Chester v. Department of Civil Service

• Citation: 216 A.2d 611,90 N.J.Super. 176
• Parties: Kathleen B. CHESTER, Appellant, v. DEPARTMENT OF CIVIL SERVICE of the State of New Jersey, Respondent.
• Decision Date: 31 January 1966
• Court: New Jersey Superior Court — Appellate Division

Page 176

90 N.J.Super. 176

216 A.2d 611

Kathleen B. CHESTER, Appellant, v. DEPARTMENT OF CIVIL SERVICE of the State of New Jersey, Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 19, 1966.

Decided Jan. 31, 1966.

John B. M. Frohling, Newark, for appellant.

Morton Anekstein, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges CONFORD, KILKENNY and LEONARD.

PER CURIAM.

This is an appeal by Mrs. Kathleen B. Chester from a final decision of the Department of Civil Service, disallowing her claim to a preference under N.J.S.A. 11:27--1.2, as the wife of a disabled veteran, on the list of successful candidates who passed the civil service examination for the position of Court Clerk, Hudson County, held on September 25, 1964. If the preference had been granted, Mrs. Chester would have been entitled to be placed first on the list. Disallowance of the preference reduced her place on the list to number 27. As a result, she was not appointed to the position.

N.J.S.A. 11:27--1.2 provides in part:

'The wife of any veteran having a record of disability incurred in line of duty shall be entitled to the same preference under chapter twenty-seven of Title 11 of the Revised Statutes as the said veteran is entitled to, So long as the said veteran is not in the service of the State or of any county, municipality or school district operating under the provisions of subtitled three of Title 11 of the Revised Statutes * * *.' (Italics ours.)

It is undisputed that Mrs. Chester is the wife of a veteran having a record of disability incurred in line of duty.

The Department of Civil Service denied the DV preference to Mrs. Chester on the sole ground that her veteran husband was in the service of Hudson County as a senior probation officer on July 31, 1964, the announced closing date for receiving applications to take the civil service examination for court clerk. It ruled that the controlling date for determining whether or not a wife is entitled to claim the veteran's preference of her husband is the announced closing date for filing an application. The Department's bulletin, with reference to the court clerk's examination, had specified:

'In order to receive consideration, application blanks must be postmarked prior to 12 o'clock midnight of the announced closing date or be received before the close of business on that day at the office of the Department of Civil Service, State House, Trenton.'

It is conceded that Mrs. Chester's application, in which she claimed the DV preference, was stamped as having been received at the Department's office on July 29, 1964, before the closing date. A written waiver by Mr. Chester of his DV preference, as required by N.J.S.A. 11:27--1.2, was attached to the application. The Department sent its form CS--47A to Mrs. Chester, to be executed in support of her preference claim. She received it on August 3, 1964 and returned it the same day. It was stamped as having been received by the Department at its office on August 4, 1964. Question number 2(f) on that form asked: 'Is your husband At the present time employed by the State or any county or municipality operating under civil service?' (Italics ours) Mrs. Chester's answer thereto was, 'No.' This was true. Her husband had retired from his position as a probation officer on a disability pension, effective August 1, 1964. He has not been in any public position since that time. His application for retirement had been submitted in early June 1964 and had been approved by the pension commission on June 24, 1964, prior to but not effective until August 1, 1964. Mr....