Military service and score in the rankings for teachers and ATA, is it up to or not? What is happening in the courts

With sentence No. 08254/2021, the Lazio Regional Administrative Court reconstructs, recalling some important precedents, the long-controversial question of the evaluation of military service whether or not the appointment is constant, and which can be recognized for the purposes of scoring in the rankings. Interesting sentence given the fact that the management of the ATA rankings to which this dispute refers is in progress. In the ruling in question, we recall the rethinking that took place in the jurisprudence, confirming the fact that this matter was anything but peaceful, and now it seems to be directed towards a univocal road.

The afterthought

In application of the principle of more liquid reason, the judges affirm, the appeal in question on which it is pronounced must be rejected in the light of the jurisprudence of this Court (see the judgment of this Section 28 May 2021 n.6355) and of the Council of State, from which the Board believes there are no reasons to depart. In particular, this Section with the aforementioned ruling found that “Art. 2050 of Legislative Decree 66/2010 (Evaluation of military service as a title in public competitions) provides for the evaluation of the period spent as a conscript soldier “pending employment”. Following the issuance of the military code (Legislative Decree no. 66/2010) there has been a rethinking by the jurisprudence of the assessability of the military service provided not in accordance with the appointment, as art. 2050 mentioned above provides for the assessment of the period spent as a conscript soldier “pending employment. The MIUR regulatory provisions governing the rankings, both at exhaustion and at the institute level, establish the evaluation of military service and similar services only if performed in constant appointment.

Only the military service in constant employment is assessable

Correctly, affirms the TAR, in fact it must be inferred that only the military service provided in constant employment must be evaluated in the discipline of the provincial rankings which are selections latu sensu concorsuali as they are open to a plurality of candidates in competition with each other ( Cass. Civil Section Labor 2 March 2020 n. 5679 in the matter of GAE) and therefore the discipline of art. 2050 of the Legislative Decree n. 66 of 2010.

“With regard to the military service in constant appointment (not), finally, one can justifiably speak of discrimination, having to consider that the one who is temporarily absent from teaching to fulfill the military obligation (with the right to retain the job) does not should be penalized with respect to those who have not had to fulfill this obligation; on the contrary, such a consideration would not make sense in the case of military service provided before any teaching assignment, in which case the military service is not different from other situations, objective and independent of the will of the individual (e.g. illness), which could delay access to teaching positions. “

Even the Council of State with sentence no. 2743 of 2020 had already held that “2.2‒ Although the legal question initially registered some fluctuations, the Section shares the jurisprudential orientation which stabilized in favor of the ministerial thesis, as last summarized by the Council of State, Section One, November 6 2019, n. 40 of 2020, of which the main provisions must be briefly reported.

The relationship between military service, civil service and evaluation in public competitions

“According to various rulings of this Council of State, the military service and the replacement civil service for the periods performed prior to the appointment” has nothing to do with the evaluation of qualifications in competitions and in the insolvency procedures for recruitment in public administrations “, on the assumption that” it would be unjustified for military service to be assessed as an index of suitability for teaching, to the detriment of those with higher qualifications relevant to the activity to be carried out, given that one thing is to protect those who must leave the work to fulfill military obligations, it would be quite another thing to evaluate military service as a title of merit for a teaching with which it has no connection “(State Council, Section II, 22 November 2011, no. 4259; 17 June 2015, no. 2314, most recently 13 December 2017, no. 2612) “.

In the ATA rankings, only military service in constant appointment can be evaluated

“Definitely, only for the service provided in constant appointment is the need to prepare a compensation measure pre-eminent, since military service is a cause of suspension of the employment relationship independent of the will of the working citizen. An effective prejudice to the “working position” (art. 52 of the Constitution) of the teacher arises only if the teacher, already appointed, albeit with a fixed-term contract, is called to perform military service or civilian replacement service, since, otherwise, there would be an inequality of treatment to the detriment of all those who have served in the interest of the Nation. “

For the aforementioned reasons, the alleged diversity of assessment for the purposes of the score, in the contested measures, of the military service (or replacement) provided in the absence of an existing employment relationship cannot be considered illegitimate, for the purposes of entry into the ATA rankings.

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