A-56994, OCTOBER 2, 1934, 14 COMP. GEN. 271

A-56994: Oct 2, 1934

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WAS MADE EFFECTIVE COINCIDENT WITH THE ADVANCEMENT OF THE POST OFFICE FROM THIRD CLASS TO SECOND CLASS. IS NOT ENTITLED AS A MATTER OF RIGHT TO COUNT FOR AUTOMATIC-PROMOTION PURPOSES SUBSTITUTE SERVICE AS A CLERK RENDERED PRIOR TO A YEAR'S SERVICE AS AN UNCLASSIFIED CLERK WHEN THE OFFICE WAS IN THE THIRD CLASS. 700 PER ANNUM AT WHICH SHE WAS APPOINTED JULY 1. MISS HILL WAS APPOINTED A CLASSIFIED SUBSTITUTE CLERK AT THE SAN SABA POST OFFICE APRIL 20. WHEN THE POST OFFICE WAS RELEGATED FROM SECOND TO THIRD CLASS. WHEN THE OFFICE WAS THIRD CLASS. THE POST OFFICE WAS ADVANCED FROM THIRD TO SECOND CLASS AND THE CLAIMANT WAS APPOINTED EFFECTIVE ON THAT DATE TO THE POSITION OF REGULAR POSTAL CLERK.

A-56994, OCTOBER 2, 1934, 14 COMP. GEN. 271

POSTAL SERVICE - AUTOMATIC PROMOTION - SUBSTITUTE SERVICE A REGULAR POSTAL CLERK WHOSE APPOINTMENT AT $1,700 PER ANNUM, THE MINIMUM AUTOMATIC SALARY GRADE FIXED BY THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1059), WAS MADE EFFECTIVE COINCIDENT WITH THE ADVANCEMENT OF THE POST OFFICE FROM THIRD CLASS TO SECOND CLASS, IS NOT ENTITLED AS A MATTER OF RIGHT TO COUNT FOR AUTOMATIC-PROMOTION PURPOSES SUBSTITUTE SERVICE AS A CLERK RENDERED PRIOR TO A YEAR'S SERVICE AS AN UNCLASSIFIED CLERK WHEN THE OFFICE WAS IN THE THIRD CLASS.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 2, 1934:

BY LETTER DATED JULY 16, 1934, E. GERTRUDE HILL, POSTAL CLERK AT THE SAN SABA (TEX.) POST OFFICE, HAS MADE CLAIM FOR THE DIFFERENCE IN COMPENSATION BETWEEN THE RATE OF $1,700 PER ANNUM AT WHICH SHE WAS APPOINTED JULY 1, 1934, AND A HIGHER AUTOMATIC SALARY RATE BASED ON LENGTH OF SERVICE AS A SUBSTITUTE CLERK.

MISS HILL WAS APPOINTED A CLASSIFIED SUBSTITUTE CLERK AT THE SAN SABA POST OFFICE APRIL 20, 1921, IN WHICH CAPACITY SHE CONTINUED UNTIL JULY 1, 1933, WHEN THE POST OFFICE WAS RELEGATED FROM SECOND TO THIRD CLASS. SHE HAD TO HER CREDIT A TOTAL OF 14,962 HOURS OF SUBSTITUTE SERVICE RENDERED PRIOR TO JULY 1, 1933, WHICH, IF ALLOWABLE AS SERVICE TOWARD AUTOMATIC PROMOTION, WOULD ENTITLE HER TO THE MAXIMUM RATE OF $2,100 PER ANNUM. DURING THE FISCAL YEAR 1934, WHEN THE OFFICE WAS THIRD CLASS, CLAIMANT SERVED AS CLERK, AN "EXCEPTED" POSITION UNDER SCHEDULE A OF THE CIVIL SERVICE LAW AND REGULATIONS WITH SALARY RATE OF $650.80 PER ANNUM, AND NOT WITHIN THE TERMS OF THE STATUTE AUTHORIZING AUTOMATIC PROMOTIONS OF CERTAIN POSTAL EMPLOYEES. ON JULY 1, 1934, THE POST OFFICE WAS ADVANCED FROM THIRD TO SECOND CLASS AND THE CLAIMANT WAS APPOINTED EFFECTIVE ON THAT DATE TO THE POSITION OF REGULAR POSTAL CLERK, FIRST GRADE, SALARY $1,700, WITHOUT CREDIT FOR HER SUBSTITUTE SERVICE.

THE QUESTION PRESENTED IN THE CASE INVOLVES THE ALLOWANCE AFTER RESTORATION TO A CLASSIFIED POSITION, FOR SUBSTITUTE SERVICE RENDERED PRIOR TO SEPARATION FROM A CLASSIFIED POSITION, UNDER THE TERMS OF THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1059), AS AMENDED BY THE FACT OF FEBRUARY 28, 1929 (45 STAT. 1405), IN PART AS FOLLOWS:

THAT CLERKS IN FIRST- AND SECOND-CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE DIVIDED INTO FIVE GRADES AS FOLLOWS: FIRST GRADE, SALARY $1,700; SECOND GRADE, SALARY $1,800; THIRD GRADE, SALARY $1,900; FOURTH GRADE, SALARY $2,000; FIFTH GRADE, SALARY $2,100 * *

THAT HEREAFTER SUBSTITUTE CLERKS IN FIRST- AND SECOND-CLASS POST OFFICES AND SUBSTITUTE LETTER CARRIERS IN THE CITY DELIVERY SERVICE WHEN APPOINTED REGULAR CLERKS OR CARRIERS SHALL HAVE CREDIT FOR ACTUAL TIME SERVED, INCLUDING TIME SERVED AS SPECIAL-DELIVERY MESSENGERS, ON A BASIS OF ONE YEAR FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS SERVED AS SUBSTITUTE OR MESSENGER, AND SHALL BE APPOINTED TO THE GRADE TO WHICH SUCH CLERK OR CARRIER WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS SUBSTITUTE BEEN TO GRADE 1.

THIS STATUTORY RIGHT TO AUTOMATIC PROMOTION BASED ON LENGTH OF SERVICE CONTEMPLATES ONLY CONTINUOUS SERVICE IN A STATUS SUBJECT TO THE TERMS OF THE STATUTE. UPON RESTORATION TO A STATUS, SUBJECT TO THE TERMS OF THE STATUTE AFTER COMPLETE SEPARATION FROM SUCH A STATUS, THE EMPLOYEE NO LONGER HAS A VESTED RIGHT, IN DETERMINING HIS SALARY RATE, TO COUNT ANY SERVICE RENDERED PRIOR TO SUCH RESTORATION, WHETHER THE SERVICE WAS A SUBSTITUTE OR A REGULAR. IN THE DECISION OF JANUARY 4, 1922 (1 COMP. GEN. 340), RENDERED UNDER AN EARLIER LAW, IT WAS STATED:

* * * IT CANNOT BE HELD THAT AN EMPLOYEE WHO HAS BEEN APPOINTED FROM SUBSTITUTE TO REGULAR AND WHO BECAME COMPLETELY SEPARATED FROM THE SERVICE AND WAS THEREAFTER REINSTATED SHOULD HAVE CREDIT FOR SUBSTITUTE SERVICE RENDERED PRIOR TO HIS REINSTATEMENT. UNDER SUCH A RULING SUBSTITUTE SERVICE WOULD BE CREDITED WHEN A LIKE PERIOD OF REGULAR SERVICE COULD NOT BE. THERE WOULD BE NO REASON OR JUSTIFICATION FOR SUCH A HOLDING AND IT CANNOT BE PRESUMED THAT THE LAW WAS INTENDED TO CREATE SUCH AN ABSURD SITUATION. IT MUST BE ASSUMED, THEREFORE, THAT THE LAW CONTEMPLATED CONTINUOUS SERVICE; THAT IS TO SAY, SERVICE EITHER AS SUBSTITUTE OR REGULAR NOT BROKEN BY RESIGNATION OR OTHER VOLUNTARY OR INVOLUNTARY SEPARATION.

WHILE THE SEPARATION IN THAT CASE WAS FROM ALL POSTAL SERVICE, THE PRINCIPLE STATED IS ALSO APPLICABLE TO ANY SEPARATION FROM A STATUS SUBJECT TO THE AUTOMATIC-PROMOTION PROVISION, SUCH AS THE YEAR'S SERVICE IN THIS CASE AS A CLERK IN A THIRD-CLASS POST OFFICE, DURING THE FISCAL YEAR 1934.

OF COURSE, IT WAS WITHIN ADMINISTRATIVE AUTHORITY TO APPOINT MISS HILL A REGULAR CLERK AT A RATE ABOVE THE MINIMUM WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION (7 COMP. GEN. 295), BUT HAVING BEEN APPOINTED AT THE MINIMUM SALARY RATE OF $1,700 PER ANNUM, SHE IS NOT NOW ENTITLED TO COUNT ANY PRIOR SERVICE FOR PROMOTION PURPOSES. DECISIONS OF OCTOBER 30, 1925, A-10777, AND MARCH 15, 1927, A-16524.