Opinion
42074.
ARGUED JUNE 8, 1966.
DECIDED JUNE 22, 1966. REHEARING DENIED JULY 8, 1966.
Discharge of State employee. Fulton Superior Court. Before Judge Moore.
Olon E. Scott, for appellant.
Arthur K. Bolton, Attorney General, Richard L. Chambers. Assistant Attorney General, Horace E. Campbell, for appellees.
The certiorari from the decision of the Merit System of Personnel Administration denying an appeal seeking job reinstatement was properly denied.
ARGUED JUNE 8, 1966 — DECIDED JUNE 22, 1966 — REHEARING DENIED JULY 8, 1966 — CERT. APPLIED FOR.
On June 30, 1958, the appellant, a permanent employee under the Merit System of Personnel Administration employed by the State Highway Department as a telephone operator in Jesup, suffered an accident as a result of which she was placed on leave of absence without pay. On February 10, 1959, she notified the division engineer at Jesup that she would be available for work as of March 1. Apparently there was only one position of telephone operator in the department at that location, which had been assigned to another employee, and the job was not returned to her. Mrs. Gunther in the same month gave the Atlanta office of the State Merit System a notice "to protect her right of appeal," but no action was taken by the Highway Department and the Merit System Board was not requested to hold any hearing on the matter. On October 26, 1962, the State Highway Department, referring to previous correspondence involving her reinstatement, informed her by letter that there was no vacancy in the Highway Division office in Jesup but there was a vacancy in the division office in Gainesville in the same position, requesting notification if she desired to accept. Mrs. Gunther did come to Atlanta to seek further information but did not give notice of acceptance. She subsequently sought mandamus to compel the Highway Department to reinstate her in the identical position previously held by her at Jesup, which action, on appeal, was held deficient in that the petition showed the administrative remedies available to her had not been exhausted. Gunther v. Gillis, 220 Ga. 634 ( 140 S.E.2d 851). A hearing was requested before the State Personnel Board on February 15, 1965, which resulted in a denial of the appeal in the following language: "Mrs. Gunther was entitled to be reinstated with the State Highway Department of Georgia, but does not have the right to insist on reinstatement to the identical position in Jesup from which she was granted a leave of absence. . . Further, Mrs. Gunther was offered reinstatement by the letter from the State Highway Department to her dated October 26, 1962, and she did not accept the offer." Appellant's application for certiorari from the denial of her appeal was overruled, the latter judgment being the basis of her appeal to this court.
1. This court does not take judicial notice of the rules and regulations of the various State administrative agencies, and those relied upon as giving rise to a right of action should be pleaded and proved. Crouch v. Fisher, 43 Ga. App. 484 ( 159 S.E. 746) (Industrial Commission); Columbus Wine Co. v. Sheffield, 83 Ga. App. 593 ( 64 S.E.2d 356) (Revenue Commissioner); Orvin v. Nat. Surety Corp., 87 Ga. App. 551 ( 74 S.E.2d 489), rev. on other grounds, 209 Ga. 878 ( 76 S.E.2d 705) (Board of Workmen's Compensation); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 ( 76 S.E.2d 536) (Public Service Commission); Turner v. Brunswick Distributing Co., 95 Ga. App. 651 ( 98 S.E.2d 591) (Revenue Commissioner). While the briefs of counsel refer to a number of rules and regulations of the Merit System Council, none were admitted in evidence and only one was the subject of testimony undisputed and unobjected to. The fact that Code Ann. § 40-2207 (b) provides that the rules and regulations of the Merit System Council when approved by the Governor shall have the force and effect of law and be binding on State departments enumerated in the Governor's executive order does not make them the subject of judicial notice. See Atkins v. Manning, 206 Ga. 219 ( 56 S.E.2d 260) holding that rules of the State Revenue Commissioner have the force and effect of law, although they are not the subject of judicial notice. Columbus Wine Co. v. Sheffield, 83 Ga. App. 593, supra; Oxford v. Chance, 104 Ga. App. 310 ( 121 S.E.2d 825).
2. The answer of the State Merit System of Personnel Administration, which is the fact-finding tribunal, is not traversed and must be accepted as true. Fudge v. State, 66 Ga. App. 32 ( 16 S.E.2d 892). From the testimony offered it appears that the issue in dispute was whether the movant, under the regulations, had a right to insist that her job at Jesup be returned to her and whether, if so, she took the necessary action prior to June 30, 1959 (twelve months from the commencement of her leave of absence) to reclaim the position so that a failure to reinstate her therein would vest her right and render the Highway Department liable to her for back pay in the event it refused to reinstate her. It appears from the answer of the Merit System Council (a) that the movant has been guilty of laches so that she has no present right to be reinstated in any position, and (b) that the State Highway Department did comply with Merit System regulations, especially B-400 which provides: "Leave of Absence Without Pay. At the expiration of such leave the employee shall be reinstated in the service without loss of any of his rights." The answer further has attached to it as an exhibit the findings of the board stating that under this section: "Mrs. Gunther was entitled to be reinstated with the State Highway Department of Georgia, but does not have the right to insist on reinstatement to the identical position in Jesup from which she was granted a leave of absence."
Indubitably, the burden is on the movant to show error and injury. She has failed to plead and prove any applicable regulations under which it would be mandatory for the State Highway Department to return her to the position vacated by her in June, 1958, when she went on the leave of absence, as of March 1, 1959, when she indicated that she could return to work, or to place her on the payroll regardless of whether or not the position was available. Neither has the movant shown that any other comparable position was available at that time. The regulation in question requires merely that the employee shall be reinstated "in the service," not to the identical position, especially if that position is no longer available. In the state of this record it cannot be said that the decision of the Merit System Council was in violation of its rules and regulations, or that the Judge of the Superior Court of Fulton County erred in overruling the certiorari.
Judgment affirmed. Nichols, P. J., and Hall, J., concur.