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Civil Service Law - Chapter VII

1. Chapter I

2. Chapter II

3. Chapter III

4. Chapter III continue

5. Chapter IV

6. Chapter IV continue

7. Chapter V

8. Chapter V continue

9. Chapter VI

10. Chapter VI continue

11. Chapter VII

12. Chapter VII continue

13. Chapter VIII

14. Chapter VIII continue

15. Chapter IX

16. Chapter IX continue

17. Chapter X

18. Chapter X continued

19. Chapter XI

20. Chapter XI continued

Chapter VII


Once the civil service system has been provided for by law, its consti-
tutionality settled, its relationships to the general law of officers and em-
ployees and to the law of administrative organization determined, the
rules and principles of selection established and applied, the problem of
status within the service becomes important.

The method of selection and the techniques and procedures involved
in examinations, eligible lists, and certification have as their chief aim the
ascertainment of merit and fitness. The career aspects of civil service are
to be found partly in the laws on promotion, transfer, and leaves of ab-
sence, and partly in the rules governing layoff, reduction in rank, suspen-
sion, and dismissal. The former constitute the essentials of a career; the
latter deal with its protection.

One of the troublesome questions often confronting lawyers and ad-
ministrators is whether promotion involves an appointment. If John
Blank is appointed to a position and holds it for two years and is then
promoted to a higher position, has he received one or two appointments?
The general rule is that in some instances promotion is considered as an
appointment, but that in other instances and for other purposes it is not
so considered. Illustrations will be given in the course of the following

The typical promotional situation is that in which a person in an ex-
isting position is promoted to an existing higher position. But a law creat-
ing a new position may require that it shall be filled from a certain class
of incumbents of existing positions, such as the "members of the uni-
formed force. 5 ' It has been held that a newly created position such as this
must be filled by competitive examination, just as in the case of original
appointment. 1 In the national government the question of promotion
may encounter problems arising from the constitutional provisions con-
cerning the division of powers between the president and the Senate in
the nomination, appointment, and confirmation of appointment to of-

fice. 2 If a promotion is a new appointment, one rule may govern. If it is
not, Another rule may apply.

Just as in the case of a vacancy to be filled by original appointment
through open competitive examination rather than by promotion, an
officer vested with authority to promote may ordinarily use his own dis-
cretion in deciding whether to fill the vacant position. If he decides to fill
it, he may be compelled to fill it by promotion, depending upon the ap-
plicable words of the statute, charter, or civil service regulation. "There
may also be employed as first class post officers foremen and stenogra-
phers at a salary of $1300 or more per annum" does not mean that these
positions must be filled. 3 When a statute creates two grades and provides
for promotion from the lower to the higher grade, the right to promotion
is not a vested right in any individual. Therefore, if the promotions are
made a week after they might have been made, the persons being quali-
fied and the positions being open, that does not alter the effective date
of the promotion. 4 The power to make the promotion is entirely within
the discretion of the promoting officer.

Promotion is usually an act of administration, and the legislature may
not designate, either by name or in effect, any particular person for pro-
motion. To do so would be to violate either the provisions on special
legislation or those on the civil service. 5

Promotion, of course, is subject to any statutory rules that apply to
it, and to any applicable administrative regulations that are validly made.
Whether or not promotions must be permanent depends upon the
phraseology of the statute. A temporary promotion may be made if au-
thorized by statute. 6

Persons entitled to promotion are entitled to it only because the law
so provides. The class may include substitute workers as well as regular
permanent workers, 7 again depending upon the statute. 8 Under a statute
requiring that the chief of police be chosen from members of the police
department, it was held not fatal that the member appointed to the of-
fice had served as lifeguard for a portion of each year, since he did so
under orders as a member of the police force and therefore never lost his
status as a member of the force. 9 The rules may be formulated in such a
way that they apply to persons who formerly held the higher position
as well as to those who are to be appointed to it for the first time. 10

2 29 Ops. Atty. Gen. 254 (1911).

8 27 Dec. of Comp. 409 (1920). See 7 Dec. Comp. Gen. 721 (1927).
4 3 Dec. Comp. Gen. 517 (1924).

6 Barlow v. Berry, 245 N. Y. 500, 157 N. E. 834 (1927).

6 9 Dec. of Comp. n (1902).

7 i Dec. Comp. Gen. 349 (1922). 8 2 Dec. Comp. Gen. 586 (1923).

9 Wilentz v. Jernee, 13 N. J. Misc. 138, 176 All. 725 (1935).

10 4 Dec. Comp. Gen. 439 (1924).



Promotion need not be made upon the basis of seniority alone unless
the statute specifically requires it. Seniority and merit are not necessarily
synonymous, and it is merit that is required under most civil service
laws. ". . . we cannot substitute our own judgment for that of the offi-
cials charged with the public duty by the mere circumstance that prose-
cutor had been a police officer for a few years longer than those advanced.
As between those in the same class of service, merit cannot be easily de-
termined by the bare written record. Certainly, the legislature could not
have intended, because they did not so say, that years of service should
be the sole criterion. They provided that merit should be considered
also." 11

[Statutes sometimes require that promotion shall be from those in the
next lower rank. When this is required and when examination is to serve
as the basis for promotional selection, the commission may not certify
for promotional appointment the name of a person who has taken the
examination for original entrance into the service but who has never
been appointed to the service. The examination must be offered to those
already in the service. 1 :!

"All examinations for promotion shall be competitive among such
members of the next lower rank as desire to submit themselves to such
examination" is a typical statutory statement. Under this provision it
was held that those in the next lower group in the same line of work
were to be preferred, even though the members of a much lower group
in the same line of work made much higher grades in the examination. 13

If the statute describes the class from which promotion is to be made,
the commission may not restrict a promotional examination to the mem-
bers of a subdivision of that class. 14 The courts will exercise their own
judgment as to what constitutes the statutory class described in the law.

[In a promotional appointment, just as in an original one, the appoint-
ing officer is entitled to rely upon the certification of candidiates by the
civil service commission. If the commission has failed to compute the
experience ratings of the candidates when it should have done so, that
fact cannot be used by the commission as the basis for refusing to sign a
payroll for the persons. That the wrong officer made up these ratings
should not be permitted to disturb the appointment.) 5
A civil service rule provided that "promotions in the classified service
shall be based on ascertained merit and seniority of service, and shall be
made from rank or grade ... in the same line or character of work to
be determined by the commission, and shall be made upon voluntary
competitive examination." When the position of assistant superintendent
of streets fell vacant, the contention was made that the examination
should be open only to the ward superintendents of streets because they
were the next in rank. There were some positions that were classified
between the vacant position and that of ward superintendent, so that
the salary differentials were quite large, but the court held that classifica-
tion here must not only take salary into account, but must consider the
"same line of work" as well. 16 In this case the question was also raised
whether a court will review the implied determination of a civil service
commission that a promotional examination is not practicable. The court
decided that the better procedure for the commission to follow is to hold
such an examination; then, if the results prove unsatisfactory, it will have
better grounds upon which to decide that the position should be filled
otherwise than by promotional examination. The court said that such a
determination would be subject to judicial review. 17

Sometimes promotion is partly based on efficiency ratings. If so, a
person may not be promoted on the day he receives his original appoint-
ment, because at that time he could not have had an efficiency rating. 18
Statutes providing for increases in compensation or for promotions upon
the basis of efficiency ratings are interpreted so as not to make them auto-
matic if there is any room for such an interpretation. 19

The officer who makes the efficiency ratings may express his opinion
frankly; even his use of such a word as "stupid" does not furnish a cause
of action for damages for libel. 20 This freedom from liability in the ex-
pression of an honest opinion is essential to the use of efficiency ratings
in an administrative service. It must be remembered that these ratings
seldom constitute the sole basis for promotion; and while it should be
possible for an aggrieved person to have his rating reviewed by some
committee or tribunal in the service if he feels that it is demonstrably un-
fair, such a review should be furnished by an administrative tribunal
rather than by a regular court. Review through an action for libel is
properly discouraged.

Efficiency ratings cannot be given to a person when he is on leave of
absence, and ratings so given cannot serve as the basis for promotion. 21

"People v. Errant, 229 111. 56, 82 N. E. 271 (1907).

17 People v. Errant, supra, note 1 6.

18 8 Dec. Comp. Gen. 47 (1928).
1B 7 Dec. Comp. Gen. 721 (1928).

20 Hodgins v. Bingham, 141 A. D. 514, 126 N. Y. S. 493 (1910).
81 10 Dec. Comp. Gen. 102 (1930).


To be acceptable, certification of efficiency ratings must be based upon
records that are kept in accordance with statutory or administrative regu-
lations. 22 The civil service commission need not accept ratings based upon
irregular records.

Sometimes the statute provides that "meritorious service" shall be one
of the factors to be taken into account in promotion. A civil service com-
mission interpreted this phrase to include such commendations and hon-
orable mentions as had been made for individual acts of bravery. The
court upheld this interpretation. 23

Some very real injustices can occur in connection with the applica-
tion of laws of the type referred to in the preceding paragraph if the
routine of awards and of certification is not carried out correctly and
promptly. For example, in a New York case 24 the court was confronted
with a delay in the award of points for acts of bravery which, if they had
been awarded with reasonable promptness, would have given the peti-
tioner a higher standing for promotion. The court held that the points
that were before the commission at the time were the only ones that could
be considered by it, and that it could not later give the petitioner a re-
rating that would take into account the delayed report of the proper
officer or board. The civil service commission in this instance had a rule
that "no examination pager ... or any record or statement rated as part
of an examination, or in connection therewith, shall be subject to re-
view, alteration or rerating after the marks of the examiners have been
registered or attested as required hereunder." This rule applied, thought
the court, despite the unexplained circumstances of delay. The charter
contemplated that the reports should be filed before examination, and
though the case was a difficult one, no exception could be made, ruled
the court.

A few years ago there was another New York case in which the delay
in an award of distinction made a difference to the recipient. 25 The
plaintiff had performed an act of heroism for which he received a medal.
However, the medal was awarded him after he had taken a promotional
examination, the delay in this case exceeding the period fixed by the civil
service rules for examining and reporting on acts of heroism. The court
nevertheless followed and extended the rule in the Beck case, discussed
in the preceding paragraph, holding that the civil service commission
acted correctly upon the record before it, and that since it acted upon
that record, no subsequent action would lie to reconsider the earlier de-
A charter provided that "individual acts of bravery may be treated as
an element of meritorious service in such examination [for promotion],
the relative rating thereto to be fixed by the municipal civil service com-
mission." Under this it was held that the acts of heroism could be con-
sidered only for the next higher position to which the person could be
promoted, not for the second or third higher position to which he might
later be promoted. The statute could authorize this successive considera-
tion, but unless it did so, the court could not permit it. 26

The requirement that a person shall have been in the service for a
given length of time in order to be eligible for promotional examination
is a common one. Sometimes a date is fixed prior to which service will
entitle one to admission to the examination. When the words "shall have
been in the ... service prior to July i, 1920" are used, they mean that
if the person was in the service before that date he is entitled to take the
examination, even though since that time he may not have been in the
service at all. 27 This situation arises in some cases in which preference is
granted to veterans who have been members of the service for a year or

Because the statutes tend to be general rather than detailed and specific
upon the subject of promotions, the civil service commissions are left
with quite wide discretion in imposing conditions and qualifications for
promotional examination. A civil service regulation provided that "ex-
amination for promotion shall be ordered as often as may be necessary
to meet or anticipate the needs of the higher grade, and so far as prac-
ticable shall be held periodically. Except where otherwise provided by
law, such examination shall be open, in each case, to all persons who
shall have served with fidelity for not less than six months, in positions
of the same group or character, in the grade next lower, in the same de-
partment, office, or institution." The imposition of a six months' term of
service as a qualification for admission to the examination was held to
be reasonable under the statute, and constitutional. 28

Another regulation provided that an examination for the recently
created position of deputy fire chief in a village should be open not only
to members of paid fire departments generally, but to both paid and
volunteer firemen in the village. The court sustained this rule. An age
minimum of thirty years and a maximum of forty years were thought
to be questionable, but the court refused to disturb them. 29 In each case
the courts will examine into the reasonableness of the conditions required
for admission to the examination, and if they are arbitrary, will set them

26 People ex rel. Burns v. Baker, 124 A. D. 565, 108 N. Y. S. 969 (1908).

27 McCarthy v. Civil Service Commission, 95 Cal. App. 749, 273 Pac. 98 (1928).
28 Matter of Ricketts, in A. D. 669, 98 N. Y. S. 502 (1906).

29 Matter of Bridgman v. Casse, 157 Misc. 8, 283 N. Y. S. 226 (1935).


aside. 30 In general, however, the courts permit rather broad discretion to
be exercised by the civil service commissions.

Examinations are not required, of course, for every promotion. They
are required when practicable, in most instances, just as for original ap-
pointment. Most courts would probably not be willing to hold with the
court which decided that approval of a payroll for a person appointed
to a higher position was the equivalent of a finding that an examination
was not necessary for promotion to the position, inasmuch as no exam-
ination had been given. 81 Practicability is a matter of law and will be
passed upon by the courts, though not in a taxpayer's action. 32

The failure of the commission to classify a position may mean that
it can be filled without a promotional examination. 83 This situation may
occur often in the period of adjustment during which a merit system
is being introduced, because if the service is extensive, it takes many
months to complete the classification of positions.

It is for the civil service commission rather than for the appointing
officer to decide who shall be admitted to the examination. Of course,
the better practice in actual administration is for the personnel agency to
consult with the appointing officers, but the final decision is the com-
mission's. 84

In the absence of any restrictive statute, the commission may require
that the examination be either competitive and open or noncompetitive,
as it thinks best. 35 It may give weight to seniority, or to any other factors
that are pertinent to the ascertainment of fitness and merit, and it has
even been held that it may require the examination to be given before
rules have been formulated for promotion, though this seems a some-
what dubious holding. 36 If the examinations are to include tests of physi-
cal fitness "when appropriate," it is for the civil service commission to
decide whether the tests are appropriate and necessary. 37

Notice of promotional examinations must be given, just as for original
examinations, and it must be given a reasonable time before the exam-
inations are held. Twenty-four hours is too short a period in which to
require everyone to prepare for a promotional examination. The court
may find that the same length of time applies to the notice for promo-
tional examination as to that for original examination. 38

80 People ex rel. Kennedy v. Feldman, 179 A. D. 295, 166 N. Y. S. 375 (1917).

81 State ex rel. v. Kansas City, 213 Mo. App. 349, 257 S. W. 197 (1923).

82 Kelty v. Kaplan, 205 A. D. 487, 199 N. Y. S. 337 (1923).

83 Matter of Sugden v. Partridge, 174 N. Y. 87, 66 N. E. 655 (1903).
^Timmins v. Civil Service Commissioners, 276 Mass. 142, 177 N. E. i (1931).
^Haub v. Tuttle, 80 Cal. App. 561, 251 Pac. 925 (1927).

88 Cook v. Civil Service Commission, 160 Cal. 589, 117 Pac. 662 (1911).

87 Maxwell v. Civil Service Commission, 169 Cal. 336, 146 Pac. 869 (1915).

88 People ex rel. O'Hara v. Neville, 58 Misc. 279, 109 N. Y. S. 640 (1908).


A statute which provides that "due credit" shall be given to experi-
ence does not justify giving additional points to the ratings of those
applicants who have served temporarily in an emergency bureau and
not to other applicants with other types of experience. If interpreted to
authorize such a practice, the New York court felt that the statute would
be contrary to the civil service provision in the constitution of that state. 39


The problem of what constitutes a promotion has given rise to some
difficulty. Not every change of duties is a promotion; also a promotion
may take place without a change of duties. 40 A change of work may be
a reduction in rank as well as an elevation. A change from one position
to another may be permissible on the ground that they both involve the
same type of qualifications, in which case no promotional examination is
necessary. 41 The problem of promotion may arise even in the labor class,
because some labor may be in the classified service. 42

A detail or assignment to a higher position for the purpose of tempo-
rarily performing the duties thereof does not bring with it the compen-
sation of the higher position and does not involve a promotion to it. 43
A person who serves in such a capacity for a few months and who is
later promoted to it permanently may not count the months served on
such detail as part of his service in the higher position if later he wishes
to be 'promoted to a still higher one. 44 Some danger of abuse inheres in
the practice of assigning a person from a lower rank to perform the duties
of a higher position, and some laws reflect the apprehension of this dan-
ger when they forbid the payment of salaries to persons doing the work
of others in violation of the statute. For example, one law contained this
section : "If the state civil service commission or any municipal civil serv-
ice commission shall find that any person has been transferred, assigned
to perform the duties or reinstated in violation of any provision of the
civil service law or of the rules adopted thereunder, it shall so notify the
comptroller . . . thereof and thereafter such officer shall not draw . . .
any warrant on the treasurer or other disbursing officer for the payment
of salary or compensation to any such person." This has been held not to
apply to a situation in which a person in the lower ranks was assigned to
the duties of a higher position that had fallen vacant. 45 The courts are

39 Sheridan v. Fincgan, 166 Misc. 920, 2 N. Y. S. (2cl) 183 (1938).

40 26 Ops. Atty. Gen, 522 (1908).

41 People ex rel. Rudd v. Cropsey, 215 N. Y. 451, 109 N. E. 550 (1915).
ia See 30 Ops. Atty. Gen. 10 (1913); 27 Ops. Atty. Gen. 520 (1909).

43 4 Dec. Comp. Gen. 126 (1924).

"Moran v. Baker, 49 Misc. 327, 99 N. Y. S. 197 (1906).

"Matter of Kinney v. Nares, 125 Misc. 435, 211 N. Y. S. 714 (1925).


confronted with a problem of honest intention in cases arising under
such a statute. A person assigned to perform the duties of a higher posi-
tion, and later promoted to it permanently, is not entitled to the higher
rate of compensation from the date upon which he began his work in
the higher position, but only from the date of his promotion. 46

The mere addition of duties to a position and an increase in compen-
sation do not automatically constitute a promotion. Unless the added
duties are different in kind, the position is the same as before. A change
in title may not be significant if no change is made in the kind of work.
Changing the amount of work, in the absence of anything else to show
an intention to create a new position, does not create a new position. 47

The detail or assignment of a person to perform the duties of a posi-
tion on a temporary basis is to be distinguished from a regular transfer
to the position. Transfers from one position to another are provided for
under civil service laws, subject to restrictions contained in the statutes
and in civil service regulations. But a transfer must be scrutinized to
make certain that it is not a method of evading the rules governing pro-
motion. 48

A transfer from a position that paid nine hundred dollars to one that
paid twenty-five hundred dollars, followed shortly by another transfer
to the position of superintendent of the division at twenty-five hundred
dollars, was sufficient to put a court on guard for an evasion of the pro-
motional rules. When, in addition to this, the fact appeared that the
transferred person was seventh on the list of eligibles for promotion, the
court held that the case was a clear one. 49 The transfer to a higher posi-
tion generally can be made only through the regular promotional chan-
nels. 50 A transfer that can be made to another position in the same salary
range is not a promotion, even though the salary is higher. It is the range
that is important. 51

A statutory statement that "all original appointments shall be made
to the rank of substitute railway postal clerks" has been held not to forbid
transfers to the classes of clerks affected from other comparable positions;
and when such transfers are made, the applicable salary rules are not
those on original appointment but those on transfer. 52

Efficiency ratings are sometimes used as the basis for increase in com-
pensation as well as for promotion. When there is only one person in a

46 6 Dec. Comp. Gen. 133 (1926).

47 McArdle v. Chicago, 172 111. App. 142 (1912).

48 4 Dec. Comp. Gen. 741 (1925). See 29 Ops. Atty. Gen. 313 (1912).

49 Hale v. Worstell, 185 N. Y. 247, 77 N. E. 1177 (1906).

50 People ex rel. Campbell v. Partridge, 89 A. D. 497, 85 N. Y. S. 853 (1903), affirmed,
179 N. Y. 530, 71 N. E. 1136.

51 State ex rel, La Grave v. Seattle, in Wash. 340, 190 Pac. 908 (1920).
M 7 Dec. Comp. Gen. 295 (1927).


grade, no comparative rating can be made, but the administrative deter-
mination of the employee's efficiency may be high enough to entitle him
to a compensation two or three levels higher in the grade. Under these
circumstances he may be given any rate of pay within the grade, even
the highest, without going through the successive salary levels. 53


Promotion and increase in salary have no necessary connection with
each other; often, however, they are related, and the courts find it neces-
sary to scrutinize them because of the possibility that an increase in sal-
ary may be used to accomplish one of the most desirable results of a
promotion and accomplish it in evasion of the rules. Not every increase
of salary constitutes a promotion; it is common for a person to be entitled
to several levels of compensation within a single grade. Differences in the
legal rules that apply to increase and promotion are to be found among
the various services. In the national service, for example, it is common
to find the ruling that a promotion may not be retroactive in effect, but
that an increase in salary may be. 54

The law or the regulations, of course, may provide for or permit a
transfer or promotion to be made without a competitive examination;
in such a case, the rules that apply to salary increases may not differ
materially from those that apply to promotion. 55 But in general a raise
to a salary that is above the salaries for the grade is regarded as consti-
tuting a promotion. A statute sometimes recites that an increase to a
salary above those for the grade shall be deemed a promotion and ex-
pressly forbids an increase except in accordance with the applicable rules
on promotion. 56

In one case a person had been holding a position for several years when
its title was changed in the appropriation act. Under the new title he re-
ceived salary increases which brought him above the grade in which the
first position was placed. He was later discharged, and on a petition for
mandamus to reinstate, it was contended that the first position had been
abolished and that the second was not in the classified service. The court
held, however, that the petitioner had been promoted. The change in title
had no significance so far as abolishing the old position was concerned.
The petitioner had been promoted, not legislated out of a position; and
the duties remaining the same and the payroll having been approved,
it must be taken that a finding was implied to the effect that no examina-
tion was necessary for the promotion. This, of course, was a twisting of

58 4 Dec. Comp. Gen. 77 (1924).

54 3 Dec. Comp. Gen. 924 (1924).

55 State ex rel. Caire v. Board of Commissioners, 174 La. 516, 141 So. 46 (1932).
66 People ex rel. Gilhooly v. McAdoo, 108 A. D. i, 95 N. Y. S. 400 (1905).


promotional law in order to square the law governing discharge with the
requirements of justice in the individual case, as the court saw it. 57

The requirement of a promotional examination is not dispensed with
merely by showing that the person who was promoted without an ex-
amination, by means of salary increases, entered the service at a time
when there were no restrictions upon the salaries that could be paid for
that kind of work. 58 The section of the civil service law that was ap-
plicable to this case is illustrative and shows the detail which some sec-
tions on this subject contain. "For the purposes of this section an increase
in the salary or other compensation of any person holding an oflice or
position within the scope of the rules in force hereunder beyond the limit
fixed for the grade in which such office or position is classified shall be
deemed a promotion . . . nor shall any person be promoted or trans-
ferred to a position for original entrance to which there is required by
this chapter or the rules an examination involving essential tests or quali-
fications different from or higher than those required for original en-
trance to the position held by such person, unless he shall have passed
the examination or attained a place upon the eligible list for such higher

A distinction must be drawn, Apparently, between the fixing of sal-
aries for a position or grade in general, as a part of the task of classifica-
tion, and the increases in salary paid to a particular incumbent. The
former may be valid and the latter invalid, depending upon the particu-
lar circumstances. 59

The power to classify may be vested in the civil service commission
and the power to fix salaries in another body, such as a board of educa-
tion for employees in the department of education. In such a case the
power of the board of education to establish automatic salary increases
is restricted by the classification established by the civil service commis-
sion. A person can no more be given an increase in salary over that of his
class by the automatic scale method than he can receive it as a matter of
discretion applied to his individual case. 00

One court, in explaining the operation of the rules applicable to pro-
motion on the question of increases in salary made by an administrative
body having the power to determine salaries, said that classification by
the civil service commission does not act as a veto upon the power to fix
salaries, but merely establishes the conditions under which the increases

67 State ex rel. v. Kansas City, supra, note 31.

68 People ex rel. Perrine v. Connolly, 170 A. D. 917, 154 N. Y. S. 1139 (1916), affirmed,
217 N. Y. 570, 112 N. E. 579.

59 People v. Creelman, 148 A. D. 890, 134 N. Y. S, 1142 (1911), affirmed, 205 N. Y.
589, 98 N. E. 1112.

80 Ryan v. Kaplan, 240 N. Y. 690, 148 N. E. 760 (1925).


in salary can be obtained if those increases go beyond the salary range
for the grade. 61

When a position is ungraded, a raise in salary is not the equivalent
of a promotion, and no examination is required, even though the posi-
tion is in the classified service. 62 An increase in salary was held not to be
a promotion when the holder of a position took the examination for grade
four, received a salary below that fixed for the grade, and was later raised
to the maximum salary for grade four. That is, the increase in salary
while still within the grade to which he had been appointed did not vio-
late the rules on promotion. 63

In the national government, or in any jurisdiction in which the officer
having the power to pass upon proposed expenditures passes upon pay-
roll items for personal services, that officer may serve to ensure enforce-
ment of the rules governing promotions and increases in salary. 64 The
reports of the comptroller general of the United States contain numerous
illustrations of the exercise of this power.

A person may be reduced to a lower salary without a change of posi-
tion. If this is done with his consent, so that no problem of removal,
suspension, or reduction in rank or pay against his will intervenes to
complicate the situation, the action is regarded as a transfer rather than
as a demotion. 65


The examination for promotion results in an eligible list, just as in
original examination, and the rules governing certification in original
appointment usually apply in promotion. The rights that exist under an
eligible list from which promotions are to be made must be claimed
while the list is in force, not after it has expired. The idea behind this
ruling seems to be that of laches sleeping on one's rights. 66

An appointment to a higher position often carries with it a probation-
ary period preceding permanent status. This involves a certain element of
risk because the person who has left his original position may prove un-
satisfactory in his new one. If he is removed or laid off for lack of funds,
his status, unless saved by a statute, may be only that of a typical proba-
tioner. 87 In some instances specific cognizance is taken of this situation
in the law or in the regulations, and some provision is made for return

^O'Mallcy v. Board of Education, 160 A. D. 261, 145 N. Y. S. 645 (1914).

" People ex rel. Stokes v. Tully, 47 Misc. 275, 95 N. Y. S. 916 (1905).

68 People ex rel. Lodholz v. Knox, 58 A. D. 541, 69 N. Y. S. 602 (1901).

64 6 Dec. Comp. Gen. 161 (1926).

M 4 Dec. Comp, Gen. 104 (1924).

M People ex rel. Walter v. Kaplan, 117 Misc. 257, 192 N. Y. S. 105 (1921).

87 Fish v. McGann, 107 111. App. 538 (1903), affirmed, 205 111. 179, 68 N. E. 761.


to the eligible list, for preference in appointment, or for return to the
original position held by the promoted person. It is difficult to work out
a compromise between the risk accompanying ambition and the security
of remaining in the original position. It has been held that a preference
in appointment given to persons who have served a year in a permanent
position does not extend to one who has served in several permanent po-
sitions, but for only a short while in each, less than one year in the aggre-
gate, and who has been laid off from each of them because of lack of
funds. 68

Abolition of the position to which he has been promoted is one of
the risks taken by the person accepting promotion. He is not entitled to
his old position unless the statute saves his rights to it. Neither does the
rule that removals are to be in the inverse order of original appointment
help him. He was originally appointed to the new position, and it is the
date of that appointment which governs. He gains no preference for
lower positions by such a provision and cannot claim a position in the
lower class if the position is occupied. 69

Promotions and salary raises are usually held to be prospective in na-
ture unless there is something in the law that requires a contrary con-
clusion. Sometimes the statute makes them retroactive, and when it does
the civil service commission and the administrators have no discretion
in the matter. 70 When a salary increase or a promotion is subject to the
approval of a different officer from the one who takes the initiative in
granting it, that approval may operate to make the promotion effective
as of the date when it was first made. 71 The time at which a promotion
takes effect is ordinarily governed by the same rules that govern the date
of the original appointment. The requirement of an oath, the entrance
upon the duties of the position, the date of the signing of the commission
may all be factors to consider, either singly or together. 72

When a person is appointed to a position on condition that he is to
receive no increase and later an increase is given, the increase is prospec-
tive in effect. 73 When a salary increase depends upon the reallocation of
a position, the effective date of the increase is the effective date of the
reallocation, and the statute governing reclassification will have to be
consulted to settle the question of that effective date.

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