B-83635, JULY 19, 1949, 29 COMP. GEN. 29

B-83635: Jul 19, 1949

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HAS REFERENCE TO EMPLOYEES WHO HAVE A COMPETITIVE STATUS AND WHO ALSO ARE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE. NON- VETERAN EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION ARE ENTITLED. PROVIDED THE EMPLOYEES WERE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE AT THE TIME OF REMOVAL. PERSONS WHO WERE SERVING UNDER TEMPORARY APPOINTMENTS AT THE TIME OF THEIR REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY ARE NOT TO BE REGARDED AS IN THE "CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF SECTION 6 (A) OF THE ACT OF AUGUST 24. WAR SERVICE INDEFINITE EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY ARE ENTITLED.

B-83635, JULY 19, 1949, 29 COMP. GEN. 29

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION THE TERM "CLASSIFIED CIVIL SERVICE" AS USED IN SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, RESPECTING THE REMOVAL OR SUSPENSION WITHOUT PAY OF PERSONS IN THE CLASSIFIED SERVICE, HAS REFERENCE TO EMPLOYEES WHO HAVE A COMPETITIVE STATUS AND WHO ALSO ARE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE, AND, THEREFORE, NON- VETERAN EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION ARE ENTITLED, UNDER SECTION 6 (B) (1) OF THE ACT, TO COMPENSATION FOR SUCH PERIOD, PROVIDED THE EMPLOYEES WERE OCCUPYING POSITIONS IN THE COMPETITIVE SERVICE AT THE TIME OF REMOVAL. PERSONS WHO WERE SERVING UNDER TEMPORARY APPOINTMENTS AT THE TIME OF THEIR REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY ARE NOT TO BE REGARDED AS IN THE "CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, SO AS TO BE ENTITLED UPON RESTORATION TO DUTY TO COMPENSATION FOR THE PERIODS OF UNJUSTIFIED REMOVAL OR SUSPENSION UNDER SECTION 6 (B) (1) OF THE ACT. WAR SERVICE INDEFINITE EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION FROM DUTY WITHOUT PAY ARE ENTITLED, BY VIRTUE OF THEIR STATUS IN THE "CLASSIFIED CIVIL SERVICE," TO COMPENSATION FOR SUCH PERIOD PURSUANT TO THE "BACK PAY" PROVISIONS OF SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PROVIDED AT THE TIME OF REMOVAL THEY HAD A COMPETITIVE STATUS AND OCCUPIED A POSITION IN THE COMPETITIVE SERVICE. EMPLOYEES WHO WERE DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, AND WHO WERE REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH ACTIONS WERE UNJUSTIFIED ARE ENTITLED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, REGARDLESS OF WHETHER THE EMPLOYEES OCCUPIED POSITIONS IN THE COMPETITIVE OR EXCEPTED SERVICE OR WHETHER THEY EVER ACQUIRED A COMPETITIVE CIVIL SERVICE STATUS. EMPLOYEES WHO ARE "REINSTATED OR RESTORED TO DUTY" AFTER A PERIOD OF UNJUSTIFIED REMOVAL OR SUSPENSION ARE ENTITLED TO THE BENEFITS OF THE "BACK PAY" PROVISIONS OF SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AMENDED BY THE ACT OF JUNE 10, 1948, REGARDLESS OF THE NATURE OF THE POSITION TO WHICH REINSTATED OR RESTORED. AN EMPLOYEE NOT WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, RESPECTING THE REMOVAL OR SUSPENSION WITHOUT PAY OF PERSONS IN THE CLASSIFIED SERVICE, WHO IS RESTORED TO DUTY UPON A FINDING THAT HIS REMOVAL WAS UNJUSTIFIED IS ENTITLED, UNDER SECTION 30.411 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, TO ANY SICK LEAVE WHICH REMAINED TO HIS CREDIT UPON SEPARATION.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 19, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 9, 1949, REQUESTING A DECISION UPON SEVERAL QUESTIONS HEREINAFTER SET FORTH INVOLVING THE APPLICATION OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, 355 ( PUBLIC LAW 623), WHICH AMENDED THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, TO READ AS FOLLOWS:

SEC. 6 (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER. NO EXAMINATION OF WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCEPT IN THE DISCRETION OF THE OFFICER OR EMPLOYEE DIRECTING THE REMOVAL OR SUSPENSION WITHOUT PAY. COPIES OF THE CHARGES, THE NOTICE OF HEARING, THE ANSWER, THE REASONS FOR REMOVAL OR SUSPENSION WITHOUT PAY, AND THE ORDER OF REMOVAL OR SUSPENSION WITHOUT PAY SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR AGENCY, AS SHALL ALSO THE REASONS FOR REDUCTION IN GRADE OR COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED, UPON REQUEST, TO THE PERSON AFFECTED AND TO THE CIVIL SERVICE COMMISSION. THIS SUBSECTION SHALL APPLY TO A PERSON WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, ONLY IF HE SO ELECTS.

(B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. A DECISION WITH RESPECT TO ANY APPEAL TO PROPER AUTHORITY UNDER THIS PARAGRAPH SHALL BE MADE AT THE EARLIEST PRACTICABLE DATE.

(2) ANY PERSON WHO IS DISCHARGED, SUSPENDED, OR FURLOUGHED WITHOUT PAY, UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, WHO, AFTER ANSWERING THE REASONS ADVANCED FOR SUCH DISCHARGE, SUSPENSION, OR FURLOUGH OR AFTER AN APPEAL TO THE CIVIL SERVICE COMMISSION, AS PROVIDED UNDER SUCH SECTION, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH DISCHARGE, SUSPENSION, OR FURLOUGH WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH DISCHARGE, SUSPENSION, OR FURLOUGH FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS DISCHARGED, SUSPENDED, OR FURLOUGHED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD.' (ITALICS SUPPLIED.)

THE QUESTIONS PRESENTED IN YOUR LETTER ARE STATED AS FOLLOWS:

(1) IN CASES OF NON-VETERAN EMPLOYEES WHO ARE RESTORED AFTER REMOVAL OR SUSPENSION HAS BEEN FOUND TO BE UNJUSTIFIED OR UNWARRANTED, ARE THE "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948, SUPRA, CONTINGENT UPON A FINDING THAT THE EMPLOYEE HAD AT SOME PREVIOUS DATE ACQUIRED A ,COMPETITIVE CIVIL SERVICE STATUS?

(4) IS REINSTATEMENT OR RESTORATION REQUIRED TO BE EFFECTED TO THE POSITION FROM WHICH SEPARATED IN ORDER THAT THE "BACK PAY" PROVISIONS OF THE LAW MAY APPLY?

(5) IS IT NOW HELD, IN LIGHT OF THE PROVISIONS OF THE ACT OF JUNE 10, 1948, THAT AN EMPLOYEE NOT COVERED BY THE PROVISIONS OF THE ACT, BUT WHO IS RESTORED UPON A FINDING THAT REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, MUST FORFEIT THE SICK LEAVE ACCRUED AT TIME OF SEPARATION?

IT IS ASSUMED THAT THE FIRST TWO QUESTIONS RELATE TO REMOVALS OR SUSPENSIONS OF NON-VETERAN EMPLOYEES UNDER SECTION 6 (A) OF THE ABOVE QUOTED ACT AND DO NOT INCLUDE REMOVALS OR SUSPENSIONS BECAUSE OF REDUCTIONS IN FORCE, THE LATTER SITUATION BEING THE SUBJECT OF SEPARATE TREATMENT IN THE SAID ACT. IN ORDER TO ARRIVE AT THE MEANING OF THE TERM "CLASSIFIED CIVIL SERVICE," AS THAT TERM IS USED IN SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, THERE ARE FOR CONSIDERATION THE ACT OF MARCH 27, 1922, 42 STAT. 470, AND THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION. THE ACT OF MARCH 27, 1922, AS CODIFIED, 5 U.S.C. 679, PROVIDES, AS FOLLOWS:

THE EXPRESSION "CLASSIFIED CIVIL SERVICE" AS THE SAME OCCURS IN ACTS OF CONGRESS SHALL, UNLESS OTHERWISE PROVIDED, BE CONSTRUED TO INCLUDE ALL PERSONS WHO HAVE BEEN OR MAY BE GIVEN A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE, WITH OR WITHOUT COMPETITIVE EXAMINATION, BY LEGISLATIVE ENACTMENT, OR UNDER THE CIVIL SERVICE RULES PROMULGATED BY THE PRESIDENT, OR BY EXECUTIVE ORDERS COVERING GROUPS OF EMPLOYEES WITH THEIR POSITIONS INTO THE COMPETITIVE CLASSIFIED SERVICE OR AUTHORIZING THE APPOINTMENT OF INDIVIDUALS TO POSITIONS WITHIN SUCH SERVICE. (ITALICS SUPPLIED.)

SECTION 1.1 OF PART 1 OF THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION ( CH. Z1-207 OF THE FEDERAL PERSONNEL MANUAL) PROVIDES AS FOLLOWS:

SEC. 1.1 POSITIONS AND EMPLOYEES AFFECTED BY THESE RULES. (A) THESE RULES SHALL APPLY TO ALL POSITIONS IN THE COMPETITIVE SERVICE. AS USED IN THESE RULES, THE WORDS "COMPETITIVE SERVICE" SHALL HAVE THE SAME MEANING AS THE WORDS "CLASSIFIED SERVICE," OR "CLASSIFIED (COMPETITIVE) SERVICE," OR "CLASSIFIED CIVIL SERVICE" AS DEFINED IN EXISTING STATUTES AND EXECUTIVE ORDERS. THE COMPETITIVE SERVICE SHALL INCLUDE ALL CIVILIAN POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT UNLESS SPECIFICALLY EXCEPTED THEREFROM UNDER STATUTE OR EXECUTIVE ORDERS. THE COMPETITIVE SERVICE SHALL INCLUDE ALL CIVILIAN POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT UNLESS SPECIFICALLY EXCEPTED THEREFROM UNDER STATUTE OR EXECUTIVE ORDER, AND ALL POSITIONS IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE FEDERAL GOVERNMENT AND IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA WHICH ARE SPECIFICALLY MADE SUBJECT THERETO BY STATUTE. WHENEVER THERE IS A DOUBT THE COMMISSION SHALL DETERMINE WHETHER A POSITION IS IN THE COMPETITIVE SERVICE.

(B) PERSONS OCCUPYING SUCH POSITION SHALL BE CONSIDERED AS BEING IN THE COMPETITIVE SERVICE WHEN THEY HAVE A COMPETITIVE STATUS. A COMPETITIVE STATUS SHALL MEAN A STATUS WHICH PERMITS A PERSON TO BE PROMOTED, TRANSFERRED, REASSIGNED, AND REINSTATED TO POSITIONS IN THE COMPETITIVE SERVICE WITHOUT COMPETITIVE EXAMINATION, SUBJECT TO THE CONDITIONS PRESCRIBED BY THE CIVIL SERVICE RULES AND REGULATIONS FOR SUCH NON- COMPETITIVE ACTIONS. A COMPETITIVE STATUS SHALL BE ACQUIRED BY PROBATIONAL APPOINTMENT THROUGH COMPETITIVE EXAMINATION, OR MAY BE GRANTED BY STATUTE, EXECUTIVE ORDER, OR THE CIVIL SERVICE RULES.

WHILE PRIMARILY IT IS THE RESPONSIBILITY OF THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION IS IN THE COMPETITIVE SERVICE OR WHETHER AN EMPLOYEE HAS A COMPETITIVE STATUS, IT IS EVIDENT FROM THE FOREGOING STATUTES AND REGULATIONS THAT, IF AN EMPLOYEE IS TO BE REGARDED AS BEING IN THE "CLASSIFIED CIVIL SERVICE," HE NOT ONLY MUST HAVE A COMPETITIVE STATUS BUT HE ALSO MUST BE OCCUPYING A POSITION IN THE COMPETITIVE SERVICE. HENCE, THE MEANING OF THE TERM ,CLASSIFIED CIVIL SERVICE" BEING APPLICABLE TO SECTIONS 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, IT FOLLOWS THAT YOUR FIRST QUESTION IS FOR ANSWERING IN THE AFFIRMATIVE, ASSUMING, OF COURSE, THAT THE EMPLOYEE REFERRED TO THEREIN WAS OCCUPYING A COMPETITIVE POSITION AT THE TIME OF HIS REMOVAL.

REFERRING TO QUESTION (2) (A), THE CIVIL SERVICE REGULATIONS PRESUMABLY DO NOT REGARD PERSONS SERVING UNDER TEMPORARY APPOINTMENTS AS IN THE COMPETITIVE SERVICE (CLASSIFIED CIVIL SERVICE). SEE SECTION 9.101 AND 9.104 OF PART 9 OF THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION. AS TO EMPLOYEES SERVING UNDER WAR SERVICE APPOINTMENTS, SECTION 9.102 OF THE COMMISSION'S REGULATIONS INDICATES THAT NO DISTINCTION SHOULD BE MADE BETWEEN PERMANENT EMPLOYEES AND WAR SERVICE INDEFINITE EMPLOYEES IN THE COMPETITIVE SERVICE. ACCORDINGLY, IT MAY BE CONCLUDED THAT TEMPORARY EMPLOYEES ARE NOT SUBJECT TO THE PROVISIONS OF SECTIONS 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, AND THAT THE APPLICABILITY THEREOF TO WAR SERVICE APPOINTEES WOULD DEPEND UPON WHETHER, AT THE TIME OF REMOVAL, THEY HAVE A COMPETITIVE STATUS AND OCCUPY A POSITION IN THE COMPETITIVE SERVICE.

WITH RESPECT TO QUESTION (2) (B), IT IS FOR NOTING THAT UNDER SECTION 9.102 OF THE COMMISSION'S REGULATIONS REFERRED TO ABOVE, CERTAIN POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE BUT OCCUPIED BY EMPLOYEES WITH A COMPETITIVE STATUS ARE INCLUDED IN THE SAME CATEGORY AS EMPLOYEES IN THE ,COMPETITIVE SERVICE" SO FAR AS REMOVAL OR SUSPENSION PROCEDURE IS CONCERNED. HOWEVER, IT IS NOT BELIEVED THAT THE COMMISSION INTENDED BY THAT REGULATION--- NOR DOES IT APPEAR THAT THE COMMISSION'S AUTHORITY IS THAT EXTENSIVE--- TO BRING EXCEPTED EMPLOYEES WITHIN THE PROVISIONS OF SECTIONS 6 (A) AND 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, THOSE PROVISIONS BEING APPLICABLE ONLY TO EMPLOYEES IN THE "CLASSIFIED CIVIL SERVICE" (COMPETITIVE SERVICE). RATHER, IT IS BELIEVED THAT THE REGULATION MERELY INTENDS THAT THE SAME PROCEDURES FOR REMOVAL OR SUSPENSION SET FORTH IN SAID STATUTE BE FOLLOWED IN THE REMOVAL OR SUSPENSION OF PERSONS HOLDING CERTAIN CLASSES OF EXCEPTED POSITIONS. SPECIFICALLY, THEREFORE, QUESTION (2) (B) IS ANSWERED IN THE NEGATIVE. SEE THE ANSWER TO QUESTION (1).

IN REGARD TO QUESTION NO. 3, THE PROVISIONS OF SECTION 6 (B) (2) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, SPECIFICALLY ARE MADE APPLICABLE TO ANY EMPLOYEE RESTORED TO DUTY UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED. HENCE, THE PROVISIONS OF THE LATTER STATUTE WOULD GOVERN IN DETERMINING WHETHER AN EMPLOYEE IS ENTITLED TO THE "BACK PAY" PROVIDED BY SECTION 6 (B) (2) OF THE FIRST STATUTE. THAT CONNECTION, THE CIVIL SERVICE COMMISSION HAS ISSUED REGULATIONS PURSUANT TO SECTIONS 11 AND 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, AS AMENDED, CONCERNING APPEALS TO THE COMMISSION FROM ADVERSE DECISIONS OF ADMINISTRATIVE OFFICERS, WHICH REGULATIONS SET FORTH THE EMPLOYEES COVERED THEREBY IN ACCORDANCE WITH THE STATUTE. THE REGULATION (SECTION 22.1 OF PART 22) WHICH ANSWERS THE QUESTION HERE INVOLVED PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EMPLOYEES AFFECTED ARE PERMANENT AND INDEFINITE PREFERENCE ELIGIBLE EMPLOYEES WHO HAVE COMPLETED A PROBATIONARY OR TRIAL PERIOD IN POSITIONS UNDER CIVIL SERVICE RULES OR WAR SERVICE REGULATIONS, OR ONE YEAR OF CURRENT CONTINUOUS EMPLOYMENT IN POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE, IN THE SERVICE OF ANY ESTABLISHMENT, AGENCY, BUREAU, ADMINISTRATION, PROJECT OR DEPARTMENT CREATED BY ACTS OF CONGRESS OR PRESIDENTIAL ORDER OR IN THE SERVICE OF THE DISTRICT OF COLUMBIA. THE REGULATIONS IN THIS PART ARE NOT APPLICABLE TO EMPLOYEES SERVING PROBATIONARY OR TRIAL PERIODS OR TO EMPLOYEES UNDER THE LEGISLATIVE OR JUDICIAL BRANCHES OF THE GOVERNMENT, AND EMPLOYEES WHO WERE APPOINTED TO ANY POSITIONS REQUIRED TO BE CONFIRMED BY, OR MADE WITH, THE ADVICE AND CONSENT OF THE UNITED STATES SENATE, OTHER THAN POSTMASTERS IN OFFICES OF THE FIRST, SECOND, AND THIRD CLASSES. (ITALICS SUPPLIED.)

WITH RESPECT TO YOUR FOURTH QUESTION, IT MAY BE STATED THAT THE SO CALLED "BACK PAY" PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, EXPRESSLY ARE MADE APPLICABLE TO EMPLOYEES WHO ARE ,REINSTATED OR RESTORED TO DUTY.' HENCE, THE FACT THAT AN EMPLOYEE IS REINSTATED OR RESTORED TO DUTY UNDER THE CONDITIONS SET FORTH IN THE SAID STATUTE--- REGARDLESS OF THE NATURE OF THE POSITION TO WHICH REINSTATED OR RESTORED--- IS SUFFICIENT TO ENTITLE THE EMPLOYEE TO THE BENEFITS OF THE PAY PROVISIONS OF THE STATUTE. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO YOUR FIFTH QUESTION, YOU ARE ADVISED THAT SECTION 30.411 (B) OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS PROVIDES:

ANY PERMANENT EMPLOYEE WHO IS OR HAS BEEN RESTORED TO A POSITION AS A RESULT OF APPEAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, OR AS A RESULT OF FORMAL APPEAL UNDER ANY OTHER AUTHORITY OR PROCEDURE, SHALL BE ENTITLED TO ANY ANNUAL OR SICK LEAVE WHICH REMAINED TO HIS CREDIT UPON SEPARATION.