Estado deve reajustar todo ano salário de servidores

“O círculo vicioso hoje notado nas três esferas — federal, estadual e municipal — não pode persistir.” Segundo o ministro Marco Aurélio, do Supremo Tribunal Federal, o Estado é desrespeitoso, tem vantagem indevida e dá mau exemplo ao não reajustar anualmente a remuneração de seus servidores pela inflação do período. Assim, ele votou para condenar o estado de São Paulo a indenizar seus servidores por não repor a inflação desde janeiro de 1997. O julgamento foi suspenso pelo pedido de vista da ministra Carmen Lúcia.

O recurso foi apresentado por policiais militares contra acórdão do Tribunal de Justiça de São Paulo que negou o pedido de condenação. O ministro considerou que a relação jurídica entre Estado e servidor público é comutativa e sinalagmática, ou seja, pressupõe direitos e obrigações recíprocos.

Essa característica, diz, é assegurada nos incisos X e XV do artigo 37 que preveem a obrigação de revisão geral e a irredutibilidade dos vencimentos e subsídios dos ocupantes de cargos e empregos públicos. Os incisos foram alterados pela Emenda Constitucional 19, de 1998.

Ele considerou que a EC 19/98 tinha o objetivo de “recuperar o respeito e a imagem do servidor público perante a sociedade; estimular o desenvolvimento profissional dos servidores e; melhorar as condições de trabalho”. Nesse sentido, diz que melhorar as condições do servidor é o parâmetro a nortear a interpretação do artigo 37.

Marco Aurélio lembrou que o servidor público não tem o mesmo poder de barganha dos trabalhadores em geral na medida em que a greve no serviço público até hoje não foi regulamentada via legislativa, tendo sido, inclusive, objeto da integração mediante mandado de injunção.

O ministro fez questão de diferenciar aumento e reajuste. No caso deste último, disse não se tratar “de fixação ou aumento de remuneração — estes, sim, a depender de lei, na dicção do inciso X do artigo 37 da Carta da República. Versa-se o reajuste voltado a afastar os nefastos efeitos da inflação. Objetiva-se a necessária manutenção do poder aquisitivo da remuneração, expungindo-se o desequilíbrio do ajuste no que deságua em vantagem indevida para o Poder Público, a aproximar-se, presente a força que lhe é própria, do fascismo. Não se pode adotar entendimento que implique supremacia absoluta do Estado, em conflito com o regime democrático e republicano”.

Considerando precedentes do STF sobre a omissão inconstitucional, disse que não tem razão quem nega eficácia ao artigo 37, inciso X, da Constituicao, que prevê o reajuste.

“Não perco de vista o horizonte social quando busco a solução dos problemas jurídicos com que me defronto. Aliás, qualquer interpretação jurídica parte da consideração de elementos fáticos, ainda que seja uma interpretação em abstrato, pois, mesmo em casos tais, o magistrado não deixa de formular a hipótese e alcançar conclusões com base na realidade conhecida”, explica.

Desse modo, defende que “o Supremo não deve ser um filtro pragmático quanto a disposições constitucionais cuja eficácia depende de recursos para que seja concretamente observada”.

Bom sinal
Na sessão, a Assessoria Jurídica Nacional da Fenajufe realizou sustentação oral juntamente com outros dois amici curiae, a Andesp e o Sinpofesc.

Em sua sustentação oral, o advogado da Fenajufe, Pedro Maurício Pita Machado, afirmou que o fato do direito à revisão não poder ser diretamente assegurado não impede a indenização pleiteada por ser “uma obrigação secundária, decorrente do descumprimento da obrigação original, de revisar os vencimentos”. Nesse sentido, ele disse que fica clara a não invasão na esfera do legislativo já que “conceder ou não indenizações é típica função jurisdicional”.

Também destacou a necessidade de rever a jurisprudência sobre a matéria, com uma discussão mais aprofundada. Concluiu dizendo que “está em jogo não só o direito a uma indenização, mas a efetividade da Constituição e a autoridade das decisões do Supremo que já decretaram a mora legislativa nessa matéria”.

O relator acolheu o recurso dos servidores — todos policiais militares de São Paulo — concedendo uma indenização equivalente aos salários vencidos reajustados pelo INPC, descontados os reajustes eventualmente efetuados no período, com juros e correção monetária.

O advogado avalia que o resultado da sessão foi bastante positivo: “onde havia uma jurisprudência consolidada contra os servidores, houve um brilhante voto favorável e uma decisão coletiva do tribunal de aprofundar o debate, após o pedido de vista, o que pode abrir caminho para uma revisão do posicionamento histórico do tribunal”.

Ascom-Rezende

Fonte: Blog do Servidor

Fonte : Consultor Jurídico

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