Direito à nomeação para cargos públicos providos por concurso público: exame dos casos paradigmas do Supremo Tribunal Federal e análise documental de casos do Tribunal de Justiça do Rio Grande do Norte

Abstract

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 aim of this work is to present a critical study about the right to appointment to public posts and jobs, to present the national panorama on the subject and to which cases there is a subjective right to the act of appointment in accordance with the jurisprudence of the Court of Justice of Rio Grande do Norte. 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 end of this dissertation, it was necessary to study the evolution of Public Administration - delineating characteristics of the patriarchal, bureaucratic and managerial - period, to present, together with its loyal foundations, the current the concept of subjective right, to present the requirements for appointment, for the perfectibilization of provision, to present jurisprudential evolution on the right to nomination and, finally, to carry out an empirical study on the decisions of the Plenary of the TJ / RN of the year 2017 on right to the appointment, identifying the cases in which it occurred. It is concluded that there was a notable evolution of the understanding on the subjective right to the appointment with RE 598.099 / MS and RE 837.311 judged by the STF and that the main source in cases of the right to appointment continues to be jurisprudence. It was identified that the TJ / RN followed the understanding of such decisions in the vast majority of their votes, however, in cases where the public notice expressly provides for immediate appointment and in the appointment by judicial force, the local Court has divergent understandings from the High Courts. Also, it was verified that the fiscal situation with the personnel expenditure in Rio Grande do Norte is serious and that, if there is robust proof, it can prevent the nomination of approved candidates in public tender.