B-35694, JULY 26, 1943, 23 COMP. GEN. 50

B-35694: Jul 26, 1943

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1943: I HAVE YOUR LETTER OF JULY 12. AS FOLLOWS: AT THE PRESENT TIME WE HAVE AT MISSION. IT IS THE PURPOSE OF THE DEPARTMENT TO PROMOTE HIM TO THE DESIGNATION OF SUPERINTENDENT AT $2. THERE ARE TWO CLERKS IN THE TOP AUTOMATIC GRADE OF $2. 100 WHO HAVE DECLINED TO ACCEPT THE ASSIGNMENT. YOUR DECISION IS. IF YOUR DECISION IS IN THE AFFIRMATIVE WILL IT BE NECESSARY TO OBTAIN THE WRITTEN WAIVERS OF THE TWO CLERKS IN THE HIGHER AUTOMATIC GRADE? 3. ALSO IF YOUR DECISION IS IN THE AFFIRMATIVE. WAS INTERPRETED TO MEAN THAT- THE PROVISION NAMING THE HIGHEST GRADE CLERK FOR PROMOTION TO HIGHER POSITIONS. IS PERMANENT LEGISLATION. - THERE BEING FOR NOTING IN THAT CONNECTION THAT SAID PORTION OF THE LAW IS CARRIED INTO THE U.S.C.

B-35694, JULY 26, 1943, 23 COMP. GEN. 50

POSTAL EMPLOYEES - ELIGIBILITY FOR PROMOTION TO SELECTIVE POSITIONS THE PROVISION CONTAINED IN 39 U.S.C. 109 MAKING POSTAL CLERKS IN THE HIGHEST AUTOMATIC GRADE IN THEIR RESPECTIVE OFFICES ELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS IN THOSE OFFICES OPERATES TO MAKE CLERKS IN LOWER AUTOMATIC GRADES INELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS IN THOSE OFFICES OPERATES TO MAKE CLERKS IN LOWER AUTOMATIC GRADES INELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS, AND THE FACT THAT CLERKS IN THE TOP AUTOMATIC GRADE AT A PARTICULAR OFFICE REFUSE TO ACCEPT PROMOTION OF A CLERK IN A LOWER AUTOMATIC GRADE TO A SELECTIVE POSITION.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JULY 26, 1943:

I HAVE YOUR LETTER OF JULY 12, 1943, IN PART, AS FOLLOWS:

AT THE PRESENT TIME WE HAVE AT MISSION, TEXAS, A CLERK IN THE $1,900 AUTOMATIC GRADE SERVING AS CLERK-IN-CHARGE OF MOORE FIELD CLASSIFIED BRANCH. IT IS THE PURPOSE OF THE DEPARTMENT TO PROMOTE HIM TO THE DESIGNATION OF SUPERINTENDENT AT $2,400 PER ANNUM. HOWEVER, THERE ARE TWO CLERKS IN THE TOP AUTOMATIC GRADE OF $2,100 WHO HAVE DECLINED TO ACCEPT THE ASSIGNMENT, RESPONSIBILITY AND SALARY OF SUPERINTENDENT OF MOORE FIELD BRANCH.

YOUR DECISION IS, THEREFORE, REQUESTED AS FOLLOWS:

1. IN THE CIRCUMSTANCES MAY THE $1,900 CLERK BE PROMOTED TO SUPERINTENDENT OF MOORE FIELD BRANCH AT $2,400?

2. IF YOUR DECISION IS IN THE AFFIRMATIVE WILL IT BE NECESSARY TO OBTAIN THE WRITTEN WAIVERS OF THE TWO CLERKS IN THE HIGHER AUTOMATIC GRADE?

3. ALSO IF YOUR DECISION IS IN THE AFFIRMATIVE, MAY WE MAKE THE PROMOTION RETROACTIVE TO THE DATE THE $1,900 CLERK COMPLETED HIS PROBATIONARY PERIOD?

YOU REFER TO THAT PORTION OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059 (39 U.S.C. 103) AMENDING THE ACT OF MARCH 2, 1907, 34 STAT. 1206, WHICH FIXES THE SALARIES OF POSTAL CLERKS IN FIRST AND SECOND CLASS POST OFFICES IN AUTOMATIC SALARY GRADES FROM $1,700 TO $2,100 PER ANNUM, INCLUSIVE, AND TO THE FOLLOWING SPECIAL PROVISION APPEARING IN THE ACT OF MARCH 2, 1907:

* * * CLERKS * * * OF THE HIGHEST GRADE IN THEIR RESPECTIVE OFFICES SHALL BE ELIGIBLE FOR PROMOTION TO THE HIGHER POSITIONS IN SAID POST OFFICES. ALSO, YOU REFER TO A DECISION OF THE COMPTROLLER OF THE TREASURY DATED JANUARY 17, 1918, 84 MS COMP. DEC. 166, WHEREIN THE SPECIAL PROVISION APPEARING IN THE 1907 STATUTE, ABOVE QUOTED, WAS INTERPRETED TO MEAN THAT-

THE PROVISION NAMING THE HIGHEST GRADE CLERK FOR PROMOTION TO HIGHER POSITIONS, EXCLUDES THE NAMING OF A LOWER GRADE CLERK TO SUCH A POSITION.

THE SPECIAL PROVISION APPEARING IN THE ACT OF MARCH 2, 1907, 34 STAT. 1206, ABOVE QUOTED, IS PERMANENT LEGISLATION--- THERE BEING FOR NOTING IN THAT CONNECTION THAT SAID PORTION OF THE LAW IS CARRIED INTO THE U.S.C. AS THE LAST SENTENCE OF SECTION 109, TITLE 39. WHILE THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, RECLASSIFIED CLERKS IN FIRST AND SECOND CLASS POST OFFICES, IT DID NOT SUPERSEDE OR RENDER INOPERATIVE THE REFERRED-TO SPECIAL PROVISION IN THE 1907 LAW, WHICH, WHILE APPEARING IN AN ANNUAL APPROPRIATION ACT, WAS MADE PERMANENT BY VIRTUE OF THE EXPRESS TERMS THEREOF.

UNDER THE RULING STATED IN THE REFERRED-TO DECISION OF THE COMPTROLLER OF THE TREASURY--- WITH WHICH RULING I AGREE--- ONLY CLERKS IN THE HIGHEST AUTOMATIC GRADES ARE ELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS. THE AFFIRMATIVE WORDS OF THE 1907 STATUTE MAKING CLERKS IN THE HIGHEST AUTOMATIC GRADES ELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS--- LEAVING NOTHING FOR ADMINISTRATIVE DISCRETION--- IMPLIES A PROHIBITION TO PROMOTE CLERKS IN THE AUTOMATIC GRADES TO SELECTIVE POSITIONS IN ANY OTHER MANNER. IN OTHER WORDS, THE STATUTE MAKES CLERKS IN LOWER AUTOMATIC GRADES INELIGIBLE FOR PROMOTION TO HIGHER SELECTIVE POSITIONS. THE REFUSAL OF THE TWO CLERKS IN THE TOP AUTOMATIC GRADE TO ACCEPT THE SELECTIVE POSITION OF SUPERINTENDENT OF THE MOORE FIELD BRANCH MAY NOT BE REGARDED AS REMOVING THE STATUTORY INHIBITION AGAINST THE PROMOTION OF THE CLERK IN THE LOWER AUTOMATIC GRADE TO SUCH SELECTIVE POSITION. COMPARE 27 COMP. DEC. 873. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS 2 AND 3.