Different issues on post-sessional deadlines

The consultation raises the following assumptions regarding the postponement period:

1) When the position that has been performed in committee of services is obtained by competitive examination.

2) When another position is obtained through a competition that has also been occupied definitively.

3) For the service commission.

4) When you access a new Body or Scale but do not change jobs.

First.- Postponement period when the position that was being held in committee of services is obtained by competitive examination.

With regard to the time limit for taking up a job obtained by competitive examination, 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 for Officials of the General State Administration, approved by Royal Decree 364/1995 of 10 March, states the following:

“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.”

The official who acquires by tender the job that he previously had been performing in committee of services, does not change jobs, but there is a change in the form of occupation, which will change from provisional to definitive.

However, if, at the time when the services commission was carried out, it did not enjoy the postponement period, it is understood that it would then be appropriate to grant the corresponding postponement period.

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 Regulation, approved by Royal Decree 364/1995, on the understanding that said permit is applicable to personnel who, although not accessing a new job, would not have benefited in their day from the corresponding paid post-retirement period.

Second.- On the other hand, those officials who occupy a post with a definitive character obtain another by contest, it is understood that they will have the right to enjoy the postponement period, although the post awarded by contest is of similar characteristics to the one they have been performing, or is in the same headquarters, since the regulatory norm when configuring the postponement period limits it only to the “residence” – granting a postponement period greater or less depending on whether there is a change of residence or not, without on the other hand other requirements for its concession are included.

ThirdThe postponement period in the case of the commission of services is provided for in article 64.4 of the General Regulations on the Admission of Personnel to the Service of the General Administration of the State and on the Provision of Jobs and Professional Promotion of Civil Servants of the General Administration of the State, approved by Royal Decree 364/1995 of 10 March.

Article 64.4 of the aforementioned Regulation provides that: “If the Commission does not involve a change of residence of the official, the cessation and takeover must take place within three days of notification of the Service Commission Agreement; if it involves a change of residence, the period shall be eight days for voluntary commissions and thirty days for compulsory commissions.”.

Therefore, the aforementioned precept establishes a single time limit for the cessation and takeover, so that the official must carry out both the cessation and the takeover within that time limit, so that the later the cessation occurs, the less time will be left for the takeover.

However, it must be taken into account in this regard that the purpose of the post-retirement period is to carry out the necessary procedures to carry out both the cessation and the taking of possession, as well as the incorporation into the workplace, and that both procedures must be carried out in successive days, both of which cannot overlap in the same day.

It is also necessary to point out that the deadlines established for the commission of services in article 64.4 of the General Regulation of Income and Provision refer to calendar days, not working days. In this sense, when the Regulation wants to establish deadlines in working days, it expressly points this out, as for example happens in Article 48 of the same Regulation.

Fourth.- When a new Corps or Scale is accessed but no job is changed, the fifth additional provision 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 of Civil Servants of the General State Administration, approved by Royal Decree 364/1995 of 10 March, establishes the following:

“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.”

Therefore, the above-mentioned additional provision resolves the problem faced by career officials who entered a new Corps or Scale to transfer to the new destination, since, if they ceased in the previous Corps or Scale, necessarily going to the situation of leave in them, they ceased to receive their salaries, without accruing those corresponding to the new Corps or Scale until the date of taking possession of the new destination, a prerequisite for obtaining the status of career official of the latter. This problem was aggravated for those officials whose new destination determined a change of residence and transfer of furniture and belongings.

For its part, the Higher Personnel Commission, in its Agreement of July 13, 1995, which was ratified on October 5, 2007, provided that:

“The purpose of this permit is 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 benefited from a paid post-retirement 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.

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.