Commentary on the Ruling of the Palestinian Supreme Court of Justice in Administrative Case No. 53/2009 “Probationary Period in Public Employment and the Finality of Administrative Decisions”

Abstract

The judicial ruling under comment focused on several decisions issued by the Minister of the Ministry of Education which included the abolishment of applicants hiring decisions, it also focused on the letter issued by the Public Personnel Office and was addressed to the Minister of the Ministry of Education which included informing the Minister of the Ministry of Education the security authorities’ rejection of the applicants hiring.

The ruling under comment is of an exceptional importance in the legal field since it addresses the most important legal issues that may affect hiring decisions in the public service. This due to the fact that hiring decisions constitute the legal effect upon which legal positions for employees in the public service are formed.

The hiring decision included within the ruling under comment, is considered an administrative decision that has fulfilled all its legal conditions, and the probationary period to which employees in the public sector are subject to, which raised controversy under this ruling, and does not affect the conclusive of the hiring decision. Its effect is limited to the employee’s continuation in his position, not on considering him an employee. Notably that this approach constitutes the approach adopted by the administrative judiciary in its rulings, that hiring an employee under a probationary limited period is a final decision that has fulfilled all its legal condition.

Another issue has been raised by the said ruling with regard the requirement of obtaining a security approval for hiring employees. Noting that the hiring conditions of public servants are restricted by the legislator in an unambiguous legal provision in order to prevent any interpretations made by the executive authority for any other purposes than those determined by the law. Hence, the requirement of obtaining a security approval as claimed by the administration, the defendant, is considered a misuse of its power, based on the non-existence of any legal conditions that requires obtaining a security approval for hiring employees in the public service. This resulted in considering the issued termination decisions of the applicants as decisions based on no legal or factual grounds. This led the administrative judiciary through the general assembly of the Supreme Court in Palestine to issue its famous ruling to abolish the Minister’s decisions.