On May 17, 1932, each petitioner requested the respondent commissioner of civil service to place his name on a special list, with certain rights to precedence in regaining his former position, under Civil Service Rule 23, paragraph 2. The text of that rule appears in Fernandez v. Mayor of New Bedford, 269 Mass. 445, 446, and Dunn v. Commissioner of Civil Service, 279 Mass. 504, 507. That is a valid rule ( Dunn v. Commissioner of Civil Service, 279 Mass. 504, 508), and, like other civil service rules, has the force of law. Skold v. Chief of Fire Department of Cambridge, 266 Mass. 513, 515.
Although the element of time alone is not the decisive factor in determining "separation from service," this court has held that the absence from duty for three months due to illness constitutes such a "separation" of one protected by the civil service law. Dunn v. Commissioner of Civil Serv. 279 Mass. 504, 509-510. The actions of the parties themselves, since July, 1958, indicate that they conceived the dispute to be one of "reinstatement" of the plaintiff to a position from which he had been "separated."
See Ferrante v. Higgiston, 296 Mass. 208, 209-210. See also Dunn v. Commissioner of Civil Serv. 279 Mass. 504, 509-510; McKenney v. Dobbratz, 315 Mass. 39, 41; Rep. A.G., Pub. Doc. No. 12, 1960, p. 34. (d) In any event, it will be incumbent upon Chartrand, in order to obtain relief, to establish facts showing that at the time of filing this petition he was still entitled to be treated as an employee of the registry (and that he had not been transferred to some other State agency) and that the registrar was under a clear duty to reinstate him.
. . . The provision in regard to increasing or diminishing the pay manifestly refers to the salary which has been or may be established, and not to such reductions as may occur through fines or forfeitures established to preserve and promote the discipline and efficiency of the force." See 3 Op. Atty. Gen. 165, 167, et seq.; Dunn v. Commissioner of Civil Service, 279 Mass. 504, 509. There was no error in the denial of the plaintiff's requests for rulings. The evidence did not warrant a finding for the plaintiff.
Absence from duty due to bodily disability may in itself constitute separation from the public service. Dunn v. Commissioner of Civil Service, 279 Mass. 504, 509-510. See G.L. (Ter.
The statute, G.L. (Ter. Ed.) c. 31, ยง 42A, expressly gives a police officer the right to notice and a hearing before his office is abolished ( Dunn v. Commissioner of Civil Service, 279 Mass. 504, 509), and requires that such notice furnish him with the reasons for the contemplated abolition and requires, after the hearing, a written order signed by the board or officer holding the hearing stating fully and specifically the causes therefor. This statute applies to the "removal, suspension, transfer, lowering in rank or compensation, or abolition of office," and provides that the hearing shall be "before the officer or board having power of appointment and removal."
When, however, there has been a form of retirement which is "subsequently invalidated," and when the retirement allowance has been "discontinued by reason of the illegality of, or a defect in, the proceedings relative to such retirement," it may well occur that the person affected has in fact ceased to work and has broken off all connection with his office or employment and hence has "become separated from the classified civil service," and has therefore lost his right to a hearing and judicial review under the civil service laws without at the same time acquiring a legal pension. As to what may constitute separation from the service see Dunn v. Commissioner of Civil Service, 279 Mass. 504; Feehan v. Chief Engineer of Fire Department of Taunton, 264 Mass. 178; Skold v. Chief of Fire Department of Cambridge, 266 Mass. 513; Fernandez v. Mayor of New Bedford, 269 Mass. 445; Goldberg v. Commissioner of Civil Service, 274 Mass. 300; Smith v. Director of Department of Public Safety of Lawrence, 290 Mass. 307; Ferrante v. Higgiston, 296 Mass. 208; G.L. (Ter. Ed.) c. 31, ยงยง 46B-46G.
On the foregoing facts, a single justice ordered the writ to issue against Higgiston, and he alleged exceptions. In Dunn v. Commissioner of Civil Service, 279 Mass. 504, an officer who, under leave of absence, ceased to work for three months, was held "separated from the service without fault or delinquency on his part" within Rule 23, paragraph 2, of the Civil Service Rules, with the result that he had merely certain preferential rights to certification and a possibility of reinstatement. Reinstatement is not of right, but requires concurrent action of the appointing officer and the commissioner of civil service.
In its effects it is commonly the equivalent of removal. Dunn v. Commissioner of Civil Service, 279 Mass. 504, 510. On this record it appears that there has been no dismissal of Donovan, but only a suspension.