Matthews, J.c.c. (temporarily assigned).
[74 NJSuper Page 20] Two questions have been presented to me for determination in the instant action. The first involves the continuance or termination of a preliminary restraint which I issued on March 25, 1962, restraining defendants Township of Millburn
(township) and Civil Service Commission (Commission) from holding Civil Service examinations for the offices of police sergeant and police lieutenant for the police department of the township, and further, from appointing anyone to such offices pending this action. Defendants, on the continued return date of the order to show cause containing the aforementioned restraints, have challenged the jurisdiction of this court to entertain the instant action. Necessarily, I must first turn to the question of jurisdiction.
Plaintiff instituted this action in lieu of prerogative writs on September 20, 1961. At the time of the commencement of the action there was pending before the Civil Service Commission an appeal, also instituted by plaintiff, in which it was alleged discriminatory conduct toward him had been practiced by defendant township. Plaintiff is a permanent patrolman employed by the police department of the township. Sometime prior to July 22, 1959 plaintiff and certain other members of the township police department took a Civil Service examination for the office of police sergeant. On July 22, 1959 the Commission issued an employment list (PM 165) from which the township might make appointments to the office of sergeant in its police department. The employment list contained the names of five persons, all of whom were veterans. Plaintiff's name was fifth on this list. Upon the declaration by the township of vacancies in the office of sergeant in its police department, the Commission, on March 28, 1960, certified to the township a list of eligibles for appointment. This list contained four names (one of the original five whose name appeared on the employment list having resigned from the department), including that of plaintiff which was fourth. Subsequent to the date of promulgation of the certified list, three
appointments were made to the office of sergeant in the township's police department. As a result, the certified list published by the Commission on March 28, 1960 now contains only the name of plaintiff.
While the records of the proceedings before the Commission are not before me, nor should they be, I am led to believe, through the argument of counsel and the affidavits filed in this cause, that the appeal taken by plaintiff to the Commission alleged discriminatory acts on the part of the township and sought an order of the Commission directing the township to appoint plaintiff to the office of sergeant. Hearings were conducted by the Commission on March 12, April 5, 8 and 12, 1961. At no time prior to the appeal to the Commission by plaintiff had the township declared that a vacancy existed in the office of sergeant in its police department, nor had it requested the Commission to conduct a new promotional examination for such office.
After the conclusion of the hearings, and on July 11, 1961, the township communicated with the Commission and requested that an examination be held for the office of sergeant in its police department as soon as possible. On August 18, 1961 the Commission gave notice that it would conduct a promotional examination for the office of police sergeant in the department of the township and fixed as the closing date for applications therefor, September 18, 1961. This announcement of the promotional examination precipitated the instant proceeding. With the institution of this proceeding, the Commission voluntarily withheld the promotional examination announced on August 18, 1961, and the present action lay dormant, by agreement among the parties, until March 25, 1962. On this latter date the Commission handed down its decision on the appeal taken to it by plaintiff.
In its decision the Commission found the following:
"Appellant is a permanent Patrolman in the Township of Millburn's Police Department, having been regularly appointed to such position on November 1, 1952.
Appellant was certified to the Millburn appointing authority on March 28, 1960 by reason of having passed a Civil Service examination for Sergeant.
Though there were fewer Sergeants in the Department than there have been formerly, the appointing authority did not appoint the ...