dissenting.
With all respect to the majority’s visual agility, my eye simply isn’t quick enough to spot the vacancy which became available to Hill under N.C.G.S. § 126-5(e). I suppose the majority would concede that had there been no departmental reorganization of the accounting positions, there would have been no available position for defendant Hill to fill. This is so because the hiring freeze prohibited the Department from adding additional employees to positions which became vacant.
I don’t see how the reorganization, as the majority asserts, created any additional positions for which new personnel could be hired. The reorganization simply redesignated the positions which certain accounting employees held. All accounting work necessary to be done was being done by the three remaining accountants. There would have been nothing for Hill to do had he been rehired. Even if a vacancy were somehow instantaneously created, because of the freeze the Department could not have offered defendant Hill a position without at least firing one of its *488existing accounting employees. Had there been no freeze, Hill would probably have been entitled to the Accountant IV position.
As I read the majority opinion, N.C.G.S. § 126-5 operated to require the Department, in order to meet its obligations to Hill, either (1) to abstain from reorganizing and request that the hiring freeze be lifted or (2) if it did reorganize to get its work done in light of the freeze, to fire one of its existing accounting employees and rehire Hill. I am satisfied the legislature never intended such a result by the passage of this statute.
In order to get around this point, the State Personnel Commission concluded the reorganization was undertaken in part “with the impermissible consideration of allowing [the Department] to avoid its responsibility to” Hill. I find nothing in the record to support this conclusion. Indeed, it was the reorganization itself which the majority of this Court concludes mandated that Hill be hired.
I think the way properly to resolve this case is to hold that because of the hiring freeze and the reorganization necessitated by it no vacancy ever existed which was available to Hill under the statute.