For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.
[41 NJ Page 570] This is a civil service case. Plaintiff, a patrolman in the Elizabeth Police Department, sued to compel the appointing authority to promote him to sergeant. During the pendency of the suit five other patrolmen were so promoted. Plaintiff then amended his complaint to challenge the validity of those promotions. The trial court held that
although plaintiff could not compel his own promotion and hence must fail in his original complaint, nonetheless the pendency of his suit operated to prevent the other appointments. Marranca v. Harbo, 76 N.J. Super. 429 (1962). All parties appealed and we certified the matter before argument in the Appellate Division.
There are a number of procedural issues which we will pass to reach and settle the substantive controversy affecting as it does the operation of a police department.
On May 4, 1957 the Civil Service Department conducted promotional examinations. The employment list which thereby emerged, and which we will call the first list, became effective March 13, 1958 and was to continue for two years. Plaintiff, initially seventh on that list, moved to first when the six ahead of him were promoted.
On January 26, 1960 a vacancy occurred in the position of sergeant. On March 4, 1960 plaintiff petitioned Civil Service to compel his promotion, alleging the vacancy and that the list was to expire on March 12. Actually Civil Service had already extended the list for six months and apparently had also called for another examination. On May 6, 1960 the Civil Service advised plaintiff that "The matter of appointment is one that rests entirely in the hands of the [appointing] authorities. The Civil Service Department cannot compel the authorities to make an appointment." It explained that it could act only if the appointing authority appointed a temporary incumbent or notified it of the vacancy, neither of which events had occurred. Plaintiff did not seek a review of that disposition of his petition.
An examination was held on May 21, 1960. A new list, which we will call the second list, was promulgated on January 26, 1961. Meanwhile Civil Service had extended the first list for still an additional six months so that it was to expire on March 12, 1961. Plaintiff, who, as we said above, was at the head of the first list, was number 16 on the second list.
The complaint in this action was filed on March 7, 1961, five days before the first list, as finally extended, was to
expire. On June 30, 1961 the appointing authority requested Civil Service to certify the names of eligibles for three appointments as sergeants. Civil Service certified the names, using the second list. Later the appointing authority decided to fill two more vacancies and further certifications were made, also from the second list. The five promotions mentioned above were made during the period of July 1961 to January 1962 from the names so certified.
As stated above, the trial court held that (1) plaintiff was not entitled to the relief he sought in his original complaint, but nonetheless (2) the mere pendency of his otherwise unsuccessful suit operated to continue the first list and thereby to invalidate the five promotions based upon the second list. We will consider these propositions in inverse order.
Examinations are to be held from time to time "to meet the needs of the service." R.S. 11:9-1. "Ideally, a competitive examination would be held every time a vacancy existed, thus assuring the selection of the most competent available person." Kaplan, Law of Civil Service, p. 163 (1958). But as a practical matter an employment list must serve for some period, and hence our statute provides that the list shall endure for no less than six months nor more than three years with respect to the state service and for no less ...