Possibility of enjoying the days of taking office in a position obtained by contest previously occupied in provisional secondment

The question raised is whether it is possible for a staff member to enjoy the days of taking up office in a post obtained by competitive examination if that post is already occupied on a temporary basis, namely in temporary secondment.

In the first place, the legal framework for implementation must be analysed. The fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Statute of the Public Employee, differs the entry into force of the provisions relating to the provision of jobs and mobility until the entry into force of the Public Service Laws that are issued in development of the Statute.

Thus, and in accordance with the provisions of the fourth final provision of the TREBEP, which establishes in its second paragraph:

“Until the Civil Service Laws are enacted and the development regulations are in force in each Civil Service, the current regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

Consequently, the provisions relating to the provision of posts and mobility regulated by Law 30/1984, of 2 August, on Measures for the reform of the Public Service and Royal Decree 364/1995, of 10 March, approving 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 of Civil Servants of the General State Administration, remain in force.

In view of the above, the question raised focuses on the possibility of enjoying the postponement period in a position obtained by competitive examination previously occupied in provisional secondment.

Given the exceptional and valued nature of the use of the figure of the provisional secondment, Article 72(2) of Royal Decree 364/1995, provides that “Posts covered by temporary secondment shall be summoned for final coverage by the systems provided for in the employment relationships. The officials who perform them will have the obligation to participate in the corresponding calls”.

Thus, the term for taking up a job obtained by competitive examination, in accordance with article 48.1 of the General Regulations on the Admission of Staff to the Service of the General State Administration and on the Provision of Jobs and Professional Promotion of Officials of the General State Administration, approved by Royal Decree 364/1995 of 10 March, is:

“The term for taking office will be three working days if it does not involve a change of residence of the official, or one month if it involves a change of residence or re-entry into active service.

The period for taking office shall begin on the day following the cessation, which shall take place within three working days following the publication of the resolution of the contest in the Official State Gazette.

If the resolution involves re-entry into active service, the term of taking office must be counted from that publication.”

Article 48 of Royal Decree 364/1995 expressly establishes the duration of post-retirement leave: three days if there is no change of residence and one month if there is a transfer. However, there is nothing specific about the formula for the provision of posts.

Given the absence of concretion in the regulation, and in accordance with a systematic and teleological interpretative exercise of the rule, it is difficult to deduce from the literal tenor of the precept the will to establish a post-sessional permit in cases in which there is no change of position, since the same is already being performed, but on a provisional basis.

In this sense, the purpose of the postponement period is to carry out the necessary procedures to carry out both the cessation and the taking of possession and to carry out the incorporation into the workplace, which justifies its longer duration in case a transfer of residence is required.

In those cases in which a temporary secondment position is acquired definitively by competitive examination, no management is required for the incorporation, so that such a postponement period would not be justified.

This interpretation, on the other hand, would correspond, mutatis mutandiswith which the Higher Personnel Commission has carried out in relation to the permit provided for in Additional Provision 5 of the General Entry Regulations, approved by Royal Decree 364/1995, on the understanding that said permit is applicable to personnel who, even if they do not have access to a new job, would not have benefited from the corresponding paid post-retirement period.

The aforementioned 5th Additional Provision of Royal Decree 364/1995, of 10 March, states that: “Career officials in active service or assimilated situation who access a new Corps or Scale shall be entitled, from the moment of taking office, to a paid leave of three working days if the destination does not imply a change of residence of the official and of one month if it entails it”.

The Higher Personnel Commission reported that this permit “it is intended that all personnel who are serving in the Administration, and access a Corps or Scale by internal promotion or free shift, enjoy a paid period to join their new job, which does not happen in all cases.

Accordingly, this permit shall only apply to staff who have not enjoyed a paid postponement period.”.

It is therefore understood, in accordance with that interpretation, that such leave may also be enjoyed by those officials who, even if they do not have access to a new job, would not have enjoyed the corresponding paid post-retirement period.

On the other hand, those officials who occupy a permanent position obtain another by means of a competitive examination, it is understood that they will have the right to enjoy the postponement period, even if the post awarded by competitive examination is of similar characteristics to the one they have been performing as indicated by the consultant, or is in the same seat, since the regulatory norm when configuring the postponement period only to the “residence” – granting a period or less depending on whether or not there is a change of postponement period greater or less postponement period to the existence or not of change of residence, without on the other hand including other requirements for its concession.

In conclusion, the official to whom the job previously held in temporary secondment is awarded by tender, shall not be entitled to the term for taking office provided for in Article 48(1) of Royal Decree 364/1995, of 10 March, unless he has previously enjoyed it.

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.