B-61181, NOVEMBER 27, 1946, 26 COMP. GEN. 368

B-61181: Nov 27, 1946

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- IF APPROPRIATIONS ARE AVAILABLE . - BE FIXED AT SUCH A RATE ABOVE THE MINIMUM OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED IN ANY PRIOR GOVERNMENT POSITION. DUE SOLELY TO THE ADMINISTRATIVE BELIEF THAT RESTORATION AT THE GRADE MINIMUM WAS REQUIRED WHERE RESTORATION WAS IN A DIFFERENT DIVISION AND THE PREVIOUS SALARY WAS INCIDENT TO A DEMOTION FROM A HIGHER GRADE RATHER THAN ON ACCOUNT OF WITHIN-GRADE SALARY ADVANCEMENTS. 1946: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. "IS A PROMOTION IN A SENSE. HAVING IN MIND THAT IT WAS THE PURPOSE AND INTENT OF THE WITHIN-GRADE PROMOTION PLAN TO GRANT SALARY ADVANCEMENTS BASED UPON EFFICIENCY. THERE IS MUCH MERIT IN YOUR SUGGESTION THAT THE SALARY RATE ONCE ATTAINED IN PARTICULAR POSITION THROUGH THE OPERATION OF THE PLAN PRESCRIBED BY LAW.

B-61181, NOVEMBER 27, 1946, 26 COMP. GEN. 368

COMPENSATION - INITIAL SALARY RATE - TRANSFER, PROMOTION, DEMOTION, REINSTATEMENT, OR REEMPLOYMENT THE INITIAL SALARY RATE OF AN EMPLOYEE IN A CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE--- IF APPROPRIATIONS ARE AVAILABLE --- BE FIXED AT SUCH A RATE ABOVE THE MINIMUM OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED IN ANY PRIOR GOVERNMENT POSITION, IT BEING IMMATERIAL THAT THE EMPLOYEE SUBSEQUENTLY OCCUPIED ONE OR MORE POSITIONS AT A LOWER SALARY RATE OR WITHOUT OMPENSATION; HOWEVER, SUCH RULE, BEING IN EFFECT A MODIFICATION OF EXISTING RULES, MAY NOT BE GIVEN RETROACTIVE EFFECT AS TO CASES ALREADY PROCESSED. 24 COMP. GEN. 226; ID. 368, OVERRULED. (AMPLIFIED BY 26 COMP. GEN. 530; ID. 601; ID. 664.) IN THE CASE OF AN EMPLOYEE WHO HAD BEEN REDUCED IN POSITION AND GRADE AND LATER RESTORED TO THE SAME POSITION AND GRADE WITHOUT BENEFIT OF THE SALARY RATE, ABOVE THE GRADE MINIMUM, PREVIOUSLY RECEIVED THEREIN, DUE SOLELY TO THE ADMINISTRATIVE BELIEF THAT RESTORATION AT THE GRADE MINIMUM WAS REQUIRED WHERE RESTORATION WAS IN A DIFFERENT DIVISION AND THE PREVIOUS SALARY WAS INCIDENT TO A DEMOTION FROM A HIGHER GRADE RATHER THAN ON ACCOUNT OF WITHIN-GRADE SALARY ADVANCEMENTS, THE EMPLOYEE'S SALARY RATE MAY BE ADJUSTED RETROACTIVELY EFFECTIVE TO THE DATE OF RESTORATION, PROVIDED NO ADMINISTRATIVE REGULATION, PRACTICE, OR POLICY WOULD PREVENT SUCH ADJUSTMENT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 27, 1946:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1946, AS FOLLOWS:

THE COMMISSION RESPECTFULLY REQUESTS YOUR ADVICE ON THE APPLICATION OF 24 COMP. GEN. 226, DATED SEPTEMBER 19, 1944, DEALING WITH THE GRANTING OF PREVIOUSLY ACCRUED PERIODIC PAY INCREASES UPON RESTORATION TO A FORMER POSITION FOLLOWING A PERIOD OF SERVICE IN A LOWER GRADE.

IN THIS DECISION YOU STATE, IN EFFECT, THAT THE RESTORATION OF AN EMPLOYEE TO HIS FORMER POSITION AND GRADE, AFTER BEING REDUCED IN POSITION AND GRADE THROUGH NO FAULT OF HIS OWN,"IS A PROMOTION IN A SENSE, YET, HAVING IN MIND THAT IT WAS THE PURPOSE AND INTENT OF THE WITHIN-GRADE PROMOTION PLAN TO GRANT SALARY ADVANCEMENTS BASED UPON EFFICIENCY, SERVICE AND CONDUCT IN A PARTICULAR POSITION, THERE IS MUCH MERIT IN YOUR SUGGESTION THAT THE SALARY RATE ONCE ATTAINED IN PARTICULAR POSITION THROUGH THE OPERATION OF THE PLAN PRESCRIBED BY LAW, MAY BE PAID TO THE SAME EMPLOYEE IN THE EVENT HE BE RESTORED TO THAT POSITION AFTER A PERIOD OF SERVICE IN A LOWER GRADE REQUIRED THROUGH NO FAULT OF HIS OWN, PARTICULARLY WHEN EXISTING RULES PERMIT ONE TO BE REINSTATED--- AFTER A SEPARATION FROM THE SERVICE THROUGH NO FAULT OF HIS BECAUSE OF REDUCTION- IN-FORCE--- TO HIS FORMER POSITION AT THE SALARY RATE OBTAINING UPON HIS SEPARATION.'

TO BETTER ILLUSTRATE THE PROBLEM AND TO FORM THE BASIS OF A DECISION, THE FOLLOWING EXAMPLES ARE GIVEN:

1. EMPLOYEE A WAS SERVING AS A CERTIFICATION CLERK, CAF-4 WITH ONE WITHIN -GRADE INCREASE WAS CHANGED TO CLERK ( CERTIFICATION), CAF-3 EFFECTIVE OCTOBER 7, 1945, AND ADMINISTRATIVELY ALLOWED BENEFIT OF ONE WITHIN-GRADE PROMOTION; CHANGED TO CLERK TYPIST, CAF-2, EFFECTIVE DECEMBER 30, 1945, AND ADMINISTRATIVELY ALLOWED BENEFIT OF TWO WITHIN GRADE PROMOTIONS; PROMOTED TO CLERK TYPIST, CAF-3 AT THE MINIMUM OF THE GRADE EFFECTIVE MAY 5, 1946, AND RESTORED TO HER FORMER POSITION OF CLERK ( CERTIFICATION), AT THE MINIMUM OF GRADE CAF-4, EFFECTIVE JULY 14, 1946.

EVEN THOUGH EMPLOYEE A WAS RESTORED TO HER FORMER POSITION, THE RESTORATION WAS AT THE MINIMUM OF THE GRADE BECAUSE OF HER INTERVENING PROMOTION TO CAF-3 WHICH, IT WAS BELIEVED, WOULD OPERATE TO DEFEAT HER RIGHT TO RECEIVE PAY INCREASES PREVIOUSLY ACCRUED IN THE POSITION OF CLERK ( CERTIFICATION), CAF-4. IS THIS ACTION CORRECT OR SHOULD EMPLOYEE A BE ALLOWED BENEFIT OF THE WITHIN-GRADE INCREASE PREVIOUSLY ACCRUED?

2. EMPLOYEE B WAS SERVING AS A CLERK, CAF-4 WITH ONE WITHIN-GRADE INCREASE; WAS PROMOTED TO CLERK ( EXAMINATION ANNOUNCEMENTS), CAF-5 AND RECEIVED ONE WITHIN-GRADE PROMOTION WHILE SERVING IN THIS POSITION; CHANGED TO CLERK STENOGRAPHER, CAF-3, EFFECTIVE NOVEMBER 4, 1945, AND ADMINISTRATIVELY ALLOWED BENEFIT OF TWO WITHIN-GRADE PROMOTIONS; PROMOTED TO STENOGRAPHER, CAF-4 EFFECTIVE JULY 14, 1946, AT THE MINIMUM OF THE GRADE.

EMPLOYEE B WAS, AFTER A PROMOTION AND A SUBSEQUENT CHANGE TO LOWER GRADE, RESTORED TO A CAF-4 POSITION; HOWEVER, IT WILL BE NOTED THAT HER FORMER GRADE CAF-4 POSITION WAS THAT OF CLERK, WHEREAS SHE WAS RESTORED TO THE POSITION OF STENOGRAPHER, CAF-4. THIS RESTORATION WAS ALSO AT THE MINIMUM OF THE GRADE SINCE SHE WAS NOT RESTORED TO HER "FORMER POSITION" BUT TO HER FORMER GRADE. IS THIS ACTION CORRECT OR SHOULD EMPLOYEE B BE ALLOWED BENEFIT OF THE WITHIN-GRADE INCREASE ON HER GRADE CAF-4 POSITION?

3. EMPLOYEE C WAS SERVING AS A CLERK TYPIST, CAF-2 WITH ONE WITHIN GRADE PROMOTION; PROMOTED TO TRANSMITTAL CLERK, CAF-3 AND RECEIVED ONE WITHIN- GRADE INCREASE WHILE SERVING IN THIS POSITION; CHANGED TO CLERK TYPIST, CAF-2 EFFECTIVE NOVEMBER 4, 1945, AND ADMINISTRATIVELY ALLOWED BENEFIT OF TWO WITHIN-GRADE PROMOTIONS; CHANGED TO CLERK TYPIST, CAF-1, EFFECTIVE DECEMBER 30, 1945, AND ADMINISTRATIVELY ALLOWED BENEFIT OF TWO WITHIN- GRADE PROMOTIONS; PROMOTED TO CLERK TYPIST, CAF-2 EFFECTIVE JANUARY 13, 1946, AT THE MINIMUM OF THE GRADE. THE TWO CLERK TYPIST POSITIONS WERE IN DIFFERENT DIVISIONS.

WHEN EMPLOYEE C WAS PROMOTED FROM CAF-1 TO CAF-2 SHE WAS GIVEN THE MINIMUM OF THE GRADE SINCE HER CHANGE TO LOWER GRADE HAD BEEN FROM THE POSITION OF TRANSMITTAL CLERK, CAF-3. AS THE ABOVE EXAMPLE INDICATES, SHE HAD, PRIOR TO HER PROMOTION TO GRADE CAF-3, SERVED IN A CLERK TYPIST CAF-2 POSITION; HOWEVER, THE CLERK TYPIST POSITION TO WHICH SHE WAS RESTORED WAS IN A DIFFERENT DIVISION AND HER ORIGINAL REASSIGNMENT FROM THAT GRADE WAS THE RESULT OF A PROMOTION RATHER THAN A CHANGE TO LOWER GRADE. IS THIS ACTION CORRECT OR SHOULD EMPLOYEE C BE ALLOWED BENEFIT OF THE WITHIN-GRADE PROMOTION ON HER GRADE CAF-2 POSITION?

IF THE PREVIOUSLY ACCRUED INCREASES SHOULD BE ALLOWED IN THE ABOVE CASES, MAY THE SALARIES BE AMENDED RETROACTIVE TO THE DATE OF RESTORATION OF THE EMPLOYEES TO THEIR FORMER GRADES?

THE REFERRED-TO DECISION (24 COMP. GEN. 226) HELD, QUOTING FROM THE SYLLABUS:

WHERE AN EMPLOYEE HAS BEEN REDUCED IN POSITION AND GRADE THROUGH NO FAULT OF HIS OWN AND LATER IS RESTORED TO THE SAME POSITION AND GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION, SUBJECT TO AVAILABLE APPROPRIATIONS, TO FIX THE EMPLOYEE'S SALARY INITIALLY AT A RATE ABOVE THE GRADE MINIMUM TO WHICH HE PREVIOUSLY HAD BEEN ADVANCED IN THAT POSITION THROUGH OPERATION OF THE WITHIN-GRADE PROMOTION PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941; HOWEVER, SUCH RULE BEING IN EFFECT A MODIFICATION OF EXISTING RULES AS HERETOFORE UNDERSTOOD AND APPLIED IN THE LIGHT OF RELATED DECISIONS, IT MAY NOT BE GIVEN RETROACTIVE EFFECT TO CASES HERETOFORE FINALLY PROCESSED.

AS STATED IN THAT DECISION, THAT RULE IS IN LINE WITH THE RULE FOR FIXING INITIAL SALARY RATES UPON REINSTATEMENT OF A FORMERLY SEPARATED GOVERNMENT EMPLOYEE. IT WAS AN APPLICATION OF THE WELL-SETTLED RULE THAT A WITHIN- GRADE PROMOTION ONCE ATTAINED CONTINUES TO BE A RIGHT OF AN EMPLOYEE SO LONG AS HE REMAINS IN THE SAME POSITION IN WHICH THE PROMOTION WAS OBTAINED. 21 COMP. GEN. 791; 22 ID. 489; 23 ID. 941; 24 ID. 341, 369. WAS BASED UPON THE INTENT CONTAINED IN THE WITHIN GRADE PROMOTION PLAN TO GRANT SALARY ADVANCEMENTS BASED UPON EFFICIENCY, SERVICE, AND CONDUCT IN A PARTICULAR POSITION AND UPON THE PREMISE THAT AN EMPLOYEE WHO, HAVING PROVED HIS QUALIFICATIONS FOR WITHIN-GRADE SALARY ADVANCEMENTS BY HIS EFFICIENCY, SERVICE, AND CONDUCT IN A PARTICULAR POSITION, WAS REDUCED IN GRADE AND THEREAFTER WAS RESTORED TO THE SAME POSITION IN THE SAME GRADE PREVIOUSLY HELD AGAIN NEED NOT BE REQUIRED TO PROVE HIS QUALIFICATIONS FOR THE WITHIN GRADE SALARY ADVANCEMENTS PREVIOUSLY EARNED--- PARTICULARLY IN VIEW OF THE RULES REGARDING REINSTATEMENT, INFRA.

WITH RESPECT TO THE RULES REGARDING REINSTATEMENT THERE IS FOR CONSIDERATION 24 COMP. GEN. 368, IN WHICH IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

UPON REINSTATEMENT OF A FORMER EMPLOYEE, HIS SALARY MAY BE FIXED INITIALLY AT A PRESCRIBED RATE ABOVE THE MINIMUM FOR THE GRADE IN WHICH REINSTATED, TO THE EXTENT OF THE RATE RECEIVED AT THE TIME OF HIS LAST SEPARATION FROM SERVICE, REGARDLESS OF THE AGENCY IN WHICH EMPLOYED; HOWEVER, THE INITIAL SALARY RATE MAY NOT BE FIXED ABOVE THE GRADE MINIMUM ON THE BASIS OF A HIGHER RATE RECEIVED IN OTHER THAN THE LAST POSITION, EVEN THOUGH THE HIGHER RATE WAS RECEIVED DURING FORMER SERVICE IN THE REINSTATING AGENCY. 22 COMP. GEN. 925, DISTINGUISHED.

IN LINE WITH THAT DECISION THE RULE REPORTED IN 24 COMP. GEN. 226, SUPRA, WOULD BE LIMITED IN ITS APPLICATION TO A SITUATION IN WHICH AN EMPLOYEE IS RESTORED TO THE POSITION AND GRADE HELD IMMEDIATELY PRIOR TO HIS LAST DEMOTION WHERE MORE THAN ONE DEMOTION IS INVOLVED AS IN EXAMPLE 1, SUPRA.

THE ACTION TAKEN IN EXAMPLES 1 AND 2, PRESENTED IN YOUR LETTER, WAS IN ACCORDANCE WITH THE RULES INDICATED IN THE DECISIONS DISCUSSED ABOVE. HOWEVER, HAVING IN MIND THE APPLICATION OF THOSE RULES TO THE FACTS STATED AND THE GENERAL PERSONNEL RETRENCHMENT PROGRAM NOW IN PROGRESS THROUGHOUT THE GOVERNMENT, AS A RESULT OF WHICH, MANY EMPLOYEES ARE HAVING THEIR SERVICES TERMINATED AND OTHERS ARE BEING REDUCED ONE OR MORE GRADES, EITHER A GRADE AT A TIME OR SEVERAL GRADES AT A TIME, REEXAMINATION OF THOSE RULES IN THEIR RELATION TO THE RESULTS OBTAINED WHEN APPLIED TO SUCH FACTS IS WARRANTED.

PRESUMABLY, UNDER THE RETRENCHMENT PROGRAM THE GENERAL PRACTICE IS TO TERMINATE FIRST THE SERVICES OF THE LEAST EFFICIENT AND LEAST QUALIFIED EMPLOYEE AND TO RETAIN SO FAR AS PRACTICABLE THE SERVICES OF THE MOST EFFICIENT AND BEST QUALIFIED EMPLOYEES. OFTEN THE SERVICES OF THIS LATTER CLASS OF EMPLOYEES CAN BE UTILIZED ONLY IN GRADES LOWER THAN THE GRADES IN WHICH THEY HAVE BEEN SERVING. MANY EMPLOYEES RESIGN IN ANTICIPATION OF HAVING THEIR SERVICES TERMINATED AND OTHERS RESIGN RATHER THAN ACCEPT A POSITION AT A LOWER SALARY AND A LOWER GRADE. THOSE EMPLOYEES WHOSE SERVICES ARE TERMINATED EITHER BY DISMISSAL OR RESIGNATION AND WHO, THEREAFTER, MAY BE REINSTATED MAY, UNDER EXISTING RULES, BE REINSTATED, WITHIN ADMINISTRATIVE DISCRETION, AT AN INITIAL SALARY RATE NOT IN EXCESS OF THE SALARY RECEIVED UPON SEPARATION. IN OTHER WORDS, UPON REINSTATEMENT SUCH EMPLOYEES, WITHIN ADMINISTRATIVE DISCRETION, MAY BE ALLOWED THE BENEFIT OF ANY WITHIN-GRADE PROMOTIONS PREVIOUSLY OBTAINED EVEN THOUGH REEMPLOYED IN A POSITION OTHER THAN THE SAME POSITION IN THE SAME GRADE PREVIOUSLY HELD. ON THE OTHER HAND, UNDER EXISTING RULES, AN EMPLOYEE WHOSE SERVICES ARE RETAINED AT A GRADE LOWER THAN THAT PREVIOUSLY HELD AND WHO THEREAFTER IS PROMOTED MAY NOT RECEIVE COMPENSATION AT A RATE IN EXCESS OF THE SALARY RATE RECEIVED IMMEDIATELY PRIOR TO THE DATE OF PROMOTION OR THE MINIMUM SALARY FOR THE GRADE TO WHICH PROMOTED, WHICHEVER IS GREATER, UNLESS THE POSITION TO WHICH PROMOTED IS THE SAME POSITION IN THE SAME GRADE WHICH THE EMPLOYEE HELD IMMEDIATELY PRIOR TO HIS DEMOTION, IN WHICH CASE HE MAY RECEIVE THE BENEFITS OF ANY WITHIN-GRADE SALARY ADVANCES PREVIOUSLY OBTAINED IN THAT POSITION.

THE EFFECT OF THOSE RULES IN THEIR APPLICATION IS UNJUST TO THE EMPLOYEE WHO REMAINS WITH THE GOVERNMENT WHEN SUCH AN EMPLOYEE IS COMPARED WITH AN EMPLOYEE WHOSE SERVICES HAVE BEEN TERMINATED AND WHO THEREAFTER IS REINSTATED. FOR INSTANCE, UNDER EXISTING RULES, IF, INSTEAD OF BEING REDUCED IN GRADE, THE SERVICES OF EMPLOYEE 2 IN EXAMPLE 1 HAD BEEN TERMINATED AS OF OCTOBER 7, 1945, AND IF THEREAFTER SHE HAD BEEN REINSTATED IT WOULD HAVE BEEN POSSIBLE TO REINSTATE HER AT AN INITIAL SALARY RATE NOT IN EXCESS OF THE SALARY RATE WHICH SHE WAS RECEIVING ON OCTOBER 7, 1945. HOWEVER, HAVING REMAINED IN THE SERVICE, UPON RESTORATION TO A POSITION AND GRADE WHICH SHE PREVIOUSLY HAD HELD SHE, UNDER THE EXISTING RULE, COULD BE RESTORED ONLY AT THE MINIMUM RATE OF COMPENSATION FOR THE GRADE. ALSO, IT MIGHT BE NOTED THAT, UNDER EXISTING RULES, IF THE SERVICES OF EMPLOYEE A HAD BEEN TERMINATED WHEN SHE HELD EITHER OF THE GRADE 3 POSITIONS OR THE GRADE 2 POSITION SHE THEREAFTER COULD HAVE BEEN REINSTATED ONLY AT THE SALARY HELD AT THE TIME HER SERVICES WERE TERMINATED. THUS, UPON REINSTATEMENT SHE WOULD NOT BE IN AS FAVORABLE A POSITION WITH RESPECT TO SALARY AND GRADE AS SHE WOULD HAVE BEEN IF HER SERVICES HAD BEEN TERMINATED EITHER VOLUNTARILY OR INVOLUNTARILY WHEN SHE OCCUPIED THE GRADE 4 POSITION.

EMPLOYEE B IN EXAMPLE 2 MAY NOT, UNDER EXISTING RULES, BE GIVEN THE BENEFIT OF ANY WITHIN-GRADE SALARY ADVANCEMENTS PREVIOUSLY EARNED IN GRADE 4, EVEN THOUGH SHE PREVIOUSLY HAD SERVED IN GRADE 4, BECAUSE SHE WAS NOT RESTORED TO THE SAME POSITION. AGAIN, IT SHOULD BE NOTED THAT, UNDER EXISTING RULES, IF THE SERVICES OF EMPLOYEE B HAD BEEN TERMINATED FROM THE ORIGINAL GRADE 4 POSITION AND THEREAFTER SHE HAD BEEN REINSTATED TO THE SECOND GRADE 4 POSITION, REINSTATEMENT COULD HAVE BEEN MADE AT A SALARY EQUAL TO THAT RECEIVED IN THE ORIGINAL GRADE 4 POSITION.

THE GENERAL RULE AS TO TRANSFERS, PROMOTIONS AND DEMOTIONS WAS STATED IN 21 COMP. GEN. 791, 795, AS FOLLOWS:

IN DECISION OF AUGUST 6, 1941, 21 COMP. GEN. 113, 114, IT WAS STATED:

"THIS OFFICE, IN A LONG LINE OF DECISIONS, HAS HELD THAT THE TRANSFER, REAPPOINTMENT, OR REINSTATEMENT OF AN EMPLOYEE FROM A CLASSIFIED OR UNCLASSIFIED POSITION TO A CLASSIFIED POSITION DOES NOT CONSTITUTE A "NEW" APPOINTMENT WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1490, PROVIDING AS FOLLOWS: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' SEE 9 COMP. GEN. 71; ID. 80; ID. 313; 13 ID. 22; ID. 86; ID. 222; 15 ID. 102; ID. 797; 16 ID. 598; ID. 994; 17 ID. 460; ID. 563; ID. 1061; 19 ID. 20; ID. 763; 20 ID. 17; ID. 318. * * *"

UNDER THE RULES STATED IN THOSE DECISIONS, AN EMPLOYEE MAY BE PAID INITIALLY IN A GRADE OR POSITION TO WHICH TRANSFERRED, PROMOTED OR REDUCED WITHOUT LOSS OF THE SALARY RATE, INCLUDING ANY PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT, PAID THE EMPLOYEE IN HIS OLD POSITION, OR WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A SALARY RATE PRESCRIBED FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED. IN OTHER WORDS, UNDER SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, SUPRA, IT IS PROPER AND WITHIN ADMINISTRATIVE DISCRETION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT ACQUIRED IN ONE GRADE OR POSITION AFTER TRANSFER, PROMOTION, OR REDUCTION TO ANOTHER GRADE OR POSITION. HOWEVER, WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED FROM ONE POSITION TO ANOTHER SEPARATE AND DISTINCT POSITION WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR A DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION--- AVAILABILITY OF FUNDS TO BE CONSIDERED, OF COURSE--- TO PAY INITIALLY ANY SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, WITHOUT REGARD TO THE RATE PAID IN THE POSITION OCCUPIED PRIOR TO THE TRANSFER, PROMOTION, OR REDUCTION. THAT IS TO SAY, SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, ABOVE QUOTED--- WHICH, AS PREVIOUSLY STATED, HAS NOT BEEN AFFECTED IN ANY MANNER BY THE AMENDATORY ACT OF AUGUST 1, 1941--- VESTS A DISCRETION IN THE ADMINISTRATIVE OFFICE BUT DOES NOT REQUIRE ADMINISTRATIVE ACTION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN -GRADE SALARY ADVANCEMENTS PAID TO HIM PRIOR TO HIS TRANSFER, PROMOTION, OR REDUCTION FROM ONE POSITION TO ANOTHER, WHETHER IN THE SAME OR DIFFERENT GRADE.

IN VIEW OF THE FOREGOING, AND IN ORDER TO CLARIFY AND COORDINATE THE PREVIOUS DECISIONS RESPECTING THE SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, AND REINSTATEMENT, AND IN THE ABSENCE OF A STATUTE, OR REGULATION HAVING THE FORCE OF LAW, SPECIFICALLY CONTROLLING, THE GENERAL RULE PROPERLY MAY BE AMPLIFIED AND RESTATED AS FOLLOWS. WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, OR SEPARATED IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO PAY--- WITHIN AVAILABLE APPROPRIATIONS--- SUCH EMPLOYEE IN ANY CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED THE MINIMUM SALARY RATE OF THE GRADE OR POSITION OR SUCH HIGHER RATE WITHIN THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED BY HIM IN ANY PRIOR GOVERNMENT POSITION. IN APPLYING THE RULE IT WILL NOT BE CONSIDERED MATERIAL THAT THE EMPLOYEE, AFTER OCCUPYING THE HIGHEST SALARIED POSITION, OCCUPIED ONE OR MORE POSITIONS AT A LOWER SALARY RATE OR WITHOUT COMPENSATION BEFORE BEING CONSIDERED FOR THE POSITION TO WHICH THE SALARY CURRENTLY IS UNDER CONSIDERATION.

TO THE EXTENT THAT THE RULES EXPRESSED IN 24 COMP. GEN. 226, AND 24 COMP. GEN. 368, AND OTHER DECISIONS OF THIS OFFICE MAY CONFLICT WITH THE RULE HEREIN STATED, THEY NO LONGER WILL BE FOLLOWED. HOWEVER, AS THE RULE STATED HEREIN IS, IN EFFECT, A MODIFICATION OF EXISTING RULES AS UNDERSTOOD AND APPLIED IN THE LIGHT OF RELATED DECISIONS OF THIS OFFICE, IT MAY NOT BE APPLIED TO CASES WHICH ALREADY HAVE BEEN PROCESSED.

WITH RESPECT TO EMPLOYEE C IN EXAMPLE 3 WHO WAS RESTORED TO THE SAME POSITION IN A DIFFERENT DIVISION THE FACT THAT THE RESTORATION WAS IN A DIFFERENT DIVISION WOULD NOT HAVE BEEN SUFFICIENT TO HAVE PRECLUDED HER RESTORATION AT A SALARY RATE PREVIOUSLY ATTAINED THROUGH OPERATION OF THE WITHIN-GRADE PROMOTION PLAN, NOR WOULD THE FACT THAT SHE WAS RESTORED TO A POSITION IN WHICH SHE PREVIOUSLY HAD RECEIVED IN EXCESS OF THE MINIMUM PAY FOR THE GRADE ON ACCOUNT OF A DEMOTION FROM A HIGHER GRADE RATHER THAN ON ACCOUNT OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN. ACCORDINGLY, UPON REDUCTION IN GRADE, EMPLOYEE C UPON RESTORATION TO THE CAF 2 POSITION WHICH SHE PREVIOUSLY HAD HELD COULD, WITHIN ADMINISTRATIVE DISCRETION AND WITHIN AVAILABLE APPROPRIATION, HAVE BEEN RESTORED AT THE SAME SALARY RATE PREVIOUSLY RECEIVED IN THE CAF 2 POSITION.

THE SALARY RATE OF EMPLOYEE C MAY BE ADJUSTED RETROACTIVELY EFFECTIVE FROM THE DATE OF HER RESTORATION TO HER FORMER POSITION PROVIDING THERE EXISTED NO ADMINISTRATIVE REGULATION, PRACTICE, OR POLICY WHICH WOULD DENY SUCH ADJUSTMENT AND PROVIDED THERE WAS NO INTENT TO RESTORE THE EMPLOYEE AT A SALARY RATE LOWER THAN THAT WHICH SHE PREVIOUSLY HAD ATTAINED IN THE SAME GRADE. 24 COMP. GEN. 341.