Dismissal and taking up office in a position obtained through the concurrence of an official in temporary incapacity.

The consultation deals with the situation of an official who, being temporarily incapacitated, obtains a position in another province by means of a transfer contest. In this context, the possibility of proceeding to their termination at the place of origin and taking possession at the new job is considered.

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, in its article 41, concerning the requirements and conditions for participation in competitive examination procedures, stipulates the following:

“1. Officials, regardless of their administrative situation, except firm suspensions that may not participate for the duration of the suspension, may take part in competitions, provided that they meet the general conditions required and the requirements determined in the call on the date that the deadline for the submission of applications for participation ends, without any limitation due to the Ministry in which they serve or their municipality of destination, except in competitions that, in application of the provisions of an Employment Plan, are reserved for officials assigned in the areas, sectors or departments that are determined.”

In accordance with the precept transcribed and taking into account that, in general, an official in a situation of temporary incapacity continues in the administrative situation of active service, it is understood that there is no impediment for those who are in a situation of temporary incapacity to participate in competitions provided that they meet the general requirements established in article 41, as well as those contemplated in the corresponding convocation.

For its part, with regard to the time limit for taking office in the new position obtained by competitive examination, article 48.1 states that:

“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. (…)”.

The calculation of the postponement periods shall begin when the permits or licences granted to the persons concerned have expired, unless for justified reasons the convening body agrees to suspend the enjoyment of the permits or licences (Article 48.3).

Therefore, based on the above, it is understood that, in general and without other circumstances having been revealed, during the temporary incapacity, the cessation can be carried out in the previous job, the calculation of the postponement period being suspended for as long as the causative event that gave rise to such incapacity remains.

Likewise, and without prejudice to the above, during the temporary incapacity, the cessation can be carried out in the previous work place and the takeover in the new place, continuing once the takeover is carried out in the situation of temporary incapacity.

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.