Dissenting Opinion by
Hoffman, J.:Judge Montgomery has ably detailed the factual situation involved in this case. He has concluded— correctly in my opinion — that the Philadelphia Home Rule Charter (Charter) does not give the Personnel Director the power to dismiss a City employee and that all dismissal powers are thereby reserved to the appointing authority.
Having reached this conclusion, Judge Montgomery then determines that the question of who actually dismissed appellee Schwartz, or whether Schwartz was in fact fired, is academic in light of Section 7-302(2) of the Charter. This section provides as follows: “No of*256ficer or employee of the Auditing Department shall make or approve or take any part in making or approving any payment for personal services to any person holding a position in the civil service if the Personnel Director has given notice to the City Controller that such person was not appointed and employed in accordance with the civil service regulations.” (Emphasis added).
The majority concludes that this Section gives the Personnel Director power to inquire into the fitness of City employees for employment even after appointxnent. If such inquiry reveals that the employee did not comply with civil service regulations when he was “appointed and employed”, the Personnel Director must so inform the City Controller and such employee will not be paid. I believe that this is a correct interpretation of the Charter, as long as the inquixw made by the Personnel Director is directed to an employee’s fitness for the job. in which he is employed. In this case, however, the Personnel Director invoked Section 7-302(2) as the reason for dismissing Schwartz from the position he held before he took the test on which he allegedly cheated. As was summarized in the majority opinion, Schwartz was employed as a Property Assessment Aid (Real). He took the civil service examination for promotion to the position of Real Property Assessor I, but he was never employed in that capacity. The closest he came to such employment was to be placed on the list of eligible persons awaiting promotion to Real Property Assessor I.
If Schwartz had been guilty of any violation of civil service regulations that in any manner related to his employment as a Property Assessxnent Aid (Real), the Personnel Director would have been justified in invoking Section 7-302(2) and ordering that appellee xiot be paid. No such act has been alleged. In fact, no chai*257lenge has ever been made to Schwartz’s qualifications for the position of Property Assessment Aid (Real). Nowhere has any assertion been advanced that there was any irregularity in Schwartz’s appointment or employment as a Property Assessment Aid (Real). Further, neither the City Solicitor nor counsel for appellee relied on Section 7-302(2) as controlling or relevant to the issues presented on this appeal. I thus believe that Section 7-302(2) does not apply to the situation presented for decision here.
The majority’s reasoning results in an anomalous situation: Schwartz is employed by the City, full time, as a Property Assessment Aid (Real). He may not be dismissed, yet he cannot be paid. I believe that such a result was never contemplated by the draftsmen of the Charter, nor was this contemplated byr the Personnel Director in his letter to appellee dated March 3, 1966.1
As the majority recognizes, the civil service system established by the Charter gives the power to appoint *258and dismiss employees to the various sections of the City government (appointing authorities). Though the appointing authorities may appoint and dismiss, the power to determine the qualifications of candidates is reserved to the Personnel Director. The Charter allows him to reject candidates who do not comply with civil service regulations. Section 7.-401 (g). The Personnel Director thus could have found that Schwartz cheated on the civil service test and was therefore not qualified to be hired as a Real Property Assessor I. In addition, if Schwartz had been hired as a Real Property Assessor I and if the Personnel Director had determined that Schwartz cheated on the examination, the Personnel Director is given the power under Section 7-302(2) to stop payment of Schwartz’s salary. In that case, he would not have been “appointed and employed” in accordance with civil service regulations.2
The majority explicitly holds that the Personnel Director cannot dismiss an employee because this power is reserved to the appointing authority. The record reveals that the Board of Revision of Taxes, Schwartz’s appointing authority, investigated the charges against Schwartz, found that they had no merit and refused to dismiss him. If Schwartz cheated on the civil service test, the Charter provides that only his appointing authority has the power to dismiss him. I can see no basis for allowing the Personnel Director to do indirectly what he cannot do directly. There is no indica*259tion in the Charter that the Personnel Director may use his Section 7-302(2) power when an employee is guilty of an act which would allow his appointing authority to dismiss him for just cause. Of., Section 7-303.
This does not imply that the Personnel Director has no recourse in the event that he determines an employee has violated civil service regulations and should be dismissed. In the first instance, the Personnel Director should consult the appointing authority. If the appointing authority will not act, the Charter clearly provides a remedy. Section 10-108 sets forth unlawful acts pertaining to the civil service, which include cheating on civil service examinations.3 Section 10-109 provides that a violation of Section 10-108 “shall be a mis - demeanor, punishable by a fine of not more than three hundred dollars or by imprisonment for not more than ninety days, or both, and if the violator is an officer of employee of the City, by removal from office or immediate dismissal.”
Thus, if the Personnel Director finds that an employee has violated a civil service regulation in a way that comes within the prohibitions of Section 30-108, he has the power to direct the City Solicitor to bring a criminal complaint and secure an employee’s dismissal in that manner. See, Section 7-302(1).
*260Therefore, I agree with the majority that the Personnel Director had no power to dismiss appellee Schwartz. However, I must dissent from the majority’s holding that Section 7-302(2) gives the Personnel Director the power to cut off appellee’s pay in the situation presented here.
I would therefore affirm the decision of the lower court ordering appellee’s reinstatement.
Jacobs, J., joins in this dissenting opinion.It seems clear that the Personnel Director was attempting to dismiss Schwartz. In his letter of March 3, 1966, the Director informed appellee that appellee’s discharge was being ordered “in accordance with Sections 9.1611 and 9.1621 of the Civil Service Regulations.” The letter from the Personnel Director and the sections of the Civil Service Regulations just mentioned are printed in full in the majority opinion.
Since the Sections of the Civil Service Regulations (specifically 9.1621) provide for dismissal by the Personnel Director, they are obviously invalid under the majority’s holding that the Charter does not grant to the Personnel Director the power to dismiss an employee.
Though the Personnel Director did invoke Section 7-302(2) to stop approval of pay vouchers for appellee’s services, it is clear from the letter that this was done as part of the Personnel Director’s attempt to dismiss appellee under Civil Service Regulation Section 9.1621. There is no indication that the Personnel Director contemplated a situation where appellee was a full-time employee, but would not be entitled to pay.
The Annotation to Section 7-302(2) sets forth the reason for the inclusion of this provision in the Charter.
“2. Non-payment of salaries to employees subject to civil service but not appointed and not employed in accordance with civil service regulations is one of the most effective means for enforcing the civil service provisions of this Charter and the civil service regulations. Officers and employees of the Auditing Department are therefore enjoined from approving payment of salaries to such persons upon notice from the Personnel Director.”
The relevant parts of Section 10-108 provide as follows:
“(1) No person shall make any false statement, certificate, mark, rating or report with regard to any test, certification or appointment made under the civil service regulations or in any manner commit or attempt to commit any fraud preventing the impartial execution of such regulations.
“(4) Any person who violates any of the provisions of this section shall upon conviction, in addition to any penalties and punishment provided for hereafter, for a period of five years be ineligible for appointment to or employment in any position under the City.” Clearly, the word “conviction” refers to a misdemeanor conviction pursuant to Section 10-109, infra.