Possibility of registering in the CPR the appointment of an interim officer when you are already a career officer of the same Corps.

The consultation is about the possibility of registering in the Central Personnel Register (CPR) the appointment of an interim civil servant when he or she is already a career civil servant of the same Corps.

Although the consultation refers to an official of a University Teaching Corps, it is understood that the argumentation could be extended to any other Corps or Scale.

The Organic Law 2/2023, of March 22, on the University System, provides in its article 68, dedicated to university teaching bodies, the following:

“Article 68. University teaching bodies.

1. The official university teaching staff will belong to the following teaching bodies:

a) University Professors and Professors.

b) Professors and Professors Holders of University.

The teaching staff belonging to these bodies will have full teaching and research capacity.

2. The official teaching staff shall be governed by the bases established in this organic law and in its development regulations, by the provisions that, by virtue of their powers, are dictated by the Autonomous Communities, by the general public service legislation that is applicable to them and by the Statutes of their university.”

According to the legislation of Universities, the public teaching function is constituted through Bodies of national eremu, without prejudice to the competences attributed to the Universities for the convening and development of the entrance competitions, as well as for the appointment as career officers of the University Teaching Corps of those candidates who have obtained a place after the completion of the indicated competition.

Article 5 of Royal Decree 898/1985, of 30 April, on the regime of university teachers, concerning the administrative situations of public officials of university teaching bodies, establishes that:

“1. University teaching staff shall be in active service when, by virtue of appointment, they occupy a position on the staff of the University.

2. The remaining administrative situations provided for in the general legislation on civil servants shall also apply equally to university teachers. (…)”.

Having consulted the Central Personnel Register (RCP), it is noted that the teaching career officer referred to is in the administrative situation of surplus for the provision of services in the public sector.

In addition, the CPR indicates that the above-mentioned officer held a position as a career officer of the College of Tenured Professors at a University other than the University where he now intends to be appointed as an interim officer of the College of Tenured Professors.

The declaration of the administrative situation of voluntary redundancy due to the provision of services in the public sector, or the “redundancy due to incompatibility”, as qualified in other rules, proceeds when it comes to providing services with the status of official or with the character of labor personnel in public sector bodies or entities and it is not appropriate for them to remain in situations of active service or special services.

Therefore, it must be concluded that, if the official being consulted is in the administrative situation of surplus for the provision of services in the public sector, and understanding that the stated situation is correct, it is because he is performing a post in the Public Administration as an official or as a workforce.

Based on the fact that the surplus official in the Teaching University Corps is currently serving as civil servants of another body or scale or as labour personnel in the Public Administration, it is appropriate to analyze whether it is possible to appoint him as an interim official of the Corps to which he already belongs as a career official – although he is in the same in the situation of voluntary surplus for the provision of services in the public sector.

To do this, first of all, we must refer to Law 53/1984, of December 26, on Incompatibilities of Personnel in the Service of Public Administrations, which regulates the cases of compatibility between two jobs in the public sector.

Article 3 of Law 53/1984, of 26 December, provides that it may only be performed “a second job or activity in the public sector in the cases provided for in it for teaching and health functions, in the cases referred to in articles 5 and 6 and in which, for reasons of public interest, they are determined by the Council of Ministers, by Royal Decree, or Governing Body of the Autonomous Community, within the scope of their respective competences; in the latter case the activity may only be provided in employment, part-time and for a certain duration, under the conditions established by Labour Law.”

Specifically, with regard to compatibility with university education, article 4.2 of Law 53/1984, of 26 December, establishes that:

“2. University professors and professors and professors of university schools may be authorized, in compliance with the other requirements of this Law, compatibility for the performance of a second job in the public health sector or of an exclusively investigative nature in public research centers, within the area of specialty of their university department and provided that the two positions are legally authorized as part-time service.

Reciprocally, those who hold one of the positions defined as the second position in the previous paragraph may be authorized to hold one of the university teaching positions referred to. (…)”

In the present case, it is not known which job the official in question has been performing, by virtue of which he has been granted leave for the provision of services in the public sector.

In any case, in order for it to be compatible with the position of professor or university professor, in accordance with the provisions of article 4.2 of Law 53/1984, of 26 December, it would have to be a job in the public health sector, or of an exclusively investigative nature in public research centers, within the area of specialization of its university department and that, in accordance with the regulations, the two positions were authorized as part-time benefits.

In the case raised, according to the information provided in the CPR, the official in question is a Doctor of Medicine and Surgery.

Therefore, based on the hypothesis that it has been performing a job included in the scope of article 4.2 of Law 53/1984, of 26 December - public health or research -, it is necessary to examine whether it is possible to appoint as an interim official of the Corps of Professors Holding Universities someone who is already a career official of the same Corps and who is in the administrative situation of voluntary leave for the provision of services in the public sector.

In this regard, it should be recalled that the fact that makes it possible to declare the administrative situation of voluntary surplus for the provision of services in the public sector – also called by other legislations, surplus for incompatibility – consists in that it ceases to provide services in a certain body or scale as a result of providing services in another body or scale, or of performing a position as labor personnel in the Public Administration.

Based on this, it is understood that it is not possible to appoint an interim official in a given body or scale to someone who already has the status of a career official in that same body or scale; since if this were to happen, it would mean that this person would again provide services in the body to which he belongs and, therefore, there would be an inconsistency that cannot be saved, consisting in that, while the official is in the administrative situation of voluntary surplus for the provision of services in the public sector in that body, in turn, and by virtue of another title, he will again provide services in that same body. It is about one Contradictio in Terminis.

In addition, if such a situation were allowed, an abuse of law would be protected, which would consist in using the route of appointment as an interim official of the same body to change location or position, thus circumventing the procedures for the provision of legally foreseen jobs.

Finally, and as has already been indicated, it should not be forgotten that university teaching officers are integrated into Bodies at national level, in the present case, the Corps of University Professors, without prejudice to the University where each official belonging to this Corps provides services.

On the basis of the foregoing, it is concluded that a person who already holds the status of a career officer of the same Corps cannot be appointed as an interim officer of the Corps of University Professors, regardless of whether he or she is a career officer of the same Corps in the administrative situation of surplus for the provision of services in the public sector.

Likewise, it is understood that the argument could be extended to any other Corps or Scale, so that a person who already has the status of a career officer of that same Corps or Scale cannot be named an interim officer of a given Corps or Scale.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.