243 - Provisions applicable to public employees who are absent on military duty.

§ 243. Provisions  applicable  to  public  employees who are absent on  military duty. 1. Definitions. As used in this section:    (a) The term "public employee"  shall  mean  an  officer  or  employee  holding a position by appointment or employment in the state of New York  or in the cities, counties, towns, villages or school districts thereof,  or  in  any  other  political  or  civil  division  of the state or of a  municipality, or in any public or special district, or in the service of  any public authority, public benefit corporation, commission  or  board,  or in any other branch of the public service.    (b)  The  term  "military  duty"  shall  mean  military service in the  military, naval,  aviation  or  marine  service  of  the  United  States  subsequent  to  July first, nineteen hundred forty, or service under the  selective training and service act of nineteen  hundred  forty,  or  the  national guard and reserve officers mobilization act of nineteen hundred  forty, or any other act of congress supplementary or amendatory thereto,  or any similar act of congress hereafter enacted and irrespective of the  fact that such service was entered upon following a voluntary enlistment  therefor or was required under one of the foregoing acts of congress, or  service  with  the United States public health service as a commissioned  officer, or service with the American Red Cross  while  with  the  armed  forces  of  the  United  States  on foreign service, or service with the  special services section of the armed forces of  the  United  States  on  foreign  service,  or service in the merchant marine which shall consist  of service as an officer or member of the crew on or in connection  with  a  vessel  documented  under  the  laws of the United States or a vessel  owned by, chartered to, or operated by or for the account or use of  the  government  of  the United States, or service by one who was employed by  the War Shipping Administration or Office of Defense  Transportation  or  their  agents as a merchant seaman documented by the United States Coast  Guard or Department of Commerce, or as a civil servant employed  by  the  United  States  Army Transport Service (later redesignated as the United  States  Army  Transportation  Corps,  Water  Division)  or   the   Naval  Transportation  Service;  and who served satisfactorily as a crew member  during the period of armed conflict, December seventh, nineteen  hundred  forty-one,  to  August  fifteenth,  nineteen  hundred forty-five, aboard  merchant  vessels  in  oceangoing,  i.e.,  foreign,   intercoastal,   or  coastwise  service  as such terms are defined under federal law (46 USCA  10301 & 10501) and further to include "near foreign" voyages between the  United States and Canada, Mexico, or the West Indies via  ocean  routes,  or  public  vessels  in oceangoing service or foreign waters and who has  received a Certificate of Release or Discharge from Active  Duty  and  a  discharge  certificate,  or  an  Honorable Service Certificate/Report of  Casualty, from the Department of Defense, or  who  served  as  a  United  States  civilian  employed  by  the  American  Field  Service and served  overseas under United States Armies and United  States  Army  Groups  in  world  war  II  during  the  period of armed conflict, December seventh,  nineteen  hundred  forty-one  through  May  eighth,   nineteen   hundred  forty-five, and who was discharged or released therefrom under honorable  conditions,  or  who  served as a United States civilian Flight Crew and  Aviation Ground Support Employee of Pan American World Airways or one of  its subsidiaries or its affiliates and served overseas as  a  result  of  Pan  American's  contract  with  Air  Transport  Command  or  Naval  Air  Transport  Service  during  the  period  of  armed  conflict,   December  fourteenth,   nineteen  hundred  forty-one  through  August  fourteenth,  nineteen  hundred  forty-five,  and  who  was  discharged  or   released  therefrom  under  honorable  conditions;  or  service  in police duty on  behalf of the United States government in a  foreign  country,  if  such  person  is  a police officer, as defined by section 1.20 of the criminalprocedure law, and if such police officer obtained the prior consent  of  his  or her public employer to absent himself or herself from his or her  position to engage in the performance of such service; or as an enrollee  in the United States maritime service on active duty and, to such extent  as  may  be  prescribed  by  or under the laws of the United States, any  period awaiting assignment to such service and any period  of  education  or  training  for  such  service  in any school or institution under the  jurisdiction of the United States  government,  but  shall  not  include  temporary   and  intermittent  gratuitous  service  in  any  reserve  or  auxiliary force. It shall  include  time  spent  in  reporting  for  and  returning  from  military  duty and shall be deemed to commence when the  public employee leaves his position and to end when he is reinstated  to  his  position,  provided  such reinstatement is within ninety days after  the   termination   of   military   duty,   as   hereinafter    defined.  Notwithstanding  the  foregoing  provisions  of this paragraph, the term  "military duty" shall not include any of the foregoing services  entered  upon voluntarily on or after January first, nineteen hundred forty-seven  and  before  June twenty-fifth, nineteen hundred fifty; and, on or after  July first, nineteen hundred seventy, the term "military duty" shall not  include any voluntary service in excess of four  years  performed  after  that  date,  or  the  total  of  any  voluntary  services, additional or  otherwise, in excess of four years performed after that date, shall  not  exceed  five  years,  if  the  service in excess of four years is at the  request and for the convenience of the  federal  government,  except  if  such  voluntary service is performed during a period of war, or national  emergency declared by the president.    (c) The term "termination of military duty" shall mean the date  of  a  certificate  of  honorable  discharge  or a certificate of completion of  training and service as set forth in the selective training and  service  act  of  nineteen  hundred  forty,  and  the  national guard and reserve  officers mobilization act of nineteen hundred forty or, in the event  of  the  incurrence  of  a  temporary  disability  arising out of and in the  course  of  such  military  duty,  the  date  of  termination  of   such  disability.  The existence and termination of such temporary disability,  in the case of a public employee occupying a position in the  classified  civil  service or of a person on an eligible list for a position in such  service, shall be determined by  the  civil  service  commission  having  jurisdiction  over  such  position and, in the case of a public employee  occupying a position not in  the  classified  civil  service,  shall  be  determined by the officer or body having the power of appointment.    (d)  The  term  "position" shall mean the office or position held by a  public employee at the time of his entrance upon military duty.    2. Leave of absence and re-employment. (a) Every public employee shall  be entitled to absent himself or herself from his or her position  while  engaged  in  the  performance  of military duty, except for those police  officers who are required by paragraph (b) of subdivision  one  of  this  section  to  obtain  the  prior consent of their public employers before  absenting themselves from their  positions  for  military  service,  who  accordingly  shall be entitled to absent themselves from their positions  only after obtaining such prior consent, and shall be deemed to  have  a  leave  of  absence  for  the duration of such military duty. Such public  employee shall be  reinstated  to  his  position  as  soon  as  possible  provided  he makes application for such reinstatement within ninety days  after the termination of his military duty, or at any  time  during  his  terminal  leave.  Thereafter, he may be so reinstated, at any time after  such ninety-day period and within one year after the termination of  his  military duty, in the discretion of the appointing officer or body.(b)  A  public  employee  who  resigned  from  his position during his  military duty, or within six months prior to the  commencement  of  such  military duty, may, in the discretion of the appointing officer or body,  be  reinstated  to  his  position  within one year after the date of his  resignation,  excluding  from  said  period  the time he was on military  duty. Every public employee reinstated  under  the  provisions  of  this  subdivision  or  pursuant  to  subdivision  one-a of rule sixteen of the  rules for the classified civil service for the state or pursuant to  any  comparable rule of a municipal civil service commission, shall be deemed  to  have  been  on  a  leave of absence for the duration of his military  duty.    3. Substitutes. A position held by a public employee who is absent  on  military  duty  shall,  so far as practicable, be continued in existence  but shall be deemed temporarily vacant and shall be filled only when the  public interest so requires. Any appointment to fill such vacancy  shall  be   designated   as  a  substitute  appointment  and  the  request  for  certification, the certification and the indicia  of  appointment  shall  show  that  the  person  is  being appointed as a substitute. Any public  employee, who accepts appointment as a substitute  shall  be  granted  a  leave  of absence from his former position until the termination of such  appointment and the temporary  vacancy  resulting  from  such  leave  of  absence  shall be filled in like manner only when the public interest so  requires and any appointment to such position shall also  be  designated  as  a  substitute  appointment  and  the  request for certification, the  certification and the indicia of appointment shall show that the  person  is  being  appointed  to  such  position  as  a  substitute.  Every such  substitute appointment shall be for a period not exceeding the leave  of  absence of the former incumbent and shall be made in accordance with the  provisions  of  law applicable to such position, provided, however, that  such substitute appointment may be continued for a period in  excess  of  one year, notwithstanding the provisions of section fifteen of the civil  service  law.  Such  substitute  employee  shall  acquire  no  right  to  permanent appointment or tenure by virtue of his service as a substitute  and such service may be terminated at any time in the discretion of  the  appointing  officer  or  body.  His  rights,  if  any,  with  respect to  appointment or tenure, shall not, however, be impaired in any way by his  acceptance of an appointment as a substitute and his name  shall  remain  on  any eligible or other list and he shall be certified as eligible for  any other appointment authorized by law during  the  existence  of  such  list.    The appointment of a substitute shall terminate (a) upon the return of  the  former incumbent to his position or (b) upon the death or permanent  total disability of the former incumbent or  (c)  upon  failure  of  the  former incumbent to return to said position within ninety days after the  termination  of  his  military  duty  or  (d)  upon  the  appointment or  promotion of the former incumbent to another position as  authorized  by  subdivision  six of this section, and, upon the happening of any of such  events, said position may then be filled in the manner provided by law.    4. Pensions. Any public employee who is a member  of  any  pension  or  retirement  system  may  elect, while on military duty, to contribute to  such pension or  retirement  system  the  amount  which  he  would  have  contributed  had  his  employment  been  continuous and upon making such  contribution he shall have the same rights in respect to  membership  in  the  retirement  system  as he would have had if he had been present and  continuously engaged in the performance of the duties of his position.    Time during which a member  is  absent  on  military  duty  shall  not  constitute an interruption of continuous employment, but such time shall  not  be  counted  or included in determining the length of total serviceunless such member contributes to the retirement system  the  amount  he  would  have  been  required  to  contribute  if he had been continuously  employed during such period. Such contribution, or any part thereof, may  be  paid  at  any time and from time to time, while in military duty, or  within five years after the date of his restoration to his  position  or  before December thirty-first, nineteen hundred sixty-two, whichever date  is  later,  or in the event of the death of the member while in military  duty such contribution, or any part thereof, may be paid  by  the  named  beneficiary  or  the  legal representative of the member's estate within  one year following proof of such death. A member of the New  York  state  employees'  retirement  system  or of the New York state policemen's and  firemen's retirement system, other than a member of the state police  in  a  collective  negotiating unit established pursuant to article fourteen  of the civil service law, who is in the employ of  the  state  on  March  thirty-first,   nineteen  hundred  seventy,  who  failed  to  make  such  contributions during the  prescribed  period  of  time  may  nonetheless  obtain  credit  for  time  during  which  he  was  on  military  duty by  depositing  with  such  retirement  system  an  amount  equal   to   the  contribution  he  would  have  made  had he made a timely election, with  regular interest, on or  before  March  thirty-first,  nineteen  hundred  seventy-two,  provided,  however,  such member may elect to deposit such  amount over a period of time no greater than the period for which credit  is being claimed, in which case such payments  must  commence  no  later  than  March  thirty-first,  nineteen  hundred  seventy-two.  If the full  amount of such payments is not paid to the retirement system, the amount  of service credited shall be proportional to the  total  amount  of  the  payments  made. A member of the New York state policemen's and firemen's  retirement system who is a member of the state police  in  a  collective  negotiating  unit  established pursuant to article fourteen of the civil  service law, who is in the employ of the state  on  March  thirty-first,  nineteen  hundred  seventy-one,  who  failed  to make such contributions  during the prescribed period of time may nonetheless obtain  credit  for  time  during  which  he  was  on  military  duty by depositing with such  retirement system an amount equal to the contribution he would have made  had he made a timely election, with regular interest, on or before March  thirty-first, nineteen  hundred  seventy-two,  provided,  however,  such  member may elect to deposit such amount over a period of time no greater  than  the  period  for which credit is being claimed, in which case such  payments must  commence  no  later  than  March  thirty-first,  nineteen  hundred  seventy-two. If the full amount of such payments is not paid to  the  retirement  system,  the  amount  of  service  credited  shall   be  proportional to the total amount of the payments made.    A  member  of  the  New  York state teachers' retirement system, whose  service terminates on the expiration of his contract, and for whom there  is no employer to cover the cost of his accruing pension rights while in  military service following the cessation of his  contract,  may  pay  in  addition  to his own contributions, an amount equal to the percentage of  his salary which his employer would have  paid  had  he  remained  under  contract,   which   contributions   shall   be  paid  into  the  pension  accumulation fund of the aforementioned retirement system and be treated  as if they had been continued by his employer except that in  the  event  of his death as a member prior to retirement or on his withdrawal of his  accumulated  contributions  from  the system, the amounts so paid by him  shall be returnable, with regular interest, as if they were  a  part  of  his  accumulated  contributions. Such contributions or any parts thereof  may be paid at any time and from time to time while in military duty  or  within  five  years  after  the  member  has  returned  to public schoolteaching in New York state or  before  December  thirty-first,  nineteen  hundred sixty-two, whichever date is later.    Any  such  member,  while on military duty, or his beneficiary, as the  case may be, shall be entitled to all benefits of the retirement  system  of  which  he  is  a  member except accidental disability retirement and  accidental death benefit.    Any public employee holding a position by appointment who is or was  a  member  of  any  pension or retirement system and who, while such member  and while on military duty, applied for retirement as a member  of  such  system to take effect within thirty days prior to the date of expiration  of  his appointment and who shall accordingly have been retired pursuant  to such application but thereafter and  within  thirty  days  after  the  effective  date  of  such  retirement shall have been reappointed to his  said position and shall have applied  thereafter,  before  or  upon  his  release from military duty, for membership in such pension or retirement  system,  shall  be  deemed  to  have  had  continuous membership in such  pension or retirement system and shall be entitled to  all  the  rights,  benefits  and  privileges under his contract of membership as it existed  at the time of  such  retirement,  provided  he  shall  (1)  return  any  pension,  annuity  and  retirement  allowance  payments  received by him  during the period of such retirement, (2) consent to the termination  of  his  right  to receive pension, annuity or retirement allowance payments  on the basis of such retirement, (3) pay into the  appropriate  fund  of  such  pension  or retirement system the amount he would have contributed  thereto, if he had not so retired, on the basis of  the  salary  he  was  receiving  when  he so retired, and (4) pay into the appropriate fund of  such pension or retirement system the amount which  his  employer  would  have  paid thereto on his account if he had continued as a member during  such period of retirement.    4-a. Notwithstanding  the  provisions  of  subdivision  four  of  this  section,  in  any  case  where  any  member of any pension or retirement  system maintained under any provision of the administrative code of  the  city  of  New York, or under section twenty-five hundred seventy-five of  the education law, did not, within five years  after  the  date  of  the  restoration  of  such  member  to  his  position,  pay  the contribution  required by such subdivision four to be paid within such  period,  as  a  prerequisite  to  obtaining service credit in such system for the period  of his military duty, such contribution, or any part  thereof  remaining  due,  may  be  paid  on  or  before  June  thirtieth,  nineteen  hundred  fifty-seven, provided that any  such  member  who,  on  or  before  such  last-mentioned  date,  retires  or  is retired, without having paid such  contribution, shall not be entitled to make such payment.    4-b. (a) As used in this subdivision, the following terms  shall  mean  and include:    (1)  "New  York  city  veteran of world war II". Any member of the New  York city employees' retirement system in city-service  who,  after  his  last  membership  in  such system began, served as a member of the armed  forces of the United States during  the  period  beginning  on  December  seventh, nineteen hundred forty-one and ending on December thirty-first,  nineteen  hundred  forty-six,  and  was honorably discharged or released  under honorable circumstances from such service.    (2) "New York city veteran of the Korean conflict." Any member of  the  New  York  city  employees' retirement system in city-service who, after  his last membership in such system began, served  as  a  member  of  the  armed  forces  of  the  United States during the period beginning on the  twenty-seventh of  June,  nineteen  hundred  fifty  and  ending  on  the  thirty-first  day  of  January,  nineteen  hundred  fifty-five,  and washonorably discharged or released under honorable circumstances from such  service.    (b)  Notwithstanding any provision of subdivision four of this section  to the contrary, any New York city veteran of World War II or  New  York  city  veteran  of the Korean conflict who did not, within the applicable  period of time prescribed by subdivision four of  this  section,  comply  with  the  requirements of such subdivision for obtaining service credit  in the New York city employees' retirement system for the period of  his  military  duty,  may,  by  a written application duly executed and filed  with the board of estimate of the city of New York, prior to July first,  nineteen hundred sixty-nine, elect to purchase such service  credit.  If  such  veteran  shall pay to such retirement system, prior to July first,  nineteen hundred sixty-nine, the amount which he would have  contributed  thereto  if  he  had  been  continuously  employed during such period of  military duty, he shall have  in  such  retirement  system  the  service  credit  which he could have obtained for such period of military duty if  he had complied with the requirements of such  subdivision  four  within  the period of time therein prescribed.    5.  Rights upon restoration to position. A public employee restored to  his position after the termination of his military  duty  or  after  the  termination  of  his substitute appointment shall thereafter be entitled  to the rate of compensation he would have received had  he  remained  in  his  position continuously during such period of military duty or during  such period of service as a substitute  and  shall  be  deemed  to  have  rendered  satisfactory and efficient service in such position during the  period of his leave of absence and shall not be  subjected  directly  or  indirectly to any loss of time service, increment, or any other right or  privilege,  or  be  prejudiced  in  any way with reference to promotion,  transfer, reinstatement or continuance in office. If a public  employee,  by  reason of injuries sustained or disease contracted while on military  duty, as hereinbefore defined, is incapable  of  efficiently  performing  the  duties  of his position after the termination of his military duty,  he may, with  the  approval  of  the  civil  service  commission  having  jurisdiction  of such position, be transferred to any vacant position in  the same jurisdictional classification and in the same governmental unit  for which he has applied in writing and for  which  he  has  been  found  qualified,  after  such  tests  as  the commission may deem appropriate,  provided the rate of compensation for such position is not greater  than  the  rate of compensation for the position to which such public employee  was restored. If a promotion examination is held while a public employee  entitled to  participate  therein  is  on  military  duty,  such  public  employee  shall  be  given  a  comparable examination, provided he makes  request therefor within sixty days after restoration to his position. If  he passes such examination his name  shall  be  placed  upon  a  special  eligible  list  provided  that  his  name  would  have  been reached for  certification between the date when he entered upon such  military  duty  and  the  date  that  he was officially notified that he had passed such  examination. Such special eligible list shall remain in existence for  a  period of two years from the date that the name of such person is placed  thereon  and  such  special  eligible  list  shall  be  certified before  certification shall be  made  from  any  subsequent  or  eligible  list,  whether   open  competitive,  promotion  or  preferred  which  has  been  established for the same position, or from the  original  eligible  list  for  such  position.  A  public  employee thus appointed after passing a  comparable examination as herein provided, shall,  for  the  purpose  of  computing  seniority  credit  and  training  and  experience credit upon  promotion and seniority in the  event  of  suspension  or  demotion,  be  deemed  to  have  been  appointed  on  the  earliest date upon which anyeligible, who was lower on the  regular  promotion  eligible  list,  was  appointed.    6.  Appointment while on military duty. Any appointing officer or body  may, in his or its discretion, fill a  vacancy  by  the  appointment  or  promotion  of a public employee or any other person legally eligible for  such appointment or  promotion,  notwithstanding  the  absence  of  such  person  or  employee  in military duty but such appointment or promotion  shall not serve to increase in any degree any civil  compensation  which  he  may  have  been  receiving  pursuant  to  section six of chapter six  hundred eight of the laws of nineteen hundred fifty-two. Such  employee,  upon  the  termination  of his military duty shall have the same rights,  privileges and obligations as if he  had  served  continuously  in  such  position from the date of his appointment thereto.    7.  Status of existing lists. Any person whose name is on any eligible  list shall, while in military duty, retain his rights and status on such  list. If the name of any such person is reached for certification during  his military duty, it shall be placed on a special eligible list in  the  order  of  his  original  standing,  provided  he makes request therefor  following termination of his military duty and during the period of  his  eligibility   on   such  list.  Such  list  shall  be  certified  before  certification shall be  made  from  a  subsequent  open  competitive  or  promotion  eligible  list  for  the  same  position or from the original  eligible list for such position. Such names shall remain on such special  eligible list for a period of two years after the  termination  of  such  military  duty. Any such person thus appointed shall, for the purpose of  computing seniority  credit  and  training  and  experience  credit  for  promotion  and date of membership in the retirement system and seniority  in the event of suspension or demotion, be deemed to have been appointed  on the earliest date upon which any eligible, who was the lower on  such  original  eligible  list,  was appointed, provided, however that service  credit shall be computed  from  the  actual  date  of  appointment.  The  retirement  system  contributions  of  any  such  person  who  made  any  contribution to the retirement system pursuant to  article  fourteen  or  fifteen of the retirement and social security law, and who was appointed  on  or after July twenty-seventh, nineteen hundred seventy-six shall not  be refunded.    7-b. Status of applicants called for military duty before  taking  all  parts  of  an  examination.  Any  person  who  has passed one or more of  several parts of an examination for a  position  for  which  competitive  examinations  are  required,  and  who has been prevented from taking or  completing the remaining part or  parts  of  the  examination  for  such  position  by reason of his service in military duty shall be afforded an  opportunity to take a comparable examination as to such  remaining  part  or parts, provided he makes request therefor during the period of ninety  days  following  termination  of  his  military  duty. If he passes such  examination his name shall  be  placed  upon  a  special  eligible  list  provided that his name would have been reached for certification between  the  date  when  he entered upon such military duty and the date that he  was officially notified  that  he  had  passed  such  examination.  Such  special  eligible  list  shall  remain  in existence for a period of two  years from the date that the name of such person is placed thereon. Such  special eligible list shall be certified before certification  shall  be  made from a subsequent eligible list whether open competitive, promotion  or  preferred  for  the same position or from the original eligible list  for such position. Any such person thus appointed shall, for the purpose  of computing seniority credit and training  and  experience  credit  for  promotion  and  seniority  in  the  event  of suspension or demotion, be  deemed to have been appointed  on  the  earliest  date  upon  which  anyeligible  was  appointed who was lower on such original eligible list or  lower in relative order of rating thereon than such  person  would  have  been had his name been entered thereon.    8.  Service and efficiency ratings. A public employee who is absent on  military duty shall be credited  with  the  average  of  the  efficiency  ratings which he received for the three periods immediately prior to his  absence  on  military  duty  but  such  rating  shall not be less than a  passing grade for the period of such absence, nor shall it be less  than  the  rating  which  he  received for the period immediately prior to his  absence  on  military  duty.  In   computing   seniority   and   service  requirements  for  promotion  eligibility,  such period of military duty  shall be counted as service in the position held by such employee.    9. Probationary service. If a public employee or other  person  enters  military  duty  before  the expiration of the probationary period in any  position to which he may have theretofore been appointed, or to which he  may thereafter be appointed or promoted pursuant to subdivision  six  of  this  section,  the time he is absent on military duty shall be credited  as satisfactory service during such probationary period.    9-a. Probationary service of teachers. Notwithstanding the  provisions  of  subdivision five of this section and subdivision four of section two  hundred forty-two of this chapter, in  any  case  where  a  teacher,  as  defined  in  section thirty-one hundred one of the education law, enters  military duty before the expiration of the probationary period to  which  he  may  have  theretofore  been  appointed,  the  time  he is absent on  military duty shall be credited  as  satisfactory  service  during  such  probationary  period.  If  the  end  of such probationary service occurs  while the teacher is on military duty or within one year  following  the  termination  of  such  military  duty,  the  period of such probationary  service may be extended by the local board of education for a period  of  not  to  exceed  one  year from the date of termination of such military  duty, but in no event for a period of probationary service in the actual  performance of teaching services, exclusive of  such  military  service,  beyond  that  required  by  the school district at the time of his entry  into military service.    10. Physical examination. If a physical examination  is  required  for  employment  in  or  promotion to any position in the public service, the  physical  disability  of  a  candidate  incurred  by  reason  of  injury  sustained  or disease contracted while in military duty, as hereinbefore  defined, or during the world war shall not be deemed to  disqualify  him  for  such  position  unless  the  disability  is  of such a nature as to  prevent him from efficiently performing the duties of such position.    10-a. Age requirements. If maximum age requirements are established by  law, or rule or by action of a civil commission for examination for,  or  for appointment or promotion to, any position in the public service, the  period  of  military duty as hereinbefore defined, the period of service  after June twenty-seventh, nineteen hundred fifty,  voluntarily  entered  upon  between  January  first,  nineteen  hundred  forty-seven, and June  twenty-seventh, nineteen hundred fifty, if such service otherwise  falls  within the definition of military duty, and the period of terminal leave  granted by the military authorities of a candidate or eligible shall not  be  included  in computing the age of such candidate or eligible for the  purposes of such examination  or  appointment  or  promotion;  provided,  however,  that  neither  shall  the  total  time  deducted  hereunder in  computing the age of a candidate or eligible exceed six years.    11. Preferred lists. If the position occupied by a public employee  is  abolished  prior  to the termination of his military duty his name shall  be placed forthwith upon a preferred list, as  herein  provided.  Public  employees in the competitive class of the civil service shall have theirnames  placed upon a preferred eligible list, pursuant to the provisions  of section thirty-one of the civil  service  law  and  public  employees  subject  to section twenty-five hundred thirty-five of the education law  shall  have their names placed upon a preferred list as provided in such  section.    12. Military re-employment lists. If the position occupied by a public  employee, who is not included in the provisions of subdivision eleven of  this section, has been abolished or is no longer in existence  upon  the  termination  of  his  military duty such employee, upon filing a written  request within ninety days after the termination of his  military  duty,  shall  have  his  name  placed  forthwith, upon a military re-employment  list, as herein provided, for the position  last  held  by  him  or  any  similar  position.  The military re-employment list for public employees  in the classified civil service, other than in  the  competitive  class,  shall be established by the civil service commission having jurisdiction  of  such  position and such list for public employees who are not in the  classified civil service shall be established by the officer  who  makes  payment  of  the wages or salary for such position. Separate lists shall  be established for positions in the non-competitive and the labor  class  of  the  classified civil service. After the establishment of a military  re-employment list, it shall be made available  to  appointing  officers  and  bodies and no position shall be filled until the appointing officer  or body certifies to the civil service commission or to  the  disbursing  officer,   as  the  case  may  be,  that  no  person  on  such  military  re-employment list, who formerly held the same or a similar position, is  qualified to fill and willing to accept appointment to such vacancy. The  civil service commission or the disbursing officer, as the case may  be,  shall  refuse  to  approve  the  payroll  for  such  position until such  certificate is filed. Appointments from a  military  re-employment  list  may  be  made  without  regard  to  the  order of standing on said list.  Eligibility for appointment from such military re-employment list  shall  not  continue  for  a  period  longer  than  four years from the date of  termination of military duty. Refusal to accept an offer of  appointment  to  a  position  similar  to the last held by such public employee shall  cause the removal of his name from such list. Upon a failure or  refusal  to  comply with the provisions of subdivisions eleven and twelve of this  section, the supreme court is empowered, upon the filing of  a  petition  or  other  appropriate  pleading, by the public employee entitled to the  benefits  of  such  provisions,  to  specifically   require   compliance  therewith, and may, as an incident thereto, compensate such employee for  any  loss of wages suffered by reason of such unlawful action. The court  shall order a speedy hearing in any such case and shall  advance  it  on  the calendar. Nothing in this subdivision shall be construed to apply to  positions in the exempt class of the classified civil service.    13. Temporary positions. The provisions of subdivisions three and five  of  this  section shall not be applicable to a public employee holding a  temporary position, but such employee  shall,  nevertheless,  be  placed  upon a military re-employment list, as provided in subdivision twelve of  this section and, so far as practicable, shall be restored to a position  similar to that held at the time such employee entered military duty.    14.  Public employees appointed for a definite term. A public employee  appointed for a definite term shall be deemed to have a leave of absence  until the end of his term of office and until  his  successor  has  been  appointed, but not thereafter, for the purpose of determining his rights  under this section.    15.  Elective  officers.  The  provisions  of subdivision four of this  section shall be applicable to an  elective  officer  and  he  shall  be  deemed  to  continue in his office until his successor has been elected,but not thereafter, for the purpose of determining his rights under such  subdivision. No other provisions of this section shall be applicable  to  elective officers.    16.  Salaries.  Nothing in this section shall be construed to give any  public employee any claim for salary or compensation during his  absence  on military duty.    17. Certificates as to service. A certificate signed by the commander,  total  army  personnel center as to persons in the army or in any branch  of the United States service while serving pursuant to law with the army  of the United States, signed by the commander, naval military  personnel  as to persons in the United States service while serving pursuant to law  with the United States navy, and signed by the commandant, United States  marine  corps, as to persons in the marine corps, or in any other branch  of the United States service while serving  pursuant  to  law  with  the  marine  corps,  signed by the chief, air force military personnel center  as to persons in the United States service while serving pursuant to law  with the United States air force or signed by an officer  designated  by  any of them, respectively, for the purpose, shall when produced be prima  facie  evidence  as  to  any  of  the  following  facts  stated  in such  certificate: That a person named has not been, or is,  or  has  been  in  military  service; the time when and the place where such person entered  military service, his residence at that time, and the rank, branch,  and  unit  of  such service that he entered, the dates within which he was in  military service, the monthly pay received by such person at the date of  issuing the certificate, the time when and the place where  such  person  died  in  or  was  discharged  from  such service. It is the duty of the  foregoing officers to furnish such certificate on application,  and  any  such  certificate  when  purporting  to  be  signed  by  any one of such  officers, or by any person purporting upon the face of  the  certificate  to  have  been  so  authorized,  shall  be  prima  facie evidence of its  contents and of the authority of the signer to issue the same.    18. Rights and privileges of public employees and other persons  while  engaged in essential war work. Every public employee, or other person to  whom  this  section  is applicable, who has been or may be discharged or  relieved from  military  duty  on  condition  that  he  engage  in  work  essential  to  the  prosecution  of  the  war,  shall be entitled, while  engaged in such work, to all the rights and privileges to which he would  have been entitled,  under  the  provisions  of  this  section,  had  he  continued  to  perform  military duty. A certificate of the war manpower  commission, or of the United States employment service, or of the proper  authorities in the armed forces of the United States, or  of  any  other  authorized  federal  agency,  that  any  such  public employee, or other  person to whom this section is applicable,  is  or  has  been,  for  the  period  stated  in  such  certificate,  engaged  in  such work, shall be  required in order to confer upon such employee or person the rights  and  privileges  accorded  by this subdivision, and such certificate shall be  presumptive evidence of such facts.    19. Leaves of absence and re-employment of certain teachers and school  supervisors. A member of the teaching or supervising staff in  a  school  district  other  than  a  school  district employing a superintendent of  schools shall be entitled to absent  himself  from  his  position  while  engaged  in the performance of military duty and shall be deemed to have  a leave of absence for the duration of such military duty.  Such  person  shall  be  reinstated  to his position provided he makes application for  such reinstatement within ninety  days  after  the  termination  of  his  military  duty,  notwithstanding  that  his  contract  with  the  school  district shall have expired.20. Payment of pension contributions by city of New York. A.  As  used  in this subdivision:    (1) the term "New York city member" shall mean any public employee (a)  who  was  granted a leave of absence for the period of his military duty  pursuant to the provisions of subdivision two of this  section  and  who  was  on  April  eleventh,  nineteen hundred forty-seven, or shall become  prior to January first, nineteen hundred  fifty-two,  a  member  of  any  pension  or  retirement  system  to  which  the  city  of  New York, the  Triborough bridge and tunnel authority, or the  New  York  city  housing  authority  is  required  by law to make contributions on account of such  employee,  or  (b)  who  was  on  April   eleventh,   nineteen   hundred  forty-seven,  or shall thereafter become a member of any such system and  who is or shall  be  entitled  to  seniority  credit  and  training  and  experience  credit under the provisions of subdivision seven, seven-a or  seven-b of this section by reason of appointment from an  eligible  list  or  special  eligible  list,  but such term shall not include any public  employee whose rights as to civil compensation are or were  governed  by  section six of chapter six hundred eight of the laws of nineteen hundred  fifty-two;    (2)  the  term  "system"  shall  mean any pension or retirement system  referred to in subsection (1) of paragraph A of this subdivision.    B. Except as otherwise provided in paragraphs  C,  D  and  E  of  this  subdivision,  any  New  York  city member shall have as to any period of  military duty performed by him the same rights and shall be entitled  to  the same benefits in respect to his membership in any system as he would  have  had  if  he  had  been  present  and  continuously  engaged in the  performance of the duties    (1) of the position from which he  was  granted  a  leave  of  absence  pursuant  to the provisions of subdivision two of this section, if he is  not entitled to seniority and training and experience credit as provided  by subdivision seven, seven-a or seven-b of this section,  and  was  not  appointed   to  a  position  while  on  military  duty  as  provided  by  subdivision six of this section, or    (2) if he was granted  such  leave  and  received  an  appointment  as  provided  by subdivision six of this section, of the position from which  he received such leave of absence, up to the date of  such  appointment,  and thereafter as if he had been present and continuously engaged in the  performance of the duties of such position to which he was appointed, or    (3)  if  granted  such  leave  of  absence  and  entitled to credit as  provided by subdivision seven, seven-a or seven-b of  this  section,  of  the  position from which he was granted such leave of absence, up to the  date upon which he is deemed to have been appointed as provided in  such  subdivision  seven,  seven-a or seven-b and thereafter as if he had been  present and continuously engaged in the performance of the duties of the  position with respect to which the date on which he is  deemed  to  have  been  appointed  is  specified  by  such  subdivision  seven, seven-a or  seven-b, or    (4) if he did not receive such leave, but is entitled to credit  under  such  subdivision seven, seven-a or seven-b, of the position to which he  is deemed to have been appointed on the date specified therein,  and  as  if  he  had actually been appointed and had entered upon the performance  of the duties of such position upon such date.    C. No New York city member shall be entitled to  any  of  the  rights,  benefits or credit conferred by this subdivision with respect to    (1)  any period of military duty, or portion thereof, during which the  military base pay of such member or his compensation for  military  duty  performed other than as a member of the armed forces, exceeded the civil  compensation  of  the  position  or  positions with respect to which hisrights and benefits for the corresponding period or portion thereof  are  determined by the provisions of paragraph B of this subdivision, or    (2)  any  period of military duty or portion thereof prior to the date  upon which any member, who was not granted a leave of  absence  pursuant  to  the provisions of subdivision two of this section, is deemed to have  been appointed by virtue of the provisions of subdivision seven, seven-a  or seven-b of this section.    As to any period of military duty or portion thereof  referred  to  in  subsection  (1)  of  this  paragraph, the rights of any such member with  respect to membership in any system shall be governed by the  provisions  of subdivision four of this section.    D.  Time  during which any New York city member was absent on military  duty shall not constitute an interruption of continuous employment  and,  except  as  provided in paragraph C of this subdivision, such time shall  be counted and included in determining the length of total service.    E. Upon the death or retirement of a New York  city  member,  but  not  otherwise,  the  city  of  New  York,  the  Triborough bridge and tunnel  authority, or the New York city housing authority (whichever shall  have  first  employed  such member after the termination of his military duty)  shall pay into the appropriate fund of the system in which  such  member  held  membership  at  the time of his death or retirement, the amount of  all contributions which such member would have been required to make if,  during the period of his military duty, he  had  been  present  and  had  continuously  performed  the  duties  of  the position or positions with  respect to which his rights and benefits during the corresponding period  or portion thereof are determined by the provisions of  paragraph  B  of  this  subdivision;  provided  that  such city or authority shall not pay  into any such fund any contributions payable or accruing for any  period  of  military duty or portion thereof, referred to in paragraph C of this  subdivision. Each such member shall be credited with such  contributions  paid  in  his  behalf  by  such  city  or  authority  for all pension or  retirement purposes; provided that (1) any  portion  of  any  retirement  allowance, pension, death benefit or other benefit or right derived from  such  contributions  paid  in  behalf  of  such  member  by such city or  authority, shall  be  such  amount  as  the  payment  required  by  this  paragraph,  made  at  the time herein specified, shall provide, (2) such  member shall not under any circumstances have the right to withdraw  the  amount  of such contributions, or any interest thereon, as a part of his  accumulated deductions or otherwise, and (3) such contributions shall be  excluded in determining the amount of any loan  which  any  such  member  shall be entitled to make.    F.  In  any case where any New York city member has heretofore paid or  shall hereafter pay to any system any contributions which  the  city  of  New  York,  the  Triborough bridge and tunnel authority, or the New York  city housing authority  is  required  to  pay  to  such  system  by  the  provisions  of this subdivision, such contributions shall be regarded as  excess contributions  which  are  (1)  creditable  in  lieu  of  regular  contributions  (a)  upon the return of such member to his position after  the termination of his military duty, or (b) upon his becoming a  member  of  such  system,  if he did not become a member thereof until after the  termination of such duty, or (2) payable in addition to  other  benefits  upon separation meanwhile with benefit.