Possibility of appointing a staff member to a job obtained by competitive examination when that position is still occupied because the termination has been postponed.

Last update: September 2025

The question raised concerns the legal solution in the case of a staff member who is awarded a job through a competitive examination and, at the time of taking office and even during the postponement period, is occupied by another staff member who has been deferred from leaving.

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 (TREBEP), 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.

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 the light of the above, the issue raised focuses on the possibility of appointing a staff member to a competitive position where the post is still occupied because of the postponement of the current incumbent.

In this connection, it should be recalled that the jobs of staff members, by their very nature, can only be occupied by one staff member, without the simultaneous occupation of one job by more than one staff member being possible under any circumstances.

In this context, 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.”

If the intention is the continuity of the service so that the job in question is not left without coverage, and taking into account that article 48 of Royal Decree 365/1995, of 10 March, establishes that the cessation can be deferred up to twenty working days, the fact that the holder who has obtained the position by contest is effectively incorporated, satisfies this continuity requirement so that, in the opinion of this Center, the Assistant Secretary would have to issue a new resolution annulling the one that postponed the date of cessation of the official and establishing a new date in accordance with the takeover of the new holder.

In this way, the post is covered on an ongoing basis, without prejudice to the fact that staff members who have deferred their dismissal must, in turn, be waiting to take office in a new post obtained by competitive examination.

In conclusion, both insofar as the rule provides that the termination may be deferred for up to twenty days and the incumbent is to be incorporated immediately into the post, in the opinion of this Centre, the Assistant Secretary should issue a new termination decision for the staff member who is currently occupying the post so that the successful tenderer can be incorporated.

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.