For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.
This is an appeal by plaintiffs from the refusal of the Department of Civil Service of the State of New Jersey (Civil Service) to certify names from a promotional list which had expired during the pendency in this Court of Marranca v. Harbo, 41 N.J. 569 (1964). Although appeal was originally had to the Appellate Division, this Court certified the cause on its own motion before argument there. R.R. 1:10-1.
The question here involved is whether Civil Service properly refused to certify the names of plaintiffs for appointment as sergeants on April 13, 1964 from the eligible employment list originally promulgated on January 26, 1961. Plaintiffs McGuire and Sheridan have since the inception of this suit been appointed sergeants and the matter is therefore moot as to them, leaving only Frederick Schlauch for consideration.
Schlauch is fifty years of age and was appointed to the Elizabeth Police Department on June 1, 1951. He has passed at least six promotional examinations for sergeant and has never been promoted.
On March 12, 1958 Civil Service promulgated a promotional list for the rank of sergeant in the Elizabeth Police Department (hereinafter referred to as First List). This list expired on March 12, 1961.
On January 26, 1961 Civil Service promulgated a second promotional list (hereinafter referred to as Second List) for the rank of sergeant in the Elizabeth Police Department
which was to be effective for two years but which was extended by Civil Service to January 26, 1964. Schlauch was sixth on the Second List, which contained 52 eligibles.
On March 7, 1961 Joseph T. Marranca, who was number one on the First List, instituted a suit in the Superior Court to compel the appointing authority of the City of Elizabeth to promote him to sergeant.
During the pendency of the Marranca suit the first five eligibles on the Second List were appointed to the rank of sergeant. They were made parties to the Marranca suit. Schlauch became number one on the Second List; however, he was not made a party. On October 11, 1962 the Superior Court, Law Division, 76 N.J. Super. 429, declared the Second List to be ineffectual and set aside the promotions of the five appointees above referred to. At the same time the parties entered into an informal agreement with the judge to the effect that if no appointments were made from the Second List it would not be necessary to issue any formal injunction.
The judgment of the Superior Court, Law Division, was appealed and we certified the case. The matter was argued before us on December 2, 1963. On March 2, 1964 the Supreme Court rendered a decision reversing the judgment of the Law Division (41 N.J. 569).
During the summer of 1962 from and after July 23, three vacancies in the positions of sergeant occurred as a result of two promotions and one resignation. However, it was not until March 9, 1964 that the appointing authority of the City of Elizabeth requested a certification of eligibles to fill the three vacancies in the rank of sergeant.
On or about April 3, 1964 the appellants filed a petition with Civil Service requesting their certification as ...