Daniel J. Brennan, McLean and Ewart. The opinion of the court was delivered by Ewart, J.s.c.
[21 NJSuper Page 244] Edward C. Smith, an employee of the Passaic Valley Water Commission, appeals from the action of the said Commission in changing the date of his seniority from October 31, 1938 to June 16, 1947, and from the action
of the New Jersey State Civil Service Commission in refusing to reverse the action of the said Water Commission, and in refusing to approve a settlement between the appellant Smith and the respondent, the said Water Commission, which provided that the date of seniority be fixed as of October 31, 1938, and from the action of the State Civil Service Commission in refusing appellant's petition for a rehearing of the matter.
The Passaic Valley Water Commission first adopted the State Civil Service Act on July 23, 1949, pursuant to the provisions of chapter 289, L. 1949 (N.J.S.A. 40:62-150.1-2). Prior thereto the employees of the Water Commission had no tenure rights, but served at the pleasure of the Commission.
Smith's record of employment with the Water Commission showed that he was first employed October 31, 1938 as a collector and continued in that position until December 31, 1942; that from January 1, 1943 to May 3, 1947 he was employed as a special meter reader; that he was laid off and discharged on May 3, 1947 "because his services were no longer required"; and that he was re-employed on June 16, 1947 in the position of teller, on a probationary basis, and that his employment in that position has continued from the date last named up to the date of the hearing before the Civil Service Commission.
When re-employed on June 16, 1947 his salary was fixed at a slightly lesser sum than he had been earning prior to his discharge.
Upon adoption of the provisions of the Civil Service Act on July 23, 1949, Smith's date of seniority was originally set up in the records as of October 31, 1938 but subsequently, in the month of January 1951, an affidavit was made and filed by Ralph E. Bentley, secretary-treasurer of the Water Commission, stating that:
"The official employment record of Edward C. Smith reveals that he was dropped from the payroll as of May 3, 1947 because his services were no longer required.
Deponent further says that Edward C. Smith was reinstated on June 16, 1947 and assigned to the position of teller on a probationary basis."
Upon the basis of said affidavit, Smith's seniority rating was changed from October 31, 1938 to June 16, 1947 and it is from that action that he appealed to the Civil Service Commission and, upon refusal of the Civil Service Commission to reverse the action of the Water Commission, this appeal has been taken.
The facts recited above do not appear to be in dispute.
When the matter came for hearing before the Civil Service Commission it took the position that the Civil Service Commission had no jurisdiction to decide the question of seniority in accordance with Smith's appeal because the break in the continuity of Smith's employment occurred in 1947 and the Water Commission ...