452 S.W.2d 346 | Tenn. | 1970
Lead Opinion
delivered the opinion of the Court.
As relator, Robert E. Martin, a discharged Fire Private of the Memphis Fire Department, brought suit for mandamus against the City of Memphis and against its
The alternative writ issued in accordance with the prayers of the bill and the defendants filed their joint sworn answer by which they admitted the employment and the discharge of the relator but averred that because
After the defendants had filed their answer, the complainant took the deposition of the defendant, Hamilton, and of Captain B. B. Gardner. The defendants then filed a motion to dismiss the bill, and the complainant answered that motion and moved that the peremptory writ of mandamus issue.
At the hearing of the defendants’ motion to dismiss the complainant’s bill the Chancellor also heard the complainant’s motion for the peremptory writ of mandamus, and at this hearing the Chancellor properly could
With regard to the relator’s insistence that he has the right to require the defendants to give him. fifty-eight days leave with pay we hold that this claim may not be successfully asserted in this, a mandamus suit. Our Court has said:
“Mandamus is a summary remedy, extraordinary in its nature, and to be applied only when a right has been clearly established, so that there remains only a positive ministerial duty to be performed, and it will not lie when the necessity or propriety of acting is a matter of discretion.
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“Here ‘the justness and correctness of complainant’s demand’ is not admitted, but denied. This distinction is vital and determinative.” Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732.
The right of the relator to the other relief he claims must depend on, and be subordinate to, his right to reinstatement in the Memphis Fire Department.
Chapter 129 of the Private Acts of 1949 is a part of the Charter of Memphis and provides for a system of civil service for enumerated classes of City employees. By Section 8 it authorizes a director or directors of personnel, among other things, to recommend to the Board of Commissioners rules and regulations governing
By their answer the defendants averred that the Mayor and Board of Commissioners by ordinance had adopted rules and regulations governing the Civil Service of the City of Memphis in which Section 8.02 (a) is included.
“An employee in the City Government who has not passed the six months probationary period and any officer under the Fire and Police Department who has not passed the two year probationary period may be dismissed if such employee has not shown sufficient aptitude to continue on his position. Such dismissal can be made without a formal hearing except that an explanation shall be given to the employee for reason of dismissal.”
We are of opinion that the portions of the Civil Service Rules and Regulations which are pertinent to a decision of this case are within the authority conferred on the Mayor and Board of Commissioners by the Charter of the City of Memphis and that when the relator was discharged he had not completed his probationary period of employment; and he had not attained the status of an employee in the classified civil service.
When the relator was dismissed he asked to be given in writing the reasons for his dismissal and when this request was refused he demanded a hearing before the Civil Service Commission and this request was also refused. As a probationary employee he was entitled to neither. He was given the reason for his dismissal and he had the right to nothing more.
“Recognizing shortcomings inherent in any system of determining relative excellence of candidates on a competitive test basis, civil service laws usually provide for a working test period, — a probationary period of employment. It applies also to preference appointees, such as war veterans. It is applicable to private industry employees taken into the city service. Those ‘covered in’ by statute are sometimes subject to the probationary period of service. It is designed primarily to give an appointing authority an opportunity to observe and evaluate the capacity of the appointee and his ability to perform the assigned duties satisfactorily. It is deemed to be part of an examination process in which the appointing authority participates in supplementing the formalized examinations conducted by the personnel agency. Experience has shown that occasionally a candidate who has done exceptionally well in the civil service examination, even those whose education and experience would normally indicate potential capacity to perform satisfactorily the duties of the position, are found wanting during the probationary period. For one reason or another they prove unsatisfactory for the particular assignment and fail to measure up to expectations. To assure that unsuitable appointees or misfits should not attain permanent status (after which restrictions against summary dismissal would become operative, to the em*187 barrassment of the appointing officer and the appoint-tee), the working test period provides a more acceptable and graceful means of terminating the employment of an unsatisfactory appointee. Invariably the law permits separating the employee from the service at the pleasure of the department head. In such cases he need not give any reasons for terminating the probationer ’s employment. ’ ’
We are of opinion and hold that the relator as a probationary Fire Private had not attained membership in the classified service in the Civil Service of the City of Memphis and that he was not entitled to the privilege of such membership.
We have considered all the complainant’s assignments of error — nineteen in number — and find them to be without merit and have concluded that the Chancellor reached the correct result in dismissing the complainant’s bill. A decree will be entered accordingly with the costs adjudged against the relator.
Rehearing
Opinion on Petition to Rehear
The relator has filed an earnest petition to rehear which we have carefully considered. When we considered this ease and prepared our opinion we did not overlook the grounds on which the relator has relied in his petition; but we did not and do not regard them as being determinative of the case.
We find it necessary to overrule the petition to rehear.