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GUNTHER v. GILLIS et al.
42074.
Discharge of State employee. Fulton Superior Court. Before Judge Moore.
DEEN, Judge.
The certiorari from the decision of the Merit System of Personnel Administration denying an appeal seeking job reinstatement was properly denied.
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 SE2d 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 SE 746) (Industrial Commission); Columbus Wine Co. v. Sheffield, 83 Ga. App. 593 (64 SE2d 356) (Revenue Commissioner); Orvin v. Nat. Surety Corp., 87 Ga. App. 551 (74 SE2d 489), rev. on other grounds, 209 Ga. 878 (76 SE2d 705) (Board of Workmen's Compensation); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 (76 SE2d 536) (Public Service Commission); Turner v. Brunswick Distributing Co., 95 Ga. App. 651 (98 SE2d 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 SE2d 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 SE2d 825).
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.
Arthur K. Bolton, Attorney General, Richard L. Chambers, Assistant Attorney General, Horace E. Campbell, for appellees.
Olon E. Scott, for appellant.
ARGUED JUNE 8, 1966 -- DECIDED JUNE 22, 1966 -- REHEARING DENIED JULY 8, 1966 -- CERT. APPLIED FOR.
Friday May 22 20:12 EDT


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