JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri P.S. Baghel, Advocate on behalf of Ram Lal Tripathi (petitioner), Sri G.K. Singh and Sri V.K. Singh, Advocates on behalf of Sri Shiv Bahadur Singh (respondent No. 5), Sri M.K. Srivastava, Advocate on behalf of Sri Sangam Lal Shukla (respondent No. 6) and learned Standing Counsel on behalf of other respondents. 2. Mahabeer Intermediate College, Bichhiya Bankat, Sant Ravi Das Nagar is an institution recognised under the provisions of U.P. Intermediate Education Act, 1921. The provisions of U.P. Secondary Education Services Selection Board, 1982 and Rules and Regulations framed thereunder are fully applicable to the said institution. 3. Ram Lal Tripathi (petitioner ) filed Civil Misc. Writ Petition No. 53693 of 2003 for quashing the seniority list dated 8th July, 2003 and further for a writ of mandamus commanding the State-respondents to declare the petitioner to be the senior most Lecturer in the institution. 4. Civil Misc. Writ Petition No. 38716 of 2006 has also been filed by Ram Lal Tripathi (petitioner) for quashing the order of the District Inspector of Schools, Sant Ravi Das Nagar dated 30th June, 2006 whereunder Shiv Bahadur Singh (respondent No. 5) has been appointed as the Officiating Principal in view of Section 18 of the U.P. Secondary Education Services Selection Board Act. 1982. It has been provided under the same order of the District Inspector of Schools that in case the petitioner has any grievance with regard to the seniority of Sri Shiv Bahadur Singh (respondent No. 5), he may file his objection before the Manager. If the Manager decides against him, he may file an appeal before the Regional Joint Director of Education, Region concerned. Petitioner has also prayed for a writ of mandamus commanding the respondents to give the charge of Principal to the petitioner. Facts : 5. Ram Lal Tripathi (petitioner) claims to have been appointed as C.T. Grade teacher on 8th September, 1971 with the approval of the District Inspector of Schools, thereafter he was promoted in L.T. Grade on 2nd January, 1984. Ram Lal Tripathi was granted ad hoc promotion as Lecturer on 26th September, 1991. Under an order dated 3rd November, 2003, he has been regularised on the post of Lecturer w.e.f. 7th September, 1993 with reference to Section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982. (Reference Annexure-1 to the writ petition). 6. Ram Lal Tripathi was granted ad hoc promotion as Lecturer on 26th September, 1991. Under an order dated 3rd November, 2003, he has been regularised on the post of Lecturer w.e.f. 7th September, 1993 with reference to Section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982. (Reference Annexure-1 to the writ petition). 6. Sri Shiv Bahadur Singh (respondent No. 5) claims that he was appointed as L.T. Grade teacher on 10th December, 1974. He was confirmed on the said post w.e.f. 10th December, 1975. Thereafter he was promoted on ad hoc basis as Lecturer (Sociology) on 25th October, 1983 against a newly created post of Lecturer Sociology. 7. The post of Lecturer Sociology was, however, requisitioned to the U.P. Secondary Education Services Selection Board, Allahabad and was accordingly advertised for direct recruitment on 17th December, 1988 being Advertisement No. 3/1988-89. 8. Sri Shiv Bahadur Singh (respondent No. 5) filed Civil Misc. Writ Petition No. 1294 of 1989 challenging the said selection. In the said writ petition an interim order was granted by this Court on 17th January, 1989, whereby it was provided that in the meanwhile no selection shall be made in pursuance to the Advertisement dated 17th December, 1988. The interim order continued upto 13th July, 1998, when learned Counsel for the petitioner of the said writ petition, namely, Shiv Bahadur Singh made a statement that he does not want to press the writ petition. The writ petition was accordingly dismissed and the interim order of this Court dated 17th January, 1989 was vacated. 9. It is claimed on behalf of Shiv Bahadur Singh (respondent No. 5) that in between he was regularised on the post of Lecturer in view of Section 33-A (1-A), (1-B) and (1-C) as added to the U.P. Secondary Education Services Selection Board Act, 1982 w.e.f. 6th April, 1991. 10. Sangam Lal Shukla (respondent No. 6) claims that he was initially appointed as L.T. Grade teacher in the institution on 10th December, 1974. He was confirmed on the said post w.e.f. 10th December, 1975. Thereafter he was promoted on ad hoc basis as Lecturer (Hindi) on 25th October, 1983 against a newly created post of Lecturer (Hindi). 11. The post of Lecturer (Hindi) was also requisitioned to the U.P. Secondary Education Services Selection Board, Allahabad and was accordingly advertised for direct recruitment on 17th December, 1988 being Advertisement No. 3/1988-89. 12. Thereafter he was promoted on ad hoc basis as Lecturer (Hindi) on 25th October, 1983 against a newly created post of Lecturer (Hindi). 11. The post of Lecturer (Hindi) was also requisitioned to the U.P. Secondary Education Services Selection Board, Allahabad and was accordingly advertised for direct recruitment on 17th December, 1988 being Advertisement No. 3/1988-89. 12. Sri Sangam Lal Shukla (respondent No. 6) was also one of the co-petitioners in Civil Misc. Writ Petition No. 1294 of 1989, whereby the advertisement was challenged. He was also the beneficiary of the order granted, whereby selection in pursuance to the said advertisement was stayed. The writ petition as recorded above was got dismissed as withdrawn. Sri Sangam Lal Shukla claims that in between he was regularised on the post of Lecturer (Hindi) w.e.f. 6th April, 1991 in view of Section 33-A (1-A), (1-B) and (1-C) as added to the U.P. Secondary Education Services Selection Board Act, 1982 w.e.f. 6th April, 1991, as per the order of the District Inspector of Schools dated 25th January, 1996. 13. Sri P.S. Baghel, learned Counsel for the petitioner points out that the stand taken by respondent Nos. 5 and 6 by means of the counter-affidavit in the present writ petition runs contrary to their stands taken in Civil Misc. Writ Petition No. 1294 of 1989, wherein it is claimed that respondent Nos. 5 and 6 applied in response to the advertisement published by the Committee of Management for ad hoc appointment through direct recruitment against the newly created posts of Lecturers in the institution. He refers to paragraph-13 of Civil Misc. Writ Petition No. 1294, wherein it has been stated as follows : “13. That all the three petitioners are working in the institution from their respective dates of appointment as Lecturers. The petitioners have been appointed on substantive posts by direct recruitment.” 14. In these set of facts Sri P.S. Baghel, learned Counsel for the petitioner submits that the seniority list published on 8th July, 2003 is patently illegal, inasmuch as respondent Nos. 5 and 6 cannot be treated to be senior to the petitioner, the regularization, which has been offered in their favour on the post of Lecturers, was illegal as on the date the order of regularization was passed, respondent Nos. 5 and 6 cannot be treated to be senior to the petitioner, the regularization, which has been offered in their favour on the post of Lecturers, was illegal as on the date the order of regularization was passed, respondent Nos. 5 and 6 were being continued in the institution only because of an interim order dated 17th January, 1989, passed in their earlier Civil Misc. Writ Petition No. 1294 of 1989, whereby selection in pursuance to the advertisement dated 17th December, 1988 had been stayed and the petitioner- teachers were permitted to continue and paid salary. 15. the claim of respondent Nos. 5 and 6 for regularization as Lecturers could not have been considered in view of the Judgment of the Honble Supreme Court of India in the case of State of U.P. and others v. Raj Karan Singh, 1998 (8) SCC 529 as well as in the case of Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and another v. Sree Kumar Tiwary and another, (1997) 2 UPLBEC 1133. It has been further clarified that once the respondent Nos. 5 and 6 have got their writ petition dismissed as not pressed on 13th July, 1998 and the interim order dated 17th January, 1989 having been vacated, their continuance in the institution also ceases by operation of law. The interim order emerges in the final order, therefore, it cannot be said that respondent Nos. 5 and 6 were in continuous service in the institution as Lecturers, so as to claim benefit of regularization. 16. on behalf of respondents reliance has been placed upon the judgment of Honble Supreme Court of India in the case of A.K. Bhatnagar and others v. Union of India and others, (1991) 1 SCC 544 , as well as upon the judgment of this Court in the case of Vijay Narayan Sharma v. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44 specifically Paragraphs 25 and 26, and in the case of Rama Shanker Mishra v. Joint Director of Education, Varanasi Region, Varanasi and others, 2001 (43) ALR 650 specifically Paragraph 17, for the purposes of alleging that validity of appointment and promotion already granted, cannot be challenged while questioning the seniority. 17. 17. On the issue of seniority is dependent the right of the parties to be appointed as officiating Principal of the institution, the vacancy whereof has been caused on 30th June, 2006 with the retirement of earlier incumbent holding the office. 18. From the facts as recorded above, it is no more in dispute that respondent Nos. 5 and 6 in their writ petition No. 1294 of 1989 specifically paragraphs 8 to 13, stated that they had applied in pursuance to the advertisement dated 17th December, 1988 published by the Committee of Management for the purposes of making ad hoc appointment by direct recruitment on the post of Lecturers in Sociology and Hindi respectively, which were newly created posts. The respondent Nos. 5 and 6 were selected and offered ad hoc appointment in pursuance thereto. The continuance of respondent Nos. 5 and 6 as ad hoc lecturers in the institution subsequent to the publication of the advertisement dated 17th December, 1988, was based upon an interim order obtained by them in Civil Misc. Writ Petition No. 1294 of 1989. During the pendency of the writ petition, their claim for regularization could not have been considered, in view of the judgment of the Honble Supreme Court of India in the case of State of U.P. and others v. Raj Karan Singh (supra). The relevant portion whereof reads as follows : “Besides, merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularization. It is only an interim arrangement pending decision by the Court and cannot disturb the position in law or equities, as on the date of the petition.” 19. The Hon’ble Supreme Court of India in the case of State of U.P. and others v. Raj Karan Singh (supra) as well as in the case of Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and another (supra), has held as follows : “But the crucial question is: whether the respondent was continuously serving the institution under Clause (c) of Section 33-B (i)? Admittedly, the service of respondent came to be terminated w.e.f. June 30, 1988. Admittedly, the service of respondent came to be terminated w.e.f. June 30, 1988. Though he had obtained the stay order and continued to be in service, it was not by virtue of his own right under an order of appointment, he continued in the office with permission of the management.” 20. The Hon’ble Supreme Court of India has explained that continuance under an interim order of the Court cannot confer any right for continuance nor can it enhance the cases of writ petitioners for regularization. It is only an interim arrangement pending decision by the Court, status on the date of the petition cannot be disturbed in law or equity. 21. The position has been made worst by respondent Nos. 5 and 6 by their own act of getting their writ petition No. 1294 of 1989 dismissed as not pressed, whereby the interim order dated 17th January, 1989 was also discharged. The Honble Supreme Court of India in the case of M/s. Shree Chamundi Mopeds Ltd. v. Church of South Indian Trusts Assn. CSI Cinod Secretariat, Madras, JT 1992 (3) SC 98 has specifically held that once the interim order is discharged/vacated/ writ petition is dismissed, it is to be presumed such an order was never granted in the eye of law. 22. In view of the aforesaid legal consequences flowing from continuance in employment of respondent Nos. 5 and 6 because of the grant of the interim order and ultimately vacation of the same, cannot be held to be in continuance service in the institution in the eye of law, so as to claim benefit of Section 33-A of the U.P. Secondary Education Services Selection Board Act, 1982. 23. As a logical consequences, this Court is inclined to hold that regularization offered to respondent Nos. 5 and 6 as has been done in the facts of the present case, cannot confer any legal right upon respondent Nos. 5 and 6 to claim to be the lawful members of the cadre of Lecturers. 24. Inter se seniority between teachers of particular cadre, has to be determined with reference to their date of valid and substantive appointment on their respective posts. Unless the teacher is lawfully appointed in a grade, he cannot be treated to be a member of the mainstream of teachers of the cadre, so as to claim a position in the seniority qua the cadre concerned. 25. Unless the teacher is lawfully appointed in a grade, he cannot be treated to be a member of the mainstream of teachers of the cadre, so as to claim a position in the seniority qua the cadre concerned. 25. The legal position in that regard has been settled by the Hon’ble Supreme Court of India in the case of Shitala Prasad Shukla v. State of U.P. and others, 1986 UPLBEC 473 specifically paragaraph-9 has held as follows : “9. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a vis those who have been regularly and properly appointed, till their appointments became Regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that time of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue.” 26. In such circumstances it is held that respondent Nos. 5 and 6 are not members of the mainstream of lecturers in the institution, they cannot claim consideration of their right of appointment as Ad-hoc Principal under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 against a vacancy which has been caused on 30th June, 2006. 27. In view of the said legal position as explained by the Hon’ble Supreme Court of India the judgments relied upon by the respondents can be of no help and are distinguishable on facts. 28. At this stage this Court may also deal with the issue/objections raised on behalf of respondents to the effect that the petitioner has a remedy by way of an appeal against the determination of the seniority before the Regional Joint Director of Education concerned and therefore, the writ petition may be dismissed on the ground of statutory alternative remedy. 29. At this stage this Court may also deal with the issue/objections raised on behalf of respondents to the effect that the petitioner has a remedy by way of an appeal against the determination of the seniority before the Regional Joint Director of Education concerned and therefore, the writ petition may be dismissed on the ground of statutory alternative remedy. 29. Since the parties have exchanged their affidavits and have addressed the Court on merits, this Court is satisfied that it would not be fair, just and equitable in the facts of the present case to insist upon the petitioner to avail his alternative remedy after more than three years of his having filed the first writ petition being Civil Misc. Writ Petition No. 53693 of 2003, more so when upon the dispute of seniority, another issue qua the ad-hoc appointment on the post of Principal has intervened. 30. In view of the aforesaid the seniority list issued by the Authorized Controller of the institution dated 8th July, 2003 as well as the order dated 30th June, 2006 issued by the District Inspector of Schools, Sant Ravi Das Nagar, Bhadohi offering appointment to Sri Shiv Bahadur Singh (respondent No. 5) on the post of officiating principal cannot be legally sustained and are hereby quashed. 31. Both the writ petitions are accordingly allowed. Respondents are directed to offer ad-hoc appointment on the post of Principal, strictly in accordance with Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 and in light of the observations made above. ———