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

The General Regulations for the Admission of Personnel to the Service of the General State Administration and for the Provision of Jobs and Professional Promotion of Civil Servants of the General State Administration, approved by Royal Decree 364/1995 of 10 March, article 41, concerning the requirements and conditions for participation in competitive examination procedures, provides as follows:

“1. Officials, whatever their administrative situation, except firm suspensions that may not participate during the duration of the suspension, may take part in the contests, provided that they meet the general conditions required and the requirements determined in the call for applications 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 the contests 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 above-mentioned provision and taking into account the fact that, in general, a staff member in a situation of temporary incapacity remains in the administrative situation of active service, it is understood that there is no impediment to the participation in competitions of those who are in a situation of temporary incapacity provided that they comply with 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 up the new post obtained by means of a competitive examination, article 48.1 states that:

“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 State Gazette’. (…)”.

The counting of the postponed 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, on the basis of what has been stated 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 termination may be carried out in the previous job and the takeover in the new job, continuing once the takeover is carried out in the situation of temporary incapacity.

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.