In decision of October 11, 1941, B-20783, 21 Comp. Gen. 313, it was stated:

The words "occupying permanent positions within the scope of the compensation schedules fixed by this act," appearing in section 2 (b) of the statute, above quoted, have relation to the beginning of any quarter, that is, the time that an employee becomes eligible for a within-grade salary advancement under the terms and conditions of the statute. In other words, an employee must at such time occupy a permanent position within the scope of the Classification Act as that term has been defined in the regulations. The definitions of the terms "permanent positions" and "positions within the scope of the compensation schedules fixed by this Act" appearing in section 1 of the President's regulations thus have relation to the position held at the beginning of the quarter an employee becomes eligible for the within-grade salary advancement.

The act of August 1, 1941, supra, provides a plan for making within-grade salary advancements to employees on the basis of their individual service. See 21 Comp. Gen. 118, 119. Hence, it is the status of the individual employee which must control in determining whether the employee is occupying a "permanent position" at the beginning of any quarter. Whether a position is "permanent" or "temporary" within the meaning of the law and regulations is determined by the tenure of employment of the individual employee under the terms of any applicable law, or the terms and conditions of his appointment or contract of employment. The civil-service law and the rules and regulations thereunder constitute a "law" within the meaning of section 1 (a) of the President's regulations defining "permanent positions." Accordingly, any appointment or employment made under a civil-service rule or regulation specifically designating an appointment as "temporary," such as rule VIII entitled "Temporary Appointment," regardless of the length of time the employee may serve under such a temporary appointment, should be regarded as creating a temporary position, rather than a permanent position, within the meaning of the act of August 1, 1941, and the President's regulations thereunder. Compare 12 Comp. Gen. 431, 434. However, if the civil-service rules or regulations do not specifically designate an appointment as "temporary," such as section 6 of rule VII, and the tenure of the appointment or employment is not otherwise designated as temporary by law or limited by the terms and conditions of the appointment or contract of employment to a period of 6 months or less, the employee should be regarded as occupying a "permanent position" while serving under such an appointment. Also, a position is not "permanent" within the meaning of the act and the regulations if the tenure of the appointment or employment of the employee is established for a definite period of 6 months or less by the action of the Civil Service Commission and/or the administrative office. It should be borne in mind that the definition of "permanent positions" in the President's regulations promulgated under this statute is materially different from the definition of "permanent employee" appearing in the President's regulations pro

mulgated under authority of the annual and sick leave acts. See 19 Comp. Gen. 520.

Referring to case No. 1 under the first question, section 6 of civilservice rule II provides the conditions for granting a competitive classified civil-service status to an employee when his position is placed in the competitive classified civil service. While it is stated under this question that the employee's "status in the position is temporary" pending the determination of the status of the position. for civil-service classification, neither the stated rule nor any other law or regulation designates such interim services as being under a temporary appointment-that is, in respect of the services performed between the time when the position is covered into the competitive classified civil service and the time the employee qualifies or fails to qualify for a competitive classified civil-service status in such position. See section 1 (a) of the President's regulation, supra. Thus, for the purposes of Public Law 200 and the President's regulation thereunder, the employee on October 1, 1941, was occupying a "permanent position," and if he be otherwise qualified he is entitled to a within-grade salary advancement as of October 1, 1941.

Section 2 of the civil service act of January 16, 1883, 22 Stat. 403, 404, contains the following:

Second. And, among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows:

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Fourth, that there shall be a period of probation before any absolute appointment or employment aforesaid.

Section 2 (c) of rule VII of civil service rules and regulations, as amended by Executive Order No. 8587, dated November 7, 1940, provides as follows:

(c) Probationary appointment.-A person selected for appointment shall be duly notified by the appointing officer and upon accepting and reporting for duty shall receive from such officer a certificate of probational appointment. The first six months of service under this appointment shall be a probationary period, but the Commission and the department concerned may by regulation fix a longer probationary period for any specified positions. If and when, after a full and fair trial, the conduct or capacity of the probationer is not satisfactory to the appointing officer, the probationer may at any time thereafter during this period be so notified in writing, with a full statement of reasons, and this notice shall terminate his service. Efficiency-rating reports of all probationers shall be filed periodically within the department at such times and in such form as the regulations of the Commission shall provide. If at the end of the probationary period the probationer's service rating has been satisfactory, to the extent required by regulation, a certificate to that effect filed within the department and his retention in the service shall confirm his absolute appointment. If, however, his service rating has been unsatisfactory as so provided, his service shall be terminated at the end of the probationary period.

A probationer separated from the service without delinquency or misconduct may be restored to the register of eligibles in the discretion of the Commission for the remainder of any period of eligibility thereon.

That rule was made retroactively effective by Civil Service Departmental Circular No. 176, Supplement No. 1, dated December 16, 1940. While the position in which an employee is rendering services under a probationary appointment is not "designated as temporary by law" (quoting from section 1 (a) of the regulations), it must be concluded that the position to which the probationary appointment was made is not a "permanent position" within the meaning of the definition of that term appearing in the regulations, if such appointment was established for a definite period of 6 months or less pursuant to the above-quoted civil service rule. However, where a probationary appointment is made to a position for a definite period of more than 6 months the position would be a "permanent position" within the meaning of the regulation. Accordingly, if the employee in case number 2 under the first question was serving on October 1, 1941, under a probationary appointment of 6 months or less, he would not be entitled to a within-grade salary advancement as of that date. As to the counting of service in a temporary appointment see decision of October 11, 1941, B-20783, 21 Comp. Gen. 313. If this employee was then serving under a probationary appointment of more than 6 months he would be entitled to a within-grade salary advancement as of October 1, 1941, provided he was then otherwise qualified, on the basis that he was occupying a "permanent position" within the meaning of the law and regulations. In such event the civil-service rule (rule XI (a), as amended by Executive Order No. 8179, dated June 21, 1939) denying a promotion during the probationary period of more than 6 months must yield to the rules established by the act of August 1, 1941, and the President's regulations. See answer to case No. 3, decision of October 13, 1941, B-20841, 21 Comp. Gen. 326.

Second question.-The fact that an employee was reduced in salary during the prescribed period of 18 or 30 months has no bearing upon the matter and does not stop the running of the period from the last "equivalent increase in compensation." Accordingly, this question is answered in the affirmative.

Third question.-In decisions of October 2, 1941, B-20500, 21 Comp. Gen. 285, and October 13, 1911, B-20841.21 Comp. Gen. 326, it was held that a restoration in compensation after a reduction is an "equivalent increase in compensation" for any cause within the meaning of section 2 (b) (1) of the statute and section 1 (d) of the President's regulation, and that the 18 or 30 months' period begins to run from the date of the restoration. In the illustration given, the 18 months' period would begin to run from the date the employee was restored to his former grade and salary of CAF-3 at $1,620 per annum.

Fourth question.-There is no express provision in the statute or the regulations either denying or authorizing the counting of service

470850-42-26

during a period an employee is paid per diem compensation on the basis of "when actually employed" in computing the prescribed period. However, if the employee is occupying a permanent position at the beginning of any quarter within the scope of the compensation schedules fixed by the classification act, the compensation for which is fixed on an annual basis, and he is not disqualified by reason of his having been in a nonpay status immediately preceding the beginning of the quarter for longer periods than are authorized to be counted in computing the prescribed period by section 2 (c) and (d) of the regulations, the terms of section 2 (a) of the regulations would authorize the counting of prior continuous civilian service compensated for on a per diem when-actually-employed basis in computing the prescribed period. Compare decision of October 11, 1941, B-20783, 21 Comp. Gen. 313. Subject to these conditions this question is answered in the affirmative.

Fifth question.-The law and regulations provide the terms and conditions on the basis of which a periodic increase in compensation is authorized to be paid and the date on which the increase shall be effective. An administrative error does not defeat or delay the right of an employee to the increase on and after the beginning of any quarter he becomes qualified and entitled thereto. Administrative action retroactively effective due to an error is not to be regarded as a retroactively effective promotion such as is prohibited under the general rule applicable to promotions. Compare 6 Comp. Gen. 133. This question is answered in the affirmative.

Sixth question-Reference is made to the answer to the fourth question. If at the beginning of a quarter an employee paid on an annual basis is occupying a permanent part-time position (fractional part of a year) within the scope of the compensation schedules fixed by the classification act he is entitled to a periodic increase in compensation if he has served 18 or 30 months immediately prior thereto computed by excluding all periods in a nonpay status aggregating in excess of 30 days and all service prior to any absence on leave or furlough exceeding 1 year, provided he has not received an equivalent increase in compensation during that period and is otherwise qualified under the terms and conditions of the statute. If there has been a period in a nonpay status in excess of 1 year, the prescribed period does not begin to run until the employee is restored to a pay status. See section 2 (c) and (d) of the regulation.

Seventh question.-If the employee was separated from a permanent position on October 1, 1941, from and after which date the first periodic increase of compensation is payable, the employee should not be considered for promotion as of that date. However, if the employee was not separated from his permanent position until after October 1, 1941, he should be considered for promotion for the period

from October 1, 1941, to the date he is separated from such permanent position. An employee who is on leave of absence without pay October 1, 1941, should be given the periodic increase in compensation for record purposes-payment to be made if and when he returns to a pay status-provided all other requirements for such increase are met. See section 2 (e) of the statute and section 2 (c) of the regulation.

Eighth question.-An equivalent increase in compensation "for any cause" during the prescribed period immediately preceding October 1, 1941, or immediately preceding the beginning of any subsequent quarter precludes the granting of the periodic increase in compensation. See section 2 (b) (1) of the statute. Accordingly, since the employee in the eighth question received an increase in compensation of $200 when she was transferred to Alaska, she is not entitled to a periodic increase in compensation as of October 1, 1941.

(B-21014)

TRAVELING EXPENSES-MEMBERS OF THE NATIONAL DEFENSE MEDIATION BOARD

Under the terms of the Second Deficiency Appropriation Act of July 3, 1941, nonsalaried members of the National Defense Mediation Board are entitled to actual transportation expenses and to a commutation payment of $25 per day unless a smaller per diem be administratively fixed-in lieu of payment for all other expenses, whether subsistence or otherwise, incurred while on official business away from their homes, and not necessarily only while away from their official station, if their official station is at a place other than their home.

A nonsalaried member of the National Defense Mediation Board who proceeds to Washington upon official notification and after completion of his official business travels to a point other than his official station (presumed to be his home) is entitled to the actual transportation expenses and per diem in lieu of other expenses, including subsistence, provided by the Second Deficiency Appropriation Act of July 3, 1941, not in excess of what would have been incurred had he returned direct to his official station. Where a nonsalaried member of the National Defense Mediation Bourd maintains two homes in different cities, his official station being in one, and he being called to Washington on official business while in the other, he is entitled under the terms of the Second Deficiency Appropriation Act of July 3, 1941, to the expense of travel from and to that city. Where a nonsalaried member of the National Defense Mediation Board is on personal business in a city other than the one in which his official station, and presumably his home, is located and is called to Washington on official business, he may be reimbursed under the terms of the Second Deficiency Appropriation Act of July 3, 1941, for such travel actual transportation expenses and a per diem for actual travel time not to exceed what would have been incurred had he traveled to Washington from his home.

A Government traveler who is subject to the provisions of the Standardized Government Travel Regulations and who leaves his official station at 8 a. m., pursuant to official orders, arrives at his place of duty at 9:30 a. m., and after concluding his official business leaves such point at 5 p. m., arriving back at his station at 6:30 p. m., is entitled, under paragraph 51 of the said Standardized Government Travel Regulations, to one-half of a per diem, the restriction against paying any per diem for absence between 8 a. m. and 6 p. m. contained therein not being for application since the absence was not entirely between 8 a. m. and 6 p. m.