Since the Black, Spanish and female applicants were given preference purely on the basis of skin color, gender and ethnic heritage, I agree that their appointments were improperly made.
While I concur with Justice Kane that the resolution of the constitutional issue is despositive, I feel that additional comment with respect to examination content and selection of eligibles is necessary for future guidance in this developing area of the law.
Dictum in Matter of Council of Supervisory Assns. of Public Schools of N. Y. City v Board of Educ. (23 NY2d 458, 467) indicates that even where minority-related qualifications* (such as "experience with the race problem in relation to education”) are clearly pertinent to a particular job, it would nevertheless be illegal to make appointments from the certified list directly on the basis of race. Rather, objective criteria must be incorporated into the civil service examination to test for minority-related qualifications. Of course, skin color and gender would be entirely objective criteria. But, absent a showing that color or gender in themselves would enhance fitness for the job, the Court of Appeals implied that a test directly gauging color or gender would be unconstitutional (id., at p 467).
In the case at bar, the Division of State Police has not shown that cultural or social experience with minorities would aid troopers in their duties. Certainly, the law is not to be *377enforced differently depending upon the subject’s race or gender.
Matter of Maye v Lindsay (69 Misc 2d 276, revd 41 AD2d 127, revd on opn at Special Term 33 NY2d 552, cert den 414 US 1069) is instructive on this point. There, the court stated (69 Misc 2d, at p 285): "[T]he various civil service commissions of the State have power to define jobs and to state and test for the requirements for the jobs. But they cannot decide that what they wish to do is to give employment to particular persons or particular groups, and ñt the requirements for the jobs to those groups. ” (Emphasis added.)
Aside from the question of whether the selection of State troopers could legally be made by giving consideration to race or gender, all the appointments challenged in the case at bar must fall. The race and sex criteria were added after the test was administered and after the Civil Service Commission had certified the eligible list to the Division of State Police. This ex post facto change in hiring criteria is entirely at odds with the purpose of the civil service system, and has been specifically declared illegal in an instance where Spanish-speaking applicants for Suffolk County Police Officer were given preference after an eligible list (established by an examination with no Spanish language test) had already been certified.
"[A]n attempt to impose other and further qualifications, not listed in the examination notice, after the certification of the list of eligibles is palpably improper and is not to be condoned (see Matter of Williams v. Kennedy, 1 Misc 2d 804, 806, affd. 5 AD 2d 826).” (Matter of Roske v Keyes, 46 AD2d 366, 369.)
This ex post facto aspect is particularly pertinent to the preference given to the female applicants. Even assuming that State trooper is the sort of position which subdivision 2 of section 60 of the Civil Service Law would allow to be filled on the basis of sex, improper procedure was followed herein. The statute authorizes the Civil Service Department to certify an all-female or all-male list of eligibles to the hiring authority in certain cases. The authority would then make appointments from the list in the orderly manner prescribed by section 61 of the Civil Service Law. Here, a sexually mixed list was certified, and the hiring authority unilaterally decided to give an arbitrary number of females preference.
If this procedural irregularity is overlooked, there is still the question whether subidivion 2 of section 60 applies to the *378position of State trooper. The only case on point is Matter of Button v Rockfeller (76 Misc 2d 701), in which the court held that the Division of State Police is authorized by this provision to give preference to female applicants for trooper. The court did not address the point, present in that case as in this, that the Civil Service Commission certified a mixed list upon which the Division of State Police unilaterally imposed a sex criterion.
The interpretation of subdivision 2 made in Button would lead to unacceptable results. The statute should be interpreted to permit the Civil Service Commission to certify an all-male or all-female list when the need for a certain number of personnel of one sex or the other is established. This would prevent the hiring authority from preferring an arbitrary number of male or female candidates. If the Division of State Police believes that a certain number of females is needed for undercover or other work in which sex is a bona fide occupational qualification, it can establish a separate job classification for such duties. This view of the statute is supported by the phrase: "[The Civil Service Commission] may limit certification from an eligible list to one sex.” (Civil Service Law, § 60, subd 2.) Only by certifying a sexually homogeneous list to fill a discrete number of positions can the purpose of the merit and fitness provision of the State Constitution be fulfilled.
A "minority-related qualification” would be a bona fide occupational qualification which happens to be possessed in higher proportion in one race (or gender) than in the population at large.