B-142646, AUGUST 25, 1960, 40 COMP. GEN. 119

B-142646: Aug 25, 1960

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CIVILIAN PERSONNEL - PROMOTIONS - REGRADED POSITIONS - WRITTEN RIDER RESTRICTION WHEN A COMPETITIVE CIVIL SERVICE POSITION IS REGRADED ONE GRADE HIGHER. - AND THERE IS NO OTHER POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED. DOES NOT HAVE TO SERVE A YEAR IN THE LOWER POSITION BEFORE BEING ELIGIBLE TO RECEIVE THE SALARY OF THE REGRADED POSITION. THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE * * * MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR * * * (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED * * * CIVIL SERVICE REGULATION 2.502 (F) PERTINENT THERETO READS AS FOLLOWS: NORMAL LINE OF PROMOTION.

B-142646, AUGUST 25, 1960, 40 COMP. GEN. 119

CIVILIAN PERSONNEL - PROMOTIONS - REGRADED POSITIONS - WRITTEN RIDER RESTRICTION WHEN A COMPETITIVE CIVIL SERVICE POSITION IS REGRADED ONE GRADE HIGHER--- THE LOWER GRADE POSITION BEING ABOLISHED CONCURRENTLY--- AND THERE IS NO OTHER POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED, THE EMPLOYEE INCUMBENT OF THE REGRADED POSITION COMES WITHIN THE WHITTEN RIDER EXCEPTION APPLICABLE TO NORMAL LINE PROMOTIONS, 5 U.S.C. 43 NOTE, AND DOES NOT HAVE TO SERVE A YEAR IN THE LOWER POSITION BEFORE BEING ELIGIBLE TO RECEIVE THE SALARY OF THE REGRADED POSITION. B-139584, JULY 6, 1959, OVERRULED.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, AUGUST 25, 1960:

THE LETTER OF APRIL 18, 1960, FROM THE DEPUTY ADMINISTRATOR CONCERNS OUR INFORMAL AUDIT INQUIRY REGARDING THE PROMOTION OF MR. THOMAS HURT ON DECEMBER 16, 1956, TO GRADE GS-14 PRIOR TO THE COMPLETION OF ONE YEAR OF SERVICE IN THE NEXT LOWER GRADE AS REQUIRED BY THE WHITTEN AMENDMENT, 5 U.S.C. 43. THAT PROVISION, IN PERTINENT PART, READS AS FOLLOWS:

(C) THE CIVIL SERVICE COMMISSION SHALL MAKE FULL USE OF ITS AUTHORITY TO PREVENT EXCESSIVELY RAPID PROMOTIONS IN THE COMPETITIVE CIVIL SERVICE * * *. NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY * * * SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE * * * WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE: PROVIDED, THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE * * * MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR * * * (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED * * *

CIVIL SERVICE REGULATION 2.502 (F) PERTINENT THERETO READS AS FOLLOWS:

NORMAL LINE OF PROMOTION--- AN EMPLOYEE OF THE AGENCY WHO HAS ONE (1) YEAR OF SERVICE TWO (2) GRADES LOWER THAN THE POSITION BEING FILLED MAY BE PROMOTED * * * IF THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION AT THE NEXT LOWER GRADE.

THE FEDERAL PERSONNEL MANUAL, PAGE X-1-32.04, PROVIDES IN PART AS FOLLOWS:

WHERE A SURVEY OR REORGANIZATION HAS RESULTED IN A CHANGE IN THE ORGANIZATIONAL ENTITY, THE NORMAL LINE OF PROMOTION IS DETERMINED ON THE BASIS OF THE NEW ORGANIZATION AND NOT ON THE BASIS OF THE OLD ORGANIZATION OR A COMBINATION OF THE OLD AND THE NEW.

THE RECORD SHOWS THAT MR. HURT WAS PROMOTED FROM GRADE GS-212-12 TO GRADE GS-212-13 EFFECTIVE MAY 6, 1956. ON DECEMBER 16, 1956, THE GRADE GS-212- 13 POSITION WAS REGRADED TO GRADE GS-212-14 AND MR. HURT WAS PROMOTED TO GRADE GS-14 ON THAT DATE TO FILL THE REGRADED POSITION. THE ADMINISTRATIVE ACTION OF DECEMBER 16, 1956, WAS QUESTIONED BY OUR AUDIT REPRESENTATIVE BECAUSE THE EMPLOYEE HAD NOT SERVED ONE YEAR IN GRADE GS- 13. AS THE RESULT OF OUR INQUIRY MR. HURT'S PROMOTION TO GRADE GS-212-14 WAS ADMINISTRATIVELY CORRECTED EFFECTIVE MAY 6, 1957, ONE YEAR FROM THE DATE HE WAS PROMOTED TO GRADE GS-212-13. SUCH ACTION WAS BASED UPON OUR DECISION B-139584, JULY 6, 1959, TO YOU, AFFIRMED SEPTEMBER 24, 1959, WHEREIN WE HELD THAT THE PROMOTION FROM GS-14 TO GS 15 COULD NOT BE EFFECTED UNTIL COMPLETION OF ONE YEAR IN GRADE GS-14. WE POINTED OUT THEREIN THAT THE PROMOTION CAME WITHIN OUR DECISION, 34 COMP. GEN. 179, WHICH HELD AS FOLLOWS, QUOTING THE SYLLABUS:

AN EMPLOYEE WHOSE POSITION IS REALLOCATED UPWARD PURSUANT TO THE CLASSIFICATION ACT OF 1949 AND WHO, ALTHOUGH QUALIFIED TO PERFORM THE DUTIES AND CARRY OUT THE RESPONSIBILITIES OF THE POSITION, IS NOT ELIGIBLE TO BE IMMEDIATELY PROMOTED TO THE HIGHER GRADE BECAUSE OF THE SERVICE-IN- GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT, MAY BE REGARDED AS REMAINING IN STATUS QUO AS ON DETAIL UNTIL HE IS ELIGIBLE FOR THE HIGHER GRADE AND IS NOT ENTITLED TO RECEIVE THE SALARY OF THE HIGHER GRADE DURING SUCH PERIOD.

THE DEPUTY ADMINISTRATOR'S LETTER OF APRIL 18, 1960, SUBMITS AN APPEAL PREPARED BY MR. HURT WHO FEELS THAT THE FOREGOING DECISION HAS NO APPLICATION TO HIS CASE BUT THAT OUR DECISION 31 COMP. GEN. 684 APPLIES THERETO. IN THAT DECISION WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 OCCUPYING NON COMPETITIVE POSITIONS WHICH ARE REALLOCATED UPWARD TO THE NEXT HIGHER GRADE--- THERE BEING NO POSITIONS IN THE NORMAL LINES OF PROMOTIONS IN GRADES IMMEDIATELY BELOW THOSE OF THE REALLOCATED POSITION--- ARE NOT PRECLUDED BY SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952--- COMMONLY REFERRED TO AS THE WHITTEN RIDER--- FROM RECEIVING THE COMPENSATION APPLICABLE TO THE REALLOCATED POSITIONS, EVEN THOUGH LESS THAN ONE YEAR HAS ELAPSED SINCE THE EMPLOYEES RECEIVED PROMOTIONS TO THE RESPECTIVE POSITIONS.

OUR DECISION B-139584 HELD, HOWEVER, THAT, WHILE THE ADMINISTRATIVE ACTION OF ESTABLISHING THE GRADE GS-15 POSITION REPRESENTED A REGRADING OF THE GRADE GS-14 POSITION, IT WAS NOT CONSIDERED TO BE A CASE FALLING WITHIN THE "NORMAL LINE OF PROMOTION" RULE BECAUSE THE PROMOTION WAS FROM GRADE GS-14 EVEN THOUGH THAT POSITION WAS SIMULTANEOUSLY ABOLISHED BY THE REGRADING ACTION. SUCH CONCLUSION WAS PREDICATED UPON THE OPINION OF THE CIVIL SERVICE COMMISSION CONCERNING THE APPLICATION OF ITS REGULATIONS AND INSTRUCTIONS TO THE CASE.

IN VIEW OF THE CONFUSION EXISTING WITH RESPECT TO THE APPLICATION OF THE WHITTEN AMENDMENT TO POSITIONS REGRADED ONE GRADE HIGHER AND THE USE OF THE NORMAL LINE OF PROMOTION EXCEPTION TO THE WHITTEN AMENDMENT AND SINCE, AT THE TIME OF YOUR SUBMISSION, WE HAD BEFORE US FOR CONSIDERATION SEVERAL CASES INVOLVING SUCH MATTERS, THE CIVIL SERVICE COMMISSION WAS REQUESTED TO RECONSIDER ITS POSITION RELATIVE THERETO.

UPON RE-EXAMINATION THE COMMISSION HAS DETERMINED THAT UNDER ITS REGULATIONS AND INSTRUCTIONS ISSUED TO CARRY OUT ITS RESPONSIBILITY UNDER THE WHITTEN AMENDMENT THE NORMAL LINE OF PROMOTION EXCEPTION TO THE WHITTEN AMENDMENT IS FOR APPLICATION WHEN A POSITION IS REGRADED ONE GRADE HIGHER--- THE LOWER GRADE POSITION BEING ABOLISHED CONCURRENTLY--- AND THERE IS NO OTHER POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED. SUCH DETERMINATION IS COVERED BY OUR DECISION 31 COMP. GEN. 684.

THEREFORE, WE MAY NOW CONCLUDE THAT MR. HURT'S PROMOTION OF DECEMBER 16, 1956, WAS PROPER. CORRECTIVE ADMINISTRATIVE ACTION SHOULD BE TAKEN ACCORDINGLY.

IN VIEW OF THE FOREGOING, OUR DECISION B-139584 OF JULY 6, 1959, AFFIRMED SEPTEMBER 24, IS OVERRULED. 34 COMP. GEN. 179 CONCERNS A PROMOTION OF 3 GRADES, GS-9 TO GS-12, A SITUATION NOT COVERED BY THE NORMAL LINE OF PROMOTION EXCEPTION TO THE WHITTEN AMENDMENT.