A (in)viabilidade de transpor a progressão funcional quando da posse em idêntico cargo pertencente ao Judiciário da União

Abstract

The object of this monograph is the study of the right of the public servant, belonging to the Judiciary, who obtains the approval in a public contest destined to the filling of vacancies for the same named and assignments position within the same body of the Federation (the Union) and Specialized Justice (for For example, the Federal Court), to transpose the functional progression that has been established over the years of public service rendered in the exercise of the career. Although the server can count on the removal institute, he faces the uncertainty of when or if it will ever be possible to do so. For this reason, he takes part in a new contest with the intention of moving to the place where, in fact, he wishes to exercise its activities, being successful in being approved again, when in contrast, he attends to the decrease of its maturities. This research seeks to broaden the perspectives on the subject, through the analysis of concepts constructed by the Doctrine, such as "provision" and "career", using the theoretical method of bibliographic research, proposing that career be interpreted broadly to avoid contradictory decisions. It is considered, based on the definitions made by Mello (2010), that, unlike that indicated by a portion of the Doctrine, the original provision does not contain previous legal relationships or inaugurates a new statutory relationship, as this does not occur in the current situation job. The elucidation of these concepts, based on the teachings of Mello (2010) and infraconstitutional legislation, is essential to demonstrate the possibility of maintaining the salary level of the server with the tenure of the same career. In light of the fundamental guarantee of art. 5º, XXXVI of the Federal Constitution, it is considered the progression and functional promotion acquired rights of the server while in the same career and specialized Justice, understanding that translates the possibility of transposing them to the new position. In observing the indispensable requirements for the law to enter into the legal sphere of the server, it is noted that it is the way in which the previous relation was terminated, by request of vacancy or exoneration, and not exactly the form of fulfillment of the public position, that Will delineate the right to perpetuate the functional level already achieved by the agent.The subject to be investigated, in spite of the scarcity of discussion, mainly in the doctrinal scope, is recurrent, presenting many variables, that could not be exhausted in this research.