By the preliminary action of the judgment, the appellant requested the annulment of the documents specified in the appeal through his lawyer in the part where the score in the final ranking of the third ATA staff group was corrected for the three-year period 2021/2023 taking into account, that the benefit provided at the vocational training institutions inserted in the application for participation in the Ministry of Education n. 50/2021. The Regional Administrative Court of Lazio is delivered by judgment N. 07646/2022.
Legislation on the regulatory issue
THE TAR, dismisses the appeal and reconstructs the current legislative framework. He notes that according to Art. 4, ln 124 of 1999, with its own decree to be adopted in accordance with the procedure provided for in Article 17, para. 3 and 4, of Act no. 400, the Minister of Public Information shall issue a regulation on the discipline of allocating annual and temporary substitutes, in compliance with the criteria mentioned in the following paragraphs.
With subsequent decree of the Minister of Public Education of 13 December 2000, n. 430 and accompanying tables, the Ministry implemented the aforementioned regulatory provision without including among the evaluable scores those set at the educational institutions. On the contrary, the aforementioned tables contain an in-depth examination of the qualifications that can be assessed.
Ministerial Decree n. 50 of 2021, today contested, in visas, explicitly recalls the aforementioned Decree No. 430 of 2000 – which makes it possible to exclude that it has been adopted to replace the previous one – and punctually refers to Article 8 , PCS. presentation of applications for inclusion in the club and school order and for the formation of the ranking itself; Article 5, para. 6 of the aforementioned regulation, which establishes the three-year validity of the club and school order at the third level.
In detail, it should be borne in mind that the methods of adoption of the 2021 Regulation and the references in the relevant premises allow us to believe that the 2021 Decree can be enforced in relation to the 2000 Decree in the sense that it cannot amendments or derogations thereto, unless adopted in accordance with the aforementioned paragraphs 3 and 4 of Art. 17 of ln 400 of 1988.
There is no automaticity between the activity of public and private institutions
With regard to the comparability of activities carried out in public and private institutions, the case law of the Council of State has already had the possibility of excluding “the absolute automatic equalization between the service provided in private schools and that provided in public schools, in particular with regard to referral. to ‘the use of specific institutes governing the employment conditions of teachers’ (Cons. St., Title VI, nos. 2717/2020 and 4770/2020).
In any case, it does not seem unreasonable and illogical and therefore to the detriment of the principle of equality that the score in question is not calculated in relation to those who have served in non-governmental bodies, as the methods of selecting teachers in the aforementioned bodies. is based on non-competitive criteria with the consequent difference between the functions performed by one institution and the other.
It is necessary to consider on this point that the case – law of the Prime Minister, with reference to the insolvency proceedings, has consistently considered it legitimate to distinguish between activities carried out in private and public schools, with a view to accessing the insolvency proceedings. Similar conclusions can also be drawn with reference to the score justifying the relative relationship with reference to the selective procedures envisaged in one case and the other, as well as with reference to the different discipline and regulation that characterizes the administrative and pedagogical body. in both cases .
In particular, the Government has already stated at a consultation meeting against the exclusion of the benefit provided in the vocational training centers accredited by the regions, as it considers that the exclusion in question does not contravene the principles of fairness. and equality. (in particular the aforementioned Opinion No 1089 of 24 June 2021).
This exegetical approach was confirmed by the subsequent Opinion No. 451 of 2021, which dealt with the relationship between the service provided in private schools and that provided in public schools.
By recalling other judgments of administrative justice, the TAR therefore confirms this in fact, there is a general principle of comparability between the state school and the peer school, derived from the homogeneity of the awarded academic qualifications, the duration of the school years, the schedules, the programs and the education offer plan. However, this is neither a sufficient nor a conclusive justification for confirming equivalence in the absolute sense and for all legal purposes.
In the light of the above considerations, the section ultimately agrees with the conclusion that the teaching services provided at vocational training institutions are not comparable with those carried out at educational establishments, resulting in the teaching not being illogical or unreasonable. relative exclusion.
This is to rule out the possibility that the principles of fairness and equality may be considered violated.
The work of the administration does not appear illegitimate, even with reference to the teaching and operating staff, for whom the compensation was made by express legal provision, while the executive nature of the executive order in question, as emphasized, does not allow an extension of the range of assessable qualifications. to be specific violations of the law.