Distinguished
Distinguished by Biancardi v. Waldwick Bd. of Ed., 139 N.J. Super. 175 (1976)
Downs and Wall are clearly distinguishable from the instant situation.
The opinion
Pee Cueiam.
The relators are teachers of Hoboken having tenure. Seven of their number were restored to their positions November 19th, 1934, pursuant to litigation terminating in the decision of the Court of Errors and Appeals, reported in 113 N. J. L. 400. It appears that Hoboken had employed seven teachers not protected by tenure of office in the guise of economy in the place of teachers having tenure. The minutes show that the seven non-tenure teachers discharged, to comply with the order of the court, were kept in their positions and formally re-employed December 1st, 1934, as special substitute teachers. The relators now seek to have seven more of their number reinstated to take the place of the seven special substitute teachers so employed.
The Teachers5 Tenure act is not a gesture but a provision of law to protect teachers in their positions by reason of years of service. While in the interest of economy reduction in number may be made, those having tenure should have a preference in reappointment where vacancies occur. It is immaterial that the seven special substitute teachers may take the place of those who have since retired or resigned. It clearly appears from the record that the seven persons designated as special substitute teachers were actually continuously employed, the minutes notwithstanding. The action of the board was the merest subterfuge to defeat the legislative purpose, the decision of the state board of education and the courts of this state.
The teachers who have been reinstated may have waived their back pay and certain of their retirement right. We do not pass upon that point because we do not think it is before us. The circumstances surrounding their reinstatement may indicate voluntary action. Seven of those now seeking reinstatement in the place of the special substitute teachers are clearly not in laches, and are entitled to a writ directing the *855 employment of teachers having tenure in place of substitutes now regularly employed under whatever title designated.
The writ may go, with costs.