Entitlement to declare a career official on voluntary leave for personal interest when he/she does not apply for re-entry into active service after the end of the penalty of suspension of duties

The question arises as to whether it is appropriate to go into the situation of leave due to the particular interest of an official from the situation of firm suspension when, after the end of his sanction, he does not request re-entry into active service and has not provided effective services in any of the Public Administrations during the five years immediately prior to the request, precisely because he has found himself suspended from duty.

In accordance with the fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), until the approval of the laws on the development of public service, it remains in force in the field of administrative situations, in what does not contradict that text, Royal Decree 365/1995, of 10 March, approving the Regulations on Administrative Situations of Civil Servants of the General State Administration.

This Royal Decree 365/1995, regulates in its article 22 the firm suspension of functions, resulting in the application in the present case of the provisions of paragraphs 3 and 4, which read as follows:

“3. A staff member who has lost his or her job as a result of conviction or punishment must apply for re-entry into active service one month before the end of the period of duration of the suspension. Such re-entry will have economic and administrative effects from the date of extinction of criminal or disciplinary responsibility

4. If re-entry is not requested in the time indicated in the previous paragraph, he will be declared, ex officio, in the situation of voluntary leave for private interest, with effect from the date of termination of the sanction.”

For its part, and as the consultant points out, Article 16 refers to voluntary leave due to particular interest, indicating in paragraph 2 that to request the declaration of such a situation it will be necessary to have provided effective services in any of the Public Administrations during the five years immediately prior to the request.

However, in the event of a suspension of duties, it must be understood that the provisions contained in Article 22 are of the nature of a “special rule”, as opposed to Article 16, which would be a “general rule”, so that, in the event that re-entry is not requested after the suspension of duties, it would not be necessary to have provided services for the immediately preceding five years to move to the situation of leave for private interest.

In fact, applying Article 16 in this case would not only result in a collision with Article 22, but it would never be possible to apply the provisions of the latter precept, since, as a result of a suspension of duties, the official would never meet the requirement of having served the five years immediately prior to the request for leave.

In conclusion, in the event that re-entry to active service has not been requested after the end of the penalty of suspension of duties, in the terms set forth, it is understood that the transfer to the administrative situation of voluntary leave due to particular interest with effect from the date of termination of the sanction is appropriate, without any additional requirement being required and without governing, for these purposes, the deadlines contained in Article 16 of the Regulations on Administrative Situations.

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.