276 Mass. 142 | Mass. | 1931
This is a petition for a writ of mandamus filed by a supervising school physician in the employ of the school department of the city of Boston to compel the commissioners of civil service for the Commonwealth to examine him as applicant for examination to fill the position of director of school hygiene in an examination open only to persons of the grade of supervising physicians in the department of school hygiene, and to refrain from proceeding to hold an open competitive examination to fill said position, or any examination open to any persons other than those of the grade of supervising physicians, or to any persons other than those classified as school physicians in the city of Boston or in one of the grades of said classification. The case was heard upon an agreed statement of facts and the testimony of a witness found to be true. The material facts are as follows: In 1930 the position of director of school hygiene became vacant through death. The school committee, the appointing power, requested the commissioners of civil service to hold an open competitive examination for the purpose of establishing an eligible list from which under the civil service law the vacancy might be filled. Apparently no eligible list was then in existence from which the commissioners, pursuant to the rules of the commission, which have the force of law, Ransom, v. Boston, 192 Mass. 299, could certify three names to the appointing power. Rule 16, § 1. Under Rule 4 school physicians with dentists, medical and physical inspectors, veterinary inspectors and veterinarians form Class 32 of the official service. There are no grades classified under Class 32. The director of ¡school hygiene is a full time position with salary fixed at $7,000 per annum. There are seven supervising school physicians in the service of the school department who give three or four hours of school days to this work and receive salaries of $2,200 per year. There are also about sixty school physicians on stated salaries. In 1925 an open competitive examination was held for the purpose of establishing an eligible list from which supervising physicians in the department of school hygiene could be appointed, and as a result there have been appointed the seven supervising physicians.
The petitioner contends that the respondents had no right to refuse to examine him in the circumstances disclosed, nor to order an open competitive examination without first having held an examination limited to school physicians of the city of Boston. Neither position is well taken. The evidence shows that it has for many years been the practice of the commission to hold a promotional or an open examination as might be desired and requested by the appointing power which asked for a certified list of eligible persons from which to appoint. In announcing a promotional examination limited to supervising physicians in the department, instead of the open competitive examination requested by the school committee, the commissioners departed from this practice. No definite rule of the commission controls. The statutes require that the rules of selection established by the commission shall include provision for "Promotions, if practicable, on the basis of ascertained merit in the examination and seniority of service”; G. L. c. 31, § 3 (d) as amended by St. 1930, c. 227; but no rule has been made by statute which requires that positions shall be filled by promotions, except in the police service. See G. L. c. 31, §§ 20, 20A; St. 1930, c. 160. We have no
It should be kept in mind that the commission does not make appointments. Its power is limited to making “rules and regulations which shall regulate the selection” by the various appointing powers of the persons to be appointed. G. L. c. 31, § 3. Passing an examination successfully does not entitle one to appointment, although (with exceptions not material here) no one who has not so passed can legally be appointed. The appointing power has a right of selection. The case of People v. Chew, 67 Colo. 394, cited by the petitioner, does not decide the matters here in question. It does not determine that the commission is bound to examine a single applicant where it is required by its rules to certify three names of persons qualified by examination. Whether it shall proceed or shall make a new provision for examination rests in its discretion. No abuse of discretion appears. Both in declining to examine a single applicant, and in changing the examination to the kind desired by the appointing power the commission was acting within its rights. The order denying the petition was proper and is
Affirmed.