25 N.E.2d 867 | NY | 1940
On April 26, 1938, the petitioner was appointed deputy sealer of weights and measures for the city of Buffalo. This employment was in the competitive class of the civil service. On June 30, 1938, the position was abolished.
Petitioner is an honorably-discharged veteran of the World war. Section
When positions in the public service are abolished a soldier-incumbent must go in his turn unless there is opportunity for his continuance elsewhere in the service on the conditions prescribed by section
He did not assert that his service as deputy sealer of weights and measures fitted him to fill a vacancy in the position of assistant deputy assessor. The basis of his claim was the fact that in March, 1927, he had successfully passed a competitive examination for the position of deputy assessor. The difference between that position and the vacant position of assistant deputy assessor is one in name only. The petitioner, however, had received no appointment from the eligible list that resulted from the 1927 examination and that list had expired in 1931. A later list for the vacant positions in question was in force when the vacancies occurred.
The courts below have held that the petitioner's fitness in 1938 to fill the position of assistant deputy assessor was attested by the presence of his name on the then dead 1927 list of those who were eligible until 1931 for appointment to the same position. This ruling, we think, is against the fundamental purpose of the civil service principle of the State Constitution. (Art. 5, § 6.)
With exceptions now immaterial, the substance of the command of the Constitution is this: Merit and fitness shall be the basis of the choice of public servants and the test of merit and fitness shall be competitive examination. This command, as the petitioner says, speaks of "appointments and promotions" in the civil service and does not make mention of "transfers" therein. We assume with him that the transference he demands would not be a promotion, since his former position of deputy sealer of weights and measures was classified in the same salary grade with the vacant position of assistant deputy assessor. But these two positions are essentially different in respect both of duties and of entrance requirements; and so the petitioner cannot be shifted from the one position to the other without in effect receiving an extra appointment unsanctioned by the competitive examination commanded by the Constitution. This result, we think, cannot be validated by calling it a "transfer." *114
The eligible list that expired in 1931 is without significance. Suppose that list had been alive at all times here in issue. Even then the petitioner could have excluded his fellow-eligibles from the vacancy in question only in the event that his relative standing on the live list would have entitled him to an appointment therefrom ahead of them. In any different situation (and so in this case) the benefit conferred upon a veteran by section
Inasmuch as Matter of Nitshke v. Kern (supra) naturally enough was read by the courts below as authority to the contrary, it is only fair to add that the question now decided was not considered by us in that case.
The orders should be reversed and the proceeding dismissed, without costs.
LEHMAN, Ch. J., FINCH, RIPPEY and CONWAY, JJ., concur; SEARS and LEWIS, JJ., taking no part.
Orders reversed, etc. *115