RESIGNATION OR DISMISSAL FROM PUBLIC SERVICE
RESIGNATION OR DISMISSAL FROM PUBLIC SERVICE
The continuity and effectiveness of public service constitute one of the fundamental functions of administration. In fulfilling this function, civil servants are the direct implementers of public power. Therefore, civil service status, unlike an ordinary employment relationship, carries a legal status directly linked to public order.
The termination of civil service status is a process that affects not only an individual relationship but also the functioning of public service. This termination can be based on the civil servant's own will or can occur through a unilateral action by the administration. In this context, the concepts of resignation and dismissal from civil service emerge as two fundamental forms of termination that differ in both cause and effect.
The Council of State's jurisprudence also emphasizes that procedures for terminating civil service status should be evaluated by striking a balance between the continuity of public service and individual rights.<sup>1</sup> This approach reveals that civil service status is not only an individual right but also an obligation tied to the public interest.
Resignation from public service means the employee leaves their position voluntarily, while dismissal from public service represents the most severe sanction applied by the administration within the framework of disciplinary law. The distinction between these two situations is of great importance, not only theoretically but also in terms of its practical consequences.
This study will systematically examine the concepts of resignation and dismissal from public service; the legal nature of these processes, their consequences, and the methods of resolving disputes arising from these actions will be analyzed in detail.
The Conceptual Distinction Between Resignation and Dismissal from Public Service
To properly understand the processes related to the termination of civil service status, it is necessary to clearly distinguish between the concepts of resignation and dismissal from civil service. Although these two institutions lead to the same result, namely the termination of civil service status, they contain significant differences in terms of their legal nature, the will upon which they are based, and the consequences they produce.
a. Leaving Public Service (Resignation)
Leaving public service means that a civil servant voluntarily terminates their connection with public service. In this respect, resignation is based on a unilateral declaration of will and, as a rule, is the result of the civil servant's free will.
However, this will cannot be evaluated within the framework of absolute freedom. Due to the principle of continuity of public service, the departure of a civil servant from their post is subject to specific procedures. Since a civil servant's sudden abandonment of their duties can lead to disruptions in public service, the legal system has addressed this process within a controlled framework.
While the existence of the right to resign is accepted in the decisions of the Council of State, it is stated that this right may be limited by the requirements of public service.<sup>1</sup> This approach reveals that a balance must be struck between the individual will of the civil servant and the public interest.
Therefore, although resignation from public service may seem like an individual right, it is a process that does not involve absolute freedom and is subject to certain procedural rules.
b. Dismissal from Public Service (Disciplinary Punishment)
Dismissal from public service is a disciplinary action that results in the termination of a civil servant's employment in public service. This sanction is applied when the civil servant's continued employment is deemed incompatible with the requirements of public service.
Dismissal does not depend on the employee's will; it occurs through a unilateral action of the administration. Therefore, dismissal is not considered an individual choice, but a necessary intervention aimed at protecting public order.
The Council of State's jurisprudence emphasizes that dismissal from public service can only be imposed if the employee's conduct seriously undermines the trust and prestige of public service.²This clearly demonstrates that dismissal is an exceptional and severe sanction.
Furthermore, the principles of proportionality and legality are of great importance in the application of this sanction. Dismissal decisions based on arbitrary or insufficient grounds can be overturned under judicial review.
c. Differences from Other Termination Cases
Civil service status does not end solely through resignation or dismissal. There are other termination cases such as retirement, death, or deemed resignation. However, these cases differ in terms of the employee's will and the administration's intervention.
The Council of State's decisions clearly demonstrate this distinction, stating that dismissal from public service and other terminations are subject to different legal regimes.3
Therefore, resignation and dismissal from public service should be considered two fundamental institutions requiring special and separate examination in determining the termination of public service status.
The Process of Leaving Civil Service
While resignation from public service refers to a civil servant's voluntary departure from public service, this process cannot be reduced to a purely free declaration of will. Due to the principle of continuity of public service, resignation is subject to specific procedural rules and regulated to be valid only under certain conditions. In this respect, resignation should be considered a balanced legal mechanism established between an individual right and the public interest.
a. Declaration of Intention to Resign
The process of leaving public service begins with the employee notifying the administration in writing of their desire to resign. This notification constitutes a unilateral declaration of intent and, as a rule, is based on the employee's free will.
However, for this intention to have legal effect, it must be expressed clearly, definitively, and without any room for doubt. The Council of State emphasizes that the intention to resign must be unambiguous and that indirect or vague expressions cannot be considered a resignation.1
This situation demonstrates that, since resigning from public service is a serious and consequential act, the declaration of intent must be carefully considered.
b. Waiting Period and Obligation to Continue Duty
A civil servant's submission of a resignation request does not automatically mean they can leave their post immediately. The legal system obligates civil servants to continue in their duties for a specified period to prevent disruption of public service.
During this period, the employee continues to perform their duties, and the administration makes the necessary arrangements to appoint a new employee in their place. This arrangement aims to ensure the continuity of public service.
The Council of State's rulings state that if a civil servant leaves their post without complying with this period, they will incur legal liability, and this situation may be considered as "deemed to have resigned".2
This approach clearly demonstrates that the right to resign is not unlimited and must be balanced with public service.
c. Relationship with the State of Being Deemed to Have Withdrawn
If a civil servant leaves their post without resigning in accordance with the procedure, or fails to comply with the specified time frame, they are considered to have "resigned." This situation results in the legal termination of the civil servant's status as a civil servant, along with their actual departure from duty.
However, being deemed to have resigned is not a resignation in the classical sense. This is a legal consequence arising from the civil servant's failure to fulfill their obligations. The Council of State clearly establishes this distinction and states that being deemed to have resigned is not subject to the same legal regime as resignation.3
d. The Role and Limits of the Administration
The role of the administration in the process of leaving public service is limited. As a rule, resignation occurs through a unilateral declaration of will by the employee and is not subject to the approval of the administration. However, as required by public service, the administration has the authority to supervise and regulate the process to a certain extent.
The Council of State emphasizes that the administration cannot act arbitrarily when exercising this power and must act only within the limits of the public interest.4
This situation demonstrates that a balance has been struck between the powers of the administration and the rights of the civil servant.
The Process of Dismissal from Civil Service
Dismissal from public service is the most severe sanction under disciplinary law, resulting in the permanent termination of the employee's public employment. Therefore, the dismissal process is subject to strict rules, both substantively and procedurally; the administration's discretionary power is kept within certain limits. This process is not merely an application of sanctions; it is also an administrative act surrounded by legal safeguards and open to judicial review.
a. Initiation of Disciplinary Investigation
The process of dismissal from public service begins with an alleged disciplinary offense committed by the employee. Following this allegation, the administration initiates a disciplinary investigation. The purpose of the investigation is to uncover all aspects of the incident and determine the employee's responsibility.
The Council of State's decisions clearly emphasize that disciplinary investigations must be based on concrete facts and that severe disciplinary penalties cannot be imposed based on abstract allegations.<sup>1</sup> This approach demonstrates that disciplinary law is not open to arbitrary practices.
b. Right to Defense
The most fundamental safeguard in the process of dismissal from public service is the right to defend oneself. A civil servant should be informed about the allegations against them and be able to respond to them.
According to the precedents of the Council of State, disciplinary penalties imposed without granting the right to defense are unlawful and must be annulled.²This situation demonstrates that the right to defense is not merely a formality; it is an indispensable element of the process.
In order for the right to defense to be exercised effectively:
- the allegations being clearly stated,
- allowing sufficient time,
- Access to the evidence
must be provided.
c. Collection and Evaluation of Evidence
In a disciplinary investigation, evidence is used to determine whether the employee's actions are proven. This evidence includes:
- witness statements,
- written documents,
- official records
.
The Council of State states that disciplinary penalties must be based only on conclusive and concrete evidence; severe sanctions cannot be imposed based on suspicion.3
This approach demonstrates that the principle of "the benefit of the doubt goes to the accused" is also effective in disciplinary law.
d. Disciplinary Board Decision
Once the investigation is complete, the file is submitted to the competent disciplinary board. The board evaluates the evidence obtained and decides whether or not to impose a penalty of dismissal from public service.
This decision:
- it must be justified,
- being related to the specific case
- comply with the principle of proportionality
.
The Council of State emphasizes that disciplinary penalties based on unjustified or insufficient grounds are unlawful and should be annulled.[^4]
e. The Principle of Moderation and Proportionality
Dismissal from public service, being the most severe disciplinary penalty, should only be applied in exceptional circumstances. The principle of proportionality is of paramount importance in this regard.
In the jurisprudence of the Council of State, it is stated that it would be unlawful to impose the penalty of dismissal from public service in cases where the aim could be achieved with a lighter disciplinary penalty.[^5]
This approach establishes that penalties in disciplinary law should be graded and proportionate.
f. Judicial Review
Dismissal from public service is subject to judicial review because it is an administrative act. This review aims to determine whether the act is lawful.
The Council of State, within the scope of this audit:
- the reason on which the process is based,
- sufficiency of evidence
- It examines in detail whether procedural rules have been followed .[^6]
In this respect, judicial review is a fundamental safeguard that limits the disciplinary authority of the administration and protects individual rights.
Legal Consequences of Resigning or Being Dismissed from Public Service
While both resignation and dismissal from public service result in the same outcome—the termination of public service status—they have significant legal consequences. These differences directly affect the employee's future status, economic rights, and the possibility of re-establishing a relationship with public service. Therefore, the nature of the termination plays a decisive role in evaluating its consequences.
a. Consequences of Leaving Civil Service
Resignation from public service, since it refers to a civil servant leaving their position voluntarily, has more limited and flexible legal consequences.
In this context:
- The employee's connection with public service ends.
- However, reappointment to public office may be possible under specific conditions.
- As a rule, resignation does not create a negative record for a civil servant in terms of disciplinary law.
The Council of State's rulings also state that resignation does not completely eliminate a civil servant's professional future and that, under certain conditions, there is a possibility of returning to public service.1
This situation demonstrates that resignation is a form of termination based on individual will and has less severe consequences.
b. Consequences of Dismissal from Public Service
Dismissal from public service, however, has far more severe and permanent consequences. This sanction completely and definitively severs the employee's ties to public service.
In this context:
- The employee's public service is terminated.
- Reinstatement to public service is generally not possible.
- Disciplinary action creates a negative record in an employee's professional history.
The Council of State's jurisprudence emphasizes that the penalty of dismissal from public service is not limited solely to the current position; it is also a severe sanction that prevents the civil servant from re-entering public service.2
In this respect, the removal has serious consequences not only legally, but also socially and economically.
c. Impact on Financial and Social Rights
The termination of civil service status directly affects the financial and social rights of the civil servant.
In case of resignation:
- Civil servants can protect their retirement rights under certain conditions.
If removed:
- Some rights may be lost or restricted.
The Council of State specifically states that the impact of disciplinary penalties on the financial rights of civil servants should be evaluated within the framework of the principle of proportionality.3
d. Termination of Relationship with the Administration
In both cases, the employee's legal relationship with the administration ends. However, the nature of this termination differs.
- Resignation → a voluntary and smoother departure
- Expulsion → a mandatory and punitive separation
This distinction directly affects the nature of subsequent legal processes and disputes.
Disputes and Solutions Regarding Resignation or Dismissal from Public Service
The processes of termination and dismissal from public service are administrative acts established unilaterally by the administration. Therefore, these acts are subject to judicial review in terms of their legality. In practice, most disputes arise particularly from dismissal procedures; whether the legal guarantees of the civil servant have been violated is reviewed by the judicial authorities.
a. Annulment Case
The primary recourse against dismissal from public service is an annulment lawsuit. Through this lawsuit, the civil servant argues that the administrative action is unlawful and requests its annulment.
In an annulment case, the court examines the action within the framework of classic administrative action elements:
- authority,
- shape,
- reason,
- Subject,
- aim
The Council of State particularly emphasizes that the "reason" element must be based on concrete and sufficient evidence.<sup>1 </sup> Dismissal actions based on abstract, general, or unproven allegations are deemed unlawful and are annulled.
In addition, procedural errors such as violation of the right to defense, incomplete investigation, or a decision lacking reasoning are also considered grounds for annulment.2
b. Full Judgment Case
If the dismissal from public service is found to be unlawful, the employee can request not only the annulment of the dismissal but also compensation for the damages suffered. In this case, a full judicial review lawsuit is initiated.
With a full trial:
- loss of salary
- violation of personal rights
- non-pecuniary damages
can be made.
The Council of State accepts that damages resulting from unlawful disciplinary actions must be compensated by the administration.3
c. Suspension of Execution
Dismissal from public service can cause irreparable or irreversible harm to the employee. Therefore, a stay of execution may be requested during the legal process.
The court, while considering this request:
- whether the transaction is clearly illegal,
- whether or not irreparable harm will occur
.
In the jurisprudence of the Council of State, it is accepted that dismissal from public service often causes irreparable harm, and it is stated that a stay of execution may be ordered if the necessary conditions are met.4
d. Administrative Appeal Procedures
Before resorting to legal action, administrative appeal procedures can also be utilized. The employee can appeal the disciplinary decision within the administration or request a reassessment.
These avenues can help resolve disputes more quickly. However, whether these applications are mandatory depends on the specifics of the case.
e. Scope of Judicial Review
Administrative courts review dismissal procedures not only in terms of form but also in terms of substance. In this context:
- whether the act was actually committed or not,
- whether the punishment is proportionate
- Whether the administration has exercised its discretionary power in accordance with the law
is examined.
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