Direito à nomeação em caso de necessidade pública declarada em cargos providos por concurso público

• Autor(a) principal: Oliveira, Raiano Tavares de
• Data de Publicação: 2017
• Idioma: por
• Título da fonte: Repositório Institucional da UFRN
• Texto Completo: https://repositorio.ufrn.br/handle/123456789/44167
• topic: Nomeação; Ato administrativo; Concurso público; Direito subjetivo; CNPQ - Ciências Sociais Aplicadas – Direito - Direito Público - Direito Administrativo

The institute of the public tender obtained its most firm form in the 1988 Constitution. In its article 37, it is clear that it is compulsory to submit to the public tender in order to obtain a public job or career position. As there is no infraconstitutional law indicating the details of the public tender, doctrine and case law are the main sources for settling disputes arising from this topic, especially the subject of appointment. There is already an understanding established by the Federal Supreme Court that the candidate approved within the number of vacancies has a subjective right to be nominated within the validity of the public tender. What the Courts are currently discussing is the right to appoint those who have been approved in the reserve register depending on the factual context they are inserted. The purpose of this work is to explain the possibility of reducing the discretionary performance of the Public Administrator in the nomination of candidates approved in public tender to be reduced to such low levels that, consequently, would generate a subjective right to the appointment when there was public need declared for that position. This study is based on bibliographical research combined with a legal, doctrinal and legislative view, in addition to the vast jurisprudential use. In order to reach the object of this monograph, it was necessary to study the evolution of the Public Administration - outlining characteristics of the patriarchal, bureaucratic and managerial period -, to present, together with its legal bases, the current operation of the institute of the public tender, expose the requirements for appointment, for the perfectibilization of the appointment, and, finally, to comment on the hypotheses to obstruction the appointment, and, finally, to present the protection of the right to the appointment when there is evident public need through Extraordinary Appeal 837.311/PI – leading case judged by the Federal Supreme Court. It is concluded that it is possible to reduce the discretionary of the Public Administrator when there is a disrespect, in this case, of the guiding principles of the Brazilian Public Administration, thus generating the subjective right to nominate even approved candidates out of the number of vacancies foreseen in the public edict.