Lora, Handler and Tarleton. The opinion of the court was delivered by Lora, J.A.D.
Plaintiffs appeal from a dismissal of their complaint in lieu of prerogative writs which sought to compel defendants to appoint them as permanent policemen in the Borough of Fort Lee.
Effective December 13, 1971 plaintiff Frank DeLarmi was given a temporary appointment as a patrolman in the Borough of Fort Lee under the Emergency Employment Act of 1971 (hereinafter E.E.A.), 42 U.S.C.A. § 4871 et seq. His appointment was recorded by the Department of Civil Service as "recorded pending review."
Plaintiff Jeremiah Duggan was given a provisional appointment under the E.E.A. effective May 9, 1972. The Department of Civil Service approved the appointment pending open competitive examination.
Both plaintiffs are honorably discharged veterans of the United States Armed Forces. The availability of federal funds under the E.E.A. expired on June 30, 1973.
DeLarmi's appointment was terminated as of July 1, 1973 and he was then rehired on July 11, 1973 under a "temporary appointment pending open competitive examination." The resolution recited that "[w]hereas E.E.A. funds have been made available to the Borough of Fort Lee for the purpose of employing certain persons as officers and employees of the Borough, now, therefore be it resolved -- that Frank DeLarmi is hereby provisionally appointed as a patrolman in the Fort Lee Police Department effective July 1, 1973." Duggan's appointment was terminated as of September 30, 1973 and he was given a temporary appointment as a policeman "pending open competitive examination."
At oral argument on the return day of the order to show cause plaintiffs' attorney contended that plaintiffs not only were not told that they would be required to take an examination before they could be given a permanent position but were led to believe they were not required to do so. Furthermore, he insisted that when DeLarmi signed his application for appointment the word "temporary appointment pending open competitive examination" were not on the form.
In support of this contention he pointed out that on DeLarmi's application form in the area marked "For Civil Service Department Use Only," the boxes which were checked showing the Department's action were (1) "Provisional Appointment," (2) "Approval Pending," and (3) "Disposition of Certification." The box which would have shown approval of provisional appointment pending open competitive examination was not checked. (We note that on Duggan's form the boxes for "Provisional Appointment," "Approval Pending"
and "Open Competitive Examination" were checked.) The borough asserted by affidavit that plaintiffs were aware of and on October 12, 1973 received hand-delivered notification of the examination.
On or about December 18, 1973 plaintiffs completed the 60-day police training course given by the New Jersey Department of Law and Public Safety Police Training Commission at Sea Girt, New Jersey, and were awarded the New Jersey State Qualifying Certificate.
On January 8, 1974 plaintiffs were notified by letter that they were requested to meet with the acting chief of police, the borough administrator and the police commissioner on January 11, 1974. Following that meeting plaintiffs were dismissed ...