Clapp, Waesche and Artaserse. The opinion of the court was delivered by Artaserse, J.s.c. (temporarily assigned).
This is an action in lieu of prerogative writ. The appeal is brought under R.R. 4:88-8 to review a decision of the State Board of Education of the State of New Jersey, which affirmed a decision of the Commissioner of Education holding that the appellant, August Lascari, did not have seniority over one Pasquale Maggese to the position of vice-principal of the high school in the Borough of Lodi. The proceeding before the Commissioner had been instituted by the appellant to test the validity of the action taken by the defendant, Board of Education of the Borough of Lodi, in the County of Bergen.
The State Board of Education was named as a respondent on this appeal and on its behalf the Attorney-General filed a statement pursuant to R.R. 1:7-4(b), but took no part in the oral argument.
The facts are stipulated. The appellant was appointed a teacher in the Lodi School district in 1940. In 1946 he became vice-principal of the Wilson School, an elementary school. On September 15, 1948, he was transferred from his position as vice-principal of the Wilson School to vice-principal of the high school during the absence of one Pasquale Maggese who was then the vice-principal of the high school and who had been granted a leave of absence on account of illness from October 1, 1948 to September 1, 1950. On August 21, 1950, by resolution of the Board of Education of the said school district the appellant was appointed "principal to be known and designated as 'vice-principal of the high school.'" On the same date Pasquale Maggese was appointed
"co-ordinator of instruction." Pasquale Maggese voluntarily accepted this new position and served in said capacity until June 23, 1953, during which time the appellant served as vice-principal of the high school. On June 23, 1953, the local board abolished the position held by Pasquale Maggese as "co-ordinator of instruction" and returned him to the position of vice-principal of the high school and at the same meeting the Board removed the appellant as vice-principal of the high school and transferred him to teaching duties in the high school in which capacity he has been serving ever since without reduction of salary. The appellant is an honorably discharged veteran of World War II and no charges were made against him. Pasquale Maggese has been serving as vice-principal of the high school from June 23, 1953.
The appellant on or about August 10, 1953, filed a petition with the Commissioner of Education of this State by which he requested an order rescinding the action of the local board in removing him from the position of vice-principal of the high school and directing the local board to restore him to said position. The local board by its amended answer to the petition asserted eight separate defenses. The Commissioner of Education dismissed the appellant's petition. Thereafter the appellant appealed from the decision of the Commissioner and on February 4, 1955, the State Board of Education affirmed the decision of the Commissioner.
The appellant has made no claim with regard to his alleged appointment as "Principal" and it is therefore considered abandoned.
There are four questions involved in this appeal. These may be stated as follows: (a) What was the status of appellant's employment with the local board immediately prior to his re-assignment to teaching duties on June 23, 1953? (b) Do the provisions of R.S. 18:13-19 apply in determining the status of the appellant's employment with the local board? (c) Did appellant have greater seniority to the position of vice-principal of the high school than Pasquale Maggese according to the standards established to determine seniority pursuant to R.S. 18:13-19? (d) Did the appellant have
tenure to the position of vice-principal of the high school because of the Veteran's Tenure Act, R.S. 38:16-1?
a. Status of Appellant's Employment Immediately Prior to His Re-assignment to Teaching Duties on June 23, 1953:
Appellant would have us treat this case as though both co-ordinator and vice-principal were tenure categories. He is not entitled to this concession. R.S. 18:13-16 gives tenure to only four categories -- teacher, principal, assistant superintendent and superintendent -- and no rights of tenure attach to a gradation within any one of those categories. Lange v. Board of Education of Borough of Audubon , 26 N.J. Super. 83 (App. Div. 1953). There being no tenure status as vice-principal, appellant's tenure is merely that of teacher and he has not been deprived of such status, nor has ...