The opinion
KARLTON, J. *
I respectfully dissent. Although the majority asserts its reasoning is based upon the necessity of protecting the civil service system I believe its ruling will have a substantial adverse effect on the system. It must be kept in mind that this case arose from an employment situation. Plaintiff did not wake up one day and decide to do the work of an associate land agent. He was ordered to do so by his employer. Failure to obey an order brings the risk of discipline. It is all very well that an employee’s disobedience of an illegal order does not constitute a legally punishable offense (Parrish v. Civil Service Commission (1967) 66 Cal.2d 260 [ 57 Cal.Rptr. 623 , 425 P.2d 223 ]), most folks do not have that kind of intestinal fortitude, nor should the system’s proper operation depend on bureaucrats having more courage than the population at large.
The effect of the majority’s ruling is to permit an immediate supervisor to order an employee to do work out of class, followed by his superior’s refusal to even seek reclassification and failure to insure the employee’s return to work within his class. While undoubtedly such a procedure saves the state vast sums of money, it totally perverts the civil service system. 1
Moreover, we do not deal with a question of civil service classification at all, we deal with compensation for labor actually done and done at the employer’s request. It has been the law of California since at least 1942, that pensions are not dependent upon the happenstance of a particular civil service classification (McKeag v. Board of Pension Commrs. (1942) 21 Cal.2d 386 [ 132 P.2d 198 ], and see particularly p. 391 et seq). That is we *492 deal here with a claim for dollars against the state. The majority is correct in observing that the State Board of Control has no power over civil service appointments, however, that is not the issue, the issue here is the board’s acknowledged power over claims for compensation. (Gov. Code, § 905.2.)
Again, as the majority notes the Board of Control has no power over retirements, that power is vested in PERS. Again, however, that is not the issue. The issue is whether the employee worked and was not fully compensated for his labor. It has long been recognized in this state “. . . that retirement benefits are not gratuities but represent deferred compensation for past service . . . .” (In re Marriage of Stenquist (1978) 21 Cal.3d 779, 793 [ 148 Cal.Rptr. 9 , 582 P.2d 96 ] (dis. opn. of Clark, J.) PERS may, of course, pursuant to its power over pensions require the employee to pay in amounts to adjust his account (Gov. Code, §§ 20165, 20180), but that too is an entirely different matter.
As the majority points out Government Code section 20022 at the time in question defined compensation as “the remuneration paid in cash out of funds controlled by the [state] . . . and other advantages of any nature furnished a member by his employer in payment for his services . . . .” (Italics added.) That definition exactly conforms to the award made by the Board of Control as to the issue of salary and the pension follows as a tail follows a puppy. In essence the majority’s opinion asserts the Board of Control’s award was in error. Though I disagree, even assuming arguendo it was in error, that case is not before us. The board made its decision and the state chose not to appeal. Ordinary rules pertaining to the res judicata and collateral estoppel effect of final decisions of administrative agencies having quasi-judicial jurisdiction over the subject matter preclude relitigation of the issue. (Gale v. State Board of Equalization (1968) 264 Cal.App.2d 689 [ 70 Cal.Rptr. 469 ].)
I believe that for the reasons stated the judgment of the trial court should be sustained. I also believe that even if the result required under these facts were not clear reversal is not warranted. Pension legislation in this state has always been construed liberally in favor of the employee or applicant in order to effectuate the beneficial purpose of the law. (See 38 Cal.Jur.2d, Pensions, § 6, p. 316 and the cases collected therein.) At best the majority can only argue that the legislation does not clearly cover this case, if they are right the ambiguity should be resolved in plaintiff’s favor.
*493 Today we sustain the state’s depriving a man of a portion of the pension which an appropriate state agency determined he had labored for and earned. I believe neither the law nor sound policy requires this result and that the determination of the trial judge should be sustained.
Respondent’s petition for a hearing by the Supreme Court was denied February 14, 1979. Bird, C. J., did not participate therein.
Assigned by the Chairperson of the Judicial Council.
Indeed an examination of the record clearly suggests that the department failed to require the plaintiff be limited to work within his class because they needed the job done, and failed to seek reclassification because of budgetary constraints.