| N.Y. App. Div. | Jun 21, 1954
Petitioner is an unsuccessful applicant in a promotion examination given by the municipal civil service commission. She is employed as a stenographer in the Triborough Bridge and Tunnel Authority. The examination was for promotion to stenographer, grade 4. She objected to the manner in which the written examination had been rated. The written examination was assigned a weight of thirty and the balance of the weight was allocated for record and seniority and to await a performance test. The objections to the written examination were sustained at Special Term.
These objections are two in number. The first is that the candidate was required to pass Part I of the written examination, and unless this ‘ ‘ hurdle ’ ’ was overcome, Part II would not be rated. There was no advance announcement of this “ hurdle ” as part of the examination nor was it promulgated until after the examination was taken. The second objection is that the passing mark for Part I of the written examination was determined after the taking of the examination and before the identities of the candidates had been disclosed. This was done to permit maldng the passing mark one based upon a comparative percentile rather than an absolute percentage. The percentile in turn was concededly influenced by the availability of candidates and the needs of the service. This procedure with respect to the comparative passing mark, it is claimed, was also done without any announcement in advance of the taking of the examination.
The civil service commission appeals from the order of Special Term requiring the commission to rate Part II of petitioner’s written examination and to pass her if she attains a 70% mark on both parts taken together. The alternative relief requested by the petition at Special Term to set aside the examination and require the giving of a new one was denied. However, no cross appeal has been taken by the petitioner.
It may be that the petitioner would be entitled to broader relief than she obtained at Special Term but in the absence of a cross appeal this court is limited to considering the relief granted at Special Term. Because of the procedure followed by the civil service commission the order should be affirmed.
The candidates for the examination had no advance notice that the passing of Part I of the written examination was prerequisite to having the balance of the written examination rated and considered in the aggregate mark. While as between Part I and Part II of the written examination a weight of twenty-five
The second objection to the manner of determining the passing mark involves more serious considerations. In this instance there was notice, we hold, to the candidates. That notice was provided under the rules which state: “ The required passing rating in any test, subject or part of an examination shall be fixed by the Director of Examination prior to the disclosure of the identities of the candidates therein. ’ ’ (Bule V, § V, subd. 4.) This suggested that the commission proposed to use some comparative method for determining the passing mark. In this instance the commission used a comparative percentile based on the distribution of absolute percentages attained by the candidates in the examination. There is no quarrel with the use of a comparative percentile passing mark. It is a modern and scientific way of determining a reasonable passing mark considering the variableness of examinations and the invariable distribution of achievement by individuals in sizable groups. It is but based upon the recurring probabilities in human experience and relates significantly to actual performance. Difficulty may arise where
In the instant case we have no information given to the candidates in advance of the examination, or, for that matter, given to the court in the present proceeding, as to how the number to receive a passing mark was influenced by ‘ ‘ the availability of candidates ” and the “ needs of the service ”. In this case 396 applicants took the examination. But these were not general competitive examinations. They were promotion examinations. Under the law promotions are limited to the department, office or bureau in which the vacancies arise. (Civil Service Law, § 16; Matter of Cornehl v. Kern, 260 A.D. 35" court="N.Y. App. Div." date_filed="1940-05-31" href="https://app.midpage.ai/document/cornehl-v-kern-5364569?utm_source=webapp" opinion_id="5364569">260 App. Div. 35, affd. 285 N.Y. 777" court="NY" date_filed="1941-04-25" href="https://app.midpage.ai/document/matter-of-cornehl-v-kern-3579978?utm_source=webapp" opinion_id="3579978">285 N. Y. 777.) Thus, with respect to the petitioner Eleanor Dowling the end result was that only three candidates remained eligible for promotion to stenographer, grade 4, in the Triborough Bridge and Tunnel Authority.
In summary, there is no objection to a reasonable weighting of the comparative percentile passing mark by the availability of candidates and the needs of the service provided that the method used is shown not to be unduly restrictive of the field
Because, as indicated earlier, there has been no cross appeal by petitioner the extent of the relief to be granted is limited to that ordered at Special Term.
The order should be affirmed, with costs.
Callahan, J. P., Bastow, Botein and Bergan, JJ., concur.
Order unanimously affirmed, with $20 costs and disbursements to the respondent.