REYNOSO, J. J.—I dissent. The majority consider the issue of timeliness dispositive. However, that issue was raised by neither party. At oral argument the Attorney General specifically stated that timeliness of Sheehy’s petition was not an issue on appeal. An issue not urged on appeal is deemed waived. (Case v. City of Los Angeles (1963) 218 Cal.App.2d 36, 42 [32 Cal.Rptr. 271]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 425, pp. 4391-4393.)
While this court has inherent power, to consider all issues, even those not urged on appeal, such power is exercised with restraint and principally when the fair administration of justice so demands. (Brown v. Southern California Edison Co. (1932) 120 Cal.App. 102, 110 [7 P.2d 770].) No reason compels our departure from established procedure. The structure of state government will not fall if we permit this state employee, Sheehy, to continue in her state employment. In fact, justice would appear to be on her side. The majority, on a technicality not raised by the parties, conclude otherwise.
[9141]. Timeliness of Petition
We deal with legislative intent. I conclude that Government Code section 19502 was meant by the Legislature to be directory. In the context of this' case, it does not impose on the personnel board the duty to dismiss the petition.
The majority take a different and, in my view, erroneous tack. They cite Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451 [50 Cal.Rptr. 586], for the proposition that the Legislature imposed strict compliance with its 30-day time limitation by the enactment of Government Code section 19502. Collins is of little help. There, a complaint was filed against the county for damages based on false arrest and imprisonment by a deputy sheriff. The action was dismissed because plaintiff failed to comply with the time limitation then required by section 715 of the Government Code. Collins involved a suit for money damages and a statute akin to a statute of limitations. Under such circumstances the court may properly say, as the majority state, that a rule of “strict compliance” is required.
We deal with a very different sort of statute. Unlike the statute discussed in Collins, Government Code section 19502 is not mandatory. Rather, it recognizes a public policy in favor of the prompt resolution of disputes. The policy is manifestly important when dealing with an individual’s employment. I believe section 19502 was enacted to secure the orderly conduct of business, and such statutes are merely directory. (See Shelly Estate Co. v. San Francisco (1937) 9 Cal.2d 28, 33 [69 P.2d 171]; see also, Beaida v. Workmen's Comp.App.Bd. (1968) 263 Cal.App.2d 204, 209-210 [69 Cal.Rptr. 516]; see generally, Morris v. County of Marin (1977) 18 Cal.3d 901, 908-910 [136 Cal.Rptr. 251, 559 P.2d 606].) In fact, the Attorney General correctly conceded at oral argument that these procedural rules are to be interpreted liberally in favor of the employee and in favor of reaching the merits.
Finally, I believe the statute was tolled during the period between the time the agency began processing plaintiff’s resignation and the final notice to her. Up to the time of the final notification plaintiff could reasonably have believed that reinstatement was possible. Let us look at the facts of this case. After her meeting with Unruh, Sheehy’s reaction was of panic and shock, together with “searching for some way to retain my . . . civil service career.” She contacted her California State Employees Association representative who assured her that legal action would [915]be taken. The Treasurer’s office did not process the Sheehy documents until April 23, 1975. Formal notice from the Treasurer’s office was not received by Sheehy until approximately May 10, 1975. Mrs. Sheehy immediately responded with her protest dated May 14. The May 10 letter was the first formal response to the employee action request signed on February 27, two-and-one-half months prior. On the basis of these facts it is not unreasonable for the personnel board to conclude that the requirements of Government Code section 19502 were tolled. By that statute the Legislature could not have intended that a state employee, who acted reasonably and promptly, would be precluded from asserting her claim on the ground of the limitation period.
2. Review of the Evidence
The findings of the board are not supported by substantial evidence. The State Personnel Board is a “statewide administrative agency which derives adjudicating power from the Constitution [and its factual determinations] are not subject to re-examination in a trial de novo but are to be upheld by a reviewing court if they are supported by substantial evidence. [Citations.]” (Shepherd v. State Personnel Board (1957) 48 Cal.2d 41, 46 [307 P.2d 4].) However, we deal with a fundamental vested -right to gainful employment. The fact that a fundamental right is involved compels a reviewing court to view the record with circumspection. It is not enough to rely on “any” evidence, the reviewing court must look at substantial evidence “in light of the whole record” (Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 186 [42 Cal.Rptr. 640]) and may take into account evidence which detracts from the weight of other evidence. (People v. Bassett (1968) 69 Cal.2d 122, 138 [70 Cal.Rptr. 193, 443 P.2d 777].)
The board found that “Sheehy must have known she did not have to resign.” I find absolutely no evidence in the record to sustain that finding. Based on that initial finding the board concludes that her resignation was free and voluntary. Nothing in the record so indicates. “Where findings are devoid of evidentiary support, or are based upon inferences arbitrarily drawn and without reasonable foundation, or are contrary to facts universally accepted as true and judicially known, the administrative order will be reversed as not being supported by substantial evidence in light of the whole record.” (Lorimore v. State Personnel Board, supra, 232 Cal.App.2d at p. 187.)
[916]Of interest is that the board’s related findings appear to be inconsistent with that free and voluntary resignation finding. Thus, the board found that Mrs. Sheehy thought she was being asked to resign. It also found that she did not want to leave state service but was resigning at the request of the State Treasurer. Such findings of fact, substantiated in the record, provide the basis for reinstatement inasmuch the resignation was not free, voluntary and binding. Those findings lead to the conclusion that Mrs. Sheehy resigned under mistake or duress.
3. Award of Back Salary
The personnel board’s determination that Mrs. Sheehy was not entitled to back salary was erroneous. Government Code section 19502 provides that, “[I]n the event a resignation is set aside pursuant to this section, the person resigning shall be reinstated to his former position and paid his salary for the period he was removed from state service as the result of such resignation. From any salary due there shall be deducted compensation that the employee earned, or might reasonably have earned, during any period commencing more than six months after the initial date of resignation.” (Italics added.) Contrary to the contention of the personnel board, the use of the word “shall” permits no other interpretation than that the reinstated employee must be paid the salary that would have accrued had the employment continued. An employee who is improperly discharged has the right to recover the accrued salary during the period he is prevented from performing his duties, less the amount received from other employment during that period. (See Stockton v. Department of Employment (1944) 25 Cal.2d 264, 271 [153 P.2d 741].)
There was nothing improper in the abolition of the position of administrative assistant by Unruh. Unruh properly investigated before determining to abolish the position. (See Peradotto v. State Personnel Board (1972) 25 Cal.App.3d 30, 36 [101 Cal.Rptr. 595].) Under the state civil service system, members of the system have the right to have layoffs made in accordance with seniority (Gov. Code, § 19533) and have the right to accept a demotion to a class with substantially the same or lower salary in lieu of the layoff. (Gov. Code, § 19535.) Therefore, when the position of administrative assistant was abolished, Sheehy had the right to be employed in her lower civil service class.
I would affirm the judgment of the trial court directing the board to reconsider its decision. I would reverse the order refusing Sheehy her back salary and direct that the board hold hearings to determine whether [917]Sheehy had income from any outside source during this period and whether she would be willing to work for the state at her lower state civil service capacity.
A petition for a rehearing was denied September 12, 1978. Reynoso, J., was of the opinion that the petition should be granted. The petition of the plaintiff and appellant for a hearing by the Supreme Court was denied October 12, 1978. Bird, C. J., did not participate therein.