Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
A vacancy having arisen in the position of chief probation officer of Mercer County, a County Court judge promoted Lewis A. Marshall to fill it. The promotion was made without competitive examination and it was later approved by the Civil Service Commission. Appellant, a probation officer of the county, attacks the validity of the action as discriminatory, contending that the appointment should have been made only after competitive examination.
The facts appear to be undisputed. Lewis A. Marshall was appointed assistant probation officer for Mercer County on July 1, 1928, and probation officer on January 1, 1941. On November 15, 1941 the then judge of the Court of Common Pleas promoted him to assistant chief probation officer without examination, competitive or otherwise, and the Civil Service Commission approved on December 9, 1941. Then, following the announcement of the chief probation officer of his intention to retire as of January 1, 1953, some time prior to December 19, 1952 the only county judge in office
completed and filed with the Civil Service Commission a "personnel action form" indicating his promotion appointment of Marshall to chief probation officer, also effective January 1, 1953. On February 20, 1953 the Civil Service notified the court that: "Promotion of Louis A. Marshall from his position of Asst. Chief Probation Officer to Chief Probation Officer has been approved under Rule 24, effective 1-1-53."
Under N.J.S. 2 A:168-5 it was necessary for the County Court order of appointment to be filed in the county clerk's office. The appendix does not contain such order but there is included an order dated February 2, 1953 dealing with additional appointments in the probation department and which amends an order dated December 16, 1952. The parties seem to recognize that the original order covered Marshall's appointment.
It is suggested that the Marshall promotion is invalid under Zahn v. Dept. of Civil Service , 8 N.J. 423 (1952), because it did not conform with the requirements of Rule 24 of the Commission. This rule provides that where there are not more than three persons eligible to take a promotion test and the preference rights of veterans will not be affected, the president may, in his discretion, authorize such promotion without competitive test.
Zahn was promoted by the Director of Public Safety of Irvington without first having obtained a waiver of examination from the president. Thereafter, and subsequent to the expiration of the term of office of the director, a request for such approval was made and denied. In invalidating the promotion, the Supreme Court declared that the authorization permitted by Rule 24 is a condition precedent and "any appointment to be valid must be effective within the term of the appointing authority."
In the present situation, while the promotional order was filed prior to an authorization from the president, the personnel form referred to which set forth the action "desired," namely, approval of the promotion, was received by the commission prior to the effective date of the appointment.
Although the approval was not given until almost two months after the promotion became operative, it was made effective retroactively to that date. The retroactive sanction, or ratification, although not a desirable practice, having been given within the term of the appointing authority, removes the bar of the Zahn case.
Appellant Falcey became a probation officer on November 15, 1941, and remained such until he was given the designation principal probation officer in charge of adults on February 2, 1953.
After Marshall was promoted but prior to the approval thereof under Rule 24, Falcey, through his attorney, presented objections to the validity of the order to the Civil Service Department and requested a hearing. On February 19, 1953 the Department denied the request by letter, saying the appointment was in order and consequently no basis existed for a hearing.
The justification for Marshall's appointment, according to respondent, arose from his status as assistant chief probation officer. Since he was the only person in that class, the claim is that under Rule 24 the appointing authority could promote him without examination upon obtaining the approval of the president of the Civil Service Commission. On the other hand, Falcey claims that there is not now, and there never has been, any statutory warrant for such a position as assistant chief probation officer. And he contends that for purposes of advancement to chief probation officer he and all the other probation officers of the county stand on an equal footing, which means that there should be a competitive examination for the post.
In the memorandum filed with the Civil Service Commission by appellant's attorney in support of his request for a hearing it was argued, among other things, that in a county where the county court consisted of two judges, there is no authority in one of them to appoint a chief probation officer. The point is not argued on this appeal but because it involves considerations of the public interest and of the public service, we feel constrained to consider it.
The applicable statute covering the appointment of chief probation officer provides:
"The judge or judges of the county court in each county, or a majority of them, acting jointly, may appoint a chief probation officer, and, on application of the chief probation officer, such men and women probation ...