uft (1) IWttl C IN THE HON'BLE^IIGH^OURT OF C.G. AT BILASPUR W. P. (S( N0. /32- OF 2010 PETITIONER 'Ashwani Jaiswal, aged about 50 years, S/o Shri S.S. Jaiswal, R/o Quarter No. 232, Block No.-09, Godripara, B Type Quarter, P.0.- Kurasia, District-Korea (C.G.) VERSUS RESPONDENTS W.O 0^>' v^ ^A/ rWW /./ ->r/^¥ ^/^^ ^^ ^v /^y <? ^' 1. -^ South Eastern Coalfield Liraited, through Chief Managing Director, Seepat Road, Bilaspur (C.G.) 2. '^Chief General Manager, Chirmiri Area, Office of the Chief General Manager, S.E.C.L. Chirmiri, District-Korea (C.G.j 3. 4. 5. 6. ^' Deputy GeneraJ Manager (Shrarn Shakti) S.E.C.L., Seepat Road, BUaspur (C.G.) Deputy Chief Personnel Manager, S.E.C.L. Chirmiri Area, District- Korea (C.G.) Chief Personnel Manager, S.E.C.L. Chirmiri Area, District- Korea (C.G.) Chairman-cum-Managing Director, S.E.C.L. Bilaspur (C.G.) WMT PETITION UNDER ARTICLE 226 QF THE CONSTITUTION OF INDIA ; .'l .^ &^\\t> HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETmON (S) No. 132 of2010 PETmONER : Ashwani Jaiswal. VERSUS RESPONDENTS : South Eastem Coalfields Ltd. & Othei-s. WRTT PETITION UNDER ARTICLE 226 OF THE CONSTITUI'ION OF LNDIA SB:,Hoa'Me Sfcn Satish K. Agnihotri, J. Present: Sliri Prateek Sharma, Advocate fbr the petitioner. Shii P.S.Koshy, Advocate forthe respondents. 2. (Passed Qn24tEdayofFebniaiy, 2010) By this petition, the petitioiier seeks to quash the iinpugned order dated 7.11.2006 (Annexure P/l) whereby the petitioner was traiisferred from Chinmri Area to Raigarh Area and the consequential order dated 30.04.2008 (Annexure P/2) whereby pursuant to Ibe earlier order dated 7.11.2006, the petitioner was relieved from Chiniuri Ai'ea to join at Raigarh Area. The facts, iii brief, as projected by tlie petitioner are tiiat the petitioner was initially appointed as casual labour in Kurasia Colliery. His services wa'e regulafised as daily rated Majdoor vide order dated 10.11.1984 and thereafter, oromoted as Clerk Grade III vide order dated 10.01.1991 aiid subsequently promoted as Clerk Grade I, vide order dated 20.0S.1996. A separate g-adation Ust was maintained fbr tlie employees of Chirmiri Area. The seivices of the petitioner was ti-ajisieiTed to Raigaili Area whereby fhe petitioner was deprived from promotion wluch was due in the year 2008 as in the aradation list mauitained for the Raigarh Area, the name of the petitioner was placed at the lowest. Agauist the said action, tlie petitioner made representations to the respondent authorities. On non-eonsidei-ation of !iis representations, the petitioner filed a w'Tit petition being W.P.(S) No. 1193/2007 -wluch was disnussed as withdrawn vide order dated 28.02.2007. However. the respondents were directed to consider the representation dated 10.11.2006 oftlie petitioner within a period offbur weeks. Shri Sharrna, leamed counsel appearing for the petitioner submits that pursuaiit to tiie order dated 28.2.2007 passed by tliis Court in W.P.(S) No. 1193 of 2007, the petitioner submitted a copy of Uie said order alonewifh an application on 12.03.207 (Annexure f/6). The respondent No. 3, vide order dated 02.01.2008 (Annexure P,'7) suspendedthe order dated 7.11.2006 (Annexure P/l) till 30.04.2008 and the petitioner vvas directed to join at Chinmri. Thereafter, vvithout deciding the representation of the petitioner, the petitioner, vide order dated 22.7.2009 (Annexure P/8) was again directed to joiu at Raigarh Area. Thus, tliis petition. 4. I have heard leanied counsel appearing for the parties and perused the pieadings aiid documents appended thereto. 5. The eariier writ petition being W.P.(S) No. 1193/2007 was dismissed as withdrawn vide order dated 28.02.2007 as under: "3. The writ petition is accordinely dismissed as withdrawn. However, the respondent-autliorities ai-e directed to consider the representation dated 10.11.2006 (P/6), in accordance widi law, witliiii a period of four weeks from the date of receipt of a copy oftliis order" 6. According to Shri Sharma, despite tlie order dated 28.02.2007 passed by this Court in tSie above writ petition, the representation ofthe petitioner dated 10.11.2006 and 12.03.2007 (Annexure P/6), have not yet been decided. 7. Be fhat as it may, it is well settSed that ifthe direction passed by a Court is not iniplemented, there is oflier forum to get the order implemented, and notthe filing ofa substantive writ petition. 8. On perusal, it is found that the earlier writ petition cliallenges the same transfer order i.e. order dated 7.11.2006 on the same g-ounds, whieh was dismissed as withdrawn vvithout liberty to question the impugned order therein in a fresh writ petition. Thus, the present petition is not maintamable. 9. Law on the point is well settled. Li Sai'guja Transport Service Vs. ^. Stete Transport AppeBate Tribimal, M.P. Gwalior, and othere, where after withdrawal of the earlier writ petition (M.P.No. 2945 of (1987)1 SCC5 19&5), witiiout seeking liberty to file a fresh writ petition, the second wi-it petition (M.P.No. 188 of 1986) was filed, the High Court dismissed the second writ petition, tiled for the same eause of action, on the ground that the eariier writ petition was not withdrawn with permission to file a iresh petition; Ho'ble Supreme Court held as under; "5.1n this case we are called upon to consider the effect ofthe withdrawal ofthe writ petition fiied under Ailicles 226/227 ofthe Constitution of India without the peniiission of the High Court to file a fresh petition. The provisions of the Code ofCivii Procedure, 1908 (heremafter referred to as 'the Code') are not in terais applicable to the writ proceedings although the procedure prescribed thereitt as far as it can be made applicable is followed by the High Court in disposmg ofthe writ petitions." 7. .....The 3aw confers uponamanno rights or benefits wfaich he does not desire. Whoever waives, abandons or disclaims a riglit will loose it. In order to prevent a litigant from abusiiig the process of the court by institutmg surts agam and agaia on fhe same cause of action ivithout anv good reason the Code insists fhat he shouid obtaiii the peniiission ofthe court to file a fresh SUlt. 8. ...It is conimon knowledge tliat very often after a writ petition is heard for some time when the petitioner or his counsel finds that tlie court is aot likely to pass an order admitting the petition, request is made by the petitioner or by liis couiisel to permit the petitioner to wi'tfidraw from the wi-it petition wifhout seeking pennission to iiistitute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition whiie it may just agree to pennit the withdrawal ofthe petition. It is plainthat when once a writ petition filed in a High Court is withdrawii by the petitioner hia'iself he is precluded from filing an appeal against the order passed in fhe writ petition because he cannot be considered as a paily aga'ieved by the order passed by -the High Court." 10- Hon'ble Supreme Court in Avinasli Nagra Vs. Navodaya Vidyalaya Samiti and others^ held as under: (1997) 2 SCC 534 ''-. ''i*E'"\it '"i!l~2:.<£.3!> 11, "13. The High Court also was riglit in its condusion that the second writ petition is not mamtainable as the principle ofconstructive res jitdicata would apply. He filed the writ petition in first instance but withdrew the same without pei-mission of the Court with liberty to file the second writ petition which was disinissed. Therefbre, the second writ petition is not mamtainable as held by the High Court m applying the coiTect priiiciple of law. Iltus considered we find no merit iiithe appeal for interference." In view of the above settled position of law, siiice tlie eatliei- vvrit petition was filed by the petitioner before this Court against fhe saiiie cause of actioii, for the saine relief^ fbr which the instant petition has been fiied before this Court, was not withdrawn with libeitv' to file a fresh petition before this Court, this writ petition, being second petitioii, is not maintamable. Accordingly, this writ petition is dismissed. No order asto costs. Sd/- SATISH K. AGNmOTRI Judge