dissenting:
The majority concedes that a literal reading of section 12 of the Veterans’ Preference Act tends to support plaintiff’s contention that his years of active military service must be counted in computing his “creditable service” for the purpose of determining his eligibility for a permanent career appointment under the 1954 amendment to the Whitten Eider and that the Civil Service regulation which permits only such service to be counted if it intervenes after civilian Government appointment, is invalid. But the majority points out that such an interpretation would mean that a veteran, with long military service prior to his Government civilian appointment, would, on the first day of his incumbency in a civilian position in the Government, have retention rights superior to all non-veteran employees in the same line of civilian work unless the non-veteran’s civilian service was longer than the veteran’s military service. In other words, such a veteran would be entitled to a permanent career appointment immediately if his prior military service exceeded three years. The majority is of the opinion that Congress could not have intended veterans’ preference to carry so far and that it must have intended the Executive and the Civil Service Commission to have the power to make reasonable classifications of employees on the basis of standards relating to the capacity of the employees to do their work and that therefore the Commission had ample power to classify employees with three years’ or more experience in a field of civilian work differently from those with less than three years’ experience. I believe that the regulation in question does not accomplish what the majority thinks it *167does and that, in fact, it permits, under certain circumstances, precisely the unthinkable situation described by the majority opinion. The regulation provides:
* * * As used in this section, “creditable service” means all substantially continuous service with the Federal Government since nontemporary appointment in the competitive service, including any intervening service in * * * the military service. * * * [Italics supplied.]
Under the terms of the above regulation a person given a career conditional appointment in the civilian Government service who is called to active military service on the day following his appointment and who serves for three years on active duty and then returns to his Government position, would, on the day of his return to civilian Government duty, be entitled to have his position converted to a permanent career appointment. His military service must be counted as “creditable service” since it is “intervening service in * * * the military service.” The question immediately presents itself, why should this veteran’s military service count toward a career appointment and another veteran’s military service of equal length not be counted simply because the latter veteran’s military service occurred prior to his civilian Government appointment ?
It appears to me that the regulation in question not only denies to veterans in general a right to count military service given to them by the literal language of section 12 of the Veterans’ Preference Act, but it also discriminates between veterans whose military service occurs before their appointment to the civilian Government service and those whose military service occurs after such appointment.
Subsection (e) of the 1954 amendment to the Whitten Rider provides as follows:
(e) This section does not and shall not be construed to amend or modify the Veterans’ Preference Act of 1944 * * * as amended.
■ The Conference Report containing a statement of the Managers on the Part of the House with respect to H.R. 2268, reveals that the Civil Service Commission had informed Congress in general concerning the manner in which it proposed to administer the new legislation to give to Govern-*168mentment employees permanent career appointments to the extent permitted by the Act. The Commission advised Congress that Government employees serving in indefinite appointments with less than three years of service would have their appointments converted to a “new type of appointment” to be known as “career-conditional”, and that indefinite appointees with three or more years of service would have their appointments converted to permanent career appointments. The report said nothing whatsoever about how the Commission intended to count active military service in computing total length of creditable service for the purpose of determining an employee’s right to a permanent appointment. In the light of subsection (e) quoted above, it would seem that Congress expected the Commission to include all military service whenever it occurred in computing length of service for the purpose of the new legislation. I cannot believe that Congress intended that such military service could be counted in the case of some veterans and not in the case of other veterans, depending solely on when the military service occurred, and I think that if it was to be counted at all, Congress would certainly have wanted service in World War II and in the Korean conflict to be counted. All of that service had taken place prior to the enactment of the 1954 amendment to the Whitten Eider and prior to civilian Government appointment in the case of most veterans.
The majority suggests another ground for its conclusion with which I cannot agree. It says that section 12 of the Veterans’ Preference Act provides for preference only in reduction in force proceedings, and that the Executive Order and the regulation of the Commission issued to implement the 1954 amendment to the Whitten Eider had nothing to do with reductions in force but only with the making of appointments, so that neither the Executive Order nor the regulation can be in conflict with the Veterans’ Preference Act. If the majority is right, then there existed no valid statutory reason for counting military service time at all in determining the qualifications of Government employees for permanent appointments under the Whitten Eider amendment, *169and botli the executive order and the regulation which required the counting of “intervening service * * * in the military service” in determining the right of a person to a permanent career appointment represents a curious discrimination against non-veteran Government employees not required by the Veterans’ Preference Act nor the Whitten Eider amendment.
I am of the opinion, however, that the majority’s reading of section 12 of the Veterans’ Preference Act is unduly narrow. I think that when it is read in connection with section 2, which provides for a general preference in appointment, section 12 means that where length of total service becomes an important factor in any Government personnel action, veterans shall be entitled to have counted all of their active military service whenever it occurs. Furthermore, although the conferring of permanent appointments under the 1954 legislation has nothing literally to do with reductions in force, retention registers in all Government-agencies will reflect any action taken by those agencies in connection with the making of career conditional, temporary, or permanent career appointments, because the agency action in the case of an individual has the immediate effect of placing him on a particular retention register in the event of any reduction in force. The moment that plaintiff’s position was converted from indefinite to career conditional, he was placed in a more vulnerable retention register in relation to his fellow employees than he was in before the Whitten Eider amendment regulations were applied to his employing agency. The conversion of an appointment to career conditional or to permanent, certainly affects the appointee’s retention within the meaning of section 2 of the Veterans’ Preference Act, and his relative retention position in the agency table of organization has an intimate and undeniable relation to any reductions in force which the agency is compelled to make.
I am of the opinion that the Veterans’ Preference Act and subsection (e) of the 1954 legislation require the counting of all active military service in determining eligibility for career appointments in the civilian Government service whenever that military service takes place, either before or after *170appointment in the civilian Government service. Accordingly, I think the regulation of the Civil Service Commission is contrary to law and that plaintiff is entitled to recover.
Fahy, Circuit Judge, sitting by designation, joins in the foregoing dissenting opinion.