B-50805, JULY 23, 1945, 25 COMP. GEN. 90

B-50805, JULY 23, 1945, 25 COMP. GEN. 90

COMPENSATION - AUTOMATIC PROMOTIONS - EFFICIENCY RATINGS UNDER THE WITHIN-GRADE PROMOTION STATUTE OF AUGUST 1, 1941, AND THE EXECUTIVE REGULATIONS PURSUANT THERETO (COMPARE SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THE CURRENT REGULATIONS THEREUNDER), AN EMPLOYEE WAS NOT ENTITLED TO A WITHIN-GRADE PROMOTION UPON THE BASIS OF AN EFFICIENCY RATING OTHER THAN FOR THE PERFORMANCE OF THE DUTIES OF THE POSITION OCCUPIED IN THE AGENCY IN WHICH HE WAS SERVING ON THE DATE OTHERWISE ELIGIBLE FOR SUCH A PROMOTION. A SPECIAL EFFICIENCY RATING, IN ORDER TO HAVE BEEN USED IN DETERMINING AN EMPLOYEE'S ELIGIBILITY FOR WITHIN-GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, WHERE AN AGENCY IN WHICH HE WAS SERVING ON THE DATE OF BECOMING OTHERWISE ELIGIBLE FOR SUCH A PROMOTION DID NOT HAVE A REGULAR MARCH 31 EFFICIENCY RATING ON RECORD, MUST HAVE BEEN "ON RECORD," AS REQUIRED BY THE EXECUTIVE REGULATIONS UNDER SAID ACT (COMPARE SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND THE CURRENT REGULATIONS THEREUNDER); AND SUCH SPECIAL RATING COULD NOT BE MADE RETROACTIVELY EFFECTIVE. AN EMPLOYEE WHO WAS TRANSFERRED FROM A HIGHER TO A LOWER GRADE, OR VICE VERSA, EFFECTIVE ON THE DATE A WITHIN-GRADE PROMOTION WOULD HAVE BEEN DUE UNDER THE ACT OF AUGUST 1, 1941, IN THE GRADE FROM WHICH TRANSFERRED LOST HIS RIGHT TO SUCH A PROMOTION IN THE FORMER GRADE AND, THERE HAVING BEEN NO OPPORTUNITY TO EVALUATE HIS SERVICES FOR PURPOSES OF AN EFFICIENCY RATING UPON WHICH TO BASE A PROMOTION WITHIN THE GRADE TO WHICH TRANSFERRED, SUCH A PROMOTION COULD NOT HAVE BEEN MADE IN THAT GRADE. AN EFFICIENCY RATING WHICH WAS ON RECORD FOR AN EMPLOYEE IN ONE GRADE MAY BE USED AS A BASIS FOR DETERMINING ELIGIBILITY FOR A WITHIN GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, IN A HIGHER OR LOWER GRADE TO WHICH THE EMPLOYEE'S POSITION HAS BEEN REALLOCATED, EITHER UPON THE BASIS OF THE SAME DUTIES AND RESPONSIBILITIES OR UPON THE BASIS OF SUBSTANTIALLY THE SAME DUTIES AND RESPONSIBILITIES WITH SOME INCREASE OR DECREASE THEREIN.

ACTING COMPTROLLER GENERAL MCFARLAND TO THE SECRETARY OF THE NAVY, JULY 23, 1945:

I HAVE YOUR LETTER OF JULY 2, 1945, AS FOLLOWS:

A NUMBER OF CASES HAVE ARISEN IN THE NAVY DEPARTMENT WHICH INVOLVE DEFINITION OF "APPROPRIATE EFFICIENCY RATINGS" AS THAT TERM IS USED IN CONNECTION WITH THE MEAD-RAMSPECK ACT OF 1941 AND EXECUTIVE ORDER NO. 8882, AND INTERPRETATION OF 23 COMPTROLLER GENERAL 560 PROHIBITING THE USE OF RETROACTIVE EFFICIENCY RATINGS FOR SALARY ADVANCEMENT PURPOSES. TYPICAL CASES TAKEN FROM NAVY DEPARTMENT RECORDS ARE DETAILED BELOW, AND YOUR DECISION ON EACH IS REQUESTED.

FIRST CASE

(A) EMPLOYEE "A" WAS APPOINTED BY TRANSFER FROM SP-8, $2,600 IN THE DEPARTMENT OF COMMERCE TO P-2 IN THE NAVY DEPARTMENT, EFFECTIVE 5 JANUARY 1944, WITHOUT BREAK IN SERVICE.

(B) EMPLOYEE "A-S" LAST OFFICIAL EFFICIENCY RATING IN THE COMMERCE DEPARTMENT WAS " VERY GOOD" IN SP-8 AS OF 31 MARCH 1943.

(C) FROM THE TIME-PERIOD STANDPOINT EMPLOYEE "A" WAS DUE FOR WITHIN GRADE SALARY INCREASE ON 1 JULY 1944, WHICH WAS THE FIRST DAY OF THE QUARTER FOLLOWING COMPLETION OF 18 MONTHS OF SERVICE SINCE HIS LAST EQUIVALENT SALARY INCREASE EFFECTIVE 29 NOVEMBER 1942 WHILE EMPLOYED IN THE DEPARTMENT OF COMMERCE.

(D) A REGULAR EFFICIENCY RATING AS OF 31 MARCH 1944 WAS NOT PREPARED IN THE NAVY DEPARTMENT BECAUSE EMPLOYEE "A" HAD THEN BEEN IN THE NAVY DEPARTMENT LESS THAN 90 DAYS.

(E) A SPECIAL EFFICIENCY RATING OF " VERY GOOD" IN THE NAVY DEPARTMENT WAS PREPARED AS OF 30 JUNE 1944, AND APPROVED BY THE APPROPRIATE EFFICIENCY RATING COMMITTEE ON 22 DECEMBER 1944.

(F) WITHIN-GRADE SALARY INCREASE FROM $2,600 TO $2,700 IN GRADE P-2 WAS GRANTED AS OF 1 JANUARY 1945, THE FIRST DAY OF THE QUARTER FOLLOWING APPROVAL OF THE REQUIRED SPECIAL EFFICIENCY RATING IN GRADE P-2.

QUESTION 1: EMPLOYEE "A" CLAIMS PAYMENT IS DUE HIM RETROACTIVELY FROM 1 JULY 1944 THROUGH 31 DECEMBER 1944 ON THE BASIS THAT HE WAS ENTITLED TO A WITHIN-GRADE SALARY INCREASE ON 1 JULY 1944. IS HE CORRECT?

SECOND CASE

(A) EMPLOYEE "B" TRANSFERRED FROM THE WAR DEPARTMENT AS CAF-3 CLERK, $1,920 PER ANNUM, TO THE NAVY DEPARTMENT, AS CAF-4 CLERK, $1,920 PER ANNUM, EFFECTIVE 21 AUGUST 1944.

(B) EMPLOYEE "B-S" CURRENT OFFICIAL RATING IN THE WAR DEPARTMENT WAS " EXCELLENT.'

(C) FROM THE TIME-PERIOD STANDPOINT, EMPLOYEE "B" WAS DUE FOR WITHIN GRADE SALARY INCREASE AS OF 1 JANUARY 1945, BUT IN VIEW OF THE FACT THAT FORM 63 WAS NOT RECEIVED FROM THE WAR DEPARTMENT PRIOR TO 1 JANUARY 1945, THE PAYROLL OFFICE OF THE NAVY DEPARTMENT, WHICH IS RESPONSIBLE FOR NOTIFYING THE BUREAU OF NAMES OF EMPLOYEES WHO ARE TO RECEIVE THESE SALARY INCREASES, DID NOT INCLUDE EMPLOYEE "B" IN THE LIST FOR WHICH APPROPRIATE RATINGS WERE NOT ON FILE IN THE DEPARTMENT. THEREFORE, AN APPROPRIATE SPECIAL RATING COULD NOT BE OBTAINED AND APPROVED PRIOR TO 1 JANUARY 1945.

(D) THE SUPERVISOR OF EMPLOYEE "B" STATES THAT THE SPECIAL EFFICIENCY RATING (DEEMED NECESSARY BY THE DEPARTMENT UNDER ITS CURRENT INTERPRETATION OF CSC DEPARTMENTAL CIRCULAR 474 AND SECTION 5 OF THE EFFICIENCY RATING MANUAL) WOULD HAVE BEEN MADE IF NOTIFICATION OF THE NEED FOR IT HAD BEEN RECEIVED, AND THAT IT WOULD HAVE BEEN " VERY GOOD" OR " EXCELLENT.'

QUESTION 2: MAY A SALARY INCREASE TO $1,980 BE GRANTED EMPLOYEE "B" AS OF 1 JANUARY 1945?

THIRD CASE

(A) EMPLOYEE "C" WAS PROMOTED TO CLERK CAF-6, $2,300 ON 1 APRIL 1943. FROM THE TIME-PERIOD STANDPOINT SHE WOULD HAVE BECOME ELIGIBLE FOR A SALARY INCREASE ON 1 OCTOBER 1944.

(B) EMPLOYEE "C" RECEIVED AN " EXCELLENT" EFFICIENCY RATING IN CAF-6 FOR THE REGULAR MARKING PERIOD ENDING 31 MARCH 1944.

(C) AS A RESULT OF A MANPOWER SURVEY, THE POSITION OF THIS EMPLOYEE WAS REDESCRIBED AND CLASSIFIED AS CAF-5, AND EMPLOYEE "B" ("C") WAS DEMOTED TO CLERK CAF-5, $2,300, EFFECTIVE 16 MAY 1944.

(D) THE PAYROLL OFFICE DID NOT INCLUDE THE NAME OF EMPLOYEE "C" ON THE LIST FURNISHED THE BUREAU INVOLVED OF EMPLOYEES FOR WHOM "SPECIAL" EFFICIENCY RATINGS ARE REQUIRED, AND THEREFORE NONE WAS MADE. OFFICIALS OF THE BUREAU STATE THAT HAD ONE BEEN REQUESTED, THE WORK PERFORMANCE OF THIS EMPLOYEE WOULD HAVE BEEN RATED AS " EXCELLENT" IN CAF-5, AS IT HAD BEEN IN CAF-6.

QUESTION 3: MAY EFFECTIVE DATE OF SALARY INCREASE TO CAF-5, $2,400 FOR EMPLOYEE "C" BE MADE 1 OCTOBER 1944?

FOURTH CASE

(A) EMPLOYEE "D" WAS DEMOTED FROM CAF-5, $2,000 TO CAF-4 EFFECTIVE ON 1 JANUARY 1945, THE DATE ON WHICH A WITHIN-GRADE ADVANCEMENT WOULD HAVE BEEN DUE, UNDER CONDITIONS SUCH THAT WITHOUT CONSIDERATION OF THE RAMSPECK-MEAD ACT THE CHANGE WOULD HAVE BEEN MADE AT CAF-4, $2,040.

(B) THE LAST OFFICIAL EFFICIENCY RATING ON RECORD WAS " VERY GOOD" IN CAF -5, FOR MARCH 1944.

QUESTION 4: SINCE THE EFFECTIVE DATE OF THE DEMOTION COINCIDED WITH THE DATE THAT SALARY INCREASE WOULD HAVE BEEN RECEIVED, NO SPECIAL RATING IN CAF-4 WAS POSSIBLE. COULD THE CHANGE HAVE BEEN MADE TO CAF 4, $2,100?

FIFTH CASE

(A) EMPLOYEE "E" WAS PROMOTED FROM CAF-5, $2,300 TO CAF-6 EFFECTIVE ON JULY 1, 1944, THE DATE ON WHICH A WITHIN-GRADE SALARY ADVANCEMENT WOULD HAVE BEEN DUE.

(B) THE LAST REGULAR EFFICIENCY RATING FOR EMPLOYEE "E" WAS " EXCELLENT," AS OF MARCH 1944, IN CAF-5.

QUESTION 5: COULD THE SALARY RATE IN CAF-6 BE SET AT $2,400 AS OF 1 JULY 1944?

SIXTH CASE

(A) EMPLOYEE "F" WAS PROMOTED FROM CAF-6, $2,600 TO CAF-7 EFFECTIVE 16 MARCH 1945.

(B) THE PROMOTION RESULTED FROM CLASSIFICATION ACTION RESULTING FROM SUBMISSION OF A DESCRIPTION REFLECTING INCREASED DUTIES AND RESPONSIBILITIES IN THE POSITION OF EMPLOYEE "F.' NOTIFICATION OF THE CLASSIFICATION ACTION WAS RECEIVED FROM THE CIVIL SERVICE COMMISSION IN THE ADMINISTRATIVE OFFICE ON 31 MARCH 1945, BUT UNDER APPROPRIATE COMPTROLLER GENERAL RULINGS WAS MADE RETROACTIVE TO 16 MARCH 1945.

(C) THE LAST REGULAR EFFICIENCY RATING OF RECORD FOR EMPLOYEE "F," IN CAF -6, WAS " VERY GOOD.'

(D) FROM THE TIME-PERIOD STANDPOINT, A SALARY INCREASE TO $2,700 WOULD HAVE BEEN DUE ON 1 APRIL 1945.

(E) BECAUSE OF THE RETROACTIVE EFFECTIVE DATE OF CLASSIFICATION ACTION, IT WAS NOT POSSIBLE TO SECURE AND RECORD AN EFFICIENCY RATING IN CAF-7 FOR EMPLOYEE "F" PRIOR TO 1 APRIL 1945.

QUESTION 6: MAY A SALARY INCREASE TO CAF-7, $2,700 BE MADE EFFECTIVE 1 APRIL 1945?

IN ORDER TO FACILITATE APPLICATION OF YOUR RULING IN THESE CASES TO FUTURE INSTANCES, THE NAVY DEPARTMENT ALSO REQUESTS A REPLY TO TWO QUESTIONS SETTING FORTH THE GENERAL PRINCIPLE INVOLVED IN THE FOREGOING CASES, AS FOLLOWS:

(A) THE NAVY DEPARTMENT BELIEVES THAT IN ORDER TO ASSURE EQUITABLE ADMINISTRATION OF THE MEAD-RAMSPECK ACT OF 1941, WITHIN-GRADE ADVANCEMENTS SHOULD BE GRANTED IN ALL CASES ON THE BASIS OF THE LAST OFFICIAL EFFICIENCY RATING ON RECORD MADE IN ACCORDANCE WITH THE SYSTEM OF EFFICIENCY RATINGS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, REGARDLESS OF THE CLASSIFICATION GRADE UPON WHICH THE EFFICIENCY IS BASED. (THIS APPEARS NECESSARY BECAUSE SPECIAL RATINGS OFTEN CANNOT BE APPROVED IN TIME, WHERE CHANGES IN GRADE OCCUR AFTER THE LAST REGULAR EFFICIENCY RATING, AND THEY MAY NOT BE RECORDED RETROACTIVELY.)

QUESTION 7: MAY THE NAVY DEPARTMENT USE SUCH A BASIS FOR ITS ACTIONS IN GRANTING WITHIN-GRADE SALARY ADVANCEMENTS?

(B) IF THE ANSWER TO QUESTION 7 IS "YES," IT WOULD PRESUMABLY BE PROPER TO PREPARE A SPECIAL RATING IN THE CURRENT GRADE AND TO BASE SALARY INCREASE DETERMINATION THEREON, BUT IF SUCH SPECIAL RATING IS NOT PREPARED THE SALARY INCREASE WOULD BE BASED ON THE EFFICIENCY RATING IN THE FORMER GRADE.

QUESTION 8. IS THIS CORRECT?

IN THE CONSIDERATION OF THE QUESTIONS PRESENTED THERE ARE FOR APPLICATION THE ACT OF AUGUST 1, 1941, 55 STAT. 613, EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. ALSO, COMPARISON PROPERLY SHOULD BE MADE WITH THE CURRENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 299, PUBLIC LAW 106, AND SECTIONS 201 AND 208, CHAPTER II, OF THE REGULATIONS ISSUED PURSUANT TO SECTION 605 OF THE STATUTE, 59 STAT. 304, TAKING THE PLACE OF EXECUTIVE ORDER 8882, SUPRA, WHICH APPEAR, SO FAR AS HERE MATERIAL, TO BE SUBSTANTIALLY THE SAME.

UNDER THE ACT OF AUGUST 1, 1941, AUTOMATIC PROMOTIONS WERE REQUIRED TO BE BASED UPON THE ,CURRENT EFFICIENCY" OF THE EMPLOYEE. THE SAME REQUIREMENT IS PRESENT IN THE CURRENT PROVISIONS OF LAW AND REGULATION ABOVE REFERRED TO. SECTION 1 (E) OF EXECUTIVE ORDER 8882, APPLICABLE DURING THE PERIOD HERE INVOLVED, DEFINED "CURRENT EFFICIENCY" AS FOLLOWS:

"CURRENT EFFICIENCY" SHALL MEAN THE LATEST EFFICIENCY RATING ON RECORD FOR THE EMPLOYEE, MADE UNDER A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION.

SECTION 5 OF THE EFFICIENCY RATING MANUAL, EFFECTIVE JANUARY 1, 1944, PROVIDES:

OFFICIAL RATINGS--- SPECIAL RATINGS, WHEN MADE, AND PERIOD OF SERVICE CONSIDERED.--- A SPECIAL RATING IS TO BE MADE WHEN THERE IS NO APPROPRIATE CURRENT OFFICIAL RATING AND ONE IS NEEDED FOR AN OFFICIAL ACTION. SPECIAL RATING SHALL NOT BE MADE FOR THE PURPOSE OF REVISING A A PRIOR RATING. NEITHER SHALL IT BE MADE TO EFFECT THE SUMMARY DISMISSAL OR SALARY REDUCTION OF AN EMPLOYEE. A SPECIAL RATING IS OFFICIAL FOR ALL PURPOSES EVEN THOUGH IT IS FOR LESS THAN 90 DAYS. THE SERVICE RENDERED BY THE EMPLOYEE WHILE IN THE AGENCY IN THE POSITION HELD ON THE DATE THE SPECIAL RATING IS MADE SHALL BE CONSIDERED.

THE FOLLOWING REQUIREMENT APPEARS IN CIVIL SERVICE CIRCULAR NO. 474, DATED MARCH 14, 1944:

IN GENERAL, WHENEVER AN EMPLOYEE HAS NO OFFICIAL RATING AS OF THE LATEST MARCH 31, OR ANY DATE THEREAFTER, BASED ON PERFORMANCE IN THE GRADE OF HIS POSITION, AN OFFICIAL SPECIAL RATING SHALL BE MADE WHEN NEEDED FOR SALARY ADVANCEMENT PURPOSES.

IN DECISION OF FEBRUARY 2, 1944, 23 COMP. GEN. 560, IT WAS STATED, AT PAGE 562, AS FOLLOWS:

REFERRING TO LIST 2, IT DOES NOT CLEARLY APPEAR THAT THE INTERIM EFFICIENCY RATINGS REFERRED TO WERE MADE IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS OR, IF SO, THAT THEY WERE ON RECORD PRIOR TO JANUARY 1, 1943. HOWEVER, IF THE RATINGS IN FACT WERE MADE IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS AND WERE ON RECORD PRIOR TO JANUARY 1, 1943, THE AUTOMATIC PROMOTIONS MAY BE MADE TO THE EMPLOYEES WHOSE NAMES APPEAR IN LIST 2 RETROACTIVELY EFFECTIVE TO JANUARY 1, 1943, BUT IF THE CONTRARY BE TRUE IN EITHER RESPECT, THE RETROACTIVE PROMOTIONS MAY NOT BE MADE.

A READING OF THE ABOVE-CITED PROVISIONS AND THE CORRESPONDING PROVISIONS IN THE CURRENT LAW AND REGULATIONS REQUIRES THE CONCLUSIONS, (1) THAT AN EMPLOYEE MAY NOT BE GRANTED AN AUTOMATIC PROMOTION UPON THE BASIS OF AN EFFICIENCY RATING OTHER THAN FOR THE PERFORMANCE OF THE DUTIES OF THE POSITION OCCUPIED IN THE AGENCY IN WHICH HE IS SERVING ON THE DATE OTHERWISE ELIGIBLE FOR AN AUTOMATIC PROMOTION; (2) THAT SPECIAL EFFICIENCY RATINGS GENERALLY ARE REQUIRED AS A BASIS FOR DETERMINING ELIGIBILITY FOR AUTOMATIC PROMOTION TO WHICH AN EMPLOYEE OTHERWISE WOULD BE ENTITLED UPON THE BASIS OF LENGTH OF CONTINUOUS SERVICE UNDER THE FEDERAL GOVERNMENT, IF THE AGENCY IN WHICH THE EMPLOYEE IS SERVING ON THE DATE HE BECOMES ELIGIBLE FOR PROMOTION HAS NOT ON RECORD A REGULAR MARCH 31 EFFICIENCY RATING; AND (3) THAT WHILE INTERIM SPECIAL EFFICIENCY RATINGS BETWEEN THE REGULAR MARCH 31 RATINGS ARE REQUIRED WHEN NECESSARY AS A BASIS FOR DETERMINING ELIGIBILITY FOR AUTOMATIC PROMOTION, NEVERTHELESS, SUCH INTERIM RATINGS MUST BE "ON RECORD," AS REQUIRED BY THE STATUTORY REGULATION, BEFORE THEY MAY FORM THE BASIS FOR DETERMINING THE ELIGIBILITY STATUS OF AN EMPLOYEE FOR AUTOMATIC PROMOTION; AND SUCH INTERIM RATINGS MAY NOT BE MADE RETROACTIVELY EFFECTIVE.

ACCORDINGLY, THE QUESTION UNDER THE FIRST CASE AND THE ONE UNDER THE SECOND CASE ARE ANSWERED IN THE NEGATIVE.

REFERRING TO THE QUESTION UNDER THE THIRD CASE, AS EMPLOYEE "C" APPEARS TO HAVE PERFORMED IN GRADE CAF-5 MOST, IF NOT ALL, OF THE DUTIES PREVIOUSLY PERFORMED IN GRADE CAF-6, IT IS BELIEVED THE EMPLOYEE IN THE PARTICULAR SITUATION HERE DESCRIBED PROPERLY MAY BE GIVEN AN AUTOMATIC PROMOTION EFFECTIVE AS OF OCTOBER 1, 1944, IN GRADE CAF-5, UPON THE BASIS OF THE REGULAR EFFICIENCY RATING AS OF MARCH 31, 1944, IN GRADE CAF-6. THEREFORE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO THE QUESTION UNDER THE FOURTH CASE, AN EMPLOYEE DOES NOT RETAIN THE RIGHT TO RECEIVE AN AUTOMATIC PROMOTION UPON TRANSFER, PROMOTION, OR DEMOTION FROM ONE POSITION TO ANOTHER EITHER IN THE SAME OR A DIFFERENT AGENCY. SEE 23 COMP. GEN. 201. IT WAS WITHIN ADMINISTRATIVE AUTHORITY TO FIX THE INITIAL SALARY RATE OF EMPLOYEE "D" AT $2,040 UPON DEMOTION FROM A POSITION IN GRADE CAF-5 TO A POSITION IN GRADE CAF-4, BUT AT NO HIGHER RATE. COMPARE 20 COMP. GEN. 579. BUT THE EMPLOYEE LOST ANY RIGHT HE MAY HAVE HAD TO AN AUTOMATIC PROMOTION EFFECTIVE THE SAME DAY IN GRADE CAF-5, AND NO SUCH PROMOTION COULD HAVE BEEN MADE IN GRADE CAF-4 ON THAT DAY AS THERE WAS NO OPPORTUNITY TO EVALUATE HIS SERVICES AS A BASIS FOR AN EFFICIENCY RATING IN THE LOWER GRADE. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE. FOR LIKE REASONS THE QUESTION UNDER THE FIFTH CASE IS ANSWERED IN THE NEGATIVE. WITH RESPECT TO THE QUESTION UNDER THE SIXTH CASE, FOR THE REASONS STATED IN ANSWERING THE QUESTION UNDER THE THIRD CASE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. THAT IS, AN EFFICIENCY RATING ON RECORD FOR AN EMPLOYEE IN ONE GRADE MAY BE USED AS A BASIS FOR DETERMINING ELIGIBILITY FOR AUTOMATIC PROMOTION IN A HIGHER OR LOWER GRADE TO WHICH THE POSITION OF THE EMPLOYEE HAS BEEN REALLOCATED EITHER UPON THE BASIS OF THE SAME DUTIES AND RESPONSIBILITIES OR UPON THE BASIS OF SUBSTANTIALLY THE SAME DUTIES AND RESPONSIBILITIES WITH SOME INCREASE OR DECREASE THEREIN.

IN THE LIGHT OF THE FOREGOING, QUESTION 7 IS ANSWERED IN THE NEGATIVE, THUS MAKING IT UNNECESSARY TO ANSWER QUESTION 8.