In our view, Supreme Court properly held that petitioner’s provisional appointment ripened into a permanent appointment. When the Department of Civil Service appointed petitioner to the supervising attorney position, such appointment could have been permanent, provisional or temporary. The Department chose to make the appointment provisional. Civil Service Law § 65 (2) places a nine-month time limit on a provisional appointment and requires that the appropriate examination be conducted so as to prevent such appointment from exceeding that time period. The provisional appointment must then be terminated within two months after an eligible list is created (Civil Service Law § 65 [3]). However, the mere *908passage of the nine-month period without an eligible list being created does not automatically convert a provisional appointment to a permanent one (Matter of Vazquez v New York City Dept. of Social Servs., 56 AD2d 432, 434, affd 44 NY2d 720). The statute also prohibits successive provisional appointments except where the eligible list produced is inadequate to fill all of the positions held by provisional appointees or where such list is immediately exhausted (Civil Service Law § 65 [4]).
It is apparent from a reading of this section that the appointment of a provisional employee is not to be "permanent” or "indefinite”, but a stopgap measure which contemplates the creation of an eligible list and, ultimately, a permanent appointment. The statute contains a safeguard for the provisional employee. Where, as discussed above, a successive provisional appointment is authorized because the eligible list is inadequate or immediately exhausted and a current provisional appointee is retained in his position, he must be afforded permanent status, if he becomes eligible for permanent appointment (Civil Service Law § 65 [4]). This provision has been strictly construed. Where a provisional appointee appears on the subsequently created eligible list along with other candidates, such that the list is not inadequate or exhausted, the statute does not confer permanent status on the provisional appointee (see, Matter of Becker v New York State Civ. Serv. Commit., 61 NY2d 252; Matter of Haynes v County of Chautauqua, 55 NY2d 814). However, where a provisional appointee appears on the eligible list and such list is inadequate, the statute causes the provisional status to ripen into permanent status (see, Matter of Roulett v Town of Hempstead Civ. Serv. Commn., 71 Misc 2d 477, affd 40 AD2d 611).
In the instant case, despite the passage of about 2Vi years between the provisional appointment of petitioner and the rescission of such appointment, no eligible list was ever created. In fact, the Department admits that it had no intention of holding an examination on September 23, 1982 or at anytime thereafter. If that was the Department’s intention, it could have given petitioner a "temporary” appointment in September 1982 (see, Civil Service Law § 64 [1] [a]). However, it did not; it gave him a "provisional” appointment, thus evincing an intent to comply with Civil Service Law § 65. Yet, the Department had no intention of holding an examination, thus violating both the letter and the spirit of the statute. The Department’s actions evaded the statutory mandates and effectively short-circuited the statutory protection for peti*909tioner which the Legislature intended to provide. On the facts of this case, the Department’s refusal to comply with the statute by not holding an examination or otherwise attempting to create an eligible list for such an extended period of time caused petitioner’s provisional appointment to ripen into a contingent permanent appointment. Accordingly, we would affirm Supreme Court’s judgment.