Opinion
No. 27525
Decided July 5, 1939.
Civil service — Provisional appointment, after non-co mpetitive examination, in absence of eligible list — Appointee in classified service and may not be summarily removed — Sections 486-8(b), 486-14 and 486-17a, General Code.
IN MANDAMUS.
This is an action in mandamus, originating in this court, wherein the relator seeks a writ commanding the respondent, as Director of the Department of Liquor Control of the state of Ohio, to reinstate and restore him to his position and employment as a liquor store clerk in such department and to certify such restoration to the Civil Service Commission of Ohio.
The petition alleges that relator was appointed to his position on September 3, 1936, after taking the non-competitive examination for provisional appointment as a liquor store clerk; that such appointment was approved by the State Civil Service Commission; that he entered upon and performed the duties of his employment; that at no time involved has there been an eligible list in existence for such position; that on March 1, 1939, he received a written communication from the respondent, advising him that his services would be terminated at the close of business on March 7, 1939, and that another was thereafter appointed to the position of liquor store clerk occupied by the relator and has been performing the same duties as did the relator.
Submission of the case is upon a general demurrer to the petition.
Messrs. Phillips Falsgraf, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. John P. Walsh, for respondent.
Upon examination of the pertinent statutes of Ohio relating to civil service, a majority of the court is of the opinion that one receiving a provisional appointment under Section 486-14, General Code, in the absence of an eligible list, becomes an appointee in the classified service within the contemplation of Section 486-8 ( b), General Code, entitled to retain his position during good behavior and efficient service, until the establishment of an eligible list, or until his services are terminated by arriving at the mandatory retirement age, or until the abolishment of the position, or a lay-off.
Being in the classified service, he may not be summarily dismissed; his removal is governed by Section 486-17 a, General Code.
The demurrer to the petition is overruled and, it being agreed that such determination is dispositive of the case, the writ is allowed.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.