The petitioner held a position, that of a school mechanic in the civil service of the State. The basic question is whether the position was held by petitioner legally or whether because of absence of compliance with constitutional and *535statutory provisions the position was held only de facto. According to the prevailing opinion the petitioner held his position legally. It is my view that the position was held only de facto.
The civil service provision of the State Constitution, article V, section 6, is all-embracing and self-executing. (People ex rel. McClelland v. Roberts, 148 N. Y. 360.)
Petitioner’s position was unquestionably in the classified service and in the competitive class. (Civil Service Law, §§ 2, 9, 14.) The Civil Service Commission has not attempted to place the position in the non-competitive class. It can scarcely be questioned that merit and fitness as qualifications for such a position are capable of ascertainment by examination.
If the petitioner’s appointment was not in accordance with the constitutional provision he was not legally occupying his position, and so far as the Civil Service Law is concerned, was subject to removal at will. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Matter of Walsh v. Patterson, 239 App. Div. 757.) Although the petitioner held the position for almost a dozen years, it appears that he was appointed without examination. The words of the Constitution are explicit. “Appointments and promotions in the civil service * * * shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which so far as practicable, shall be competitive.”
In the prevailing opinion it seems to be stated that appointments may be made legally without merit and fitness being ascertained by examination, if the examining body finds it impracticable to hold such examinations. I do not so read the Constitution. I take it that the words “ so far as practicable ” relate to the practicability of ascertaining merit and fitness for the position by examination and in no way to the convenience of those holding examinations. I find nothing in People ex rel. Sweet v. Lyman (157 N. Y. 368) to support the view that examinations may be dispensed with as a prerequisite to appointment at the will of the examining officials, if such officials state that they find it impracticable to give such examinations. The Constitution does recognize that cases will occur where merit and fitness for a position are not ascertainable by examinations, in which cases examinations may be dispensed with. (People ex rel. Schelpp v. Knox, 48 App. Div. 477; People ex rel. Leary v. Knox, 166 N. Y. 444.) A statutory provision for a probationary period in addition to an examination as a means for ascertaining merit and fitness is recognized as within the constitutional provision. (People ex rel. Sweet v. Lyman, supra.) The constitutional provision, however, may not be set aside by the Civil Service Commission by a mere statement of *536impracticability of giving examinations in a single instance or in a great department. Even where the Civil Service Commission by an order puts a position in the exempt class so that it may be filled without competitive examination, the Commission’s action is subject to judicial review. (Matter of Keymer, 148 N. Y. 219; Chittenden v. Wurster, 152 id. 345; People ex rel. Schau v. McWilliams, 185 id. 92.) The petitioner, therefore, in my opinion, not having been appointed after proving his qualifications as to merit and fitness by examination, occupied his position as a de facto rather than a de jure employee of the State.
The petitioner founds his claim to reinstatement upon section 872, subdivision 2-a, of the Education Law which is quoted in the opinion of the court. I am in agreement with what seems to be the opinion of the majority that this section is applicable only to persons holding their positions legally. (People ex rel. Hannan v. Board of Health, supra.) The section refers to appointments for a probationary period provided in the Civil Service Law and affords to persons holding the positions there specified an immunity from discharge except for cause and after a hearing. The petitioner is not entitled to the protection of this particular enactment because of his failure to establish a legal right to his position under the provisions of the Constitution and the Civil Service Law.
The order of alternative mandamus should be reversed on the law, with costs, and the petition dismissed.
Thompson, J., concurs.
Order affirmed, with costs.