Created by Fuzzy Cloud

Allahabad High Court

BIRENDRA SINGH VAIREversusSTATE OF U.P. AND 5 OTHERS

Decided

Holding

The second writ petition was barred by the withdrawal of the first, but the salary arrears claim was maintainable and the order dismissing it was set aside.

Summary

Birendra Singh Vaire challenged his appointment as Lecturer (English) at Maghanand Inter College, Bulandshahr, alleging irregularities related to reservation. After withdrawing an earlier writ (6890 of 2006), he filed a second writ (22502 of 2006) on the same ground and a separate writ (1339 of 2010) for salary arrears. The single judge dismissed both writs. On appeal, the court held that the withdrawal of the first writ barred the second writ, so the dismissal of the reservation challenge was upheld. However, the court found an error of principle in dismissing the salary arrears claim, set aside that part of the order, and directed the District Inspector of Schools to compute and pay the arrears for the periods August 1995‑June 1997 and August 1997‑November 2004, with interest for delay. The intra‑court appeal on the reservation issue was dismissed, while the appeal on salary arrears was allowed.

Issues considered

  • Whether the withdrawal of an earlier writ petition bars the filing of a subsequent writ on the same cause of action.
  • Whether the reservation issue can be re‑litigated in a fresh writ after the earlier writ was withdrawn.
  • Whether the appellant is entitled to salary arrears for work performed under a stop‑gap appointment.

Subjects

  • appointment
  • reservation
  • cause of action
  • writ petition
  • salary arrears
  • stop‑gap appointment
  • withdrawal
  • intra‑court appeal

Judgment

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                       SPECIAL APPEAL No. - 559 of 2026

Birendra Singh Vaire
                                                                .....Appellant(s)
                                      Versus

State Of U.P. And 5 Others
                                                           .....Respondent(s)

Counsel for Appellant(s)          : Bajrang Bahadur Singh, Satya Prakash
                                    Singh
Counsel for Respondent(s)         : C.S.C., Gulrez Khan, Krishna Kumar
                                    Chand

                                       And
                       SPECIAL APPEAL No. - 560 of 2026

Birendra Singh Vaire
                                                                .....Appellant(s)
                                      Versus

State Of U.P. And 2 Others
                                                           .....Respondent(s)

Counsel for Appellant(s)          : Bajrang Bahadur Singh, Satya Prakash
                                    Singh
Counsel for Respondent(s)         : C.S.C.
Court No. - 3

                HON'BLE SAUMITRA DAYAL SINGH, J.
                HON'BLE SWARUPAMA CHATURVEDI, J.

1.   Heard      Sri   S.P.   Singh,   learned   counsel   for     the   original

petitioner/appellant; Sri Gulrez Khan, learned counsel for the private

respondent no.6 and Sri Krishna Kumar Chand, learned counsel for

respondent no.2/Board.


2. Present intra-Court appeals have arisen against common order of the

learned single judge dated 08.04.2026 passed in Virendra Singh Vaire

Vs. State of U.P. & Ors.; 2026:AHC:76289. By that order, the learned

single judge has dismissed Writ - A No. 22502 of 2006 and disposed of

Writ - A No. 1339 of 2010, both filed by the present appellant.
                                                           SPLA No. 559 of 2026
                                2


Order on Special Appeal No. 559 of 2026


3. Earlier, the original petitioner had filed Writ - A No. 6890 of 2006 to

challenge the order dated 08.12.2005, appointing private respondent no.6

as Lecturer (English) at Maghanand Inter College, Sarai Ghasi,

Bulandshahr. However, that writ petition was dismissed as withdrawn by

the petitioner, vide order dated 06.02.2006.


4. Thereafter, the original petitioner filed Writ - A No. 22502 of 2006. In

that writ petition, after making disclosure of the fact that the earlier Writ -

A No. 6890 of 2006 had been dismissed as withdrawn, the petitioner

again set up challenge to the order dated 08.12.2005. Also, consequential

relief was sought.


5. At the same time, the original petitioner filed yet another Writ - A No.

1339 of 2010 for payment of arrears of salary etc.


6. Having heard learned counsel for the parties and having perused the

record, we find no error on principle in the order of the learned single

judge. The cause of action having arisen to the petitioner in the year 2005

upon issuance of appointment letter to the petitioner on the post of

Lecturer (English) at Maghanand Inter College, Sarai Ghasi, Bulandshahr

and that writ petition having been dismissed as withdrawn, at the instance

of the original petitioner/appellant, fresh cause of action did not

survive/arise as may have allowed the original petitioner to file the second

writ petition being Writ - A No. 22502 of 2006.


7. Also, we take note of the fact that the petitioner had been appointed on

the post of Lecturer (English) at the above described institution by way of

a stop-gap arrangement, till the joining of a regularly selected candidate.
                                                          SPLA No. 559 of 2026
                                  3


There is no doubt that the respondent no.6 is a regularly selected

candidate. The challenge as to the placement at the institution in question

- for reason of reservation not available was an issue to be contested in the

first writ petition filed by the original petitioner being Writ - A No. 6890

of 2006. Upon dismissal of that writ petition, no fresh cause of action ever

arose, to raise that challenge.


8. Whether the issue of reservation is to be governed by the full bench

decision of this Court in Heera Lal Vs. State of U.P. & Ors.;

2010:AHC:170881-FB, is an academic issue in the facts noted above.

Once cause of action did not survive on withdrawal of the first writ

petition filed by the original petitioner - without leave to file second

petition, no interference may ever be offered on the second writ petition.


9. The present intra-Court appeal lacks merit and is accordingly

dismissed.


Order on Special Appeal No. 560 of 2026


10. Insofar as the present appeal is concerned, an error on principle

appears to have crept in the order of the learned single judge to the extent,

that writ petition has been dismissed in entirety. It being undisputed to the

respondents that the original petitioner had been appointed by way of

stop-gap arrangement and that he had worked at the institution, the issue

of payment of salary would be linked to the months and days for which he

may have actually worked. Prima facie, evidence exists in the shape of

certificate issued by the Principal, Maghanand Inter College, Sarai Ghasi,

Bulandshah.


11. The said certificate is also counter signed by the Finance Officer
                                                                                            SPLA No. 559 of 2026
                                                                   4


                                    attached to the DIOS, Bulandshahr and counter signed thereafter by the

                                    DIOS, Bulandshahr.


                                    12. To that extent, the order of the learned merits interference. Thus, the

                                    part of the order dated 08.04.2026 passed by the learned single judge is

                                    set aside. The present intra-Court appeal is disposed of with the direction

                                    upon respondent DIOS, Bulandshahr to compute the original petitioner's

                                    salary for the period August, 1995 to June, 1997 and August, 1997 to

                                    November, 2004. The arrears of salary payable to the original petitioner

                                    may be paid out to him within a period of two months from today, after

                                    verifying from the original record. If such amount is not paid within the

                                    time granted, the same shall attract interest liability @ 6% from the date

                                    of amount becoming payable till the date of actual payment.


                                    13. With the aforesaid observation, present intra-Court appeal stands

                                    disposed of.



                                                    (Swarupama Chaturvedi,J.) (Saumitra Dayal Singh,J.)
                                    May 7, 2026
                                    Abhilash




Digitally signed by :-
ABHILASH SINGH
High Court of Judicature at Allahabad


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.