Citation Numbers: 175 Misc. 838
Judges: Swift
Filed Date: 2/14/1941
Status: Precedential
Modified Date: 1/12/2023
The Civil Service Commission of the State of New York in January, 1940, directed that the petitioner be promoted to the position of chief accountant in the department of social welfare of the county of Erie without promotional examination. This court, by its decision dated June 6, 1940, held that the petitioner was entitled to promotion to said position, and he was duly promoted thereto on June 15, 1940. On September 15, 1940, petitioner was discharged and removed from said position “ pursuant to Rule XII of the Rules of the Civil Service Commission.” This rule provides: “ 1. Every original appointment to or employment in any position in the classified service shall be for a probationary term of three months.”
There is a clear distinction between an appointment and a promotion in the State civil service. Section 6 of article 5 of the State Constitution reads: “ Appointments and promotions in the civil service of the State, and of all civil divisions thereof, * * Section 9 of the Civil Service Law (as amd. by Laws of 1927, chap. 440) provides: “All appointments or employments in the classified service, except those of veterans * * * ghall be for a probationary term not exceeding the time fixed in the rules." *
It will be noticed that this section of the law provides for a probationary term only in the case of “ appointments or employments." Some of the respondents herein contend that the word “ appointments " as used in the statute includes all promotions. The Civil Service Law, however, in many of its sections makes a clear distinction between “ appointment ” and “ promotion." For instance, section 10 gives to the Commission power to make rules “for appointment and promotion." Section 14 provides: “ Appointments shall be made to or employment shall be given all positions in the competitive class that are not filled by promotion, reinstatement, transfer or reduction.” Section 19 orders an official roster containing the “ name of each and every person who has been appointed to, employed, promoted or reinstated in any position.” This same distinction will be found in sections 41 and 45 of the law.
Section 16, which limits the power of promotion and transfer, speaks of “ persons holding positions in the competitive class, having been appointed or promoted thereto."
The fact that the law makes so many provisions for “ appointment, employment or promotion " indicates that when the lawmakers in section 9 limited probationary terms to appointments or employments, they intentionally excluded “ promotions " from a probationary term. The State Civil Service Commission has so interpreted the statute, and in this very proceeding to which it is a party it takes the position that petitioner’s promotion was not probationary.
Rule XII of the Rules for the Classified Civil Service limits the probationary term of three months to “ every original appointment to or employment in any position in the classified service," and rule XIV provides that all vacant positions “ shall be filled, so far as practicable, by promotion; and original appointment to such position shall be allowed only when the Commission shall find it impracticable to fill the same by promotion. * * * ’’
Petitioner is entitled to the relief demanded.