v^'<t^;- '^ll -£»}C^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W. P. (S) No. 6'm OF 2008. PETITIONER ^&^^. ...^MS^-"' ^:;.:;»»'^v>-'"' ^- ^^^^^ ^«**'v Rameshwar Prasad Sahu, S/o. A. R. Sahu, aged about 38 years, R/o. N.Q.-900 Pragati Nagar, at post S.E.C.L. Deepka (Gevra) Distt. Korba (C. G.). V E R S U S RESPONDENTS : 1) S. E. C. L. through its Chairman Cum-managing Director Seepat Road, Bilaspur (C. G.) ^2) General Manager, S.E.C.L. DeepkaArea, P.0. Deepka, Distt. Korba (C. G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA l;j:l;^5? (^ HIGH CQUrr OF CHHATTISG.^RH AT BILA8PUR WRIT PETITION (S) No. 6738 of2008 1>ETITIQNER RESPONDENTS Rameshwar Prasad Sahu. VERSUS S.E.C.L-fe.Another. . W~RI'1~ PE'miON UNDER ARTICLE 226 OF IHE CONSTITUTION OF1NDIA SB: Hon'ble Shri Satish K. AgmhQtii, J. Present: Shri S.N.Prasad, Advocate for the petitioner. Shri V.R.Tiwari, Advocate for the respondents. ORDER fORAL) (Passed on 06ui day ofMay, 2011) 1. By this petitioa the petitioner seeks a direction to the respondents to issue promotion letter to the petitioner on fhe gt'ound of acquiring essential certificate for the post of Assistant Foreman, Electrical, Grade C. 2. At the veiy outset ieamed counsel appearing for the respondents, submits that tlie petitioner had earlier flled a writ petitiGn beiiig W.P.(S) No. 6783/2007, which was dismissed as withdrawn on 26.03.2008, without taking leave ofthe court to file a subsequent petition for the same cause ofaction seeking same reliefas sought fbr in this petition. 3. Sliri Prasad, learned counsel appearing for the petitioner submite thougli, no peiTnissipn to file a tresh petition was sought be&re withdrawing the eai'lier petition, however, since the grievance of the petitioner was not rederessed, the petitioner has flled the mstant petition. 4. On pemsal, it is found that the earlier writ petition was filed on the same grounds, which was dismissed as withdrawn without liberty to lile a fresh writ petition. Thus, the present petition is not mamtainable. 5. Law on the point is well settled. In Sarguja Transport Service Vs. Stafe Transport AppeUate TribunaL M.P, Gwalior, and others , where after withdrawal of the earlier writ petition (M.P.No. 2945 of 1985), without seeking liberty to ille a fresh writ petition, the second writ petition (M.P.No. 188 of 1986) was filed, the Higli Court dismissed the second writ petition, tlled for the ^ same cause of action, on the ground that the earlier writ petition was not withdrawn with peniiission to file a fresh petition; Ho'ble Supreme Court held as under : <• <"5.In this case we are called upon to consider the efFect ofthe withdrawal ofthe writ petition filed under Ai-ticles 226/227 oftiie Constitution of India without the pemiission of the Higli Court to file a fresh petition. The provisions of fhe Code ofCivil Procedure, 1908 (hereinafter refeiTed to as 'the Code') are not m tenns applicable to the writ proceedmgs although the procedure prescribed therein as far as it can be made applicable is fbllowed by the Higli Court in disposmg ofthe writ petitions/9 7. ... ..The law coiifers upon a man no rights or beiiefrts which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again o?i the same cause of action without any good reason the Code insists that he should obtain the permission ofthe court to file a jfresh SUlt. 8, ...It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the court is iiot likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to pemiit the petitioner to withdraw irom the writ petition without seeking peniiission to institute a fresh writ petition. A Court ^liich is unwilling to adniit the petition ' (1987) 1 SCC 5 ^ would not ordinarily gi'aiit liberty to file a fresh petition while it may just agree to peniiit the withdrawal ofthe petition. It is plain that when once a writ petition filed m a liigli Court is withdrawn by the petitioner himself he is precluded from filmg an appeal against the order passed in the writ petition because he caimot be considered as a party aggi4eved by the order passed by the High Court.75 Hon'ble Supreme Court in Avmash Nagra Vs. Navodaya Vidyalaya Saiiiiti aiid others2 held as under: "13. The Hi^i Couxl also was rigiit m its conclusion that the second WTit petition is not mamtainable as the principle of constmctive res nidicata would apply. IIe filed the writ petition in first iristance but withdrew the same without permission ofthe Court with liberty to file the second wrii petition which was disniissed. Therefore, the secoiid writ petition is not mamtainable as held by the Higli Court in applying the con'ect principle of law. Thus considered we fiiid no merit in the appeal for mterference." In view ofthe above settled position oflaw, since the earlier \wit petition was filed by the petitioiier before this Court agaitist the same cause of actioii, for the same relief, for which the instant petttion has been filed before this Court, was not withdrawii with liberty to file a fresh petition before this Court, this wnt petition, bemg second petition, is not mamtainable. ^ 8. Accordingly, this writ petition is dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge 2 (1997) 2 SCC 534 Aiiiit