The discretionary power of civil service commissions to classify or grade positions may not be exercised in such a manner as to affect or alter any classification made or any compensation fixed by statute. ( Bressler v. Board of Higher Educ. of City of N.Y., 298 N.Y. 112; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N.Y. 357, 361; Matter of Kilcoyne v. Lohr, 226 App. Div. 218, affd. 252 N.Y. 526; Zuckerbrod v. Board of Higher Educ. of City of N.Y., 276 App. Div. 752, motion for leave to appeal denied 300 N.Y. 765.) Thus, for example, we have refused approval and sanction to civil service commission action which divided into grades with maximum annual compensation of $1,800, $2,400 and $3,000, a position for which a salary range of $1,500 to $3,000 was fixed pursuant to special statute.

The same reasoning would apply to the other skilled trades. The cases of Bressler v. Board of Higher Education of City of N.Y. ( 298 N.Y. 112) and Matter of Byrnes v. Windels ( 265 N.Y. 403) cited in the dissent did not involve a claim for prevailing rate of wages. In our opinion it would amount to an evasion of the civil service laws and section 220 Lab. of the Labor Law to permit the petitioners to obtain the benefit of the higher wages paid in the skilled trades (see Matter of Kerns v. Board of Education, 279 N.Y. 61; Labor Law, § 220).

When the personnel director in reclassifying a civil service job increases the salary which was provided for the said job prior to the said classification, it does not constitute a promotion for that employee who held the job for years prior to the reclassification to continue on the job at the increased rate of pay accorded the job in the said reclassification. Beggs v. Kern, 172 Misc. 556, 15 N.Y.S.2d 342; Cook v. Kern, 278 N.Y. 195, 15 N.E.2d 575; Kinsella v. Kern, 168 Misc. 847, 6 N.Y.S.2d 854; Sugden v. Partridge, 174 N.Y. 87, 66 N.E. 655; Brennen v. Kern, Commissioners, 173 Misc. 388, 17 N.Y.S. 936; Beggs v. Kern, 284 N.Y. 504, 32 N.E.2d 529; Bressler v. Bd. of Higher Education, 298 N.Y. 112, 81 N.E.2d 43. W. Gerald Stone, Bessemer, for appellees.

The present incumbent was validly classified into the noncompetitive class and, therefore, is entitled to retain the position. (See Matter of Cook v. Kern, 278 N.Y. 195; Bressler v. Board of Higher Educ. of City of N.Y., 298 N.Y. 112.) No opinion. Concur: Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL.

Both maintenance men and skilled craftsmen hold competitive positions in the city's civil service. We indicated clearly in Bressler v. Board of Higher Educ. of City of N.Y. ( 298 N.Y. 112, 116-117) that a civil service employee performing the tasks of a higher competitive class could not procure an appointment to that class without examination and appointment. The same considerations obtain here.

Section 2569 (subd 1, par a) and section 2590-j (subd 3, par [a], cl [1]; par [b], cl [1]) of the Education Law, which place teaching positions in the open competitive category and require the respondent board of examiners to prepare and administer objective examinations and eligibility lists for licensing and appointment of teachers, reflect the legislative determination that in the field of education, appointment of teachers by competitive examination is practicable. Respondents were at best entitled to make temporary appointments pending the promulgation of eligibility lists compiled from the results of the appropriate examination (see Matter of Council of Supervisory Assns. of Public Schools of N Y City v Board of Educ., 23 N.Y.2d 458) and notwithstanding representations of the board of education to the contrary, absent competitive examination, licenses could not be validly issued (see Bressler v Board of Higher Educ., 298 N.Y. 112, 116-117; Matter of Board of Educ. v Nyquist, 31 N.Y.2d 468, 472-473). Amico v Erie County Legislature ( 36 A.D.2d 415), cited by Special Term, is distinguishable, for in that case the employees had been validly appointed to noncompetitive positions prior to reclassification.

The cases cited by the plaintiffs do not require a contrary view. In Bressler v. Board of Higher Educ. ( 298 N.Y. 112) the plaintiffs were incumbent employees and the only issue — which required no exercise of discretion — was the amount of salary payable to the plaintiffs in view of the duties they performed. In Steinson v. Board of Educ. ( 165 N.Y. 431) although a discharged employee was held entitled to recover in an action at law for back pay, it is clear from the recital of the facts in the opinion of the Appellate Division ( 49 App. Div. 143, 148) that plaintiff's right to his position had been previously recognized by the State Superintendent of Schools.