260 A.D. 500 | N.Y. App. Div. | 1940
The municipal civil service commission of ¿he . city of New York admitted the petitioner to a promotion examination held for the position of engineer (safety), grade 4.
Petitioner’s application for admission to the examination failed to show that he met the minimum requirements, in that he did not show that he was in responsible charge of tunneling operations for any length of time, or was ever employed in developing safety measures. His application showed considerable experience in engineering work, some of which was in connection with aqueduct tunnels, but his relation to the work he had taken part in was not of the nature specified. Nevertheless, three examiners who passed on the sufficiency of applications determined to admit petitioner to the examination. They say that they did so because the rules of the commission require that in cases of reasonable doubt such doubt must be resolved in favor of the candidate in rating experience qualifications.
The general instructions as to the conduct of the examination provided that the initial experience rating was not necessarily final, and that if investigation disclosed that the candidate’s experience was not of the nature and quality desired, then he might be re-rated or failed in experience. Accordingly, the three examiners, in passing on petitioner’s application, caused the following notation to be placed thereon: “Admitted to examination pending further inquiry and determination of your experience qualification.”
The examination which petitioner took consisted of written and oral tests. One of the announced objects of the oral test was to rate the candidate’s experience qualifications.
Although the petitioner had been declared eligible to take the examination, the board of five examiners who gave the final oral test ruled that he did not have the essential experience. This
As to safety measures, his sole prior experience was to see that the requirements prescribed by the board were complied with. He neither determined policies nor developed safety measures or programs. The distinction between observing or criticizing safety measures and initiating safety programs is obvious. Petitioner’s experience outside the board of water supply was mainly in sewer and highway construction.
Because of his failure to show the proper experience, the board conducting the oral examination rated petitioner at less than the seventy percentum mark which was required in order to pass this branch of the examination.
Special Term has granted the petitioner an order directing the civil service commission to correct his rating so as to give him a passing grade of seventy percentum in experience. This will result in placing him on the promotion list as a qualified candidate. We see no legal basis for this direction.
The view of Special Term was that the ruling of the preliminary board, that petitioner was qualified to take the examination, was a determination by the civil service commission that petitioner had met the minimum requirements. This view ignores the provisions of the notice of examination which stated that “ experience will be rated after an oral ihterview to determine the extent that such experience has qualified the candidate for this position.” It also ignores the advice given to candidates that the initial experience rating was not to be final. Petitioner might well have been barred from the examination because of the statements contained on the face of his application. That this course was not taken and he was given an opportunity to orally present the claim that he had the required experience, did not entitle him to a passing mark. Clearly, mere admission to the examination would not entitle a court to direct that a passing mark be given to petitioner. To do this would remove entirely the discretion vested in the civil service examiners to determine whether the candidate was qualified. The board giving the oral examination did not add to the minimum requirements prescribed. They merely determined upon adequate evidence that the petitioner’s experience did not meet the minimum requirements. They were within their rights in so determining.
The order should be reversed, with twenty dollars costs and disbursements, and the petition dismissed.
Martin, P. J., O’Malley, Townley and Dore, JJ., concur.
Order unanimously reversed, with twenty dollars costs and disbursements, and the petition dismissed.