MRS. MEERA CHHIBBER, MEMBER (J)
1. Applicant has sought the following relief:-
“Direct the respondent’s society to grant her promotion as granted to her Juniors Mrs.V. D-Souza and Mr. M.L. Rathore to the post of Section Officer from the dates of their respective promotions to the said post with all consequential benefits.”
2. It is submitted by the applicant that she was appointed as Receptionist in the scale of Rs.330-560 belonging to the post of UDC on 2.3.1979 (page 19). Similarly R-3 was also appointed as Receptionist on the same day. Both were promoted as UDC. In the seniority list of UDCs, applicant was shown at Sl.No.12 while R-3 was shown at Sl.No.16 (page 25). However, without considering the applicant, R-3 was promoted as Assistant vide order dated 14.12.2006 (page 28). Being aggrieved, applicant gave a representation which was rejected on 13.12.2006. Being further aggrieved, applicant again gave a representation on 11.6.2010 followed by reminders but since no reply was being given, she filed Writ Petition No.79/2007 which was ultimately dismissed as withdrawn on 21.7.2008 due to some development that had taken place after the filing of the Writ Petition. Subsequently, applicant had filed another Writ Petition No. 5578/2008 which was transferred to the Tribunal and re-numbered as TA No.777/2009. The said TA was also allowed in favour of the applicant but till date she has not been given the promotion as Section Officer. She has thus sought relief, as mentioned above on the basis of Identity Card which was given to the applicant which shows her as an Assistant. Reliance has been placed by the counsel for the applicant on the judgment of the Hon’ble Supreme Court in the case of Union of India and Another Vs. Hemraj Singh Chauhan and Others reported in AIR 210 SC 1682.
3. Respondents, on the other hand, have taken preliminary objection to the maintainability of the OA itself on the ground that the OA is barred by limitation inasmuch as applicant is seeking promotion as Section Officer from the date Smt. V. D-Souza and Shri M.L. Rathore were promoted. However, Smt. D-Souza and Shri Rathore were promoted as Assistant in 1992 and further as Section Officer with effect from 14.12.2006. The representation given by the applicant was also rejected on 13.12.2006 (page 42) whereas present OA has been filed on 27.1.2011, therefore, OA is liable to be dismissed being barred by limitation.
4. They have further stated that the first Writ Petition bearing No.79/2007 filed by the applicant was dismissed as withdrawn without taking any liberty from the court. Reliance has been placed by the counsel for the respondents on the judgment of the Hon’ble Supreme Court in the case of Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others reported in 2010 (12) SCC 471. In the said Writ Petition, Smt. D-Souza and Mr. Rathore were also impleaded as a party, therefore, the present OA is not maintainable. Reliance has been placed by the counsel for the respondents on the following judgments:-
(i) Upadhyay and Co. Vs. State of U.P. and Others reported in 1999 (1) SCC 81.
(ii) M/s Kishan Chand Surendra Kumar Vs. Delhi School Teachers Co-operative House Building Society Ltd. Reported in AIR 2002 DELHI 330.
5. Moreover, the applicant had also filed another Writ Petition bearing No.5578/2008 in the Hon’ble High Court of Delhi which was transferred to the Tribunal and re-numbered as TA No.777/2009. Even though in both the Writ Petitions applicant had sought further promotion on the basis of seniority list of UDCs but the only relief granted was to revise her pay scale to Rs.6500-10500 with effect from 15.9.2006. Since the other relief claimed have not been granted, it is deemed to have been rejected. To buttress this contention, reliance has been placed on the judgment of Hon’ble Supreme Court in the case of State Bank of India Vs. Ram Chandra Dubey and Others reported in 2001 (1) SCC 73. Counsel for the respondents thus submitted that filing of the present OA amounts to the abuse of the process of law, the same may, therefore, be dismissed with heavy costs. In any case, the relief sought is qua Smt. V. D-Souza and Shri M.L. Rathore but the said persons have not been impleaded as a party in the present petition. Smt. Veena has been impleaded as a party but no relief qua her has been claimed in this petition, therefore, this OA has to be dismissed for non-joinder of necessary parties as well.
6. On merits, they have stated that applicant was never in the cadre of UDC. It is wrong to allege that she was in the hierarchy for promotion as Assistant and Section Officer. The applicant was holding the isolated post of Receptionist, therefore, she is not entitled to claim promotion in the hierarchy of UDC as Assistant or Section Officer. The rules for promotion in the Government of India are not applicable in Indian Red Cross Society (hereinafter referred to as IRCS). It is the Managing Body of the IRCS which is the supreme authority for deciding the matters relating to service conditions of its employees. The applicant was never appointed as UDC.
7. As far as Smt. Veena Puri is concerned, she was appointed in a different post in the lower scale, therefore, no comparison can be drawn with her. Promotion is made from the post of LDC to UDC, UDC to Assistant and Assistant to Section Officer and so on. Simply because someone is drawing the pay in the identical scale, it does not mean that the person can claim promotion in the other cadre. It is only for the matter of convenience that their names were placed in the single list of employees drawing salary in the identical scale. They have specifically stated that the applicant was appointed as a Receptionist whereas Smt. V. D-Souza and Shri M.L. Rathore were appointed as UDCs, who were subsequently promoted as Assistants in 1992 and as Section Officers in the year 2006. The applicant did not claim promotion with reference to them because she knew she was not in the feeder cadre. They have further stated that applicant was never promoted as Assistant. Mere inadvertent mention of wrong designation in the Identity Card will not entitle her to claim further promotion on the basis of said Identity Card. Moreover, in order dated 13.5.1999 (page 29), it was specifically mentioned that she has been placed in the pay scale of Rs.1640-2900 without any change of designation, therefore, no case is made out for interference by the Tribunal. The OA may, therefore, be dismissed.
8. We have heard both the counsel and perused the pleadings also.
9. The relief claimed by the applicant in this case is as follows:-
“Direct the respondent’s society to grant her promotion as granted to her Juniors Mrs.V. D-Souza and Mr. M.L. Rathore to the post of Section Officer from the dates of their respective promotions to the said post with all consequential benefits.”
Meaning thereby, she is claiming Smt. V. D-Souza and Shri M.L. Rathore are junior to her whereas in the entire OA, no material has been placed on record to show that they were in any common seniority list at any stage. On the contrary, applicant has herself stated in para 4.12 that Mrs. D-Souza and Mr. Rathore were promoted as Assistant in 1992. Applicant has not placed any document on record to show that she was also promoted as Assistant in 1992. If applicant was not promoted in 1992 and she claims Smt. D-Souza and Shri Rathore were junior to the applicant, her cause of action had arisen in the year 1992. She did not challenge their promotion nor sought promotion as Assistant in the year 1992, therefore, the present OA which has been filed on 27.1.2011 is barred by limitation because period of limitation as prescribed under Section 21 of the Administrative Tribunals Act, 1985 is one year from the date of cause of action.
10. Both Smt. D-Souza and Shri Rathore were further promoted as Section Officer with effect from 14.12.2006. At this stage, applicant had given a representation but her representation was also rejected on 13.12.2006 (page 42) by passing a reasoned order observing as follows:-
“That points made by Smt. Sunita Kaushik have been considered carefully in detail and it has been observed that the applicant was appointed as Receptionist in the pay scale of Rs.330-560 with effect from 02.03.1979. The applicant was placed in the pay scale of Rs.1200-2040 w.e.f. 01.01.1986 and subsequently in the scale of Rs.4000-6000 (Rs. 1200-2040) w.e.f. 01.01.1996, the applicant was promoted w.e.f. 13.05.1999 an placed in the pay scale of Rs.1640-2900 (pre-revised) Rs.5500-9000 revised) without any charge of designation/job responsibilities.
It has been observed that the case quoted by the applicant are quite different as they were appointed as Receptionist initially in the scale of Rs.260-400 whereas the applicant was appointed in the pay scale of Rs.330-560. Therefore, the case of the applicant is not comparable with the persons quoted in her representation in terms of pay scale, channel of promotion and job responsibilities due to their initial recruitment in other pay scale/post.
The name of the applicant remained in the combined seniority list of UDCs/Receptionists prepared by the administration in the year 1987 and 1991 respectively, inclusion of her name in the combined list does not indicate that she is to be treated as UDC. As it was a combined list the heading of the list clearly indicated the post held by her a Receptionist. There is no other Receptionist in that list except Smt. Kaushik.
In so far as her contention for grant of the financial upgradation is concerned, it may be that the Assured Career Progression Scheme introduced in Govt. of India w.e.f. 09.08.1997 has been adopted by the IRCS w.e.f. 03.01.2002. The scheme, inter alia, provides for grant of two financial upgradations to Gp. B, C and D employees on completion of 12 years and 24 years of regular service respectively. In her case, the applicant Smt. Kaushik has been given promotion w.e.f. 13.05.1999 and placed in the pay scale of Rs. 1640-2900 (pre-revised) without any charge designation/job responsibilities. (The normal higher grade/scale of pay after Rs.4000-6000 is Rs. 5000-8000). In this connection, it may further be clarified that the modified pay scale in respect of the reception staff notification of the 5th pay commission w.e.f. 01.01.1996 in the hierarchy are as under:
| Post | Existing Pay Scale | Revised Pay Scale |
| Jr. Reception Officer | Rs.4000-6000 | |
| Rs.1200-2040 (pre-revised) | Rs.4000-6000 | |
| Jr. Reception Officer | Rs.4500-700 | |
| Rs.1400-2300 (pre-revised) | Rs.5000-8000 | |
| Supervisor | Rs.5500-9000 | |
| Rs.1640-2900 (pre-revised) | Rs.5500-9000 | |
| Chief Supervisor | Rs.5500-9000 | |
| Rs.1640-2900 (Pre-revised) | Rs.6500-10500 |
In view of the position explained above, Smt. Sunita Kaushik has already been provided promotion and placed in the pay scale of Rs.1640-2900 w.e.f. 13.05.1999 (revised Rs.5500-9000). As Smt. Kaushik has already availed two upgradations and it has been decided that she will continue to be designated as Receptionist, her request for further upgradation/promotion and placement in the seniority list of Assistant can not be extended to. She is hereby informed accordingly.”
11. At this stage applicant had filed Writ Petition No. 79/2007 seeking the following relief:-
“a) To grant the petitioner all the promotions due to her in accordance with the seniority based on the common grade of UDC.
To release the arrears of salary accruing to the petitioner on account of the aforesaid promotions.
To release the arrears of salary on account of the revision in the grade of the Assistant from Rs.5500-175-9000 to Rs.6500-200-10500 with effect from January 3, 2002 @ 18% interest w.e.f. 6.9.2000.
To quash the orders promoting the persons junior to the petitioner impleaded herein and according to the petitioner the priority over them.
Any other relief which this Honourable court deems just and appropriate in the facts and circumstances of the case”.
Respondents have specifically stated that in this Writ Petition, applicant had impleaded three private respondents, namely, Shri R.N. Tandon, Smt. V. D-Souza and Shri M.L. Rathore who were already promoted as Section officers. Perusal of order dated 21.7.2008 annexed with the counter affidavit on page 81 shows that the said Writ Petition was dismissed as withdrawn without taking any liberty for filing the case again. From perusal of above, it is seen that in this case also, applicant had sought promotion on the basis of seniority list of UDCs.
12. At this stage it would be relevant to refer to the judgment of Hon’ble Supreme Court in the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior reported in AIR 1987 SC 88. It has been held as under:-
“The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in S. 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating- under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of R .1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.
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 not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of O. XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition”.
Similarly in Avinash Nagra Vs. Navodaya Vidyalays Samiti and Others reported in 1997 (2) SCC 534 it has been held as under:-
“The High court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference”.
13. In view of above, the present OA is not maintainable because after withdrawing the I-st Writ Petition applicant had filed another Writ Petition bearing No.5578/2008 in the Hon’ble High Court of Delhi seeking the following relief:-
“a) To grant the petitioner all the promotions due to her retrospectively in accordance with the seniority based in the UDC cadre and the admitted position regarding equivalence of the receptionist vis-Ã -vis UDC.
To release her functions compatible with her status and official position.
To release the arrears of salary accruing to the petitioner on account of the aforesaid promotions @ 18% interest and direct the recovery of the same from those who are squarely responsible for blocking and thwarting her legitimate dues/promotions.
To release the arrears of salary on account of the revision in the grade of Rs.5500-175-9000 to Rs.6500-200-10500 with effect from Sept 15, 2006 @ 18% interest.
To order taking disciplinary proceedings against those officers who are individually and severally responsible for her unjust discrimination.
To award exemplary damages for causing unwarranted mental torture and humiliation inhering in her forced stagnation on the functions of a mere receptionist for the last 29 years.
Any other relief which this Honourable court deems just and appropriate in the facts and circumstances of the case”.
In this case also, she had impleaded Smt. V. D-Souza and Shri M.L. Rathore as private respondents. The said Writ Petition was transferred to the Tribunal and was renumbered as TA 777/2009. The said TA was disposed of on 9.10.2009 (page 51 at 54) by observing as follows:-
“9. The case of Ms. Veena Puri has been cited by the applicant on seeing the website where the designation and post in Indian Red Cross Society are detailed. There are two posts of Receptionist; one in LDC cadre in junior scale and the other in UDC scale. If both the posts, for the purposes of functional basis, are belonging to LDC and UDC cadres, then treating Ms. Veena Puri as LDC and giving her promotion as UDC, applicant has certainly been discriminated whereas she had been appointed in UDC scale and her hierarchy is of Assistant and so on in the cadre of LDC. We do not find an isolated post of Receptionist without LDC or UDC scales in cadre and post of Indian Red Cross Society. As such, the stand taken by the official respondents to justify non-discrimination is not correct in law.
10. Moreover, we find that the applicant was treated as Assistant on grant of upgradation without being considered for promotion and has been paid the revised scale, yet the further revised scale to the Assistant has not been afforded to her as an Assistant. In such an event, when all other Assistants have been accorded the benefit of pay scale of Rs.6500-10500 w.e.f. 15.9.2006, non-extension to the applicant cannot be countenanced in law.
11. Resultantly, TA is allowed to the extent that official respondents are directed to revise the pay scale of the applicant to Rs.6500-10500 w.e.f. 15.9.2006 with all arrears to be paid within a period of two months from the date of receipt of a copy of this order. No costs”.
Meaning thereby that though applicant had sought further promotions on the basis of her seniority as UDC but no order was passed directing the respondents to promote her. The only relief, which was given in her favour was to revise the pay scale of applicant to Rs.6500-10500 with effect from 15.9.2006. The law is well settled that a relief which is claimed but not granted is deemed to have been rejected. We are supported in taking this view by the judgment of Hon’ble Supreme Court in the case of State Bank of India Vs. Ram Chandra Dubey and Others reported in 2001 (1) SCC 73. In the said case it has been held by Hon’ble Supreme Court as follows:-
“The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workmen as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding”.
14. In view of above, it is not open to the applicant to now once again claim the same relief of promotion as Section Officer by using a different wording in the relief clause. It is also relevant to note that applicant has impleaded Smt. Veena Puri as private respondent but no relief is claimed as against her. Now applicant is seeking promotion at par with Mrs. V. D-Souza and Shri M.L. Rathore but they were promoted as Assistant in 1992 and Section Officer in 2006. They have not been impleaded as party, therefore, OA is barred by principle of non-joinder of necessary parties. Even otherwise applicant has not shown any order whereby she was promoted as an Assistant. Simply because she was shown as an Assistant in the Identity Card it cannot give her any right to claim further promotion as Section Officer.
15. For the reasons, as discussed above, no case is made out for interference. The OA is accordingly dismissed. No order as to costs.