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.

First of all, the legal framework for implementation must be analysed. The fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (TREBEP), differs from the entry into force of the provisions relating to the provision of jobs and mobility until the entry into force of the Civil Service laws that are dictated 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 and the development regulations are enacted, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service, 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 Act 30/1984 of 2 August on measures for the reform of the Civil Service and Royal Decree 364/1995 of 10 March approving the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and for the Provision of Jobs and Professional Promotion of Civil Servants of the General Administration of the State remain in force.

In view of the above, the question raised focuses on the possibility of appointing a staff member to a job obtained through competitive examinations when that post is still occupied because of the postponement of the current incumbent.

In this connection, it should be recalled that the posts of staff members, by their very nature, can only be filled by one staff member, without it being possible under any circumstances for more than one staff member to simultaneously fill one post.

Within this framework, the period for taking up a job obtained by competitive examination, in accordance with Article 48.1 of the General Regulations for the Admission of Personnel to the Service of the General Administration of the State and for the provision of jobs and professional promotion to officials of the General Administration of the State, approved by Royal Decree 364/1995 of 10 March, is:

“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 Gazette of the State.

If the decision involves re-entry into active service, the period for taking office must be counted from that publication.”

If the intention is the continuity of the service so that the job in question does not go uncovered, and bearing in mind that article 48 of Royal Decree 365/1995, of 10 March, establishes that the termination can be deferred up to twenty working days, the fact that the holder who has obtained the position by contest is actually incorporated, satisfies this continuity requirement so that, in the opinion of this Executive Center, the Undersecretary would have to issue a new resolution leaving the effect of the one that postponed the date of termination of the official and establishing a new date in accordance with the taking over of the new holder.

In this way, the post is covered on an ongoing basis, without prejudice to the fact that officials who have deferred their dismissal, in turn, must be waiting to take up a new post obtained through competitive examinations.

In conclusion, both 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 Executive Centre, the Assistant Secretary should issue a new termination resolution for the staff member currently occupying the post so that the successful tenderer can be incorporated by competitive examination.

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.