The Supreme Court canceled the allocation of posts in a public employment announcement in the Special Corps of Penitentiary Institutions, on the understanding that it did not respect the 60% reserve of posts for internal promotion provided for by the legislation of this sector of the administration. Therefore, the High Court accepted a contentious-administrative appeal presented by the Center for Independent Trade Unions and Public Officials (CSIF) against the aforementioned job offer, corresponding to 2024, and which included 118 positions of which 73 for the free shift (new entry) and only 45 for internal promotion.
For the CSIF, the weight of posts for officials with a category to be promoted (38%) did not comply with the specific legislation for job offers in penitentiary institutions, which is governed by a 1977 regulation and, due to its characteristics, provides that this type of positions represents the aforementioned 60% of the total offer. The State’s attorney argued that these rules were pre-constitutional and conflicted with subsequent laws regulating these offers and which in general terms only require a 30% minimum. However, the Supreme Court “does not appreciate (that the specific law on penitentiary institutions of 1977) is incompatible with the constitutional text, nor with the subsequent legislation on public employment, which has never modified this percentage”.
Having said this, and beyond the cancellation of the contested job offer, the CSIF explains that it “appreciates the reasoning developed by the Supreme Court on internal promotion as a system of promotion to higher qualification bodies with homogeneous functions”. Specifically, the High Court confirms that in the regulation of such offers “there is a wide freedom of configuration of the legislator in determining the structure and organization of the bodies and levels of public administration, as well as the selective access systems”.
But, contrary to what was argued by the General Counsel in this case, the principle of free participation in the public service (i.e. equal access to identical conditions for all applicants) “is modulated by other principles such as professional promotion or positive discrimination, which can give rise to specific sectoral regulations”, as in the case of penitentiary institutions. This means that, in the interest of strengthening the professional careers of promoted officials, or for the “principle of effectiveness from the point of view of efficient human resources management”, it is legitimate to increase the weight of the internal promotion offer up to 60%.
The nullity of the distribution of these places occurs after this offer has already been suspended by order of 13 November 2024, as a precautionary measure, so the declaration of nullity implicitly determines that the distribution of the places corresponding to the 2024 offer must be carried out in compliance with the legally established percentage.
Specifically, the CSIF recalls that it is currently negotiating with the Ministry of Public Administration various aspects to improve working conditions and, in particular, issues relating to the increase in internal promotion to promote professional careers within the Public Administration. Under the terms of what was negotiated this week by the CSIF and the public service federations of CC OO and UGT unions to sign a multi-year pay and employment agreement, negotiators are considering establishing more agile career paths, with approved training that facilitates internal promotion and talent retention in administrations. To this end, they intend to create human resources plans that determine staff needs and their redistribution, for which they will promote exclusive and differentiated internal promotion processes.
