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Civil Service Law - Chapter VII continue

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

The remedies that are available to compel the recognition by the civil
service commission of the rights of a person claiming to have been denied
them are the same in cases involving promotion as in cases involving
other breaches of civil service laws that confer rights upon individuals
and impose duties upon the commission. Mandamus is the usual remedy
whereby to compel the certification of one's name for promotion, just
as it is the remedy to compel the certification of it for an original appoint-
ment, and the writ is governed by the common law rules and statutory
modifications of it in the particular state. For example, if the statutes on
appeals provide that cases shall go through one hierarchy of courts rather
than another, that is true of mandamus, since it is a writ that presents
a "civil case." 75


Preference is sometimes given to veterans in promotion as well as in
original appointment. The tendency is to restrict the preference to orig-
inal appointment unless the statute expressly or by strong implication
extends it to promotion. 76

A preference statute provided that "in such promotions such person
or persons shall be given an additional credit in the promotional exam-
ination of one and one half per cent for each six months or fraction
thereof of such military or naval service; and provided further that such
additional credit shall not be computed so as to increase or decrease the
rating allotted to any person competing in such examination for ascer-
tained merit or seniority. And provided further that no person shall be
given such additional credits in the promotional examination for more
than eighteen months of such military or naval service." The eligible list
in question had been established before the enactment of this statute.
Did the statute affect only examinations to be given in the future or did
it also affect existing lists ? The court held that the law should be given
prospective operation only, and not be applied to lists that were estab-
lished at the time of the enactment of the law. 77

A bonus of twenty per cent in examination grade was granted by an
Ohio statute creating a preference for veterans. The bonus was provided
for in the portion of the act dealing with original examinations. Another
provision of the law stated that "vacancies in positions in the classified
service shall be filled so far as practicable by promotion. The commission
shall provide in its rules for keeping a record of efficiency for each em-
ployee in the classified service, and for making promotions in the classi-

75 O'Brien v. Frazier, 299 111. 325, 132 N. E. 434 (1921).

78 In re Brown, 60 Hun 98, 14 N. Y. S. 450 (1891). See McGuire v. Byrnes, 50 Hun
203, 2 N. Y. S. 760 (1888).

"O'Brien v. Frazier, 228 111. App. 118 (1923).


fied service on the basis of merit, to be ascertained so far as practicable
by promotional examinations, by conduct and capacity in office, and by
seniority of service; and shall provide that vacancies shall be filled by pro-
motions in all cases where, in the judgment of the commission, it shall
be for the best interest of the service to fill such vacancies. All examina-
tions for promotions shall be competitive. In promotional examinations
efficiency and seniority in service shall form a part of the maximum mark
attainable in such examination . . , The method of examination for pro-
motions, the manner of giving notice thereof, and the rules governing
the same shall be in general the same as those provided for original
examinations, except as otherwise provided herein." The court held that
the bonus of twenty per cent applied to original examinations only, not
to promotional examinations. The use of the word "herein" in the last
sentence quoted above was held to refer only to the particular section
and not to the whole statute. 78 The court restricted the use of the bonus
in accordance with the general rule of statutory construction that a spe-
cial preference in a statute is to be given a strict rather than a liberal inter-
pretation against those who claim it.


The problem of transfers and their relation to promotion has been
touched upon in the preceding section. A transfer is usually thought of as
moving or changing a person from one position to another within the
same general level of the classified service, but in different departments
or branches. Transfer is usually within the classified branch, rather than
from an unclassified position to a classified one. The reason for this is
clear; if it were otherwise, the problems of promotion and demotion
might be involved, and the principle of competition evaded. This is not
to say that a transfer is always to exactly the same kind of a position, nor
that exactly the same salary will attach to the two positions. The same
salary range is all that is required. 79 Transfer may either be made with
the consent of the person transferred and the consent of the officers from
whose division the person is being transferred and to whose division he
is being sent, or it may be made without the employee's consent. In ad-
dition, the consent of the civil service commission may be required. The
conditions upon which transfers may be made, of course, are governed
first by statute and second by civil service regulations. 80 The civil service
commission usually has some discretion in transfers. But the approval

78 State ex rel. Schmidt v. Harter, 43 Oh. App. 503, 183 N. E. 389 (1932).

79 State ex rel. La Grave v. Seattle, supra, note 51.

80 See the interesting problem and points of view to be found in People ex rel. Kelly v.
Milliken, 201 N. Y. 545, 95 N. E. 1137 (1911).


of a transfer to a higher position does not constitute a reclassification of
the position and cannot be upheld upon that ground. 81

In a reorganization or reallocation of positions within a service it may
happen that the duties of a position are redefined and the position reclas-
sified. In such a situation a person may actually be reappointed, and the
appointment must be consented to by the civil service commission before
it is valid as a transfer. 82

Transfer is not the same as detail or assignment of a temporary na-
ture. A detail, of course, is governed by statutes and regulations and may
be made only when it is authorized by law. Such an authorization is
usually given in broad statutory language or in an executive order, but
some authority must be shown before the detail can be made. 83 The legal
effect of a detail is not the same as that of a transfer. A person who is
detailed from one position to another does not hold the position to which
he is detailed. If that position is reclassified, the one detailed to the posi-
tion receives none of the benefits of the change. 84 For example, if a mem-
ber of the police force is detailed to serve in the telegraph bureau and
the members of that bureau are given a higher ranking, the patrolman
under detail retains his original ranking.

The adjustments to be made between departments when the services
of an employee of one department are loaned to another are determined
by the rules of law governing the relations between departments. Such
a loan is for all practical purposes like a detail. 85 Statutes may also govern
the payment of traveling and other incidental expenses pertaining to a
detail. 86 It is important, of course, whether in detail or in transfer, to
make certain that the arrangements are made in such a way as to retain
for the transferred person his status in the civil service. If he is out of the
service he may lose traveling expenses and other allowances or perqui-
sites. 87 The definitions of the departments and services to be included in
transfer statutes or regulations are important. 88

Transfer to a lower position, at least in the national government, may
not amount to a demotion if the persons who are transferred request or
consent to it. 89

81 Winslow v. Bull, 97 Cal. App. 516, 275 Pac. 974 (1929).
8a 5 Dec. Comp. Gen. 560 (1926).

83 26 Dec. of Comp. 214 (1919).

84 People ex rel. Murphy v. Bingham, 130 A. D. 112, 114 N. Y. S. 702 (1909), affirmed,
196 N. Y. 519, 89 N. E. 1109.

86 23 Dec. of Comp. 242 (1916).
80 23 Dec. of Comp. 430 (1917).

87 5 Dec. Comp. Gen. 1025 (1926).

88 27 Ops. Atty. Gen. 421, 425 (1909); 27 Ops. Atty. Gen. 100 (1909); 34 Ops. Atty.
Gen. 192 (1924).

89 4 Dec. Comp. Gen. 150 (1924).


Under the Classification Act of 1923 it has been held that temporary
employees in the unclassified service, when transferred to positions that
are subject to classification, are to be considered as new appointees for
purposes of salary. 90

Ut is quite usual for the civil service commission to be vested with some
discretion in the matter of deciding whether a transfer shall be permitted,
even though the affected administrative officers are agreeable to the trans-
fer. It is within the authority of the commission to decide whether the
two positions are "similar" in nature and in the qualifications required
for the effective performance of their duties. This discretion will not be
interfered with lightly by the courts upon petition to compel transfer by
the civil service commission.^

As is the case with so many problems in civil service law, a transfer
often raises a question of classification. When transfers are to be made
to "similar" positions, the question may arise whether the two positions
carry similar duties, similar compensation, and similar privileges. There
is no requirement that the duties, compensation, or privileges be identi-
cal, but they must have sufficiently common elements to make it possible
to classify them on fundamentally the same bases. For example, "social
service work" may cover inspectors and nurses; and if the salary differ-
ential does not complicate the problem, it may be permissible to transfer
an inspector to the position of nurse, both being in "social service work." 92

But it has been held that the positions of fireman and engineer in a
water plant were not sufficiently similar to satisfy the transfer require-
ments, even though a veteran's rights to transfer were involved. 08 The
courts tend to look at common examinations for positions as one evidence
of similarity of duties and qualifications.

A statute provided that "if the position so held . . . shall be abolished
. . . the said . . . soldier . . . holding the same shall not be discharged
from the public service, but shall be transferred to any branch of the said
service for duty in such position as he may be fitted to fill, receiving the
same compensation therefore, and it is hereby made the duty of all per-
sons clothed with power of appointment to make such transfer effective."
This, which is typical of many provisions concerning veterans' preference
in transfers to other positions when the positions the veterans hold are
either abolished or vacated for lack of funds, was held not to entitle a
veteran to a salary in excess of that attached to the lower position to
which he consented to be transferred after the position that he formerly
held had been abolished, no position being vacant which carried with it

90 6 Dec. Comp. Gen. 455 (1926).

91 Matter of O'Connell v. Clark, 200 A. D. 606, 193 N. Y. S. 647 (1922).
M Craighan v. O'Brien, 199 Cal. 652, 250 Pac. 653 (1926).

98 In re Owens, 76 Misc. 610. 137 N. Y. S. 308 (1911).


as high a rate of pay as had his former position. 94 A statute of this type
does not require the head of a department to discharge a nonveteran in
order to create a vacancy for a veteran who has been deprived of his posi-
tion by virtue of its abolition. 95 All that it requires is that the veteran
shall be given work if there is work to be given him.

Occasionally a person who is transferred claims that he was misled
or duped into thinking that he was being transferred to a position that
was more desirable than it turned out to be. A transferred employee may
even charge that fraud was practiced upon him in order to get him to
consent to a transfer and that later the position to which he was trans-
ferred was abolished and his status lowered or ruined. The courts usu-
ally require rather clear and convincing proof that such has been the
case before they give relief to the complainant. General and vague al-
legations that prove to be based upon strained personal relations or upon
personal incompatibilities are not sufficient to support a claim for relief. 96

A transferred person does not lose his status under the removal provi-
sions if he remains in the protected service. 97 Once completed, a transfer
cannot be denied by a new department head.

The comptroller general of the United States has finally decided that
a transfer is not a new appointment for purposes of compensation. Ap-
parently the rule is that instead of being forced to receive the minimum
rate of pay attached to the position, such as a new appointee would re-
ceive under the classification act, a transferred person may receive that
rate of pay which is comparable to that he left and which is within the
range prescribed for the position to which he has been transferred. 98

The eligible list from which certification must be made to the appoint-
ing officer who has the power to fill a position changed from one schedule
to another is the list prepared for positions in the schedule to which the
position in question has been transferred. 99 Positions as well as indi-
viduals may be transferred, although a change in positions is usually
thought of as a change in classification rather than as a transfer. A per-
son transferred from one department to another and from one exempt
position to another like it does not need to obtain a rating on a competi-
tive examination for the position when the statute provides that positions
shall be filled by competitive examination, except positions that are "filled
by promotion, reinstatement, transfer or reduction." 10

94 Matter of Pettis v. Brearton, 145 Misc. 913, 261 N. Y. S. 55 (1932).

95 Clancy v. Halleran, 263 N. Y. 258, 188 N. E. 746 (1934).
"Butler v. Directors of Port, 222 Mass. 5, 109 N. E. 653 (1915).

97 Allen v. New York, 120 A. D. 539, 104 N. Y, S. 919 (1907).

98 9 Dec. Comp. Gen. 71 (1929). Cf. 4 Dec. Comp. Gen. 492, 498 (1925).
"People ex rel. Carroll v. Civil Service Board, 5 A. D. 164, 39 N. Y. S. 75 (1896).

100 Matter of Peters v. Adam, 56 Misc. 29, 106 N. Y. S. 158 (1908), affirmed, 190 N. Y.
567, 84 N. E. 1118.



Although the general body of law on the subject of leaves of absence
is quite extensive, the case law is not. The bulk of materials in this
branch of the law consists of rulings by various law officers and decisions
or opinions by financial and personnel agencies. So far as they concern
states and local governmental units, these materials have not been in-
cluded to any large extent in this work.

Leaves may be leaves of absence, with or without pay, or leaves for ill-
ness, better known as sick leaves. Leaves of absence are often mentioned
in statutes or in charters dealing with civil service, and it is quite usual
for the law to vest the chief administrative officers or the personnel body,
or both, with power to prescribe rules for both leave of absence and sick
leave. Some statutes prescribe the rules that are to be applied, but more
commonly the details of this subject are left to civil service or admin-
istrative regulations. In the absence of statute, it appears that an ad-
ministrative chief, under his general administrative power to supervise
and direct his department by regulation, may provide for leaves. Unless
granted by law, leaves are not matters of right so far as the employee is
concerned, but matters of grace. If leave is provided for by statute, the
law may be phrased in such a way as to make it a matter of right. The
legal theory of a leave is apparently that it promotes the efficiency of the
employee to give him some time off, whether he is well or ill. Upon this
theory, compensation may be given him during the period of the leave.
However, if the leave is not a matter of right, but one of discretion, then
it follows from this same theory that if the employee gets no leave, no
claim can be made for compensation for an unused portion of the leave
upon separation from the service. 101 The personnel body may be given
some control over leaves through the requirement that persons obtain-
ing leave must be employed in compliance with civil service regula-
tions. 102

A statutory provision that leaves "may be granted" allows discretion
in the granting of them. It is a fair exercise of the discretion thus vested
in the officer to impose a condition upon a leave that if it is taken during
the first six months of the year for which it is to accrue, and instead of
coming back to work, the employee takes a leave without pay for the
second six months, he shall suffer a deduction later for the amount of
the leave taken which would have accrued for the second six months if
he had returned to work and served out that period. 103

101 13 Dec. Comp. Gen. 179 (1933). Cf. 7 Dec. Comp. Gen. 198 (1927). Example of
departmental regulation, 4 Dec. Comp. Gen. 69, 161 (1924).
103 4 Dec. Comp. Gen. 650 (1925).
108 22 Dec. of Comp. 103 (1915).


The problem of leave for temporary employees has caused some diffi-
culty, especially as some temporary employees remain in the service for
quite a long period. Leaves for temporary employees seem not to be
favored, and statutes and regulations are generally interpreted against
rather than in favor of them. Thus a statute which specifies leaves for
those who have served twelve consecutive months or more does not en-
title a temporary employee to a leave, even though he has served more
than the twelve consecutive months. 104 For this purpose temporary
appointments mean those which have not ripened into probationary ap-
pointment. 105 A civil service regulation specified that appointments there-
under were temporary and not to be in excess of thirty days unless
previously approved by the commission. It was held that persons ap-
pointed under this regulation were temporary appointees. 106

A person who is compensated at an hourly rate may be entitled to
leave. For example, a statutory provision that persons in the service shall
be paid by the hour or by the year does not mean that the hourly worker
is a temporary worker. That he is paid by the hour does not necessarily
mean that he is employed by the hour. 107 On the other hand, it may hap-
pen that a person who is paid on an annual basis is a temporary worker.
A distinction must be drawn between the basis of compensation and the
length of appointment or employment, although for many purposes they
are closely related.

A service may be temporary even though employment in it may be
for a period as long as the life of the project. The worker is not a tem-
porary worker in the usual sense of that term, but is working on a
temporary project. In such a situation leaves may or may not be forth-
coming, depending upon the statute. 108

Reorganization may present problems of leaves. In some instances
it is necessary to transfer a bureau to another division, and in order to
effect the transfer with as little friction as possible with regard to salary
adjustments and other factors, it may be wise to terminate all appoint-
ments in the bureau and reappoint the incumbents to positions in the new
division. The reappointments may be temporary with a view to being
made permanent later, but that intent may not materialize. For purposes
of leave it makes a good deal of difference whether the holders of these
positions are to be deemed permanent or temporary appointees. 109

Sometimes the scope of the service to which leaves may be extended

104 13 Dec. Comp. Gen. 347 (1934).

105 4 Dec. Comp. Gen. 17 (1924).

106 6 Dec. Comp. Gen. 266 (1926), Cf. 5 Dec. Comp. Gen. 903 (1926).

107 4 Dec. Comp. Gen. 51 (1924).

108 13 Dec. Comp. Gen. 47 (1933)-

109 13 Dec. Comp. Gen. 238 (1934).


is problematical. "Employees in the postal service" is not confined to
those who work with mail matter and may include janitors. This has
been held to be the correct interpretation even though the building used
by the postal service is not owned by the government but leased by the
post office. 110

A statute which permits leaves of absence for field exercises or for
instruction has been interpreted as not permitting a post office clerk who
is a member of the reserve corps to obtain a leave of absence for the pur-
pose of serving as an officer in the Civilian Conservation Corps. 111

The civil service rules concerning removal in the national govern-
ment required written notice, and authorized suspension for a period of
not to exceed ninety days, but required the filing of the reasons for the
suspension at the time it became effective. A civil service employee was
on leave, which had been properly granted, and while on leave was sus-
pended. The comptroller general ruled that he was entitled to notice,
and that if the order of suspension was revoked prior to the time that
such notice had been received, the employee was entitled to compensa-
tion otherwise due, without regard to the order of suspension. 112 Under
the statutes and rules p^-c i ni::^ the national postal service the dismissed
employee may be restored to duty status in order to have leave granted
him, unless he is suspended or removed for an action which violates his
oath of office. 113

It is of considerable importance that care be taken not to appoint any-
one to fill the position from which leave is being taken unless it is in-
tended to oust the original holder. A leave of absence does not vacate
the position. If either a temporary or a permanent appointment is made
to fill the position, the result is to cut off the term of the person who is
on leave. 114 Other methods of doing the work must be found if this result
is to be avoided.

It is a usual condition that before leave is granted, a certain length of
continuous service must have passed. It has been held that the continuity
of service is not necessarily broken by a termination of the employee's
services when that same person is re-employed the next day. Sometimes
such occurrences are incidental to certain administrative procedures or
reorganizations, and accordingly are not treated as real breaks in the
term of service for purposes of leave. 115

"To employees . . . who have served less than one year leave of ab-

110 5 Dec. Comp. Gen. 477 (1926).
111 13 Dec. Comp. Gen. 161 (1933).
"* 4 Dec. Comp. Gen. 668 (1925).
118 7 Dec. Comp. Gen. 757 (1928).
114 13 Dec. Comp. Gen. 170 (1933).
U6 27 Dec. of Comp. 604 (1921).


sence with pay may be granted at the rate of not more than two and one
half days a month for the time they have served" implies continuous
service; a break in the continuity of service by resignation affects the
period of service even though the employee is later reinstated. The date
of reinstatement is the date from which the period of service is to be
counted. 116

An employee is entitled to the leave that he is permitted by law to
take, and the intrinsic merit of his reason for absence beyond that time
does not constitute a legal reason for extending the length of the leave.
This rule has been applied to compel a person to take leave without pay
when he had used up the leave to which he was entitled, even though
he desired to use the time for prosecuting a suit for damages that he had
suffered in the course of his official duties. 117

No compensation can be allowed for a period beyond the expiration
of the leave, even though the employee is awaiting the departure of a ship
so that the delay is something over which he has no control. 118

Sometimes a leave of absence without pay, if it is prolonged beyond a
fixed period, results in separation from the service. When this is the case,
the period of absence without pay cannot be counted as part of the period
during which the employee earned leave with compensation. 119

The statutes sometimes provide for cumulative leave. Under this plan
leave which is not taken one year may be added to the leave earned the
next year. Usually some limit is placed upon the total amount of cumu-
lative leave. "Employees in the postal service shall be granted fifteen days
leave of absence with pay, exclusive of Sundays and holidays, each fiscal
year"; that "the fifteen days leave shall be credited at the rate of one and
one-quarter days for each month of actual service" does not provide for
a cumulative leave. The employee can neither add the unused leave of
this year to the next year's leave nor be paid for it. 120

Some difficult situations arise in connection with leaves when the em-
ployee is furnished quarters. 121

Sick leaves, like leaves of absence, depend largely upon statutes for
their authorization. 122 Sick leave may be cumulative if the statute so
provides. 123

As with leave of absence, if a person is appointed to a position while
the incumbent is off duty on sick leave, such an appointment terminates

118 19 Dec. of Comp. 90 (1912).

117 i Dec. Comp. Gen. 615 (1922).

118 7 Dec. Comp. Gen. 130 (1927).

119 5 Dec. Comp. Gen. 752 (1926).
1190 1 Dec. Comp. Gen. 611 (1922).

m Cf. 5 Dec. Comp. Gen. 999 (1926).
122 4 Dec. Comp. Gen. 772 (1925).
m 3 Dec. Comp. Gen. 20 (1922).


the tenure of the latter. One comptroller suggested that a way out of the
situation was to ask for the resignation of the person who had exhausted
regular and sick leaves and was still compelled to be absent from work,
and then to make a new appointment on condition that it be subject to
revocation when the sick person returned to work. 124 Some doubt might
be raised concerning the legality of such an appointment, but perhaps it
is a serviceable device nevertheless.

It is often said that to be entitled to sick leave it is necessary actually
to be ill. From this it follows that one who is quarantined but who is
not ill himself has no claim to sick leave. This was held to be the rule
under a provision that "employees in the postal service shall be granted
. . . sick leave with pay at the rate of ten days a year to be cumula-
tive . . ," 125

A statute providing for disability payments provided also that "if at
the time the disability begins the employee has annual or sick leave to his
credit he may . . . use such leave until it is exhausted." If the disabled
employee is receiving benefits, he may not waive them in order to take
sick or annual leave and then return to his benefits, but if he has not re-
ceived benefits he may exhaust his sick or annual leave. 126

If the statute or administrative regulation does not impose any condi-
tion upon the time the sick leave is to be taken, it may be taken at any
time during the period for which it is to run. 127 If the head of the de-
partment is not restricted by the statute, he may grant sick leave retro-
actively, so that it can be made effective even though the employee died
while on an absence of a few days and had made no formal application
for it. 128

Leave of absence has been suggested as the proper method of com-
pensating a person who was forced to work a longer day than he should
have been. But if he asks for the additional overtime pay instead of ask-
ing for the leave, he gets neither. 129

An Ohio law provided that "with the consent of the civil service com-
mission, the appointing officer may grant leave of absence to a classified
employee for a period of not to exceed one year, and upon the expiration
of such leave of absence, such officer or employee shall be reinstated. All
such leaves of absence granted by appointing officers shall be referred to
the commission promptly for approval in order that the civil service
status of such absentee may be protected." Plaintiff, a classified servant,
was taken ill and granted a leave of absence for one year. The work in
the office became pressing, and plaintiff was notified as the end of the

m 23 Dec. of Comp. 438 (1917).

125 i Dec. Comp. Gen. 740 (1922). ^4 Dec. Comp. Gen. 5 (1924).

127 8 Dec. Comp. Gen. 283 (1928). 128 2 Dec. Comp. Gen. 701 (1923).

138 State ex rel. Mattice v. Seattle, 173 Wash. 42, 21 P. (2d) 288 (1933).


year approached that she must appear for work within ten days or the
leave would be revoked. Upon failure to appear, the plaintiff received a
notice of discharge. The court held that the civil service commission had
the power to revoke the leave and that a failure to appear for work in
accordance with the request constituted a resignation. 180 This decision
is rendered somewhat doubtful by virtue of a recital in the statute that
"absence from duty without leave for any time will be considered good
cause for dismissal, absence from duty without leave for ten consecutive
days shall be deemed a resignation . . . provided, however, that if at
any time within thirty days the person so absenting himself shall make
satisfactory explanation to the civil service commission of the cause of
absence, he may be reinstated." This seems to indicate that as long as the
one-year leave had not expired, the civil service commission was not en-
titled to revoke the leave. Once validly revoked, the ten-day period would
begin to run, of course, but the query is whether the failure of plaintiff
to appear came within the provision of the law that absence for that
period without leave applied here. This, of course, was really answered
by the decision on the question whether the leave could be revoked. This
places the person on leave in a hazardous position, although the admin-
istrative problem due to long leaves is also to be considered. However, it
is to be presumed that the administrators considered that when they
granted the leave.

When a person has been separated from the service because of illness,
he may be entitled to have his name placed upon a special list in accord-
ance with a statutory provision, or he may be reinstated "with the con-
sent of the commissioner upon good cause shown" if the appointing
officer wishes him to be so. If the statute is phrased in this way, the em-
ployee cannot obtain mandamus to compel his reinstatement, the matter
of reinstatement being discretionary. 131 But to be entitled to a place on
such a list and to the preference provided for, he must make the proper
demand before he resorts to the courts. 132

One of the problems occasionally encountered in connection with
leaves of absence is that presented by repeated requests each year for a
leave of absence for that year, the employee working only two or three
days each year so as to continue in his status as a member of the classified
service. It has been held to be within the legal discretion of the civil serv-
ice commission to determine that it is not a bona fide return to service
to return for purposes of leave. That the practice has been widespread in
the service does not alter the legal rule.

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