Décision judiciaire de Conseil d'Etat, 14 juin 1993 (cas Conseil d'Etat, 3 / 5 SSR, du 14 juin 1993, 118282, mentionné aux tables du recueil Lebon)
Date de Résolution: | 14 juin 1993 |
Juridiction: | Conseil d'etat |
Nature : | Décision |
Vu la requête sommaire et le mémoire complémentaire, enregistrés au secrétariat du Contentieux du Conseil d'Etat les 3 juillet 1990 et 6 août 1990, présentés par le DEPARTEMENT DE LA LOZERE, représenté par le président du conseil général ; le DEPARTEMENT DE LA LOZERE demande au Conseil d'Etat :
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d'annuler le jugement du 20 mars 1990 par lequel le tribunal administratif de Montpellier a, à la demande de M. Bernard X..., annulé l'arrêté du 4 avril 1989 par lequel le président du conseil général a nommé M. Joël Y... rédacteur territorial stagiaire ;
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de décider qu'il sera sursis à l'exécution de ce jugement ;
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de rejeter la demande présentée par M. X... devant le tribunal administratif ;
Vu les autres pièces du dossier ;
Vu la loi n° 84-53 du 26 janvier 1984 modifié par la loi n° 87-529 du 13 juillet 1987 ;
Vu le code des tribunaux administratifs et des cours administratives d'appel ;
Vu l'ordonnance n° 45-1708 du 31 juillet 1945, le décret n° 53-934 du 30 septembre 1953 et la loi n° 87-1127 du 31 décembre 1987 ;
Après avoir entendu en audience publique :
- le rapport de M. Marc Guillaume, Auditeur,
- les conclusions de M. Toutée, Commissaire du gouvernement ;
Sur la recevabilité de la demande de première instance :
Considérant que les fonctionnaires appartenant à une administration publique ont qualité pour déférer à la juridiction administrative les nominations illégales faites dans cette administration, lorsque celles-ci sont de nature à leur porter préjudice en retardant irrégulièrement leur avancement ou en leur donnant pour cet avancement des concurrents qui ne satisfont pas aux conditions exigées par les lois ou règlements ; que, notamment, tout fonctionnaire a intérêt à poursuivre l'annulation des nominations et promotions faites soit à son grade, soit aux grades supérieurs de son cadre ; qu'ainsi M. X..., commis dans les services du DEPARTEMENT DE LA LOZERE, qui, sous condition d'âge, a vocation à être nommé rédacteur au tour extérieur, avait qualité pour demander l'annulation de la nomination de M. Y... au grade de rédacteur, par arrêté du président de ce conseil général en date du 4 avril 1989 ; que, par suite, le DEPARTEMENT DE LA LOZERE n'est pas fondé à soutenir que le tribunal administratif aurait dû rejeter comme irrecevable la demande dont il était saisi ;
Sur la légalité de l'arrêté du 4 avril 1989 :
Considérant qu'à l'appui de l'arrêté du président du conseil général en date du 4 avril 1989, le DEPARTEMENT DE LA LOZERE...
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