The consultation concerns the possibility of the dismissal and taking over of an official who is temporarily incapacitated in a new post in the Committee on Services.

In particular, the question arises as to whether FR5 can be carried out in order to register the dismissal and the taking up of a post on behalf of a staff member who is temporarily incapacitated, with regard to which neither the time when the dismissal has begun nor the possible date envisaged for its completion is indicated.

With regard to this matter, mention should be made of the fourth, second, final provision of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, which states that: “Until such time as the Civil Service Acts and the development regulations are promulgated, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service until such time as they are not contrary to the provisions of this Statute.”.

Therefore, the provisions of the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and the Provision of Posts and Professional Promotion of Civil Servants of the State Administration, approved by Royal Decree 364/1995 of 10 March, article 64 of which contains the provisions relating to the figure of the Service Commission, stipulating in its first paragraph that:

“1. When a job becomes vacant, it may be filled, in the event of urgent and unpostponable need, on the basis of voluntary services, with a staff member who meets the requirements established for his performance in the list of jobs. (…).

4. If the commission does not involve a change of residence of the official, the termination and the takeover must take place within three days from the notification of the service commission agreement; if it involves a change of residence, the deadline will be eight days for voluntary commissions and thirty days for compulsory commissions.”

In addition, it must be borne in mind that a staff member in a situation of temporary incapacity remains in the administrative situation of active service.

On the other hand, it should be noted that, if the Services Committee has already been agreed, regardless of whether the corresponding registration document is completed, it could only be revoked for the cases assessed in the rule, without the temporary incapacity being considered cause of revocation.

On the basis of the above, it is understood that, in general, and without other circumstances having been made evident, during the temporary incapacity it is possible to carry out the dismissal from the previous work station and the taking of possession in a new post obtained in committee of services, continuing once such taking of possession is carried out in the situation of temporary incapacity, while the causative event that gave rise to such incapacity remains.

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.