RETIREMENT PENSION IN THE JUDICIARY AND THE PUBLIC PROSECUTOR-special regime. Absence of cap on the amount / BOARD OF RETIREMENT IN THE JUDICIAL BRANCH AND PUBLIC PROSECUTOR-Amount.
inescindibilidad principle
As stated by the Corporation in law that the application of the former regime including that pertaining to age, seniority and pension amount, as are its essence. If you alter any of those budgets that benefit is unknown, so that setting the amount of the pension based on other provisions, will affect the amount of the pension and the way it distorts the system. Consolidated, then the pension right under the special regime provided for in Decree 546 of 1971, is not appropriate to go to the general text, not only by respecting the principle of inescindibilidad of the standard, but because no provision for such a possibility. Law 100 of 1993, is a general rule that none of its provisions provided for the application of cap or limit to special pensions. Similarly, the special rule set no limit, however, expressly noted that the pensions of officials and employees of the Judiciary and Public Ministry liquidated in an amount equal to 75% of the highest monthly allowance earned in the last year of service. It is concluded that the beneficiaries of the special arrangements are not subject to so-called cap pension for in articles 18 and 20 of Act 100 of 1993 and 5 and 7 of Act 797 of 2003, because the special rule does not establish .
FORMAL SOURCE: Law 797 of 2003 - Article 5 / Law 797 of 2003 - Article 7 / ACT 100 OF 1993 - Section 18 / ACT 100 OF 1993 - Section 20 / ACT 546 OF 1971 - Article 6 / ACT 546 OF 1971 - Article 7 / ACT 717 OF 1978 - Article 2 / ACT 911 OF 1978 - SECTION 4
STATE COUNCIL OF
ADMINISTRATIVE BOARD OF THE SECOND SECTION
SUBSECTION "A"
Reporting Councillor: LUIS QUINTERO RAFAEL VERGARA
Bogotá (25) November two thousand and ten (2010)
Filing Number: 25000-23-25-000-2005-03714-01 (1014-1009)
Actor: JORGE ORTIZ RUBIO
Defendant: NATIONAL SOCIAL SECURITY BOX
the Board decides the appeal filed by the respondent company against the decision of November 27, 2008, issued by the Administrative Tribunal of Cundinamarca, who agreed to the pleas of the application filed by Jorge Ortiz Rubio against National Social Security Fund. BACKGROUND
The actor, by proxy and in bringing an action for annulment and reinstatement of the law, asked the Court to nullify part of the Resolutions number 004 365 15 March 2002 and 00 829 016 969 29 December 2004 which, in its order, the Social Insurance Institute recognized her for a retirement pension and decided the appeals and appeal.
As a result of the foregoing, by way of restitution of rights requested order that operated entity to recognize, reassess and pay his pension in an amount of 75% of the highest monthly allowance earned during the last year of service and to pay the difference resulting from the new settlement, value adjustments in accordance with Article 178 of the CCA, and that it complied with the ruling in terms of Articles 176 and 177 ibid.
In support of its claims, states that he served the Colombian state for 31 years, 10 months and 19 days, the Judicial Branch and the Comptroller of Cundinamarca.
For eligible laws, requested the ISS to recognize the retirement pension he is entitled to request was answered by Resolution No. 004365 of March 15, 2002, by which it came to recognition, but underwent the amount of the pension allowance to caps or limits on the terms of Decree 314 of 1994, regulates Law 100 of 1993.
cited as violated provisions of Articles 25, 53 and 280 of the Constitution; 6 of Decree 546 of 1971; 36 of Act 100 of 1993 and Decree 314 of 1994. JUDGEMENT
Cundinamarca Administrative Court agreed to the pleas of the application.
said the actor met the requirements of Article 36 of Act 100 of 1993 to take advantage of transitional arrangements and access to recognition of the pension pursuant to Decree 546 of 1971.
added that although the agency does not dispute the quality of the actor's benefiting from the transition and, hence, the special arrangements for the judicial branch, limited the amount of the pension allowance, as provided in Article 2 of Decree 314 of 1994, which affected the amount of pension and benefit it sheltered.
He referred to the principle of inescindibilidad standards and concluded that the applicant's pension must be settled under special arrangements, which does not provide any limit on the amount.
REMEDY entity defendant, dissatisfied with the decision appealed.
states that in this case there is no doubt that the applicant falls under the pension scheme provided for in Decree 546 of 1971 and Act 100 of 1993, to fulfill the conditions of age and time set, provided further with the budget for the 10 years of service to the Judicial Branch.
That in these circumstances to settle the amount of the pension application was given to paragraph 3 of Article 36 of Act 100 of 1993, therefore to calculate the amount of the allowance is taken of factors actually quoted by the actor to the ISS as an employee of the Comptroller of Cundinamarca for the last year of service, since met the requirements to retire in force of Law 100. For this reason, the base income settlement was applied to 75% on the ceiling of 20 minimum wages, as provided in Article 1 of Decree 314 of 1994 establishing the ceiling.
CONCEPT OF PUBLIC PROSECUTOR
The Third Deputy Attorney asked to confirm the appealed decision considering that because the plaintiff beneficiary of the transition regime has the right to apply it in its entirety the special arrangements for the Judicial Branch officials. Sold
the process of rigor and finding no grounds for invalidation to invalidate the proceedings, we proceed to decide the following preliminary,
CONSIDERATIONS
In the process it is undisputed that the plaintiff is beneficiary of the transitional regime established by Law 100 of 1993 and having worked in the service of the Judicial Branch for over 10 years, is entitled is applied to the special arrangements provided for their servers. Although they recognized the entity to establish the amount limited the allowance to 20 minimum wages, based on Article 18 of Law 100 of 1993, in accordance with decree 314 of 1994.
Indeed, Mr. Jorge Ortiz Rubio won recognition from the pension by Resolution No. 004365 of March 15, 2002, having established over 20 years of service, 10 of which were provided in Judicial Branch (fl. 2).
Based on previous budgets the National Social Security Fund was recognized pension retirement annuity, based on Decree 546 of 1971, which established the system of social protection and safety of officials and employees of the Judicial Branch and the Public Ministry. In Article 6 provided:
"Officials and employees covered by this decree, shall, upon reaching age 55 if they are men, and 50, if they are women, age 20 continuous or intermittent service, before or after the term of this Decree, of which at least 10 have been, only the judicial branch or the Public Ministry or both activities, a regular pension annuity retirement equivalent to 75% of the highest monthly allowance that has accrued during the last year of service in these activities. This rule is a special.. "
Under Article 7 of Decree 546 of 1971, the retirement pension for officers and employees of the Judiciary and Public Ministry will be settled in the manner provided for employees of the administrative branch of public power unless they have served in any of the entities mentioned, for intervals of less than ten years, in which case the monthly allowance will be equivalent to 75% of the monthly allocation who have earned high in the last year of service.
Regarding the scope of the term "assignment", said the Board:
"... For he understood everything that the server receives by way of salary, ie what constitutes remuneration for their services. Article 12 of Decree 717 of 1978 that states pay factors for the Judiciary and the Attorney General states:
"Besides the basic monthly allowance provided by law for each job, wages are factors of all sums and regularly receives regular officer or employee as remuneration for their services. "
According to the above, should be applicable to the general principle and therefore to be understood that the "highest monthly allowance" to determine the basis for the settlement of the monthly retirement pension of officials and employees Judiciary and Public Ministry includes both the basic monthly allowance provided by law for employment and all the usual and regular amounts received as compensation for their services.
Thus, in this case factors are salary, all those expressly mentioned in the article Decrees 717-12-and 911 1978 Article 4, in addition, as stated above, the same provisions as precepts clearly that in addition to the basic allowance monthly legal for each job, are factors of pay "all sums which habitually and regularly" receive the server by way of remuneration for their services .
Decree 717 of 1978, as amended by Decree 911 of the same year stipulates:
"Art 12 In addition to the basic monthly allowance provided by law for each job, salary factors are all normal and regular amounts officer and employee receives as compensation for its services.
wage factors are: a.
Representation expenses;
b. Seniority premiums;
c. The transportation aid;
d. Training premium;
e. The premium upward;
f. The semi-annual premium, and
g. The per diem received by officials and employees in developing commission service charges. "
So are these and not listed in the regulations of Law 100, the factors that have considered the entity to liquidate base salary pension plaintiffs [1].
As was seen, the actor's pension law was consolidated under the special procedure laid down in Decree 546 of 1971, therefore the board must retain its essential features, without it being possible to alter the elements that make it special " ".
As stated by the Corporation consistently held [2], the application of the former regime including that pertaining to age, seniority and pension amount, as are its essence. If you alter any of those budgets that benefit is unknown, so that setting the amount of the pension based on other provisions, affect the amount pension and denaturing step scheme. Consolidated
then the pension right under the special regime provided for in Decree 546 of 1971, it is not appropriate to go to the general text, not only by respecting the principle of inescindibilidad of the standard, but because no provision for such a possibility .
Law 100 of 1993, is a general rule that none of its provisions provided for the application of cap or limit to special pensions. Similarly, the special rule set no limit, however, expressly noted that the pensions of officials and employees of the Branch Judicial and Prosecutorial be liquidated in an amount equal to 75% of the highest monthly allowance earned in the last year of service.
is concluded that the beneficiaries of the special arrangements are not subject to so-called cap pension for in articles 18 and 20 of Act 100 of 1993 and 5 and 7 of Act 797 of 2003, because the special rule not set. [3]
For these reasons, the contested ruling that agreed to the pleas of claim deserves to be confirmed, in its precise terms.
In light of the foregoing, the State Council, Litigation Division Administrative Section II, Subsection "A", to administer justice on behalf of the Republic and by authority of law,
FAILURE
confirmed the sentence of twenty-seven (27) November, two thousand eight (2008) proffered by the Administrative Tribunal of Cundinamarca, which agreed to the pleas of the application filed by Jorge Ortiz Rubio.
be returned the case to the Court of origin.
CÓPIESE, NOTIFIED AND COMPLY
The previous order was discussed and approved by the Board at a meeting date.
GUSTAVO GOMEZ ALFONSO VARGAS CORNER ARANGUREN
LUIS QUINTERO RAFAEL VERGARA
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[1] Judgement of 29 April 2010, exp. No. 25000232500020040273201 (1731-2007), actor: Carlos Ernesto Gonzalez Corredor, Luis Rafael Vergara Quintero MP.
[2] Judgement of June 8 and September 21, 2000, No. 2729 and 470 cases, judges Speakers: Drs: Alejandro Ordonez Maldonado and Nicholas Bird.
[3] See Case of September 21, 2000, exp. 470-99, Cons. Pon. Nicolás Pájaro Peñaranda and November 22, 2007, exp. 9567-05, Cons. Pon. Alejandro Ordóñez Maldonado
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