This is an action in lieu of prerogative writs brought to set aside the appointments of Thomas M. Brennan, Jr., Basil W. Leach, William F. McMahon, Jr., Edward Tierney and Carl R. Schlicker to the rank of sergeant in the Elizabeth Police Department. The plaintiff also seeks to have the certified civil service list for the position of sergeant, dated January 26, 1961, set aside as invalid, and, finally, plaintiff seeks to have the defendant Rolf T. Harbo, Director of the Elizabeth Police Department, ordered to appoint the plaintiff to the rank of sergeant in the said department.
Plaintiff Joseph L. Marranca, a disabled veteran, is a patrolman in the Elizabeth Police Department. On or about May 4, 1957 plaintiff took a Civil Service promotional examination for the position of sergeant, and received a certified listing by the New Jersey Civil Service Commission. This list became effective on March 12, 1958, and plaintiff was listed No. 7 on said list. The original expiration date of the list was March 12, 1960. However, because of extensions pursuant to R.S. 11:9-10 by the Civil Service Commission, the expiration date of the list was set for March 12, 1961.
Because of various appointments from this list, plaintiff on or before September 2, 1958 became No. 1 on the list. In January 1960 a vacancy occurred in the sergeant's complement. This vacancy remained open, and on October 1, 1960 a second vacancy occurred which was not filled either.
On January 26, 1961 the Department of Civil Service promulgated a second list of those eligible for the position of sergeant. The listings at this time were the result of a written examination given on May 21, 1960. Plaintiff was No. 16 on this second list.
On March 7, 1961, after plaintiff had requested the defendant Harbo to appoint him to fill one of the vacancies now existing, of which there were then three, the plaintiff filed a suit against the defendant Harbo. This suit, in which the summons and complaint were served on March 13, 1961,
sought relief solely against Harbo, the Director of the Elizabeth Police Department. The complaint charged Harbo with arbitrarily failing and refusing to promote the plaintiff to the position of sergeant, and requested the court to order and direct the defendant Harbo to promote the plaintiff to the rank of sergeant in the Elizabeth Police Department. Thus, the action was originally one in mandamus.
While this suit was pending, Harbo, the Director of the Elizabeth Police Department, requested certification of names for the rank of sergeant from the Department of Civil Service. This was done on June 30, 1961. Pursuant to this request, on July 5, 1961 the Commission certified five names from the second list which was promulgated on January 26, 1961. All of these names taken from the second list were below the plaintiff on the first list. Of these five, Brennan, Leach and Tierney are veterans and McMahon and Schlicker nonveterans. Subsequently, in October 1961 the plaintiff amended his complaint by seeking further relief in the form of setting aside these appointments from the second list and declaring the second list invalid. Thereafter, in January 1962 the complaint again was amended to join the Civil Service Commission as a defendant.
It is the contention of the plaintiff that he, as No. 1 on the eligible list, was entitled to be promoted to fill an existing vacancy. Upon defendant Harbo's refusal to appoint him, it is plaintiff's further contention that the institution of his suit against Harbo on March 7, 1961 extended the eligible list pursuant to R.S. 11:22-33. Therefore, any appointments made from the second list while the first list was still in effect are void. Plaintiff also contends that because certain nonveterans were among those appointed, he is entitled to be promoted because the defendant Harbo did not show cause before the Civil Service Commission pursuant to N.J.S.A. 11:27-6 which provides as follows:
"Nothing contained in sections 11:27-2 to 11:27-5 of this Title shall apply to promotions; provided, however, that whenever any examination for promotions be held and any veteran shall receive the
highest certification from among those qualified, before such appointive power shall appoint for promotion any nonveteran, such appointive power shall show cause before the Civil Service Commission why such veteran should not receive such promotion."
It is the contention of all of the defendants that the institution of the suit against Harbo did not extend the first list because (1) R.S. 11:22-33, which was enacted when the old practice existed, contemplated the institution of a proceeding not by the filing of a complaint, as was done on March 7, 1961, but by an actual service of the summons which was done on March 13, 1961, after the list had expired. Thus, the suit did not extend the list since it was not commenced in time; (2) the failure to join the Civil Service Commission in the original suit, if it was filed in time, was fatal; (3) the plaintiff has failed to exhaust his administrative remedies; (4) the action should have been begun in the Appellate Division pursuant to R.R. 4:88-8 and R.R. 4:88-10, and (5) the appointments from the second list were valid.
The controversy here is solely one of statutory construction. There is no doubt that in the absence of an extension the duration of the list expired on March 12, 1961. R.S. 11:22-33 states:
"When an eligible list has been established by the commission for any position or employment in the service of any county, municipality or school district, and a proceeding has been instituted in any court of record, with respect to the filling of any position or employment from such eligible list, such list shall not expire during the period in which such litigation is pending but shall be extended from the time of the entry ...