Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.
Plaintiff appeals from a summary judgment entered in the Law Division in favor of defendants which dismissed his complaint in an action in lieu of prerogative writs.
On January 17, 1966 plaintiff, a member of the Rahway Fire Department, submitted a letter of resignation "effective immediately on the above date." On January 20 he submitted a second letter stating that he was withdrawing his resignation. The city considered plaintiff's resignation as having been effective on January 17 and refused to honor his attempted withdrawal. However, it carried him on the payroll until February 14 to provide compensation for his accrued vacation credits.
On January 25, 1968 plaintiff sent a letter to the business administrator of the city requesting that his name be placed on the regular reemployment list pursuant to N.J.S.A. 11:22-10.3. Copies of the letter were sent to the Rahway Fire Department and the Civil Service Commission. On February 6, 1968 the business administrator advised plaintiff's attorney that the request was denied because it had been presented more than two years after the effective date of plaintiff's resignation. On August 6, in reply to a letter from the business administrator, the Civil Service Commission advised that plaintiff's resignation had not been effective until February 15, 1966 but that plaintiff had not applied to the
Commission for inclusion on the reemployment list in accordance with Civil Service Circular No. 100.
Plaintiff filed a complaint in lieu of prerogative writs for a judgment to compel defendants to place his name on the reemployment list and to restrain the city from appointing persons to the fire department whose applications were received subsequent to January 25, 1968. An ex parte temporary restraining order was entered. Defendants filed an answer alleging, inter alia , that plaintiff had failed to apply to have his name placed on the reemployment list within the time limited by law; that the chief examiner and secretary of the Civil Service Commission had the authority to place plaintiff's name on the reemployment list, and defendants had no such authority; that assuming defendants had such authority, they did not recommend inclusion of plaintiff's name on the list because of his record of past performance, and that his reinstatement would not be in the best interest of the service. They further alleged that the Civil Service Commission was an indispensable party to the action and plaintiff had failed to include it.
On the day scheduled for a hearing on whether the temporary restraint should be continued until final judgment was entered, the parties requested the court to consider and treat the matter as though both sides had moved for summary judgment. The trial judge raised the issue of whether the Law Division had authority to deal with the case or whether plaintiff should have appealed to the Civil Service Commission. He directed that briefs be submitted and adjourned the hearing. Plaintiff then filed a motion to amend his complaint to add the Civil Service Commission as a party. On the adjourned motion day plaintiff did not appear and the court entered judgment for defendants. While the order for judgment recites that the court considered the argument of counsel and briefs submitted by them, it specifies no grounds for the court's action except the failure of plaintiff's attorney to appear. However, a review of the transcript provided us indicates that the judgment of dismissal was based on the
court's conclusion that it had no jurisdiction "over the appeal from the action of the Civil Service Commission."
N.J.S.A. 11:22-10.3, which permits a municipal employee who has resigned from his position to apply for reinstatement on the civil service reemployment list, provides as follows:
When an employee in the classified service of any * * * municipality * * * who has resigned in good standing shall have requested his reinstatement thereto, the chief examiner and secretary shall cause the name of such employee to be placed on the regular re-employment list for the appropriate class. The name of no such employee shall be placed on the said regular re-employment list unless (1) the employee's request for reinstatement shall have been made within 2 years after the effective date of his resignation, and (2) the appointing authority shall have recommended that, because of the employee's record of past performance, reinstatement would be in the best interests of the service. * * *
Civil Service Circular No. 100, which was issued to explain the operation of the statute, states that "the procedure for placement on the regular re-employment list must be initiated by the employee through a request to the appointing authority," and further, that "the employee's request for re-employment shall have been received by the ...