B-20925, OCTOBER 27, 1941, 21 COMP. GEN. 369

B-20925: Oct 27, 1941

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" AND THE TENURE OF THE APPOINTMENT OR EMPLOYMENT IS NOT OTHERWISE DESIGNATED AS TEMPORARY BY LAW OR LIMITED BY THE TERMS AND CONDITIONS OF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A PERIOD OF 6 MONTHS OR LESS. DURING THE PERIOD BETWEEN THE TIME HIS POSITION IS COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND THE TIME HE QUALIFIES OR FAILS TO QUALIFY UNDER SECTION 6 OF CIVIL-SERVICE RULE II FOR A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS IN SUCH POSITION. OF CIVIL SERVICE RULES AND REGULATIONS IS NOT OCCUPYING A "PERMANENT POSITION" WITHIN THE MEANING OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1. AN EMPLOYE SERVING UNDER A PROBATIONARY APPOINTMENT OF MORE THAN 6 MONTHS IS OCCUPYING A "PERMANENT POSITION" AND ENTITLED TO THE BENEFITS OF THE STATUTE IF ITS OTHER REQUIREMENTS ARE MET.

B-20925, OCTOBER 27, 1941, 21 COMP. GEN. 369

COMPENSATION - WITHIN-GRADE PROMOTIONS - ELIGIBILITY; ETC. THE TENURE OF EMPLOYMENT OF THE INDIVIDUAL EMPLOYEE UNDER THE TERMS OF ANY APPLICABLE LAW, OR UNDER THE TERMS AND CONDITIONS OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT MUST CONTROL IN DETERMINING WHETHER THE EMPLOYEE OCCUPIES A "PERMANENT" OR "TEMPORARY" POSITION WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER. ANY APPOINTMENT OR EMPLOYMENT MADE UNDER A CIVIL-SERVICE RULE OR REGULATION SPECIFICALLY DESIGNATING AN APPOINTMENT AS "TEMPORARY" CONSTITUTES A POSITION "DESIGNATION AS TEMPORARY BY LAW" WITHIN THE MEANING OF THE PRESIDENT'S REGULATIONS UNDER THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, DEFINING "PERMANENT POSITIONS" AS INCLUDING "ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIODS OF 6 MONTHS OR LESS.' IF THE CIVIL-SERVICE RULES OR REGULATIONS DO NOT SPECIFICALLY DESIGNATE AN APPOINTMENT AS ,TEMPORARY," AND THE TENURE OF THE APPOINTMENT OR EMPLOYMENT IS NOT OTHERWISE DESIGNATED AS TEMPORARY BY LAW OR LIMITED BY THE TERMS AND CONDITIONS OF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A PERIOD OF 6 MONTHS OR LESS, THE EMPLOYEE SHOULD BE REGARDED AS OCCUPYING A ,PERMANENT POSITION" WITHIN THE MEANING OF THE UNIFORM WITHIN-GRADE SALARY -ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER. THE PRESIDENT'S DEFINITIONS OF ,PERMANENT POSITION" UNDER THE STATUTE, SUPRA, AND UNDER THE ANNUAL AND SICK LEAVE STATUTES, DISTINGUISHED. AN EMPLOYEE SHOULD BE REGARDED AS OCCUPYING A "PERMANENT POSITION" WITHIN THE MEANING OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER, DURING THE PERIOD BETWEEN THE TIME HIS POSITION IS COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND THE TIME HE QUALIFIES OR FAILS TO QUALIFY UNDER SECTION 6 OF CIVIL-SERVICE RULE II FOR A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS IN SUCH POSITION, SINCE NEITHER THE SAID RULE NOR ANY OTHER LAW OR REGULATION DESIGNATES SUCH INTERIM SERVICES AS BEING UNDER A TEMPORARY APPOINTMENT. AN EMPLOYEE SERVING UNDER A PROBATIONARY APPOINTMENT OF 6 MONTHS OR LESS PURSUANT TO SECTION 2 (C) OF RULE VII, AS AMENDED, OF CIVIL SERVICE RULES AND REGULATIONS IS NOT OCCUPYING A "PERMANENT POSITION" WITHIN THE MEANING OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER, BUT AN EMPLOYE SERVING UNDER A PROBATIONARY APPOINTMENT OF MORE THAN 6 MONTHS IS OCCUPYING A "PERMANENT POSITION" AND ENTITLED TO THE BENEFITS OF THE STATUTE IF ITS OTHER REQUIREMENTS ARE MET, EVEN THOUGH A CURRENT CIVIL-SERVICE RULE DENIES PROMOTIONS DURING A PROBATIONARY PERIOD. A REDUCTION IN SALARY DURING THE PRESCRIBED PERIOD THAT AN EMPLOYEE MUST SERVE WITHOUT AN ,EQUIVALENT INCREASE IN COMPENSATION" IN ORDER TO BE ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, HAS NO EFFECT ON THE EMPLOYEE'S ELIGIBILITY TO THE INCREASE WHERE THE REDUCTION FOLLOWS A PRIOR INCREASE IN SALARY, THE SAID PRESCRIBED PERIOD CONTINUES TO RUN FROM THE EFFECTIVE DATE OF THE PRIOR INCREASE. A RESTORATION IN COMPENSATION AFTER A REDUCTION IS AN "EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, AND THE PRESIDENT'S REGULATIONS THEREUNDER, AND THE PRESCRIBED PERIOD THAT THE EMPLOYEE MUST SERVE WITHOUT SUCH AN EQUIVALENT INCREASE IN ORDER TO BE ELIGIBLE FOR A SALARY ADVANCEMENT UNDER THE ACT BEGINS TO RUN FROM THE DATE OF THE RESTORATION. IN COMPUTING THE PRESCRIBED PERIOD THAT A PER ANNUM EMPLOYEE OCCUPYING A POSITION WITHIN THE SCOPE OF THE WITHIN-GRADE SALARY ADVANCEMENT PROVISIONS OF THE ACT OF AUGUST 1, 1941, MUST SERVE IN ORDER TO BE ELIGIBLE FOR A SALARY ADVANCEMENT UNDER THE ACT, PRIOR SERVICE IN A POSITION FOR WHICH THE COMPENSATION IS FIXED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS MAY BE COUNTED, IF THE CONDITIONS AS TO CONTINUITY OF SERVICE, ETC., PRESCRIBED BY THE PRESIDENT'S REGULATIONS UNDER THE ACT HAVE BEEN MET. AN ADMINISTRATIVE ERROR IN NOT GRANTING AN EMPLOYEE A WITHIN-GRADE SALARY ADVANCEMENT PURSUANT TO THE ACT OF AUGUST 1, 1941, MAY NOT DEFEAT OR DELAY THE RIGHT OF THE EMPLOYEE TO THE ADVANCEMENT ON AND AFTER THE BEGINNING OF ANY QUARTER HE BECAME QUALIFIED AND ENTITLED THERETO, AND ADMINISTRATIVE ACTION RETROACTIVELY CORRECTING THE ERROR IS NOT TO BE REGARDED AS A RETROACTIVELY EFFECTIVE PROMOTION SUCH AS IS PROHIBITED UNDER THE GENERAL RULE APPLICABLE TO PROMOTIONS. AN EMPLOYEE PAID ON AN ANNUAL BASIS WHO, AT THE BEGINNING OF A QUARTER, OCCUPIES A PERMANENT PART-TIME POSITION (FRACTIONAL PART OF A YEAR) WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT IS ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, IF HE HAS HAD THE PRESCRIBED LENGTH OF SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION, COMPUTED, WITH REGARD TO INTERVENING NON-PAY STATUS OR ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY, IN ACCORDANCE WITH SECTIONS 2 (C) AND (D) OF THE PRESIDENT'S REGULATIONS PROMULGATED PURSUANT TO THE STATUTE, AND IF HE IS OTHERWISE QUALIFIED UNDER THE TERMS AND CONDITIONS OF THE STATUTE. IF AN EMPLOYEE RESIGNED OR WAS SEPARATED FROM A PERMANENT POSITION EFFECTIVE ON OCTOBER 1, 1941, FROM AND AFTER WHICH DATE THE FIRST WITHIN- GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, ARE PAYABLE, HE SHOULD NOT BE CONSIDERED FOR A PROMOTION UNDER THE ACT, AS OF THAT DATE, BUT IF THE EMPLOYEE'S SEPARATION WAS NOT EFFECTIVE UNTIL AFTER OCTOBER 1, 1941, HE SHOULD BE CONSIDERED FOR PROMOTION FOR THE PERIOD FROM OCTOBER 1, 1941, TO THE DATE HE IS SEPARATED. AN EMPLOYEE WHO IS ON LEAVE OF ABSENCE WITHOUT PAY ON OCTOBER 1, 1941, THE EFFECTIVE DATE OF THE FIRST WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, SHOULD BE GIVEN THE SALARY INCREASE FOR RECORD PURPOSES--- PAYMENT TO BE MADE IF AND WHEN HE RETURNS TO A PAY STATUS--- PROVIDED ALL OTHER REQUIREMENTS FOR THE INCREASE ARE MET. AN EMPLOYEE WHO, DURING THE 18 MONTHS' PERIOD PRIOR TO OCTOBER 1, 1941, WAS TRANSFERRED FROM A FIELD GRADE 8, $1,000, POSITION IN "THE STATES" TO A FIELD GRADE 9, $2,000, POSITION IN ALASKA WHERE POSITIONS ARE ADMINISTRATIVELY ALLOCATED ONE GRADE HIGHER THAN SIMILAR POSITIONS IN THE STATES HAS RECEIVED AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, AND, THEREFORE, HE IS NOT ENTITLED TO A PROMOTION AS OF OCTOBER 1, 1941, UNDER THE ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, OCTOBER 27, 1941:

I HAVE YOUR LETTER OF OCTOBER 1, 1941, AS FOLLOWS:

SOME QUESTIONS HAVE ARISEN AS TO THE INTERPRETATION TO BE PLACED UPON THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 77TH CONGRESS, TO AMEND THE CLASSIFICATION ACT OF 1923, AS AMENDED. THIS LAW PROVIDES UNDER CERTAIN CIRCUMSTANCES FOR WITHIN-GRADE SALARY INCREASES FOR ALL EMPLOYEES, WITH SPECIFIED EXCEPTIONS AND LIMITATIONS, COMPENSATED ON A PER ANNUM BASIS AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE ACT. THE PRINCIPAL QUESTION INVOLVED IS WHETHER THE NATURE OF THE POSITION IS CONTROLLING, THAT IS WHETHER IT IS PERMANENT OR TEMPORARY AS DEFINED IN EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941, OR WHETHER THE STATUS OF THE EMPLOYEE IS THE GOVERNING FACTOR AS ONE OF THE CONSTITUENTS OF ELIGIBILITY. SOME EXAMPLES OF THE FOREGOING FOLLOW:

1. PRIOR TO JULY 1, 1941, AN EMPLOYEE WAS FILLING A POSITION WITHOUT TIME LIMIT AND WITHOUT THE BOUNDS OF CIVIL-SERVICE RULES. FUNDS WERE APPROPRIATED FOR THE PRESENT FISCAL YEAR TO CONTINUE THE FORCE OF WHICH THE EMPLOYEE IS A MEMBER IN POSITIONS SUBJECT TO CIVIL SERVICE RULES, PARTICULARLY SECTION 6 OF CIVIL-SERVICE RULE II. THE PROPRIETY OF CLASSIFICATION UNDER THIS RULE HAS NOT YET BEEN ESTABLISHED BY THE CIVIL SERVICE COMMISSION, BUT THAT OFFICE HAS GIVEN TEMPORARY AUTHORITY TO CONTINUE THE EMPLOYEE, PENDING THE DETERMINATION OF THE STATUS OF THE POSITION FOR CIVIL-SERVICE CLASSIFICATION. NO TIME LIMIT IS PLACED UPON THE POSITION THE EMPLOYEE IS OCCUPYING ALTHOUGH HIS STATUS IN THE POSITION IS TEMPORARY. WOULD HE BE PROMOTABLE ON OCTOBER 1 IF OTHERWISE ELIGIBLE?

2. AN EMPLOYEE HAS BEEN FILLING A POSITION WITHOUT TIME LIMIT AND EXCEPTED FROM CIVIL-SERVICE RULES. HE BECAME ELIGIBLE THROUGH COMPETITIVE CIVIL-SERVICE EXAMINATION AND HAS BEEN GIVEN A PROBATIONAL APPOINTMENT IN A NONDEFENSE AGENCY. THE PERIOD OF PROBATION WILL NOT HAVE BEEN COMPLETED BY OCTOBER 1. UNDER CIVIL-SERVICE RULES THE APPOINTEE WOULD NOT BE ELIGIBLE FOR AN ADMINISTRATIVE INCREASE DURING HIS PROBATIONARY PERIOD. WOULD THIS EMPLOYEE BE PROMOTABLE ON OCTOBER 1 IF OTHERWISE ELIGIBLE?

3. AN EMPLOYEE HAS BEEN APPOINTED UPON THE AUTHORITY OF THE CIVIL SERVICE COMMISSION, PENDING THE ESTABLISHMENT OF A REGISTER OF ELIGIBLES TO FILL THE POSITION PERMANENTLY. THE EMPLOYEE IS THEREFORE OCCUPYING A PERMANENT POSITION BUT WITH A TEMPORARY CIVIL-SERVICE STATUS. WOULD HE BE PROMOTABLE ON OCTOBER 1 IF OTHERWISE ELIGIBLE?

THE DEPARTMENT IS OF THE OPINION THAT THE TENURE OF THE POSITION IS THE GOVERNING FACTOR AND NOT THE STATUS OF THE EMPLOYEE. IN THIS CONNECTION SECTION 8 OF THE ACT PROVIDES THAT INSOFAR AS THEY ARE INCONSISTENT OR IN CONFLICT WITH PRIOR LAWS, THE PROVISIONS OF THIS ACT SHALL CONTROL.

A SECOND QUESTION ARISES CONCERNING AN EMPLOYEE WHO HAS HAD AN INCREASE IN SALARY WITHIN 18 MONTHS PRIOR TO OCTOBER 1, OR OTHER PROMOTION DATE, BUT SUBSEQUENT TO THAT INCREASE HAD A DECREASE IN GRADE AND SALARY. WOULD THE 18-MONTH PERIOD START TO RUN FROM THE EFFECTIVE DATE OF THE LAST INCREASE NOTWITHSTANDING THE SUBSEQUENT DECREASE IN SALARY?

A THIRD QUESTION IS WHETHER AN EMPLOYEE WHO WAS DEMOTED IN GRADE AND SALARY WITHIN THE 18-MONTH PERIOD PRIOR TO OCTOBER 1, AND LATER DURING THE SAME PERIOD WAS RESTORED TO HIS FORMER GRADE AND SALARY, WOULD BE PROMOTABLE IF OTHERWISE ELIGIBLE. AN ILLUSTRATION OF THIS QUESTION WOULD BE AN EMPLOYEE IN GRADE CAF-3 AT $1,620 PER ANNUM OCCUPYING AN EXCEPTED POSITION, WHO UPON BECOMING ELIGIBLE THROUGH CIVIL-SERVICE EXAMINATION, WAS GIVEN A PROBATIONAL APPOINTMENT IN GRADE CAF-2 AT $1,440 PER ANNUM. AFTER THE PROBATIONARY PERIOD HAD BEEN COMPLETED, THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AND SALARY OF CAF-3 AT $1,620 PER ANNUM.

A FOURTH QUESTION CONCERNS AN EMPLOYEE WHO HAS BEEN SERVING IN A PERMANENT POSITION AT A DAILY RATE AND PAID WHEN ACTUALLY EMPLOYED, WHO, PRIOR TO OCTOBER 1 OR OTHER PROMOTION DATE, WILL HAVE BEEN CHANGED TO A PER ANNUM RATE, CONTINUING IN A PERMANENT POSITION. WOULD SUCH AN EMPLOYEE BE ELIGIBLE FOR AN INCREASE IN SALARY IF OTHER REQUIREMENTS ARE MET?

A FIFTH QUESTION CONCERNS EMPLOYEES WHO MAY BE ELIGIBLE FOR AN INCREASE ON OCTOBER 1 OR OTHER PROMOTION DATE, BUT WHO THROUGH OVERSIGHT WERE NOT ADVANCED IN SALARY. SECTION 4 OF EXECUTIVE ORDER NO. 8882 PROVIDES FOR RETROACTIVE INCREASES UPON A CHANGE OR ADJUSTMENT OF EFFICIENCY RATING. DO THE PROVISIONS OF THE ACT PROVIDE THAT A SALARY INCREASE MAY BE MADE EFFECTIVE ON THE FIRST PROMOTABLE DATE EVEN THOUGH THIS DATE HAD PASSED AT THE TIME THE ERROR WAS DISCOVERED?

A SIXTH QUESTION IS WHETHER PART-TIME EMPLOYEES WHOSE POSITIONS ARE ALLOCATED TO A CLASSIFICATION GRADE WITH AN ANNUAL SALARY, WORKING A FRACTIONAL PART OF THE YEAR, ARE PROMOTABLE IF OTHERWISE ELIGIBLE.

A SEVENTH QUESTION CONCERNS AN EMPLOYEE WHO HAS RESIGNED OR WHO IS BEING SEPARATED FROM A PERMANENT POSITION, EFFECTIVE ON OR AFTER OCTOBER 1. SHOULD HE BE CONSIDERED FOR PROMOTION IF OTHERWISE ELIGIBLE? ALSO, IS AN EMPLOYEE ON LEAVE WITHOUT PAY EXTENDING OVER OCTOBER 1 TO BE PROMOTED?

AN EIGHTH QUESTION PERTAINS TO AN EMPLOYEE WHO HAS BEEN TRANSFERRED FROM THE STATES TO ALASKA WHERE POSITIONS ARE ADMINISTRATIVELY ALLOCATED ONE GRADE HIGHER THAN SIMILAR POSITIONS IN THE STATES BECAUSE OF THE UNUSUAL WORKING CONDITIONS. TO ILLUSTRATE THE QUESTION: A NURSE RECEIVING $1,800 IN FIELD GRADE 8 WITH A SALARY RANGE OF $1,800 TO $2,160 IS TRANSFERRED TO ALASKA AT $2,000 IN FIELD GRADE 9 WITH A RANGE OF $2,000 TO $2,600, THIS BEING THE ONLY SALARY CHANGE DURING THE 18-MONTH PERIOD PRIOR TO OCTOBER 1. DOES THIS TRANSFER WITH RESULTANT CHANGE IN GRADE AND SALARY CONSTITUTE AN INCREASE IN COMPENSATION WITHIN THE MEANING OF THE ACT?

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 2. SECTION 7 OF THE SAID ACT IS HEREBY AMENDED BY INSERTING THE LETTER "/A)" AFTER THE FIGURE "7" AT THE BEGINNING OF SAID SECTION, AND BY ADDING THE FOLLOWING PARAGRAPHS AS SUBSECTIONS THEREOF:

"/B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS:

"/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION;

"/E) EMPLOYEES ELIGIBLE UNDER SUBSECTION (B) FOR COMPENSATION ADVANCEMENT BY REASON OF SERVICE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDMENT SHALL BE ADVANCED TO THE NEXT HIGHER RATE OF COMPENSATION WITHIN THE GRADE TO WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED AT THE BEGINNING OF THE NEXT QUARTER IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS AMENDMENT.

"/G) THE PRESIDENT IS HEREBY AUTHORIZED TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF THIS SECTION.'

EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941, CONTAINS THE FOLLOWING REGULATIONS PROMULGATED BY THE PRESIDENT UNDER AUTHORITY OF SECTION 2 (G) OF THE STATUTE:

SECTION 1. IN THE ADMINISTRATION OF THE SAID SECTION 7, THE FOLLOWING DEFINITIONS OF TERMS USED THEREIN SHALL APPLY:

(A) "PERMANENT POSITIONS" SHALL INCLUDE ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIODS OF SIX MONTHS OR LESS.

(D) "EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

SECTION 2. IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

(B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

(C) TIME ELAPSING IN A NONPAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

(D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.

IN DECISION OF OCTOBER 11, 1941, B-20783, 21 COMP. GEN. 313, IT WAS STATED:

THE WORDS "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT," APPEARING IN SECTION 2 (B) OF THE STATUTE, ABOVE QUOTED, HAVE RELATION TO THE BEGINNING OF ANY QUARTER, THAT IS, THE TIME THAT AN EMPLOYEE BECOMES ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE TERMS AND CONDITIONS OF THE STATUTE. OTHER WORDS, AN EMPLOYEE MUST AT SUCH TIME OCCUPY A PERMANENT POSITION WITHIN THE SCOPE OF THE CLASSIFICATION ACT AS THAT TERM HAS BEEN DEFINED IN THE REGULATIONS. THE DEFINITIONS OF THE TERMS "PERMANENT POSITIONS" AND ,POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" APPEARING IN SECTION 1 OF THE PRESIDENT'S REGULATIONS THUS HAVE RELATION TO THE POSITION HELD AT THE BEGINNING OF THE QUARTER AN EMPLOYEE BECOMES ELIGIBLE FOR THE WITHIN-GRADE SALARY ADVANCEMENT.

THE ACT OF AUGUST 1, 1941, SUPRA, PROVIDES A PLAN FOR MAKING WITHIN GRADE SALARY ADVANCEMENTS TO EMPLOYEES ON THE BASIS OF THEIR INDIVIDUAL SERVICE. SEE 21 COMP. GEN. 118, 119. HENCE, IT IS THE STATUS OF THE INDIVIDUAL EMPLOYEE WHICH MUST CONTROL IN DETERMINING WHETHER THE EMPLOYEE IS OCCUPYING A "PERMANENT POSITION" AT THE BEGINNING OF ANY QUARTER. WHETHER A POSITION IS PERMANENT" OR "TEMPORARY" WITHIN THE MEANING OF THE LAW AND REGULATIONS IS DETERMINED BY THE TENURE OF EMPLOYMENT OF THE INDIVIDUAL EMPLOYEE UNDER THE TERMS OF ANY APPLICABLE LAW, OR THE TERMS AND CONDITIONS OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT. THE CIVIL- SERVICE LAW AND THE RULES AND REGULATIONS THEREUNDER CONSTITUTE A "LAW" WITHIN THE MEANING OF SECTION 1 (A) OF THE PRESIDENT'S REGULATIONS DEFINING "PERMANENT POSITIONS.' ACCORDINGLY, ANY APPOINTMENT OR EMPLOYMENT MADE UNDER A CIVIL-SERVICE RULE OR REGULATION SPECIFICALLY DESIGNATING AN APPOINTMENT AS "TEMPORARY," SUCH AS RULE VIII ENTITLED " TEMPORARY APPOINTMENT," REGARDLESS OF THE LENGTH OF TIME THE EMPLOYEE MAY SERVE UNDER SUCH A TEMPORARY APPOINTMENT, SHOULD BE REGARDED AS CREATING A TEMPORARY POSITION, RATHER THAN A PERMANENT POSITION, WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER. COMPARE 12 COMP. GEN. 431, 434. HOWEVER, IF THE CIVIL-SERVICE RULES OR REGULATIONS DO NOT SPECIFICALLY DESIGNATE AN APPOINTMENT AS "TEMPORARY," SUCH AS SECTION 6 OF RULE VII, AND THE TENURE OF THE APPOINTMENT OR EMPLOYMENT IS NOT OTHERWISE DESIGNATED AS TEMPORARY BY LAW OR LIMITED BY THE TERMS AND CONDITIONS OF THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A PERIOD OF 6 MONTHS OR LESS, THE EMPLOYEE SHOULD BE REGARDED AS OCCUPYING A ,PERMANENT POSITION" WHILE SERVING UNDER SUCH AN APPOINTMENT. ALSO, A POSITION IS NOT "PERMANENT" WITHIN THE MEANING OF THE ACT AND THE REGULATIONS IF THE TENURE OF THE APPOINTMENT OR EMPLOYMENT OF THE EMPLOYEE IS ESTABLISHED FOR A DEFINITE PERIOD OF 6 MONTHS OR LESS BY THE ACTION OF THE CIVIL SERVICE COMMISSION AND/OR THE ADMINISTRATIVE OFFICE. IT SHOULD BE BORNE IN MIND THAT THE DEFINITION OF "PERMANENT POSITIONS" IN THE PRESIDENT'S REGULATIONS PROMULGATED UNDER THIS STATUTE IS MATERIALLY DIFFERENT FROM THE DEFINITION OF "PERMANENT EMPLOYEE" APPEARING IN THE PRESIDENT'S REGULATIONS PROMULGATED UNDER AUTHORITY OF THE ANNUAL AND SICK LEAVE ACTS. SEE 19 COMP. GEN. 520.

REFERRING TO CASE NO. 1 UNDER THE FIRST QUESTION, SECTION 6 OF CIVIL SERVICE RULE II PROVIDES THE CONDITIONS FOR GRANTING A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS TO AN EMPLOYEE WHEN HIS POSITION IS PLACED IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE. WHILE IT IS STATED UNDER THIS QUESTION THAT THE EMPLOYEE'S "STATUS IN THE POSITION IS TEMPORARY" PENDING THE DETERMINATION OF THE STATUS OF THE POSITION FOR CIVIL-SERVICE CLASSIFICATION, NEITHER THE STATED RULE NOR ANY OTHER LAW OR REGULATION DESIGNATES SUCH INTERIM SERVICES AS BEING UNDER A TEMPORARY APPOINTMENT--- THAT IS, IN RESPECT OF THE SERVICES PERFORMED BETWEEN THE TIME WHEN THE POSITION IS COVERED INTO THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND THE TIME THE EMPLOYEE QUALIFIES OR FAILS TO QUALIFY FOR A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS IN SUCH POSITION. SEE SECTION 1 (A) OF THE PRESIDENT'S REGULATION, SUPRA. THUS, FOR THE PURPOSES OF PUBLIC LAW 200 AND THE PRESIDENT'S REGULATION THEREUNDER, THE EMPLOYEE ON OCTOBER 1, 1941, WAS OCCUPYING A "PERMANENT POSITION," AND IF HE BE OTHERWISE QUALIFIED HE IS ENTITLED TO A WITHIN GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941.

SECTION 2 OF THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 403, 404, CONTAINS THE FOLLOWING:

SECOND.--- AND, AMONG OTHER THINGS, SAID RULES SHALL PROVIDE AND DECLARE, AS NEARLY AS THE CONDITIONS OF GOOD ADMINISTRATION WILL WARRANT, AS FOLLOWS:

FOURTH, THAT THERE SHALL BE A PERIOD OF PROBATION BEFORE ANY ABSOLUTE APPOINTMENT OR EMPLOYMENT AFORESAID.

SECTION 2 (C) OF RULE VII OF CIVIL SERVICE RULES AND REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 8587, DATED NOVEMBER 7, 1940, PROVIDES AS FOLLOWS:

(C) PROBATIONARY APPOINTMENT.--- A PERSON SELECTED FOR APPOINTMENT SHALL BE DULY NOTIFIED BY THE APPOINTING OFFICER AND UPON ACCEPTING AND REPORTING FOR DUTY SHALL RECEIVE FROM SUCH OFFICER A CERTIFICATE OF PROBATIONAL APPOINTMENT. THE FIRST SIX MONTHS OF SERVICE UNDER THIS APPOINTMENT SHALL BE A PROBATIONARY PERIOD, BUT THE COMMISSION AND THE DEPARTMENT CONCERNED MAY BY REGULATION FIX A LONGER PROBATIONARY PERIOD FOR ANY SPECIFIED POSITIONS. IF AND WHEN, AFTER A FULL AND FAIR TRIAL, THE CONDUCT OR CAPACITY OF THE PROBATIONER IS NOT SATISFACTORY TO THE APPOINTING OFFICER, THE PROBATIONER MAY AT ANY TIME THEREAFTER DURING THIS PERIOD BE SO NOTIFIED IN WRITING, WITH A FULL STATEMENT OF REASONS, AND THIS NOTICE SHALL TERMINATE HIS SERVICE. EFFICIENCY-RATING REPORTS OF ALL PROBATIONERS SHALL BE FILED PERIODICALLY WITHIN THE DEPARTMENT AT SUCH TIMES AND IN SUCH FORM AS THE REGULATIONS OF THE COMMISSION SHALL PROVIDE. IF AT THE END OF THE PROBATIONARY PERIOD THE PROBATIONER'S SERVICE RATING HAS BEEN SATISFACTORY, TO THE EXTENT REQUIRED BY REGULATION, A CERTIFICATE TO THAT EFFECT FILED WITHIN THE DEPARTMENT AND HIS RETENTION IN THE SERVICE SHALL CONFIRM HIS ABSOLUTE APPOINTMENT. IF, HOWEVER, HIS SERVICE RATING HAS BEEN UNSATISFACTORY AS SO PROVIDED, HIS SERVICE SHALL BE TERMINATED AT THE END OF THE PROBATIONARY PERIOD.

A PROBATIONER SEPARATED FROM THE SERVICE WITHOUT DELINQUENCY OR MISCONDUCT MAY BE RESTORED TO THE REGISTER OF ELIGIBLES IN THE DISCRETION OF THE COMMISSION FOR THE REMAINDER OF ANY PERIOD OF ELIGIBILITY THEREON.

THAT RULE WAS MADE RETROACTIVELY EFFECTIVE BY CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 176, SUPPLEMENT NO. 1, DATED DECEMBER 16, 1940.

WHILE THE POSITION IN WHICH AN EMPLOYEE IS RENDERING SERVICES UNDER A PROBATIONARY APPOINTMENT IS NOT "DESIGNATED AS TEMPORARY BY LAW" (QUOTING FROM SECTION 1 (A) OF THE REGULATIONS), IT MUST BE CONCLUDED THAT THE POSITION TO WHICH THE PROBATIONARY APPOINTMENT WAS MADE IS NOT A "PERMANENT POSITION" WITHIN THE MEANING OF THE DEFINITION OF THAT TERM APPEARING IN THE REGULATIONS, IF SUCH APPOINTMENT WAS ESTABLISHED FOR A DEFINITE PERIOD OF 6 MONTHS OR LESS PURSUANT TO THE ABOVE-QUOTED CIVIL SERVICE RULE. HOWEVER, WHERE A PROBATIONARY APPOINTMENT IS MADE TO A POSITION FOR A DEFINITE PERIOD OF MORE THAN 6 MONTHS THE POSITION WOULD BE A "PERMANENT POSITION" WITHIN THE MEANING OF THE REGULATION. ACCORDINGLY, IF THE EMPLOYEE IN CASE NUMBER 2 UNDER THE FIRST QUESTION WAS SERVING ON OCTOBER 1, 1941, UNDER A PROBATIONARY APPOINTMENT OF 6 MONTHS OR LESS, HE WOULD NOT BE ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT AS OF THAT DATE. AS TO THE COUNTING OF SERVICE IN A TEMPORARY APPOINTMENT SEE DECISION OF OCTOBER 11, 1941, B-20783, 21 COMP. GEN. 313. IF THIS EMPLOYEE WAS THEN SERVING UNDER A PROBATIONARY APPOINTMENT OF MORE THAN 6 MONTHS HE WOULD BE ENTITLED TO A WITHIN GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941, PROVIDED HE WAS THEN OTHERWISE QUALIFIED, ON THE BASIS THAT HE WAS OCCUPYING A "PERMANENT POSITION" WITHIN THE MEANING OF THE LAW AND REGULATIONS. IN SUCH EVENT THE CIVIL-SERVICE RULE (RULE XI (A), AS AMENDED BY EXECUTIVE ORDER NO. 8179, DATED JUNE 21, 1939) DENYING A PROMOTION DURING THE PROBATIONARY PERIOD OF MORE THAN 6 MONTHS MUST YIELD TO THE RULES ESTABLISHED BY THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS. SEE ANSWER TO CASE NO. 3, DECISION OF OCTOBER 13, 1941, B- 20841, 21 COMP. GEN. 326.

SECOND QUESTION.--- THE FACT THAT AN EMPLOYEE WAS REDUCED IN SALARY DURING THE PRESCRIBED PERIOD OF 18 OR 30 MONTHS HAS NO BEARING UPON THE MATTER AND DOES NOT STOP THE RUNNING OF THE PERIOD FROM THE LAST "EQUIVALENT INCREASE IN COMPENSATION.' ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THIRD QUESTION.--- IN DECISIONS OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285, AND OCTOBER 13, 1941, B-20841.21 COMP. GEN. 326, IT WAS HELD THAT A RESTORATION IN COMPENSATION AFTER A REDUCTION IS AN "EQUIVALENT INCREASE IN COMPENSATION" FOR ANY CAUSE WITHIN THE MEANING OF SECTION 2 (B) (1) OF THE STATUTE AND SECTION 1 (D) OF THE PRESIDENT'S REGULATION, AND THAT THE 18 OR 30 MONTHS' PERIOD BEGINS TO RUN FROM THE DATE OF THE RESTORATION. IN THE ILLUSTRATION GIVEN, THE 18 MONTHS' PERIOD WOULD BEGIN TO RUN FROM THE DATE THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AND SALARY OF CAF-3 AT $1,620 PER ANNUM.

FOURTH QUESTION.--- THERE IS NO EXPRESS PROVISION IN THE STATUTE OR THE REGULATIONS EITHER DENYING OR AUTHORIZING THE COUNTING OF SERVICE DURING A PERIOD AN EMPLOYEE IS PAID PER DIEM COMPENSATION ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" IN COMPUTING THE PRESCRIBED PERIOD. HOWEVER, IF THE EMPLOYEE IS OCCUPYING A PERMANENT POSITION AT THE BEGINNING OF ANY QUARTER WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT, THE COMPENSATION FOR WHICH IS FIXED ON AN ANNUAL BASIS, AND HE IS NOT DISQUALIFIED BY REASON OF HIS HAVING BEEN IN A NONPAY STATUS IMMEDIATELY PRECEDING THE BEGINNING OF THE QUARTER FOR LONGER PERIODS THAN ARE AUTHORIZED TO BE COUNTED IN COMPUTING THE PRESCRIBED PERIOD BY SECTION 2 (C) AND (D) OF THE REGULATIONS, THE TERMS OF SECTION 2 (A) OF THE REGULATIONS WOULD AUTHORIZE THE COUNTING OF PRIOR CONTINUOUS CIVILIAN SERVICE COMPENSATED FOR ON A PER DIEM WHEN-ACTUALLY-EMPLOYED BASIS IN COMPUTING THE PRESCRIBED PERIOD. COMPARE DECISION OF OCTOBER 11, 1941, B- 20783, 21 COMP. GEN. 313. SUBJECT TO THESE CONDITIONS THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

FIFTH QUESTION.--- THE LAW AND REGULATIONS PROVIDE THE TERMS AND CONDITIONS ON THE BASIS OF WHICH A PERIODIC INCREASE IN COMPENSATION IS AUTHORIZED TO BE PAID AND THE DATE ON WHICH THE INCREASE SHALL BE EFFECTIVE. AN ADMINISTRATIVE ERROR DOES NOT DEFEAT OR DELAY THE RIGHT OF AN EMPLOYEE TO THE INCREASE ON AND AFTER THE BEGINNING OF ANY QUARTER HE BECOMES QUALIFIED AND ENTITLED THERETO. ADMINISTRATIVE ACTION RETROACTIVELY EFFECTIVE DUE TO AN ERROR IS NOT TO BE REGARDED AS A RETROACTIVELY EFFECTIVE PROMOTION SUCH AS IS PROHIBITED UNDER THE GENERAL RULE APPLICABLE TO PROMOTIONS. COMPARE 6 COMP. GEN. 133. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SIXTH QUESTION.--- REFERENCE IS MADE TO THE ANSWER TO THE FOURTH QUESTION. IF AT THE BEGINNING OF A QUARTER AN EMPLOYEE PAID ON AN ANNUAL BASIS IS OCCUPYING A PERMANENT PART-TIME POSITION (FRACTIONAL PART OF A YEAR) WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT HE IS ENTITLED TO A PERIODIC INCREASE IN COMPENSATION IF HE HAS SERVED 18 OR 30 MONTHS IMMEDIATELY PRIOR THERETO COMPUTED BY EXCLUDING ALL PERIODS IN A NONPAY STATUS AGGREGATING IN EXCESS OF 30 DAYS AND ALL SERVICE PRIOR TO ANY ABSENCE ON LEAVE OR FURLOUGH EXCEEDING 1 YEAR, PROVIDED HE HAS NOT RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION DURING THAT PERIOD AND IS OTHERWISE QUALIFIED UNDER THE TERMS AND CONDITIONS OF THE STATUTE. IF THERE HAS BEEN A PERIOD IN A NONPAY STATUS IN EXCESS OF 1 YEAR, THE PRESCRIBED PERIOD DOES NOT BEGIN TO RUN UNTIL THE EMPLOYEE IS RESTORED TO A PAY STATUS. SEE SECTION 2 (C) AND (D) OF THE REGULATION.

SEVENTH QUESTION.--- IF THE EMPLOYEE WAS SEPARATED FROM A PERMANENT POSITION ON OCTOBER 1, 1941, FROM AND AFTER WHICH DATE THE FIRST PERIODIC INCREASE OF COMPENSATION IS PAYABLE, THE EMPLOYEE SHOULD NOT BE CONSIDERED FOR PROMOTION AS OF THAT DATE. HOWEVER, IF THE EMPLOYEE WAS NOT SEPARATED FROM HIS PERMANENT POSITION UNTIL AFTER OCTOBER 1, 1941, HE SHOULD BE CONSIDERED FOR PROMOTION FOR THE PERIOD FROM OCTOBER 1, 1941, TO THE DATE HE IS SEPARATED FROM SUCH PERMANENT POSITION. AN EMPLOYEE WHO IS ON LEAVE OF ABSENCE WITHOUT PAY OCTOBER 1, 1941, SHOULD BE GIVEN THE PERIODIC INCREASE IN COMPENSATION FOR RECORD PURPOSES--- PAYMENT TO BE MADE IF AND WHEN HE RETURNS TO A PAY STATUS--- PROVIDED ALL OTHER REQUIREMENTS FOR SUCH INCREASE ARE MET. SEE SECTION 2 (E) OF THE STATUTE AND SECTION 2 (C) OF THE REGULATION.

EIGHTH QUESTION.--- AN EQUIVALENT INCREASE IN COMPENSATION "FOR ANY CAUSE" DURING THE PRESCRIBED PERIOD IMMEDIATELY PRECEDING OCTOBER 1, 1941, OR IMMEDIATELY PRECEDING THE BEGINNING OF ANY SUBSEQUENT QUARTER PRECLUDES THE GRANTING OF THE PERIODIC INCREASE IN COMPENSATION. SEE SECTION 2 (B) (1) OF THE STATUTE. ACCORDINGLY, SINCE THE EMPLOYEE IN THE EIGHTH QUESTION RECEIVED AN INCREASE IN COMPENSATION OF $200 WHEN SHE WAS TRANSFERRED TO ALASKA, SHE IS NOT ENTITLED TO A PERIODIC INCREASE IN COMPENSATION AS OF OCTOBER 1, 1941.