The question raised concerns whether it is possible for a staff member to enjoy the days of taking up a post obtained by competitive examination if he or she has already occupied that post on a temporary basis, in particular on a temporary basis.

First of all, the legal framework for implementation must be analysed. The fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees, differs from the entry into force of the provisions relating to the provision of jobs and mobility until the entry into force of the Civil Service laws that are dictated 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 and the development regulations are enacted, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service, 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 Act 30/1984 of 2 August on measures for the reform of the Civil Service and Royal Decree 364/1995 of 10 March approving the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and for the Provision of Jobs and Professional Promotion of Civil Servants of the General Administration of the State remain in force.

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

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

Thus, the period for taking up a job obtained by competitive examination, in accordance with Article 48.1 of the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and for the provision of jobs and professional promotion to officials of the General Administration of the State, approved by Royal Decree 364/1995 of 10 March, is:

“The period 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 day of the termination, which shall take place within three working days following the publication of the resolution of the contest in the Official Gazette of the State.

If the decision involves re-entry into active service, the period for taking office must be counted from that publication.”

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

Given the lack of specificity in the regulation, and in accordance with both a systematic and a 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 steps 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 residence transfer is required.

In those cases in which a temporary secondment position is acquired definitively through competitive bidding, no management is required for the incorporation, so there would be no justification for such post-sessional period.

This interpretation, on the other hand, would correspond, Mutatis mutandiswith which the Higher Personnel Commission has carried out the permit referred to in the 5th Additional Provision of the General Entry Regulations, approved by Royal Decree 364/1995, on the understanding that said permit is applicable to personnel who, although not entering a new job, would not have benefited from the corresponding period of paid leave.

The above-mentioned 5th Additional Provision of Royal Decree 364/1995 of 10 March states that: “Career officials in active service or similar situation who enter a new Corps or Scale shall be entitled, from the moment they take office, to a paid leave of three working days if the destination does not involve a change of residence of the official and of one month if it involves him.”.

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

Accordingly, this permission shall only apply to staff who have not benefited from a paid postponement period.”.

It is therefore understood, in accordance with that interpretation, that such permission may also be enjoyed by those officials who, even if they had not taken up a new job, had not previously enjoyed the corresponding post-paid period.

On the other hand, those officials who occupy a post with a final character obtain another one by 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 had been performing as indicated by the consultant, or is in the same place, since the regulatory norm when configuring the postponement period only to the “residence” – granting a period or less depending on whether there is a change of postponement residence 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 provisional secondment is awarded by tender shall not be entitled to the deadline for taking office provided for in Article 48(1) of Royal Decree 364/1995, of 10 March, unless he has not previously enjoyed it.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.