Possibility of participating in selective tests from the situation of voluntary leave for private interest

The question raised concerns the possibility of participating in a selective process by internal promotion from the situation of voluntary leave for private interest.

Article 89.1 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TREBEP), establishes:

“Career officials may obtain voluntary leave for private interest when they have provided effective services in any of the Public Administrations for a minimum period of five years immediately preceding.”

In relation to internal promotion, Article 18 of the TREBEP establishes:

“1. The internal promotion will be carried out through selective processes that guarantee compliance with the constitutional principles of equality, merit and capacity as well as those contemplated in article 55.2 of this Statute.

2. Civil servants must have the required entry requirements, have a minimum of two years of active service in the lower Subgroup, or Professional Classification Group, in the event that the latter does not have a Subgroup and pass the corresponding selective tests.

3. The Civil Service laws that are enacted in the development of this Statute will articulate the systems for carrying out internal promotion, as well as determine the bodies and scales to which career officials belonging to other members of the same Subgroup will be able to access.

Likewise, the Civil Service laws that are enacted in the development of this Statute may determine the bodies and scales to which career officials belonging to other members of the same Subgroup may have access.

4. The Public Administrations will adopt measures that encourage the participation of their staff in the selective processes of internal promotion and for the progression in the professional career.”

In this regard, and in the light of the provisions of the fourth final provision of the TREBEP, in so far as it does not contradict the provisions of the latter, Article 76 of the General Regulations on the Admission of Personnel to the Service of the General State Administration and on the Provision of Jobs and Professional Promotion for Officials of the General State Administration, approved by Royal Decree 364/1995 of 10 March, provides that:

“To participate in internal promotion tests, officials must be at least two years old in the Corps or Scale to which they belong on the day of the end of the deadline for the submission of applications for participation and possess the qualification and the rest of the general requirements established for access to the Corps or Scale in which they aspire to enter.”

In accordance with the aforementioned precept, the applicable regulations do not generally restrict participation in the selective processes by internal promotion to those applicants who are in the situation of voluntary leave by private interest if all the other required requirements are met.

Notwithstanding the foregoing, it must be ascertained that the appointment of the specific selection process does not contain any limitations in this regard, nor must the appointment be made in relation to whether, once the entire selection process has been completed, it is obligatory for the official to take office in the new post, in which case he/she should be declared in respect of the Corps to which he/she previously belonged in a situation of voluntary leave for the provision of services in the public sector.

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.