Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
Insofar as plaintiff's appeal is based on the denial of a hearing of his grievance by the Civil Service Commission because not demanded within 20 days after the action affecting him, there is no longer any issue because the Commission concedes that Rule 65, the limitation provision, was not in effect when plaintiff's claim arose. The Commission now justifies its denial of a hearing on grounds of plaintiff's laches. We have decided this appeal ought to be determined on the merits of the important question of veteran's preference argued by the parties, and we therefore pass the issue of laches. The parties agree that the record contains all the facts needed to decide the meritorious question -- essentially one of law.
On November 2, 1959 the State Department of Civil Service (Civil Service or Commission, hereinafter) announced an open competitive examination for the position of Foreman, Upholstery Shop. That examination was conducted April 8, 1960. It was not taken by plaintiff, but was by defendant Savis. As a result Savis, who is not a veteran, was listed No. 6 on a list of eligibles promulgated by the Commission for appointment to the position, being preceded on the list by five veterans entitled to preferential listing by statute. The list was originally to remain effective until May 18, 1962, but by resolution of the Commission on April 24, 1962 it was lawfully extended to November 18, 1962.
At the request of an appointing authority, New Jersey State Hospital, Greystone Park, Civil Service announced and conducted another open competitive examination for the same
position on September 19, 1962. The employment list of eligibles resulting from that examination ranked plaintiff, who is a disabled veteran, in first place, another disabled veteran second, and defendant Savis in fourth place. The appointing authority thereupon requesting the certification of a list of eligibles for appointment to the position, the Commission on November 5, 1962 certified a list as follows:
1. Joseph P. Calabrese (a veteran)
3. James Dulaney (a disabled veteran)
Calabrese declining appointment, the hospital appointed Savis to the position November 15, 1962. The appointment was approved by the Chief Examiner of the Commission December 6, 1962.
Plaintiff contends that in by-passing him and appointing Savis there was a violation of the statutory preference of veterans (particularly disabled veterans). The Commission argues that the creation of the second employment list during the life of the first list was only to provide a pool of three or more certifiable eligibles for the convenience of the appointing authority (the earlier list having apparently become partially depleted because of subsequent unavailability or disinterest in the position for one reason or another). It is contended, therefore, that combining the two lists for that purpose did not derogate from the ordinary right of the persons on the earlier list to absolute priority of appointment (so long as the earlier list remained in effect) as against the names on the second list, regardless of whether any of the latter were veterans or disabled veterans.
Plaintiff relies upon N.J.S.A. 11:27-4 and 11:27-5. The former provides that the appointing authority shall appoint one of the three persons certified as eligible (who must be the three highest on the register willing to accept appointment), provided that if a veteran or veterans is or are so certified, he, or the one of them who stands ...