Seidman, J.c.c. (temporarily assigned).
[115 NJSuper Page 504] Plaintiffs' lawsuit seeks to restrain and enjoin the Superintendent of State Police from making appointments to existing promotional vacancies and to compel the Division of State Police to conduct competitive promotional examinations prior to the filling of vacancies. The corporate plaintiff, according to the complaint, was selected by a majority of the members of the Division of State Police holding the rank of trooper as their sole representative and bargaining agent, pursuant to the provisions of the New Jersey Employer-Employee Relations Act of 1968, N.J.S.A. 34:13A-5.3. Thomas Iskrzycki, a state trooper, is the only one of the individual plaintiffs so identified in the pleadings, but it appears that the others are also members of the Division.
Because of the subject-matter of the litigation, the Department of Civil Service was added as a party defendant at the suggestion of the court.
Upon the filing of the complaint and supporting affidavits, an order was entered directing the Division of State Police to show cause why a preliminary injunction should not be issued pending the final hearing. Subsequently, counsel agreed to submit the issues to the court on a stipulation of facts and the pleadings and affidavits on file, as though each side had moved for summary judgment.
The basic facts are not in dispute. The issue to be decided, concededly one of law, is whether promotions in the Division must be made on the basis of competitive examination under the Civil Service Law. No reported case has been cited by counsel, and the court has found none, which deals with the precise problem here involved.
The stipulated facts, in pertinent part, are these:
At present there are no competitive promotional examinations of any type in the Division of State Police. None of the individual plaintiffs will be afforded a competitive promotional examination. All promotions within the Division of State Police are presently made by the Superintendent of the Division with the approval of the Attorney General of New Jersey. Troopers are presently treated as members of the unclassified service of the State, and competitive promotional examinations are not afforded to members of such classification.
The thrust of plaintiffs' case is that members of the Division of State Police are in the civil service of the State and that promotions in the Division are required to be filled by competitive examination pursuant to the N.J. Const. (1947), Art. VII, § 1, par. 2, and the Civil Service Law, N.J.S.A. 11:4-2. Defendants response is that the Constitution does not provide a guaranteed right of competitive promotional examinations to a member of the State Police; that a member of the State Police is in the unclassified service; that the Civil Service Law does not entitle
a member of the State Police to a competitive promotional examination, and that a promotion in grade is within the exclusive sphere of authority of the Superintendent of State Police.
The Division of State Police in the Department of Law and Public Safety (then designated as Department of State Police) was created and established by L. 1921, c. 102; N.J.S.A. 53:1-1 et seq. The statute provides that all the officers and troopers enumerated therein shall be appointed or reappointed by the Superintendent for a period of two years, and shall be removable by him after charges have been preferred and a hearing granted. N.J.S.A. 53:1-8. Qualifications and examinations for appointment are set forth in N.J.S.A. 53:1-9. Tenure is granted after continuous service of five years. N.J.S.A. 53:1-8.1.
The only provision for promotion is in N.J.S.A. 53:1-5.2, which provides as follows:
Notwithstanding any other provision of law , the rank and grade of any member of the State Police may be changed from time to time, and the number of personnel increased, by the superintendent of State Police where such change or increase is necessary for the efficient operation of the Division of State Police in the Department of Law and Public Safety; provided, the action of the said superintendent in making ...