B-30700, DECEMBER 14, 1942, 22 COMP. GEN. 533

B-30700: Dec 14, 1942

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SICK LEAVE ACCRUES TO AN EMPLOYEE WHILE HE IS IN A SICK- LEAVE-WITH-PAY STATUS. 21 COMP. AN EMPLOYEE WHO IS TO BE SEPARATED OR FURLOUGHED WITHOUT PAY FROM THE SERVICE PRIMARILY BECAUSE OF INCAPACITY FOR DUTY BY REASON OF PREGNANCY AND CONFINEMENT IS ENTITLED TO BE GRANTED ALL OF HER ACCRUED ANNUAL AND SICK LEAVE (INCLUDING LEAVE ON LEAVE) PRIOR TO THE SEPARATION OR FURLOUGH. APPLICATION IS MADE FOR SUCH LEAVE AND THE SICK LEAVE APPLICATION IS ACCOMPANIED BY THE CERTIFICATE OF A PRACTICING PHYSICIAN. 19 COMP. WHERE AN EMPLOYEE TRANSFERS FROM A FULL TIME PERMANENT POSITION TO A POSITION THE COMPENSATION OF WHICH IS PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS. THE ANNUAL LEAVE WHICH THE EMPLOYEE HAD TO HIS CREDIT AT THE TIME OF THE TRANSFER IS OR IS NOT TRANSFERABLE DEPENDING UPON WHETHER THE TENURE OF EMPLOYMENT IN THE LATTER POSITION CONSTITUTES THE EMPLOYEE AN "INDEFINITE" EMPLOYEE AS DEFINED IN THE ANNUAL LEAVE REGULATIONS AND IN THE DECISIONS OF THIS OFFICE.

B-30700, DECEMBER 14, 1942, 22 COMP. GEN. 533

LEAVES OF ABSENCE - SEPARATION FROM SERVICE; TRANSFERS UNDER THE SICK LEAVE ACT OF MARCH 14, 1936, AND REGULATIONS PROMULGATED PURSUANT THERETO, SICK LEAVE ACCRUES TO AN EMPLOYEE WHILE HE IS IN A SICK- LEAVE-WITH-PAY STATUS. 21 COMP. GEN. 596, AMPLIFIED. UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND REGULATIONS PROMULGATED PURSUANT THERETO, AN EMPLOYEE WHO IS TO BE SEPARATED OR FURLOUGHED WITHOUT PAY FROM THE SERVICE PRIMARILY BECAUSE OF INCAPACITY FOR DUTY BY REASON OF PREGNANCY AND CONFINEMENT IS ENTITLED TO BE GRANTED ALL OF HER ACCRUED ANNUAL AND SICK LEAVE (INCLUDING LEAVE ON LEAVE) PRIOR TO THE SEPARATION OR FURLOUGH, PROVIDED, AS REQUIRED BY THE REGULATIONS, APPLICATION IS MADE FOR SUCH LEAVE AND THE SICK LEAVE APPLICATION IS ACCOMPANIED BY THE CERTIFICATE OF A PRACTICING PHYSICIAN. 19 COMP. GEN. 716, DISTINGUISHED. WHERE AN EMPLOYEE TRANSFERS FROM A FULL TIME PERMANENT POSITION TO A POSITION THE COMPENSATION OF WHICH IS PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS, THE ANNUAL LEAVE WHICH THE EMPLOYEE HAD TO HIS CREDIT AT THE TIME OF THE TRANSFER IS OR IS NOT TRANSFERABLE DEPENDING UPON WHETHER THE TENURE OF EMPLOYMENT IN THE LATTER POSITION CONSTITUTES THE EMPLOYEE AN "INDEFINITE" EMPLOYEE AS DEFINED IN THE ANNUAL LEAVE REGULATIONS AND IN THE DECISIONS OF THIS OFFICE--- IN WHICH CASE THE LEAVE IS TRANSFERABLE--- OR WHETHER HE IS A PART TIME OR INTERMITTENT EMPLOYEE AS DEFINED IN DECISIONS OF THIS OFFICE--- IN WHICH CASE THE LEAVE IS NOT TRANSFERABLE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, BOARD OF INVESTIGATION AND RESEARCH, DECEMBER 14, 1942:

I HAVE YOUR LETTER OF NOVEMBER 25, 1942, AS FOLLOWS:

IN CONNECTION WITH THE WORK OF THE BOARD, CERTAIN QUESTIONS HAVE ARISEN CONCERNING SICK AND ANNUAL LEAVES OF EMPLOYEES ON WHICH WE DESIRE TO OBTAIN AN OFFICIAL RULING FROM YOUR OFFICE.

THE PERTINENT FACTUAL SITUATIONS ARE AS FOLLOWS:

2. A CERTAIN EMPLOYEE OF THE BOARD CONTEMPLATED A LEAVE OF ABSENCE FOR PREGNANCY AND CONFINEMENT PURPOSES. ON OR BEFORE SEPTEMBER 8, 1942 SHE REQUESTED THAT SHE BE GRANTED A LEAVE-WITHOUT-PAY STATUS UPON EXPIRATION OF HER ACCUMULATED AND CURRENT ACCRUED SICK AND ANNUAL LEAVE, BUT THIS REQUEST WAS DENIED, IN VIEW OF THE FACT THAT HER IMMEDIATE SUPERIOR DID NOT ANTICIPATE A NEED FOR HER SERVICES IN THE FUTURE.

ON SEPTEMBER 8, 1942, AT 8:45 A.M., THE SAID EMPLOYEE ENTERED UPON A SICK LEAVE-WITH-PAY STATUS AND SO CONTINUED UNTIL OCTOBER 2, 1942, AT 5:15 P.M., WHEN ALL OF HER ACCUMULATED AND CURRENT ACCRUED SICK LEAVE, INCLUDING SICK LEAVE ACCRUED WHILE ON A SICK LEAVE-WITH-PAY STATUS, HAD EXPIRED.

ON OCTOBER 3, 1942, AT 8:45 A.M., THE SAID EMPLOYEE ENTERED UPON AN ANNUAL LEAVE-WITH-PAY STATUS AND CONTINUED IN SUCH STATUS UNTIL THE EXPIRATION OF ALL OF HER ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE ON OCTOBER 21, 1942, AT 1:30 P.M.

THE SAID EMPLOYEE FILED A DOCTOR'S CERTIFICATE IN USUAL FORM, DATED OCTOBER 14, 1942, WITH THE ADMINISTRATIVE OFFICER OF THE BOARD, STATING SHE WAS UNDER THE DOCTOR'S PROFESSIONAL CARE FOR PREGNANCY FROM AUGUST 10, 1942 TO THE DATE OF THE CERTIFICATE. IT IS TO BE NOTED THAT SHE PERFORMED HER OFFICIAL DUTIES FOR THE PERIOD FROM AUGUST 10, 1942 TO SEPTEMBER 8, 1942.

THE EMPLOYEE TENDERED A WRITTEN RESIGNATION TO THE BOARD TO BECOME EFFECTIVE AT 1:30 P.M., OCTOBER 21, 1942, UPON THE EXPIRATION OF HER ANNUAL LEAVE, STATING THAT SHE WAS "RESIGNING FOR CONFINEMENT PURPOSES.'

SUBSEQUENTLY, A MEMBER OF THE BOARD'S STAFF WAS ADVISED BY A REPRESENTATIVE OF THE GENERAL ACCOUNTING OFFICE THAT AN EMPLOYEE WHO IS BEING VOLUNTARILY SEPARATED FROM THE SERVICE, WITHOUT PREJUDICE, IS NOT ENTITLED AS OF RIGHT TO SICK LEAVE-WITH-PAY AFTER THE DATE OF ACTUALLY STOPPING WORK, AND THAT SICK LEAVE DOES NOT ACCRUE TO AN EMPLOYEE WHILE IN A SICK LEAVE-WITH-PAY STATUS.

ON THE BASIS OF THE ABOVE INFORMATION, WE RESPECTFULLY REQUEST YOUR OPINION ON THE FOLLOWING QUESTIONS:

1. DOES SICK LEAVE ACCRUE TO AN EMPLOYEE WHILE ON A SICK LEAVE-WITH PAY STATUS?

2. IS AN EMPLOYEE WHO UNDERSTANDS THAT HER SERVICES ARE NO LONGER TO BE REQUIRED BY AN AGENCY ENTITLED, UPON CEASING WORK TO REMAIN ON A LEAVE- WITH-PAY STATUS DURING THE COMBINED PERIOD OF HER ACCUMULATED AND CURRENT ACCRUED SICK LEAVE AND HER ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, IF THROUGHOUT THAT TIME SHE IS ACTUALLY INCAPACITATED BY REASON OF PREGNANCY FOR PERFORMANCE OF HER DUTIES?

B. ON SEPTEMBER 16, 1942, A CERTAIN EMPLOYEE ENTERED UPON DUTY AS A PRINCIPAL ECONOMIST, P-6, $5600 PER ANNUM, WITH THE BOARD OF INVESTIGATION AND RESEARCH--- TRANSPORTATION, BY TRANSFER FROM THE BUREAU OF AGRICULTURAL ECONOMICS, DEPARTMENT OF AGRICULTURE.

HE CONTINUED ON DUTY IN SUCH POSITION UNTIL SEPTEMBER 28, AT WHICH TIME HE ENTERED ON AN ANNUAL LEAVE-WITH-PAY STATUS FOR THREE DAYS TO 5:15 P.M., SEPTEMBER 30. ON OCTOBER 1, 1942, THE EMPLOYEE'S STATUS WAS CHANGED TO A "WHEN ACTUALLY EMPLOYED" BASIS, AND ON THIS BASIS HE CONTINUED TO PERFORM DUTIES AS A PRINCIPAL ECONOMIST.

THE EMPLOYEE'S ANNUAL LEAVE HAD ACCRUED WHILE IN THE EMPLOY OF THIS BOARD IN THE AMOUNT OF ONE DAY AND FORTY MINUTES. AN EMPLOYEE IN THE ADMINISTRATIVE OFFICE OF THE BOARD CALLED THE BUREAU OF AGRICULTURAL ECONOMICS ON SEVERAL OCCASIONS TO ASCERTAIN THE EXACT AMOUNT OF ANNUAL LEAVE TO WHICH THE EMPLOYEE WAS ENTITLED AT THE TIME OF HIS TRANSFER TO THE BOARD, BUT IT WAS IMPOSSIBLE TO DETERMINE THE EXACT AMOUNT PRIOR TO THE DATE ON WHICH HE ENTERED ON DUTY IN A "WHEN ACTUALLY EMPLOYED" STATUS. IN ORDER NOT TO PERMIT THE EMPLOYEE TO TAKE ANNUAL LEAVE IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED, HE WAS LIMITED TO THREE DAYS IN A LEAVE-WITH-PAY STATUS.

ON NOVEMBER 6, 1942, THE BUREAU OF AGRICULTURAL ECONOMICS ADVISED THE ADMINISTRATIVE OFFICE OF THE BOARD THAT AT THE TIME OF HIS TRANSFER THE EMPLOYEE WAS ENTITLED TO ANNUAL LEAVE IN THE AMOUNT OF FOUR DAYS, ONE HOUR AND FORTY-NINE MINUTES. THEREFORE, WHEN THE EMPLOYEE ENTERED ON DUTY IN A "WHEN ACTUALLY EMPLOYED" STATUS, ON OCTOBER 1, HE STILL WAS ENTITLED TO LEAVE IN THE AMOUNT OF TWO DAYS, TWO HOURS AND TWENTY NINE MINUTES, WHICH HAD ACCRUED PRIOR TO THAT DATE.

WE ARE COGNIZANT OF THE FACT THAT THE ANNUAL LEAVE REGULATIONS ISSUED BY EXECUTIVE ORDER 8384, MARCH 29, 1940, SHALL NOT APPLY TO PART-TIME OR INTERMITTENT EMPLOYEES, AS PROVIDED IN SECTION 19 (F) (2) OF SAID REGULATIONS, BUT SINCE THROUGH NO FAULT OF THE EMPLOYEE THE AMOUNT OF HIS ACCRUED LEAVE WAS NOT DETERMINED BEFORE HE ENTERED UPON A "WHEN ACTUALLY EMPLOYED" STATUS, WE RESPECTFULLY REQUEST TO BE ADVISED WHETHER WE CAN NOW LAWFULLY PERMIT THE EMPLOYEE TO TAKE THE REMAINING TWO DAYS, TWO HOURS AND TWENTY-NINE MINUTES OF CURRENT ANNUAL LEAVE, THIS BEING THE BALANCE OF ANNUAL LEAVE ACCRUED IN HIS FAVOR WHILE HE WAS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE AND A FULL-TIME EMPLOYEE OF THIS BOARD AND WHICH HE HAS NOT TAKEN UP TO THIS TIME.

SECTIONS 1 AND 7 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, PROVIDE AS FOLLOWS:

THAT AFTER JANUARY 1, 1936, EXCEPT AS PROVIDED IN SECTION 4 HEREOF, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, OTHER THAN TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND MEMBERS BUT NOT THE CIVILIAN PERSONNEL OF THE POLICE AND FIRE DEPARTMENTS OF THE DISTRICT OF COLUMBIA AND OTHER THAN OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA, SHALL BE ENTITLED TO SICK LEAVE WITH PAY REGARDLESS OF THEIR TENURE, AS DESCRIBED HEREIN. ( ITALICS SUPPLIED.)

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

THE UNIFORM SICK LEAVE REGULATIONS PRESCRIBED BY THE PRESIDENT ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940) PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 2. SICK LEAVE WITH PAY SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY SICKNESS, INJURY, OR PREGNANCY AND CONFINEMENT, * * *

SEC. 10. SICK LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS.

SEC. 15. IN CASE OF A PERIOD OF ABSENCE IN EXCESS OF 3 WORK DAYS A CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER SUPPORTING THE APPLICATION FOR SICK LEAVE SHALL BE FILED NOT LATER THAN FIFTEEN DAYS AFTER RETURN TO DUTY. * * *

UNDER THE QUOTED PROVISION OF SECTION 2 OF THE SICK LEAVE REGULATIONS THE EMPLOYEE REFERRED TO IN PART A OF YOUR LETTER WAS ENTITLED TO SICK LEAVE DURING A PERIOD OF PREGNANCY--- TO THE EXTENT AUTHORIZED UNDER THE LAW AND REGULATIONS--- UPON THE FILING OF A PROPER CERTIFICATE OF A PRACTICING PHYSICIAN, AS REQUIRED BY SECTION 15 OF THE REGULATIONS; AND UNDER THE PLAIN TERMS OF THE FIRST SENTENCE OF SECTION 10 OF THE REGULATIONS SHE WAS ENTITLED TO CREDIT FOR SICK LEAVE EARNED DURING THE PERIOD SHE WAS ON ACCRUED SICK LEAVE WITH PAY. THE RULE AS TO SICK LEAVE IS THE SAME IN THIS RESPECT AS THE RULE APPLICABLE TO ANNUAL LEAVE UNDER THE FIRST SENTENCE OF SECTION 10 OF THE ANNUAL LEAVE REGULATIONS WHICH IS APPLICABLE DURING TERMINATION LEAVE. SEE DECISION OF DECEMBER 19, 1941, 21 COMP. GEN. 596, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER THE ACT OF MARCH 14, 1936, AND THE ANNUAL LEAVE REGULATIONS PROMULGATED PURSUANT THERETO, ANNUAL LEAVE IS EARNED FOR ALL PERIODS AN EMPLOYEE IS IN A PAY STATUS REGARDLESS OF WHETHER HE BE ON ACTUAL DUTY OR ON LEAVE WITH PAY, INCLUDING A PERIOD OF ACCUMULATED AND CURRENT ACCRUED LEAVE GRANTED UPON VOLUNTARY OR INVOLUNTARY SEPARATION FROM THE SERVICE. COMPARE 17 COMP. GEN. 924, 925; 18 ID. 136; 22 ID. 42.

ACCORDINGLY, QUESTION A-1 IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION A-2, IT IS UNDERSTOOD FROM YOUR LETTER THAT THE REASON FOR THE SEPARATION OF THE EMPLOYEE FROM THE SERVICE WAS HER INCAPACITY FOR DUTY BECAUSE OF PREGNANCY AND CONFINEMENT. IN DECISION OF FEBRUARY 9, 1940, 19 COMP. GEN. 716, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE EMPLOYEE HAS HAD NOTICE THEREOF, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT, WHETHER THE APPLICATION FOR SUCH EXTENSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY. SEE, ALSO, 17 COMP. GEN. 174. THE RULE IN A CASE WHERE THE EMPLOYEE IS SEPARATED IS THE SAME AS WHERE HE IS FURLOUGHED WITHOUT PAY FROM THE SERVICE. HOWEVER, THAT RULE WOULD NOT APPLY TO A CASE SUCH AS HERE PRESENTED WHERE THE REASON FOR THE SEPARATION IS PRIMARILY THE INCAPACITY OF THE EMPLOYEE BY REASON OF PREGNANCY AND CONFINEMENT, RATHER THAN LACK OF WORK OR APPROPRIATION. IS BELIEVED THE LAW AND REGULATIONS CLEARLY CONTEMPLATE THAT AN EMPLOYEE WHO BECOMES INCAPACITATED FOR DUTY BECAUSE OF PREGNANCY AND CONFINEMENT IS ENTITLED TO ALL HER ACCRUED ANNUAL AND SICK LEAVE (INCLUDING LEAVE ON LEAVE) PRIOR TO HER SEPARATION OR FURLOUGH WITHOUT PAY FROM THE SERVICE. THE VERY NATURE OF THE INCAPACITY WHICH REQUIRES ABSENCE FROM DUTY AND THE EXPRESS PROVISION IN THE REGULATIONS FOR GRANTING SICK LEAVE FOR SUCH ABSENCE REQUIRES THAT CONCLUSION. THE EMPLOYEE HERE INVOLVED HAVING MADE APPLICATION FOR HER ANNUAL AND SICK LEAVE, AND HAVING SUPPORTED HER SICK LEAVE APPLICATION WITH THE CERTIFICATE OF A PRACTICING PHYSICIAN AS REQUIRED BY THE REGULATIONS, QUESTION A-2 IS ANSWERED IN THE AFFIRMATIVE.

THERE WILL NOW BE CONSIDERED THE SITUATION PRESENTED UNDER B IN YOUR LETTER. THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940) PROVIDE IN PERTINENT PART:

SEC. 1. AS USED IN THESE REGULATIONS:

(E) "INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

SEC. 6. AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. * * *

IT IS NOT CLEAR FROM THE FACTS STATED IN YOUR LETTER WHETHER THE PRINCIPAL ECONOMIST REFERRED TO IS AN "INDEFINITE" EMPLOYEE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," OR IS A PART-TIME OR INTERMITTENT EMPLOYEE. IF HE IS AN "INDEFINITE" EMPLOYEE AS DEFINED IN THE LEAVE REGULATIONS AND IN THE DECISIONS OF THIS OFFICE (SEE 16 COMP. GEN. 801; 17 ID. 1017; 18 ID. 400, 457; 20 ID. 827), SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, SUPRA, AUTHORIZES THE TRANSFER OF THE LEAVE CREDIT EARNED IN A PRIOR PERMANENT POSITION TO HIS INDEFINITE POSITION SUBJECT TO THE RULES APPLICABLE IN SUCH CASES. COMPARE, HOWEVER, 19 COMP. GEN. 30, 520; 22 ID. 246. IF HE IS A PART-TIME OR INTERMITTENT EMPLOYEE AS DEFINED IN THE DECISIONS OF THIS OFFICE, HE IS NOT ENTITLED TO LEAVE IN SUCH POSITION (SEE SECTION 19 (F) (2) OF THE ANNUAL LEAVE REGULATIONS CITED BY YOU; ALSO, 15 COMP. GEN. 1058; 16 ID. 442, 678; 18 ID. 457, ID. 1001), AND THE LEAVE EARNED IN A PRIOR PERMANENT POSITION MAY NOT BE CREDITED OR GRANTED TO HIM WHILE SERVING IN SUCH PART-TIME OR INTERMITTENT POSITION.