For the prosecutor, Charles E. McCraith, Jr.
For the defendant, Walter D. Van Riper, Attorney-General, and John W. Griggs, Deputy Attorney-General.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. Certiorari was granted to review these proceedings of the State Civil Service Commission:
On September 10th, 1947, the defendant Commission determined that prosecutor's permanent state civil service status, as of November 16th, 1946, was that of an "Employment Counselor, Grade III" in the State Employment Service, a division of the Unemployment Compensation Commission, with an annual salary range of $2,400 and $3,000, and his "temporary status" that of a "Title Occupational Analyst," with a salary range of $3,000 and $3,600, the latter "title" held "subject to promotional examination;" and the point at issue is whether, in virtue of the combined operation of chapter 386 of the laws of 1941 (Pamph. L., p. 1000; N.J.S.A., §§ 43:21-12.1, et seq.), chapter 162 and chapter 171 of the laws of 1943 (Pamph. L., pp. 472, 491; N.J.S.A., §§ 43:21-12.3, et seq.), and chapter 65 of the laws of 1944 (Pamph. L., p. 125; N.J.S.A., §§ 11:5-1, 11:7-10), he is "entitled to be treated as an employee" of the state, "albeit in absentia, during the years 1942 to 1946," when the personnel of the State Employment Service was "on temporary loan" to the federal government under chapter 386 of the laws of 1941, cited supra, and "therefore entitled to the benefits of the reclassification program" adopted pursuant to chapter 162 of the laws of 1943 and chapter 65 of the laws of 1944, cited supra, rather than subject to the general requirement of promotion by competitive examination.
The cited determination of prosecutor's status was comprised in the defendant Civil Service Commission's "survey and classification of United States Employment Service personnel transferred to the State Service," and his annual salary was therein fixed at $3,720, as of November 16th, 1946;
and it was further therein provided that the "temporary title will be discontinued upon completion of the current reorganization of the Employment Service Division of the U.C.C., and no examination will be held for this title," but prosecutor "will have opportunity to compete in the examinations, to be announced shortly, in the same manner and on the same basis as all other transferred U.S.E.S. personnel."
In 1938, following a competitive examination, prosecutor was appointed to the position of "Senior Employment Interviewer" in the State Employment Service; and on December 29th, 1941, after qualifying in a competitive examination, he was advanced to the position of "Employment Counselor." Three days later, while he was merely a probationer "in training" for his new position, the records, facilities and personnel of the State Employment Service Division were transferred to the federal government pursuant to chapter 386 of the laws of 1941, cited supra. On November 16th, 1946, the federal service was terminated, and the records, facilities, and personnel of the State Employment Service Division thus on temporary leave, prosecutor among them, were returned to the state service. Vide 60 U.S. Stat. 684; 29 U.S.C.A., § 49c. Prosecutor's then title in the federal administrative bureau was "Senior Occupational Analyst," and his salary was $3,840. He entered the government service as an "Employment Counselor" at the same annual salary as that of a probationer of that class in the state's service at the time, $2,160. Four or five months later, the federal bureau to which he was assigned changed his title to "Junior Occupational Analyst," and his salary was increased to $2,400, and thereafter there were further increases, all without the participation or acquiescence of the state.
On September 15th, 1947, the Civil Service Commission scheduled competitive examinations for positions in the reestablished Employment Service Division; and this action and the cited determination of his civil service status are challenged as in contravention of the statutory policy. In a word, the insistence is that prosecutor's permanent title of "Employment Counselor, ...