Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal from an administrative decision of the Civil Service Commission placing the position of chief building inspector of the City of East Orange in the classified service under the provisions of the Civil Service Act.
The facts are not in dispute. East Orange is a city of the second class organized under N.J.S.A. 40:103-5 (71) et seq. (Acts Saved from Repeal), which subsequently adopted the provisions of the Civil Service Act. On July 25, 1968 Bowser was appointed by the mayor to the position of chief building inspector as a temporary appointee pending a civil service examination. On February 24, 1969 plaintiff was permanently appointed to said position by the city council, retroactive to July 25, 1968. The C.S. 6 form filed with the Commission listed appellant as being in the unclassified service.
The Civil Service Commission concluded that the position was in the classified service and scheduled a promotional competitive examination to fill the position. The city contended the position belonged in the unclassified service for which no examination is required and that Bowser was entitled to tenure under N.J.S.A. 40:171-168. Thereafter, Bowser brought an action in the Chancery Division to have the position declared to be in the unclassified service and to restrain holding of the examination. The court, by a consent order, directed that the examination be held but that certification of the results thereof be stayed pending an adjudication of the controversy and transferred the case to this court for a review of the determination of the Civil Service Commission pursuant to R.R. 4:88-8, now R. 2:2-3.
The appellant relies alternatively on three statutory provisions in his argument that the position of chief building inspector is in the unclassified service. The City of East
Orange has filed a statement in lieu of brief in which it concurs with appellant's contentions.
The statutory provisions relied on are as follows:
N.J.S.A. 11:22-2.*fn1 The unclassified service shall not be subject to the provisions of this subtitle and shall include the following:
c. Appointments of the mayor;
d. Heads of departments * * *;
o. Such other officers and positions not now included in the unclassified service by this section or by any other statute, as the Civil Service Commission shall, from time to time, determine, according to law, to be in the unclassified service.
Appellant's first point is that the position falls within the unclassified service under subsection (o). He alleges that he was permanently appointed chief building inspector by the city council pursuant to N.J.S.A. 40:171-55, which provides that in all cities of this State the common council shall have the right to appoint a building inspector, and that he acquired tenure of office under N.J.S.A. 40:171-168, which gives tenure to building inspectors upon appointment by governing bodies of cities of the second class. He argues ...