In 1921 the petitioners were teacher clerks in elementary schools, duly licensed and appointed. That year they were transferred to continuation schools. They had been serving in the public schools, and, upon the establishment of the continuation school, they were shifted. The continuation schools were not classified either as primary or secondary schools. The petitioners thus assigned and transferred as teacher clerks to the continuation schools, continued until the present day, doing the same work in the same occupation and in the same position, and when thereafter and in October 21, 1927, the Commissioner of Education issued a ruling to the effect that continuation schools were to be deemed secondary schools and as of the same *Page 67 grade as high schools, there was no change whatever made in the work or the position of these petitioners.
The reality which faces us in this case is this fact — the petitioners have never ceased to do the same work as they did when they were transferred to continuation schools in 1921. Whatever change has come about has merely been on paper and in titles, and not in the positions or the nature of the work. With the change made in 1927, by classifying the continuation schools as secondary schools, a change was made in the name of the position held by these petitioners, and they were thereafter called "clerical assistant." Thereafter these petitioners were addressed as "clerical assistant." They made out their reports on blanks furnished by the Board of Education, naming them "clerical assistant," and from 1927 to the present day — eleven years — the Board of Education has kept them in their positions doing the same work, and paid them with public moneys.
It is now claimed in behalf of the Board of Education, if not by that body, that since 1927 there have been no "teacher clerks" in the continuation schools and that these petitioners have therefore been serving illegally. We cannot escape the conclusion that if "clerical assistants" only were provided for continuation schools, and their appointment could only be taken from civil service lists for "clerical assistant," then these petitioners have been illegally continued and illegally paid, all in violation of the Civil Service Law, for it is axiomatic that one cannot be employed in a position which must be filled from a civil service list; and a certification monthly to get the salary of the place is contrary to law if such person has not been taken from the list. We and the Board of Education cannot escape this situation.
The fact is, the Board did just what it should have done, in all fairness and justice. It re-graded the continuation schools, making them high schools, but it in no way changed the positions of these petitioners. Why *Page 68 should the Board make any change? They were competent; they had been doing the work for over six years, and the Board continued them in the same place, doing the same work, and merely changed the name of the position from "teacher clerk" to "clerical assistant." In fact thereafter, as I have already stated, in all official reports, they were designated "clerical assistants." While the Board for the future appointments created a list by examinations for appointments thereafter to be made to clerical assistant positions, it did not require these petitioners to take any written examination for such a place, but held a qualifying examination, which has been recognized in the law both by us and by the Legislature as required in all fairness when changes have been made in the civil service alignments. This we said could be done regarding clerks in courts (Matter of Sandford v.Finegan, 276 N.Y. 70), also regarding the State troopers (Matter of Andresen v. Rice, 277 N.Y. 271). When we decided that the civil service applied to State troopers, we said regarding the old and tried employees: "This decision does not affect or disturb the officers in the positions they are now holding, as time must be given to the Superintendent to carry out the purposes of the Civil Service Law, as we have expressed it, without disrupting and disorganizing his staff. At such time and under such rules and regulations as he may adopt pursuant to this Executive Law, he can and will provide for examinations, giving due regard to experience and service in his ratings. (See Matterof Kraus v. Singstad, 275 N.Y. 302, 310.)" (p. 282.)
The Board of Education apparently complied with this law, giving to these petitioners a qualified examination and continuing them in their positions. We have recognized this as the only fair and reasonable thing to do and, to have turned these teacher clerks out and appointed others to do exactly the same work simply because the name of the position was changed, would not only have *Page 69 shocked our sense of fair play but would be contrary to the very spirit and purpose of the Civil Service Law. Employees in the civil service of the State are to be protected by the Civil Service Law, and not trapped or tricked into removals through mere readjustment in names and grade. The record in this case shows that application has been made to the Commissioner of Education to declare these petitioners interlopers and to have them removed from the positions and work they are doing; in other words, to have it determined that for the past eleven years the Board of Education has proceeded illegally. Neither sense nor law leads to such a conclusion.
The application of these petitioners should be granted in so far as to require the Board of Education to designate them "clerical assistant," and to pay them accordingly from the date of this application. The back pay they are not entitled to, as they have waived their right to it.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur with FINCH, J.; CRANE, Ch. J., dissents in opinion.
Order affirmed. (See 279 N.Y. 794.) *Page 70