EXP.
No. CAJAMARCA 01155-2010-PA/TC
Yris GONZALES CONSUELO BURGOS
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 21 days of October 2010 the Second Chamber of the Constitutional Court, composed of Judges Mesía Ramírez, Hayen and Eto Cross Street, made the following statement
Case Appeal
constitutional tort brought by Dona Consuelo Burgos Gonzales Yris against the decision issued by the Mixed Chamber of the Superior Court of Cajamarca, on pages 59, the date January 22, 2010, which dismissed the demand for cars. BACKGROUND
The plaintiff brought claim for protection against the Department of Local Education Management Unit of the Ministry of Education Chota, seeking rescission of Resolution Directorial 1148-2008-GR-CAJ-UGEL/CH, dated June 19, 2008, denying his request for inclusion in the regime of Decree Law 20530 and, therefore, access to what is claimed and refunds paid , statutory interest and costs.
The Mixed Court of Santa Cruz de Cajamarca, dated November 10, 2009, declared unfounded claim, finding that the claim has no constitutional support.
The superior authority, confirming the appeal, declared inadmissible, on the same basis. BASICS
Hometown demand
1. On the basis 37. a) of the STC 1417-2005-PA/TC, published in the official gazette El Peruano, 12 July 2005, the Court noted that part of the substance directly protected by the fundamental right to the pension laws that down the conditions of free access to social security system, fundamental to the public or private employment activity dependent or independent, and which enables the corresponding contributions to the pension system.
2. Thus, we find that the preliminary rejection of the application, both the appeal and the appeal, based on the facts and the request are not directly referred to constitutionally protected content the right claimed or procedural routes are equally satisfactory, it is a mistake, so should be declared based on the constitutional tort action brought and, overturning the original decision, the court also ordered to proceed to admit the application process.
3. However, in contrast to cases like that now touches resolve, that is if despite preliminary rejection of this demand could Collegiate (or not) issue a ruling on the merits, the case law is consistent in pointing out that if the actuated evidence is sufficient evidence to elucidate and resolve that claim, it is unnecessary to order the appellant to suffer the anguish again to see that the process is restarted or is delayed, however the time (STC 4587-2004-AA), especially when taking into consideration that, as checks on pages 52, have been met to inform the located on the appeal against the decision rejecting the claim and the injunction order which grants, in accordance with the provisions of article 47, in fine, Constitutional Procedural Code.
4. But while I was duly notified of the site with the existence of this process and the act has guaranteed the right of defense. Also, in the case there are sufficient elements that allow to explain the constitutional controversy, and it would be idle to favor a formality before the caution of the fundamental rights invoked. Indeed, an evaluation of the act is evidence that there are necessary steps to issue a ruling on the merits, so that in applying the principles of economy and speed up the trial, this issue Collegiate background statement.
Delimitation of the request
5. In this case, the applicant is an active worker seeking reinstatement to the pension scheme regulated by Decree Law 20530, and consequently, his claim falls within the circumstances set out in the 37th foundation) of that sentence, why should analyze the merits of the issue.
Analysis of the dispute
6. Previously it should be noted that the origin of the applicant incorporating the regime of Decree-Law 20530 shall be assessed in light of the provisions laid down by the regime itself and of those which, by exception, which reopened on several occasions in force until 30 November 2004, when Law 28449 was enacted, which established new rules for the regulation of Decree Law 20530, prohibiting additions, reinstatements and leveling of pensions in pay.
7. The Fourteenth Transitory Provision of Law 24029, added by Law 25.212 states that: "(...) the education workers within the Faculty of Law 24,029, which entered service until December 31, 1980, belonging retirement provisions and pension (Decree Law 19990), are included in the retirement and pension scheme provided for in Decree Law 20530. "
8. By the same token the Fourth Transitional Provision of the Rules of the Law Faculty, approved by Supreme Decree-ED 019-90, states that "(...) Education workers under the regime of the Law Teachers, in service to the effective date of Act 25,212 and included within the scope of the National Social Security Pensions, Decree Law 19990, which entered service as an appointed official or contracted until December 31, 1980 are incorporated into the Pension Decree Law 20530. "
9. It is pertinent to note that, as noted above, one of the requirements of the Law Faculty and the regulatory standard for entry into the state pension system is that the employee who falls within the scope of the mentioned law must be logged in officer serving as appointed or hired until 31 December 1980. In this regard, verified the records of payments for the months of August, December 1981, February 1980 (folio 8, 11 and 12) that the plaintiff worked as a senior lecturer for the CEP 10 618, is shown that this requirement has been satisfied.
10. Additionally, the Resolutions 2016, 1298 and 1794, dated December 18, 1979, August 26, 1982 and December 2, 1981 (folio 2, 6 and 9) shows that in those occasions the applicant had served in the post of professor hired; also hierarchical scale Report 917-2008 (f. 15) shows that she was appointed to Executive Resolution 1298-82 dated May 3, 1982 and subsequently served as such until 2008 (as appears from the report itself hierarchical scale) noting that the May 21, 1990, date of entry into force of Law 25212 that adds the fourteenth transitional provision to the Law Faculty, 24 029, was providing services within the scope of the Act, making it from its incorporation, by exception, the regime of Decree Law 20530, to comply with legal requirements.
11. Consequently, it is established that the applicant became a teacher hired before December 31, 1980 and at May 20, 1990 was working as a teacher named, as having fulfilled the conditions required to join the pension scheme of Decree Law 20530, must be upheld his claim.
For these reasons the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, therefore null 001148-2008-GR-CAJ-UGEL/CH Executive Resolution.
2. Replacing the state of things before the breach, located directs the applicant to join the regime of Decree Law 20530.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
No. CAJAMARCA 01155-2010-PA/TC
Yris GONZALES CONSUELO BURGOS
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 21 days of October 2010 the Second Chamber of the Constitutional Court, composed of Judges Mesía Ramírez, Hayen and Eto Cross Street, made the following statement
Case Appeal
constitutional tort brought by Dona Consuelo Burgos Gonzales Yris against the decision issued by the Mixed Chamber of the Superior Court of Cajamarca, on pages 59, the date January 22, 2010, which dismissed the demand for cars. BACKGROUND
The plaintiff brought claim for protection against the Department of Local Education Management Unit of the Ministry of Education Chota, seeking rescission of Resolution Directorial 1148-2008-GR-CAJ-UGEL/CH, dated June 19, 2008, denying his request for inclusion in the regime of Decree Law 20530 and, therefore, access to what is claimed and refunds paid , statutory interest and costs.
The Mixed Court of Santa Cruz de Cajamarca, dated November 10, 2009, declared unfounded claim, finding that the claim has no constitutional support.
The superior authority, confirming the appeal, declared inadmissible, on the same basis. BASICS
Hometown demand
1. On the basis 37. a) of the STC 1417-2005-PA/TC, published in the official gazette El Peruano, 12 July 2005, the Court noted that part of the substance directly protected by the fundamental right to the pension laws that down the conditions of free access to social security system, fundamental to the public or private employment activity dependent or independent, and which enables the corresponding contributions to the pension system.
2. Thus, we find that the preliminary rejection of the application, both the appeal and the appeal, based on the facts and the request are not directly referred to constitutionally protected content the right claimed or procedural routes are equally satisfactory, it is a mistake, so should be declared based on the constitutional tort action brought and, overturning the original decision, the court also ordered to proceed to admit the application process.
3. However, in contrast to cases like that now touches resolve, that is if despite preliminary rejection of this demand could Collegiate (or not) issue a ruling on the merits, the case law is consistent in pointing out that if the actuated evidence is sufficient evidence to elucidate and resolve that claim, it is unnecessary to order the appellant to suffer the anguish again to see that the process is restarted or is delayed, however the time (STC 4587-2004-AA), especially when taking into consideration that, as checks on pages 52, have been met to inform the located on the appeal against the decision rejecting the claim and the injunction order which grants, in accordance with the provisions of article 47, in fine, Constitutional Procedural Code.
4. But while I was duly notified of the site with the existence of this process and the act has guaranteed the right of defense. Also, in the case there are sufficient elements that allow to explain the constitutional controversy, and it would be idle to favor a formality before the caution of the fundamental rights invoked. Indeed, an evaluation of the act is evidence that there are necessary steps to issue a ruling on the merits, so that in applying the principles of economy and speed up the trial, this issue Collegiate background statement.
Delimitation of the request
5. In this case, the applicant is an active worker seeking reinstatement to the pension scheme regulated by Decree Law 20530, and consequently, his claim falls within the circumstances set out in the 37th foundation) of that sentence, why should analyze the merits of the issue.
Analysis of the dispute
6. Previously it should be noted that the origin of the applicant incorporating the regime of Decree-Law 20530 shall be assessed in light of the provisions laid down by the regime itself and of those which, by exception, which reopened on several occasions in force until 30 November 2004, when Law 28449 was enacted, which established new rules for the regulation of Decree Law 20530, prohibiting additions, reinstatements and leveling of pensions in pay.
7. The Fourteenth Transitory Provision of Law 24029, added by Law 25.212 states that: "(...) the education workers within the Faculty of Law 24,029, which entered service until December 31, 1980, belonging retirement provisions and pension (Decree Law 19990), are included in the retirement and pension scheme provided for in Decree Law 20530. "
8. By the same token the Fourth Transitional Provision of the Rules of the Law Faculty, approved by Supreme Decree-ED 019-90, states that "(...) Education workers under the regime of the Law Teachers, in service to the effective date of Act 25,212 and included within the scope of the National Social Security Pensions, Decree Law 19990, which entered service as an appointed official or contracted until December 31, 1980 are incorporated into the Pension Decree Law 20530. "
9. It is pertinent to note that, as noted above, one of the requirements of the Law Faculty and the regulatory standard for entry into the state pension system is that the employee who falls within the scope of the mentioned law must be logged in officer serving as appointed or hired until 31 December 1980. In this regard, verified the records of payments for the months of August, December 1981, February 1980 (folio 8, 11 and 12) that the plaintiff worked as a senior lecturer for the CEP 10 618, is shown that this requirement has been satisfied.
10. Additionally, the Resolutions 2016, 1298 and 1794, dated December 18, 1979, August 26, 1982 and December 2, 1981 (folio 2, 6 and 9) shows that in those occasions the applicant had served in the post of professor hired; also hierarchical scale Report 917-2008 (f. 15) shows that she was appointed to Executive Resolution 1298-82 dated May 3, 1982 and subsequently served as such until 2008 (as appears from the report itself hierarchical scale) noting that the May 21, 1990, date of entry into force of Law 25212 that adds the fourteenth transitional provision to the Law Faculty, 24 029, was providing services within the scope of the Act, making it from its incorporation, by exception, the regime of Decree Law 20530, to comply with legal requirements.
11. Consequently, it is established that the applicant became a teacher hired before December 31, 1980 and at May 20, 1990 was working as a teacher named, as having fulfilled the conditions required to join the pension scheme of Decree Law 20530, must be upheld his claim.
For these reasons the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, therefore null 001148-2008-GR-CAJ-UGEL/CH Executive Resolution.
2. Replacing the state of things before the breach, located directs the applicant to join the regime of Decree Law 20530.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
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