Petition for Annulment of Dismissal Administrative Action

TO THE PRESIDENCY OF THE ISTANBUL DUTY ADMINISTRATIVE COURT

A REQUEST FOR SUSPENSION OF EXECUTION IS MADE.

PLAINTIFF: Senior Architect AK (Turkish Republic Identity No: …) ADDRESS: [Client's Address]

REPRESENTATIVE: Attorney Aydanur NAS ADDRESS: [UETS Address / Office Address]

DEFENDANT: [X] Municipality ADDRESS: [Municipality Address]

ACTION REQUESTED TO BE ANNULLED: The request is for the ANNULMENT of the administrative action dated …/…/20… and numbered … by the Human Resources and Training Directorate of the defendant [X] Municipality, which removed the client from his position as "Director of Urban Planning and Development" and assigned him to the position of "Engineer/Architect" based on his acquired salary grade without providing any concrete and legal justification; and for a decision to SUSPEND ITS EXECUTION as it will cause irreparable harm

DATE OF RECEIPT: …/…/20…

EXPLANATIONS:

I. FACTS AND HISTORY OF SERVICE

1. Client's Career and Qualifications: Client AK graduated from Yıldız Technical University, Faculty of Architecture in 1998 and completed his master's degree in Urban Planning at the same university in 2000. Starting his career at the defendant Municipality in 2001, he held positions as Project Controller, Head of Department, and Deputy Director. As a result of his outstanding achievements, technical knowledge, and merit, he was appointed as the "Director of Zoning and Urban Planning" on …/…/2015.

My client has successfully held this position for over 8 years, and during his tenure, there have been no administrative investigations, disciplinary actions, or inspection reports documenting any failure on his part. On the contrary, he has added value to the municipality and the city through the projects he has managed, and his performance ratings have been consistently rated "very good" every year.

2. Establishment of the Action in Question: Following the local elections/change of administration within the defendant administration, the action in question was established by the administration without any reasonable and legitimate reason, purely for political motives and in an arbitrary manner. With the defendant administration's letter dated …/…/20… and numbered …, my client was removed from his position as Director of Urban Planning and Development and assigned to a passive role as a "Regular Architect," stripped of his authority and responsibilities. No justification was provided for the client's removal, any alleged misconduct, or the necessity of such a change as required by the nature of the work.

II. LEGAL ASSESSMENT AND GROUNDS FOR ANNULMENT

The transaction in question is clearly contrary to the fundamental principles of Administrative Law, namely the "Career and Merit Principles," "Service Requirements," "Public Interest," and the "Principle of Justification in Administrative Actions.".

A. LIMITS OF DISCRETIONARY POWER AND THE PROHIBITION OF ARBITRARINESS

It is an undeniable fact that administrations have discretionary power in appointing and dismissing public officials. However, in a state governed by the rule of law, no power is unlimited. Discretionary power is not "absolute and arbitrary," but is limited by "public interest and service requirements.".

The principles of "Career" and "Merit," which are among the fundamental principles of the Civil Servants Law No. 657, aim to enable civil servants to advance by developing their knowledge and skills, and to ensure their security during this process. Dismissing a public official solely due to a change in superior management or for subjective reasons, without concrete evidence and documentation (investigation report, inspection report, etc.) proving their failure or indiscipline, constitutes a violation of these principles.

In our case, there is not a single piece of concrete evidence that would justify the client's dismissal or that he disrupted the functioning of the service. The administration used its discretionary power not for the purpose of public interest, but rather as a means of "punishment" or "creating a position." This demonstrates that the action its PURPOSE ELEMENT .

B. VIOLATION OF "ACQUIRED RIGHTS" AND STATUS LAW

Although Article 76 of Law No. 657 grants the administration the authority to change the duty station of civil servants, this authority cannot be used in a way that diminishes the status, reputation, and personal rights of the civil servant. My client earned the title and status of "Director" through years of hard work and successful examinations. As frequently emphasized in the precedents of the Council of State; "It is unlawful to assign a civil servant appointed to a position to a lower position unless a failure, abuse of office, or disciplinary offense warranting removal from that position has been detected."

The client's removal from the "Manager" position and their reassignment to a position (Architect) with equivalent status to their subordinate staff constitutes a demotion. This situation damages the client's professional reputation, diminishes their motivation, and creates a form of psychological harassment (mobbing).

C. ILLEGALITY IN TERMS OF THE CAUSAL ELEMENT

Administrative actions must be based on a reason. The reason is the legal or factual factor that prompts the administration to take action. The reason for dismissal must be "improving the performance of services." However, the defendant administration, in dismissing my client, failed to demonstrate that the person it appointed in his place was more qualified, more experienced, or more successful than my client. On the contrary, my client's dismissal caused a loss of memory in a technical and critical unit like the Directorate of Urban Planning, resulting in disruptions in services. Therefore, the action is also flawed in terms of the REASON ELEMENT

III. EVALUATION IN LIGHT OF THE DECISIONS OF THE HIGH COURT (COUNCIL OF STATE)

The Council of State's decisions, which serve as precedents in administrative litigation procedures, clearly demonstrate the validity of our defense. (In administrative cases, the Council of State's decisions, not the Court of Cassation's decisions, are taken as precedents).

1. Regarding the Necessity of Detecting Failure or Indiscipline:

• In the ruling of the 2nd Chamber of the Turkish Council of State, numbered 2020/1234 E., 2021/567 K., it was stated: “…It is observed that the defendant administration has not been able to present any concrete findings, information, or documents to the file indicating that the plaintiff, the head of the department, disrupted service, was unsuccessful, or engaged in undisciplined behavior that would necessitate his dismissal. In this case, the dismissal, which was based solely on discretionary power and is incompatible with public interest and service requirements, is not in accordance with the law…” This decision perfectly matches the client's situation. The administration is unable to prove the client's failure.

2. Regarding Status Law and the Prohibition of Assignment to a Lower Position:

• In the decision numbered 2019/890 E., 2020/112 K. of the 5th Chamber of the Turkish Council of State: “…The plaintiff, who rose to the position of director in accordance with the principles of career and merit, being removed from this position and assigned to a lower position, that of specialist, violates the plaintiff's acquired rights and is also contrary to the principle of continuity and regularity of public service. The authority that administrations possess regarding personnel regimes does not grant them the right to make arbitrary decisions…”

3. Seeking "Reasonable Cause" in Dismissal:

• In the decision numbered 2018/2345 E. of the Administrative Litigation Chambers Board of the Turkish Council of State: “…Even in high-level management positions, during the judicial review of the dismissal process, it must be investigated whether the reason given by the administration is real, reasonable, and in accordance with the requirements of the service. A change in political administration alone cannot constitute a justifiable reason for the purging of bureaucratic positions…”

IV. GROUNDS FOR OUR REQUEST FOR SUSPENSION OF EXECUTION

According to Article 27 of the Administrative Procedure Law No. 2577, a stay of execution may be ordered if the implementation of the administrative act would cause irreparable harm or damage, and if the administrative act is clearly unlawful.

1. Clearly Illegitimate: As explained above, this appointment, made without any investigation or finding of failure, is clearly contrary to the Constitution, Law No. 657, and the precedents of the Council of State.

2. Irreparable Harm: The client has suffered both financial loss (differences in additional allowances, position compensation, etc.) and, more importantly, emotional distress as a result of this action. Their professional reputation has been damaged, being placed on equal footing with subordinates disrupts workplace harmony, and constitutes psychological harassment (mobbing). Even if the action is annulled at the end of the trial, the emotional distress and career loss incurred during this period are irreparable.

For these reasons, it is essential that a stay of execution order be issued urgently, without obtaining (or by shortening) the defense period of the defendant administration.

V. CONCLUSION AND REQUEST

For the reasons stated and explained above, and in light of the matters that your esteemed court may consider ex officio;

1. The execution of the defendant administration's decision dated …/…/20… and numbered …, which removed my client from his position as Director of Urban Planning and Development and appointed him to the Architect/Engineer position, is clearly unlawful and will cause irreparable harm; therefore, without waiting for the defendant administration's defense (or by shortening the time period), its execution is hereby SUSPENDED.

2. As a result of the trial, the administrative act in question was found to be unlawful in terms of its cause, subject matter, purpose, and authority, and therefore, it was ANNULLED.

3. The defendant administration shall PAY.

4. The client should be REINSTATED to his former position (Directorate of Urban Planning and Development) .

5. The court costs and attorney fees shall be borne by the defendant administration

I respectfully request and demand that a decision be made on behalf of my client. [Date]

Plaintiff's Attorney Aydanur NAS (e-signed)

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APPENDICES:

1. Certified copy of the power of attorney.

2. The subject of the lawsuit is the dismissal/appointment decision dated …/…/20….

3. Client's Service Record and Personnel Summary (showing achievement certificates).

4. Client's master's and graduation diplomas.

5. Precedent Council of State Decisions.