304 Mass. 27 | Mass. | 1939
The petitioner seeks reinstatement to his former position as "Right of Way Negotiator” in the department of public works.
On December 2, 1936, the petitioner was appointed by the respondent with the authority of the commissioner of civil service as "provisional-permanent Right of Way Negotiator,” services to begin as of November 30, 1936. He performed the duties of this position until January 7, 1937. In the meantime, in pursuance of a request of the respondent to the commissioner of civil service, the petitioner was given "a regular non-competitive examination” for the position of right of way negotiator, and having passed that examination he was certified to the respondent for appointment to that position, and on January 7, 1937, the respondent selected him "for permanent non-competitive appointment to the position of Right of Way Negotiator in the Department of Public Works,” employment to begin January 7, 1937. The petitioner accepted the appointment and continued to perform the same duties until June 18, 1937, on which day he was discharged by the respondent without being given the reasons in writing required by G. L. (Ter. Ed.) c. 31, § 43. If the petitioner was entitled to the protection of that statute his discharge was unlawful. Thomas v. Municipal Council of Lowell, 227 Mass. 116, 119. Reagan v. Mayor of Fall River, 260 Mass. 529, 531. Lowry v. Commissioner of Agriculture, 302 Mass. 111, 115.
It is provided by G. L. (Ter. Ed.) c. 31, § 3, that the "board” (composed of the commissioner and associate commissioners of civil service) shall make rules including a
The principal question in this case is, When did the period of probation begin? If it began when the petitioner received his “provisional-permanent” appointment on December 2, 1936, then it had expired before his discharge on June 18, 1937, and he was entitled to notice. But if the period of probation did not begin until January 7, 1937, when the petitioner received his “permanent” appointment after certification, then it had not expired on June 18, 1937, and the petitioner was not entitled to notice.
We need not discuss the precise significance of “provisional permanent” in the language of the board as distinguished from “provisional temporary.” See Rule 21. It is plain that until January 7 the petitioner had only a provisional or conditional appointment and that such appointments derive their validity wholly from G. L. (Ter. Ed.) c. 31, § 15. Under that section appointments are commonly to be made as permanent appointments upon certification from an eligible list. Provisional appointments or appointments through noncompetitive examinations are permitted only in what are supposed to be exceptional instances where there is no suitable list, or if the commissioner is unable to comply with a requisition in accordance with the rules of the board. All provisional appointments to permanent positions must be terminated upon the establishment of an eligible list and may be terminated prior thereto.
The respondent in his argument suggested, apparently for the first time, that the court is without jurisdiction of the case, because, as he asserts, the requirement of G. L. (Ter. Ed.) c. 31, § 46A, that the petition be filed within six months next following the allegedly illegal removal is not a mere statute of limitations but is jurisdictional and has not
Petition dismissed.