B-121190, OCTOBER 13, 1954, 34 COMP. GEN. 179

B-121190, OCTOBER 13, 1954, 34 COMP. GEN. 179

COMPENSATION - PROMOTIONS - SERVICE-IN-GRADE REQUIREMENT AN EMPLOYEE WHOSE POSITION IS REALLOCATED UPWARD PURSUANT TO THE CLASSIFICATION ACT OF 1949 AND WHO, ALTHOUGH QUALIFIED TO PERFORM THE DUTIES AND CARRY OUT THE RESPONSIBILITIES OF THE POSITION, IS NOT ELIGIBLE TO BE IMMEDIATELY PROMOTED TO THE HIGHER GRADE BECAUSE OF THE SERVICE-IN- GRADE REQUIREMENTS OF THE WHITTEN AMENDMENT, MAY BE REGARDED AS REMAINING IN STATUS QUO AS ON DETAIL UNTIL HE IS ELIGIBLE FOR THE HIGHER GRADE AND HE IS NOT ENTITLED TO RECEIVE THE SALARY OF THE HIGHER GRADE DURING SUCH PERIOD.

ACTING COMPTROLLER GENERAL WEITZEL TO RALPH T. KLOTZ, OCTOBER 13, 1954:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 27, 1954, REQUESTING RECONSIDERATION OF OFFICE SETTLEMENT DATED JULY 6, 1954, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE SALARY RATE YOU RECEIVED AS A CIVIL ENGINEER, GS-810-11, FROM MARCH 2, 1952, UNTIL MARCH 15, 1953, THE DATE YOU WERE PROMOTED TO CIVIL ENGINEER, GS-810 12, AS AN EMPLOYEE OF THE PHILADELPHIA ENGINEER DISTRICT.

YOUR LETTER STATES THAT THE SETTLEMENT DOES NOT MENTIONED CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 671, SUPPLEMENT II, WHICH WAS RULED TO BE ILLEGAL IN OFFICE DECISIONS OF MARCH 2, AND 17, 1953, B-112656 (32 COMP. GEN. 381 AND 395). THE SAID CIRCULAR AND DECISIONS ARE NOT GERMANE TO YOUR CASE EXCEPT SO FAR AS THE DECISIONS DO NOT REQUIRE A REFUND OF THE DIFFERENCE IN SALARY BETWEEN THAT OF GRADE GS-9 AND GRADE GS-11 RECEIVED BY YOU DURING THE PERIOD MARCH 2, 1952, TO MARCH 15, 1953.

APPARENTLY, THE PRIMARY BASIS OF YOUR REQUEST FOR REVIEW IS SET OUT IN THE FOURTH PARAGRAPH OF YOUR LETTER, AS FOLLOWS:

THAT THE SO-CALLED "1WHITTEN AMENDMENT" "PROHIBITED PROMOTIONS OR TRANSFERS TO A HIGHER GRADE WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE" IS NOT QUESTIONED; BUT THAT THIS AMENDMENT PROHIBITED THE PROPER ALLOCATON OF EXISTING POSITIONS IS QUESTIONED SINCE BOTH THE ,1WHITTEN AMENDMENT" AND THE CLASSIFICATION ACT OF 1949, TO WHICH I WAS SUBJECT, STRESS THE PROPER EVALUATION OF POSITIONS.

YOU ARE CORRECT IN YOUR CONCLUSION THAT THE SO-CALLED "1WHITTEN AMENDMENT" DOES NOT PROHIBIT, AND THAT THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, DOES REQUIRE, THE PROPER AND CORRECT EVALUATION OF THE DUTIES AND RESPONSIBILITIES OF A POSITION AND ITS ALLOCATION OR REALLOCATION TO AN APPROPRIATE CLASSIFIED GRADE. HOWEVER, IF THE POSITION TO BE OCCUPIED THERE MUST BE A SEPARATE AND INDEPENDENT DETERMINATION WHETHER THE INCUMBENT OF SUCH POSITION IS QUALIFIED AND ELIGIBLE FOR PROMOTION TO THE GRADE IN WHICH THE POSITION IS CLASSIFIED. THUS, WHILE YOU APPARENTLY WERE QUALIFIED TO PERFORM THE DUTIES AND CARRY OUT THE RESPONSIBILITIES OF THE POSITION WHICH YOU OCCUPIED, YOU WERE NOT ELIGIBLE, IN VIEW OF THE SERVICE-IN-GRADE REQUIREMENT OF THE WHITTEN AMENDMENT, TO BE IMMEDIATELY PROMOTED TO THE HIGHER GRADE.

THE QUESTION IN YOUR CASE IS NOT A NOVEL ONE--- THERE HAVING BEEN CONSIDERED AN ANALOGOUS SITUATION IN A CASE REPORTED IN 24 COMP. GEN. 518, WHEREIN IT WAS RULED, QUOTING FROM THE SYLLABUS:

WHERE, AT THE TIME HIS POSITION WAS ALLOCATED TO A HIGHER GRADE ON THE BASIS OF INCREASED DUTIES AND RESPONSIBILITIES, AN EMPLOYEE DID NOT MEET THE MINIMUM SERVICE ELIGIBILITY REQUIREMENT FOR PROMOTION TO SUCH HIGHER GRADE PRESCRIBED BY THE CIVIL SERVICE COMMISSION IN DEPARTMENTAL CIRCULAR NO. 257, REVISION 3, AND SUPPLEMENTS THERETO, HE MAY BE REGARDED AS REMAINING IN STATUS QUO AS ON DETAIL UNTIL HE QUALIFIES FOR THE HIGHER GRADE, AND MAY CONTINUE TO RECEIVE THE SALARY RATE OF THE FORMER GRADE DURING SUCH PERIOD.

WHILE THAT DECISION WAS RENDERED UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, IT APPLIES WITH EQUAL FORCE TO SIMILAR CASES ARISING UNDER THE CLASSIFICATION ACT OF 1949, 63 STAT. 802, AS AMENDED.

YOU ARE ADVISED, THEREFORE, THAT OFFICE SETTLEMENT OF JULY 6, 1954, WHICH DISALLOWED YOUR CLAIM, IS CORRECT AND HEREBY IS SUSTAINED.