Contentious-Administrative Chamber of the Supreme Court refuses to process the appeal as it has not been “sufficiently substantiated that one or more of the assumptions concur” that justify the appeal to the High Court. Therefore, the SMS is ordered to pay costs.
The origin of the litigation is in the merit contest convened in 2017 for the provision of 46 service heads. With this procedure, the SMS sought to comply with the new law that had just been approved by the Regional Assembly, after more than a decade of finger appointments and systematic breaches of the incompatibility regime. Prior to the announcement of the contest, the then managing director of the SMS, Francisco Agulló, had dismissed a dozen heads of service who resisted leaving private activity despite the fact that the regulations required exclusivity for the exercise of these positions.
Some bosses who appealed the call: Antonio Albarracín, José Frías, María Ángeles Rodríguez and José María Marín.
These professionals represent the bulk of the ten doctors who took the new competition to court, represented by Manuel Martínez, from the Martínez de Otazo Abogados law firm. First they went to the Court of First Instance number 7 of Murcia, which ruled that the bases of the merit contest did not comply with the provisions of the Law of the Framework Statute of Statutory Personnel of the National Health System. Later, the TSJ essentially ratified this sentence.
A controversial composition
The TSJ rejected the formation of the courts in charge of evaluating the candidates, something that had been controversial from the beginning. According to the bases of the contest appealed, the courts were made up of the managing director of the health area to which the position corresponded, the medical director and a head of the service of the specialty in question, although, in the event of not existing Heads of this service in the SMS, they opted for a section chief or an SMS physician. In addition, there was a third member “at the joint proposal of the trade union organizations present in the area’s staff meeting.”
At the origin of the appeal is the conflict over the dismissal of a dozen bosses after the approval of a new regime of incompatibilities
The judge of First Instance considered that these courts had not been configured in accordance with the norm. Thus, the Basic Statute of Statutory Personnel establishes that “membership in the selection bodies will always be individual, and it cannot be held on behalf of or on behalf of anyone.” This collided with the presence of members elected by the union organizations, the sentence warned. In addition, these members should, in all cases, possess “academic qualifications equal to or higher than that required” for the candidates. The TSJ confirmed the sentence on this point.
“Guarantees of impartiality”
“It is true that trade union participation has been common in the composition of selection commissions, but the existing concern to guarantee as far as possible the application of the principles of equality, merit and capacity makes special emphasis on the guarantees of impartiality and professionalism of the members that make up the selection bodies to ensure their independence in the exercise of the power that corresponds to them, ”the ruling underlined.
The Supreme Court ruled as contrary to the norm the presence in the evaluation courts of representatives of trade union organizations
“The way to guarantee these principles, among other requirements, is that the members of the commissions, for the sake of equality of all applicants, do not represent any group or organization whose particular interests may condition or influence their performance.” The TSJ understood that this does not violate any trade union rights.
After the rejection of the appeal presented by the SMS before the Supreme Court, the judgment of the Supreme Court is now final. Manuel Martínez, attorney for the claimants, emphasizes that “the calls and awards” of these 46 headquarters “are void”, so the competitions must be called again, modifying the composition of the courts. The Ministry of Health, for its part, did not pronounce yesterday on this sentence.