B. K. MEHTA J. ( 1 ) A short question which arises in this petition is whether fresh application is maintainable in respect of the same cause of action when no liberty is reserved for filing fresh application at the time of withdrawal of the earlier petition. The question arises in the context of the reliefs which have been inter alia prayed by the present petitioner who was at all the relevant times of this petition as well as the earlier one was working as Assistant Warden in the Indian Institute of Management (hereinafter referred to as the IIM) respondent No. 1 herein. By this petition he prays for appropriate writs orders and directions quashing and setting aside the order dated October 15/17 1981 rejecting his representation of September 25 1981 for permitting him to retain the present accommodation allotted to him by the respondent Institute. The necessary facts which require recapitulation for appreciating the question in the proper perspective are as under:- ( 2 ) THE respondent-Institute is a Society registered under the Societies Registration Act 1860 and is also registered as a public trust under the Bombay Public Trusts Act as adopted by the State of Gujarat. The affairs of the said Institute are under general supervision directions and control of the Governing Body of the Society known as Board of Governors. The petitioner who holds Masters degree in Economics and who is a retired Army Service man after serving in the Delhi University for about three years as a Warden Incharge of Post-Graduate Hostel joined the said respondent Institute on August 10 1970 on his selection held pursuant to the advertisement issued by the IIM. He was appointed as Assistant Warden on a basic salary of Rs. 400/- per month in the time scale of Rs. 400 vide appointment order dated July 21 1970 which was revised to Rs. 700-1300. Besides the basic salary he was entitled according to the conditions of his appointment to all usual allowances admissible to other employees of the Institute and to the benefit of contributory provident fund. The other fringe benefits included free unfurnished accommodation on the campus of the IIM in lieu of house rent allowance. As regards his other service conditions they are subject to such byelaws and rules of the IIM as may be in force from time to time. The other fringe benefits included free unfurnished accommodation on the campus of the IIM in lieu of house rent allowance. As regards his other service conditions they are subject to such byelaws and rules of the IIM as may be in force from time to time. The Petitioner claims that as an Assistant Warden he was incharge of the supervision of post-graduate students hostel including mess and canteen catering to the students and the faculty members and the staff of the Institute. He was also supposed to control hostel-stores accounts and the staff attached to him. He was particularly assigned the supervision of executive development programmes participants accommodation etc. It is his grievance that since June 1975 a systematic and consistent campaign of harassment was launched against him in course of which he was gradually stripped of many important functions duties and powers against which he was compelled to protest and remonstrate which naturally offended the authorities. ( 3 ) IN terms of Rule 3 of the Allotment of quarters of the Institute the petitioner was allotted quarter No. 402 in the category of Type-IV houses by the IIM which was reserved for Assistant Warden incharge of the hostel whose presence in the campus is considered essential for administrative convenience and maintaining essential services for the hostel. The petitioner claims that his predecessor one Mr. K. S. Murthy was also allotted this very quarter though the officers and Assistant Professors carrying similar time scale as that of the petitioner and his predecessor namely Rs. 700-1250 were allotted Type-III houses. It appears that the Institute framed new rules for allotment of quarters as detailed in the letter of the Administrative Officer dated February 29 1980 addressed to the members of the Staff of the Institute prescribing new norms for allotment of campus houses for various categories of Staff. The proposed revised norms inter alia provided the allotment of Type-II houses to the members of the staff within the basic pay range of Rs. 1100-1499. In terms of these revised norms the authorities of the Institute asked the Petitioner to shift to Type-IIA quarter by letter of the Administrative Officer of March 27 1980 since Type II quarters were not constructed. The grievance of the petitioner against this proposed action was two-fold. 1100-1499. In terms of these revised norms the authorities of the Institute asked the Petitioner to shift to Type-IIA quarter by letter of the Administrative Officer of March 27 1980 since Type II quarters were not constructed. The grievance of the petitioner against this proposed action was two-fold. In the first place the revised norms were merely proposed and in any case were prospective in their operation applicable for allotment of houses after February 21 1980 and in the second place in no case they can unilaterally change the conditions of service as fixed in his appointment order. It appears that the petitioner was required to move this Court by Special Civil Application No. 2194 of 1981 against the order abolishing the post of Assistant Warden held by him. In the said petition the petitioner had prayed for interim relief restraining the Institute from changing his service conditions. However in light of the decision of the respondent-Institute to cancel the said order abolishing the post of Assistant Warden the petitioner claims that he sought permission of this Court for withdrawal of the said Special Civil Application No. 2194/81. This Court (Coram: P. D. Desai J.) by its order of August 18 1981 while disposing of the said petition made a speaking order. The relevant portion of the said order reads as under:" Mr. K. S. Nanavati has produced a draft of the letter proposed to be issued to the petitioner which clarifies that the post of Assistant Warden is not abolished and that the status quo would be maintained with regard to the designation scale of pay and other allowances of the petitioner. The draft letter also specifies the duties which the petitioner will be required to perform as Assistant Warden. In view of this proposed communication in the aforesaid terms the main dispute in the petition has come to an end. Two subsidiary disputes however survive. The first relates to the petitioners liability to pay electricity consumption charges on the basis of actual consumpion. . . . The second dispute relates to the accommodation presently in possession of the petitioner. The case of the respondents is that the petitioner is in possession of larger accommodation than that which is given to persons holding equivalent posts and drawing salary in the same pay scale. . . . The second dispute relates to the accommodation presently in possession of the petitioner. The case of the respondents is that the petitioner is in possession of larger accommodation than that which is given to persons holding equivalent posts and drawing salary in the same pay scale. The petitioner says that he has been allotted the quarter since eleven years and that he should not be deprived of the quarter. Merely because the petitioner was allotted the quarter eleven years back he cannot claim as of right to continue in that quarter if no other person holding a similar or equivalent post drawing salary in the same pay scale is occupying such a quarter. There cannot be any vested right in the occupation of a quarter given on the campus by the respondents. Be it noted that the appointment order Annexure C does not specify the type of free unfurnished accommodation to be made available to the petitioner and that therefore the accommodation has to be provided on the basis of the policy of the respondents governing all employees. The petitioner cannot claim any preferential treatment even on the principle of the status quo. Such treatment will create dissatisfaction amongst the rest of the staff and lead to disharmony. Therefore if no other person holding an equivalent or similar post and drawing salary in the same pay scale is presently in occupation of a quarter of the same size and containing the same facilities which are available in the quarter occupied by the petitioner there is no justifiable reason to restrain the respondents from asking the petitioner to vacate the said quarter and to move on to another quarter which is similar to that allotted to other employees drawing salary in the same pay scale. Different considerations would of course arise if the petitioner is being discriminated against. Accordingly so far as this part of the relief claimed in the petition is concerned the petitioner does not appear to be entitled to any relief. Different considerations would of course arise if the petitioner is being discriminated against. Accordingly so far as this part of the relief claimed in the petition is concerned the petitioner does not appear to be entitled to any relief. It is clarified however that before making a final order with regard to the eviction of the petitioner from the quarter presently in his occupation and allotment of a new quarter to him the petitioner will be afforded an opportunity of being heard by the respondents to show whether any other person holding a similar or equivalent post and drawing salary in the same pay scale is occupying accommodation of the same size and containing the same facilities as are enjoyed by the petitioner today and whether such person is to be allowed to retain such accommodation. If the petitioner succeeds in establishing any such case he shall not be evicted from his quarter. Subject to this one limitation the respondents would be entitled in accordance with their policy to pass suitable orders with regard to allotment of any quarter to the similar to the one which is allotted to other equivalent or similar employees drawing salary in the same pay scale. The petition stands disposed of in the light of the above orders. ( 4 ) IT appears that the petitioner being aggrieved with this second part of the order set out above preferred Letters Patent Appeal being Letters Patent Appeal No. 228 of 1981 which came up for hearing before a Division Bench (Coram: M. P. Thakkar C. J. and R. C. Mankad J ). The Division Bench was of the opinion that the main grievance of the petitioner would not survive in view of the statement made by the counsel for the Institute before the learned Single Judge. However with regard to the grievance of the petitioner against the second part of the order of the learned Single Judge the Division Bench noted as under and passed the following order on September 9 1981". . . With regard to the other grievances the petitioner wants to make a representation to the Competent Authority. Hence Counsel for the Appellant original petitioner seeks leave to withdraw the main petition. Permitted to withdraw. As the main petition is withdrawn Letters Patent Appeal does not survive and will stand disposed of. . . With regard to the other grievances the petitioner wants to make a representation to the Competent Authority. Hence Counsel for the Appellant original petitioner seeks leave to withdraw the main petition. Permitted to withdraw. As the main petition is withdrawn Letters Patent Appeal does not survive and will stand disposed of. " ( 5 ) IT should be noted at this stage that no notice was issued to the Institute before making the order in question though the learned Counsel for the Institute Mr. K. S. Nanavati was holding the watching brief on behalf of the Institute in the Court. The petitioner has in the meanwhile received a notice from the Administrative Officer of the IIM that it was proposed to shift him to house No. 230 Type IIA to which all the employees in the range of pay scale of Rs. 700-1300 were entitled. However in pursuance of the order of the learned Single Judge as set out above the petitioner was called upon to show whether the proposed shifting would discriminate him inasmuch as similarly situate members of the staff of the Institute were allowed to retain the quarters of Type-IV houses as allotted to and in possession of the petitioner. The petitioner was also intimated that he would be at liberty to make representation in writing and will also be heard in support thereof on September 10 1981 The petitioner after seeking certain particulars submitted a detailed representation by his letter of September 25 1981 in relation to his grievance regarding allotment of quarters. In the representation the petitioner inter alia contended that after his withdrawal of the main petition as permitted by the Division Bench of this Court in Letters Patent Appeal No. 228 of 1981 vide its order of 9th September 1981 the Institute was not entitled to call upon him to shift to another house and in any case he was sought to be discriminated inasmuch as one Dr. B. G. Desai a Medical Officer attached to the Institute and whose post equated with the post of Assistant Warden and who was drawing a salary far below that of the petitioner had been allotted reserve-accommodation of Typeiv category similar to that in occupation of the petitioner. B. G. Desai a Medical Officer attached to the Institute and whose post equated with the post of Assistant Warden and who was drawing a salary far below that of the petitioner had been allotted reserve-accommodation of Typeiv category similar to that in occupation of the petitioner. The Director respondent No. 2 herein of the Institute by his impugned order of October 15 1981 rejected the representation of the petitioner for retaining the present accommodation allotted to him. The petitioner has therefore again move this Court by the present petition for appropriate writs orders and directions to quash and set aside the said order of respondent No. 2 and also for direction enjoining the respondents to consider the petitioner for promotion and/or upgrading his post and having regard to his stagnation in view of no further promotional avenues for him the said order being violative of Articles 14 and 16 of the Constitution inasmuch as all other officers responsible for the entire administration of the Institute at the time when he joined the Institute were given one or two promotions or had the benefit of up-gradation of post. ( 6 ) PURSUANT to the notice issued by this Court the appearance has been made by the respondents and reply affidavits have been filed resisting the admission of this petition. It was therefore thought necessary with consent of the learned Counsels for both the parties that the entire matter be disposed of by a speaking order. ( 7 ) I have heard the learned Counsels for the parties at length and I am of the opinion that the present petition deserves to be rejected for the reasons stated hereunder: ( 8 ) BROADLY stated two questions arise for my consideration. Firstly whether unconditional withdrawal of Special Civil Application No. 2194 in Letters Patent Appeal No. 228/81 which would amount to dismissal in limine would operate as estoppel against the present petition in respect of the same cause of action. Secondly assuming that the withdrawal did not amount to dismissal and therefore does not bar other remedy on the same cause of action is the petitioner entitled to all or any of the reliefs prayed for in the present petition? Secondly assuming that the withdrawal did not amount to dismissal and therefore does not bar other remedy on the same cause of action is the petitioner entitled to all or any of the reliefs prayed for in the present petition? re: Question No. 1: ( 9 ) IT is a trite position of law that judgments of competent Courts have a binding character which is in its turn an integral part of rule of law. The rule of res judicata is invoked and applied in dealing with the competency of the petitions under Articles 32 and 226 of the Constitution of India. On principle and authority the rule ofres judicata is applied irrespective of the conditions prescribed in Section 11 of the Civil Procedure Code even if the decision pressed into service before the Supreme Court against the competency of application under Article 32 of the Constitution for enforcement of fundamental rights is that of High Court on merits under Article 226 of the Constitution. If however a writ petition under Article 226 is dismissed in limine whether an order of dismissal made in that behalf would or would not constitute a bar to fresh proceedings on the same cause of action would depend upon the nature of the order. If the order is on merits and not one of rejection on technical ground of laches or delay or availability of alternative remedy it may operate as a res judicata. A non-speaking order of dismissal may indicate that the Court did not find any substance in the petition. If the petition under Article 226 is however dismissed as withdrawn before a High Court it cannot be a bar to the subsequent petition under Article 32 of the Constitution before the Supreme Court because there has been no decision on merits of the Court (vide Daryao v. State of U. P. AIR 1961 SC 1457 ). A strong reliance was placed by Mr. Mehta for the petitioner on the decision of the Supreme Court in Daryao v. State of U. P. (supra ). A strong reliance was placed by Mr. Mehta for the petitioner on the decision of the Supreme Court in Daryao v. State of U. P. (supra ). He urged that since the petitioner was permitted to withdraw his earlier petition by the Division Bench of this Court while disposing of Letters Patent Appeal No. 228/81 Special Civil Application No. 2194/81 would not survive and for that matter the order of the learned Single Judge rejecting all the contentions urged on behalf of the petitioner before him in the matter of allocation of quarters except to a limited extent of permitting him to make a representation if there was any discrimination therein would also not survive and operate as res judicata against the present petition. I am afraid this is too specious a contention to which I can agree. The learned Advocate for the petitioner has overlooked the important distinction of operation of a bar in the same proceedings and the operation on principle of res judicata in the proceedings altogether different in nature. This distinction has been clearly brought out by the Supreme Court in Workmen C. P. Trust v. Board of Trustees AIR 1978 SC 1282 . In Cochin Port Trust Case (supra) the dispute between the Port Trust and its workmen of the categories of labour supervisors etc. regarding the roster off system in the matter of granting weekly holidays was referred to the Industrial Tribunal. The Tribunal did not find that roster off system was not necessary for successful working of the port work. The Tribunal however found that the system amounted to under discrimination and therefore directed discontinuance and to grant additional halfday wages or other substituted off day in lieu of Sunday. The Port Trust challenged this award by filing special leave petition in the Supreme Court which was dismissed by its order of 18-3-1970 on perusal of the papers and hearing the Counsels. No reasoned order was made. The Port Trust thereafter filed a writ petition in the High Court of Kerala on March 28 1970 The petition was allowed and the award was quashed. On appeal by the workmen it was contended inter alia that the High Court was clearly in eror in overruling the point of res judicata urged on behalf of the workers. The Port Trust thereafter filed a writ petition in the High Court of Kerala on March 28 1970 The petition was allowed and the award was quashed. On appeal by the workmen it was contended inter alia that the High Court was clearly in eror in overruling the point of res judicata urged on behalf of the workers. Rejecting the said contention Untwalia J. speaking for the Court held that Section 11 codifying the doctrine of res judicata is not exhaustive and it generally applies in relation to civil suit However the doctrine of res judicata is well recognized and applied in other kind of legal proceedings and situations by Courts world over including India. The Court however ruled further that the technical rule of res judicata based on public policy cannot be stretched to bar the trial of an identical issue in separate proceedings merely on an uncertain assumption that the issues must have been decided. The said limiation is expressed in the following terms:" 9. . . It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding such as of suit Art. 32 or Art. 136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest say only on the ground of laches or the availability of an alternative remedy; then another remedy open in the law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course a second writ petition on the saw cause of action either filed in the same High Court or in another in not be maintainable because the dismissal of one petition in operate as a bar in the entertainment of another writ petition. Of course a second writ petition on the saw cause of action either filed in the same High Court or in another in not be maintainable because the dismissal of one petition in operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a nonspeaking one word order dismissed another writ petition would not be maintainable because even the one word order as we have indicated above must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata. (Emphasis supplied. ). In Cochin Port Trusts Case (supra) the Supreme Court referred to its earlier two decisions namely (1) Daryaos Case (Supra) and (ii) P. V. Sharma v. State Bank of India AIR 1968 SC 985 . The crucial point which is always to be considered by Court when faced with such a situation is as to what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect (vide Daryaos Case two situations are envisaged viz. (i) disposal of the writ application on merits and (ii) its dismissal not on merits but on some technical ground of laches of availability of alternative remedy. In case of disposal of a writ petition in limine with a reasoned order it would depend upon the nature of the order. If however the petition is dismissed in limine without a speaking order such dismissal cannot be treated as creating a bar of res judicata since though the Court in all probability might have considered all the aspects of the question it would not be easy to decide what factors precisely weighed in the mind of the Court and consequently it is unsafe to treat such dismissal as one on merits and therefore constituting res judicata. The Supreme Court in Cochin Port Trusts Case (supra) however elucidated this aspect of the matter as under:"10. . . We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a nonspeaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action. " ( 10 ) IN P. D. Sharmas Case (supra) the Court was concerned with the question as to whether the summary dismissal of the writ petition under Art. 226 challenging the order of the Labour Court was a bar to the entertainment of an appeal under Art. 136 from the same order of the Labour Court. Hegde J. speaking for the Court said that it was not possible to find out from the order of the High Court the precise reason that weighed with the Court in rejecting the petition under Art. 226 and therefore cannot operate as a bar to an appeal under Art. 136 from the original order. In Cochin Port Trusts Case the Court after referring to the above view of Hegde J. in P. D. Sharmas Case agreed with the Counsel for the workmen that the scope of proceedings under Art. 136 was wider than that of a writ petition but that would not justify the submission that the dismissal of a special writ petition under Art. 136 must necessarily bar the entertainment of a writ petition under Art. 226. Justice Untwalia referred to the earlier judgment of the Supreme Court in State of U. P. v. Nawab Hussain AIR 1977 SC 1680 . In Nawab Hussains Case the Supreme Court applied the principle of constructive res judicata by holding that a suit to challenge the order of dismissal from service after rejection of the writ petition on merits was not maintainable inspite of a new ground of attack urged in the suit which was not taken in the earlier writ proceedings. Untwalia J. thereafter referred with approval to the observation made in Nawab Hussains case which was in the following terms; where reference was made to the decision of Queens Bench in Exparte Thompson (1845) 6 QB 721:". . . Untwalia J. thereafter referred with approval to the observation made in Nawab Hussains case which was in the following terms; where reference was made to the decision of Queens Bench in Exparte Thompson (1845) 6 QB 721:". . . Lord Denman C. J. observed that as Stephens was making an application which had already been refused on fresh materials he could not have the same application repeated from time to time as they had often refused rules on that ground. The same view has been taken in England in respect of renewed petition for certiorari quo warranto and prohibition and as we shall show that is also the position in this country. ( 11 ) IT is therefore clear that if one writ petition is dismissed in limine by a non-speaking one word order dismissed another writ petition from the same order or decision would not lie unless it is dismissed either at the threshold on after contesting without expressing a any opinion on the merits of the matter. If that is the correct legal position which appears to be settled in view of the decisions of the Supreme Court I do not think that the petitioner can re-agitate this very question after the same was adjudged on merits by P. D. Desai J. while disposing of the earlier application of this very petitioner namely Special Civil Application No. 2194 of 1981 where the only liberty which was reserved to the petitioner was to make a representation to the authorities in the matter of retaining the accommodation which was in his possession by pointing out to the authorities that in depriving of the said accommodation the institute was treating the petitioner in a discriminatory manner. The other grievance of the petitioner in the matter of accommodation which he had urged in the earlier petition cannot be allowed to be reagitated in the present proceedings. ( 12 ) MR. Mehta therefore attempted to persuade me that the decision of P. D. Desai J. was carried in appeal by the petitioner by his Letters Patent Appeal No. 228 of 1981 in course of which the Division Bench of this court permitted the petitioner to withdraw the main petition i. e. Spl. Civil Appln. No. 2194/81 with the result that the Letters Patent Appeal did not survive for decision. Civil Appln. No. 2194/81 with the result that the Letters Patent Appeal did not survive for decision. He therefore urged that the decision of the Supreme Court in Daryos Case (supra) clearly covers the situation which is arising in the present petition and even if the petition is dismissed as withdrawn it cannot operate as res judicata in the subsequent proceedings. In submission of Mr. Mehta for the petitioner thee Division Bench has not even dismissed the Special Civil Application and merely observed that as the main petition is withdrawn the Letters Patent Appeal did not survive and would stand disposed off. I am afraid that the reliance by Mr. Mehta on the decision of the Supreme Court in Daryos Case (supra) is not well founded. The Actual context in which the Supreme Court rendered the decision in Daryos Case (supra) was that six petitions were moved before the Supreme Court under Article 32 of the Constitution after the petitioner of such of the petitions had moved the High Court under Article 226 of the Constitution and the High Court had rejected the petition. A preliminary objection was therefore taken on behalf of the opponents in the Supreme Court against the maintainability of the writ petition under Art. 32 since they were barred on principle of res judicata. In that context the Supreme Court speaking through Gajendragadkar J. held that if a writ petition filed by a party under Art 226 is considered on merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. But if Art. 226-petition is not dismissed on merits but is rejected in limine only on some technical ground like delay and laches or availability of alternative remedy the rejection would not constitute a bar to the subsequent petition under Article 32 of the Constitution except in cases where and if the Acts thus found by the High Court may themselves be relevant even under Article 32. The Supreme Court further ruled that if Art 226-petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata since it would not be easy to decide what factors weighed with the Court in rejecting the petition. The Supreme Court further ruled that if Art 226-petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata since it would not be easy to decide what factors weighed with the Court in rejecting the petition. The Supreme Court thereafter held and which view has been strongly pressed into service that if the petition is dismissed as withdrawn it cannot be a bar to the subsequent petition under Art. 32 because in such a case there has been no decision on merit by the Court. I am afraid that the view of the Supreme Court cannot be of much avail to the cause of the petitioner since what the petitioner is contending in effect in the present petition is that on the same cause of action a fresh petition under Art 226 is competent even though the earlier petition has been dismissed on merits by the learned Single Judge. ( 13 ) I do not think that in view of the legal position as settled by the decision of the Supreme Court in Cochin Port Trusts Case (supra) it can be successfully contended on behalf of the petitioner that even if the earlier 226 petition is dismissed another petition on the same cause of action is competent. In any view of the matter the second petition on the same cause of action is not competent unless liberty is reserved at the time of withdrawal of the earlier petition which might have been disposed of or dismissed accordingly. ( 14 ) MR. Mehta for the petitioner invited my attention to another decision of the Supreme Court in Hoshnak Singh v. Union of India AIR 1979 SC 1328 where the Court speaking through D. A. Desai J. held that it is incontrovertible that where a petition under Art. 226 is dismissed in limine without a speaking order such a dismissal would not constitute bar of res judicata to the subsequent petition on the same cause of action. In that cast the Supreme Court was concerned with the question as to whether the second petition against the very order of the Chief Settlement Commissioner Punjab dated March 17 1961 cancelling the permanent settlement rights conferred on the appellant before the Supreme Court in respect of a piece of land sought to be acquired by the Union of India for a public purpose of settling up a housing colony for some refugees was competent after its merger with the order made by the Joint Secretary to the Government of India in revision under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act 1954 since the earlier petition under Art. 226 against the original order was dismissed in limine by the High Court of Punjab. In that context the Supreme Court speaking through D. A. Desai J. held as under:"10. . . It is therefore incontrovertible that where a petition under Art. 226 is dismissed in limine without a speaking order such a dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action more so when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under Section 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief. It would be incorrect in such a situation to dismiss the petition on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revisional authority and therefore the challenge on the fresh cause of action to the order made by the revisional authority would of necessity be a challenge to the original order also and the petition would be barred by the principles analogous to res judicata as the first order had become final. The High Court was clearly in error in dismissing the petition on this short ground. The High Court was clearly in error in dismissing the petition on this short ground. 11 There is yet another fallacy in the approach of the High Court while dismissing the petition as being barred by the principles analogous to res judicata because the second relief claimed by the appellant in the second petition was never claimed in the first petition and is an independent and separate relief which the High Court was invited to grant if the appellant was otherwise entitled to it. The appellant by prayer (b) of the petition sought a direction that the respondents be ordered to pay cash compensation to the appellant for the area of land which had been taken over by the respondents. . . . (Emphasis supplied.) i do not think that the decision in Hoshank Singhs Case (supra) can be of any assistance to the cause of the petitioner. The decision in Hoshank Singhs Case merely affirms the earlier view of the Court in Tilokchand Motichand v. H. B. Munshi AIR 1970 SC 898 where the majority Court affirmed the ratio in Daryaos Case (supra) that if a petition under Art. 226 is dismissed not on merits but because an alternative remedy was available to the petitioner such a dismissal is not bar to the subsequent petition under Art. 32. ( 15 ) IN the Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras AIR 1968 SC 1196 the appellant-company was claiming exemption from payment of the tax under Section 12 of the Madras Electricity (Taxation on Consumption) Act of 1962 on consumption of energy by industrial units. The claim was not accepted by the Madras Government with the result that the appellant-Company moved the High Court of Madras contending inter alia that it should have been granted exemption. The petition was dismissed without issuing notice by a short order to the effect that the petitioner was not entitled to the benefit of Section 12 of the Madras Act and the exemption provided under Section 12 was not violative of Art. 14. An appeal was carried from that order to the Division Bench which also rejected the contentions of the appellant-Company. After the dismissal by the Division Bench the appellant-Company moved the Supreme Court under Art. 32 of the Constitution. An appeal was carried from that order to the Division Bench which also rejected the contentions of the appellant-Company. After the dismissal by the Division Bench the appellant-Company moved the Supreme Court under Art. 32 of the Constitution. A preliminary objection was raised that such a petition was not competent since it was barred on principles analogous to the principle of res judicata. This was resisted by the appellant-Company by urging that in view of the observations made in Daryaos Case (supra) where the petition had been dismissed at the threshold without notice to the other side it would not constitute a res judicata to another petition under Art. 32. The Supreme Court speaking through Wanchoo C. J. negatived the contention of the appellant-Company in the following terms:"6 It is true that this Court said in that case that if a writ petition under Art. 226 is dismissed on merits after contest it would bar a petition under Art. 32 on the same facts. But the later observations at the same page show that that was not the only case in which there would be a bar of res judicata. Even where notice might not have been issued by the High Court and the writ petition dismissed in limine the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits that would still amount to res judicata and would bar petition under Article 32. The petitioners only proper remedy in such a case would be to come in appeal from such a speaking order passed on the merits even though the High Court may not have issued notice to the other side. . . . " (Emphasis supplied.) ( 16 ) IN the present case before me therefore the earlier petition of the present petitioner namely Spl. Civil Application No. 2194/81 was dismissed by P. D. Desai J. by a speaking order on merits. The said order clearly refers to the second dispute relating to accommodation in possession of the petitioner. . . . " (Emphasis supplied.) ( 16 ) IN the present case before me therefore the earlier petition of the present petitioner namely Spl. Civil Application No. 2194/81 was dismissed by P. D. Desai J. by a speaking order on merits. The said order clearly refers to the second dispute relating to accommodation in possession of the petitioner. The learned Single Judge found that the petitioner was not entitled to any relief in respect of his grievance about the proposed action of the Institute to allot him another category of accommodation since he cannot have any vested right in a particular category of accommodation which might have been allotted to him provided he was not discriminated upon. The learned Single Judge therefore ruled as under:". . . . Accordingly so far as this part of the relief claimed in the petition is concerned the petitioner does not appear to be entitled to any relief. It is clarified however that before making a final order with regard to the eviction of the petitioner from the quarter presently in his occupation and allotment of a new quarter to him the petitioner will be afforded an opportunity of being heard by the respondents to show whether any other person holding a similar or equivalent post and drawing salary in the same pay scale is occupying accommodation of the same size and containing the same facilities as are enjoyed by the petitioner today and whether such person is to be allowed to retain such accommodation. If the petitioner succeeds in establishing any such case he shall not be evicted from his quarter. . . . "if therefore the petitioner is trying to re-agitate the same question on the same grounds I am afraid he is not legally entitled to do so. Mr. Mehta was however at pains to impress upon me that since the Division Bench allowed the original petition viz. Spl. Civil Appln. No. 2194 to be withdrawn the order of the learned Single Judge does not survive. It is no doubt true that Order 23 Rule 1 (1) of the Civil Procedure Code gives an unqualified right to the plaintiff to withdraw a suit which right is available to the appellant-plaintiff in appeal also. Spl. Civil Appln. No. 2194 to be withdrawn the order of the learned Single Judge does not survive. It is no doubt true that Order 23 Rule 1 (1) of the Civil Procedure Code gives an unqualified right to the plaintiff to withdraw a suit which right is available to the appellant-plaintiff in appeal also. But if no permission to file a fresh suit is sought under sub-rule (2) of that Rule the plaintiff is precluded from instituting any fresh suit in respect of the same subject-matter under sub-rule (3) of Rule 1 (vide M/s Hulas Rai v. K. B. Das and Co. AIR 1968 SC 111 ). It is not that the bar of fresh suit in respect of the same subjectmatter where a former suit has been abandoned is based on the principle of res judicata. It is more in substance a rule of estoppel incorporated in the expressed provision contained in sub rule (4) of Rule 1 of Order 23 of the Civil Procedure Code. ( 17 ) A Division Bench of this court consisting of P. D. Desai J. and myself in Sales Tax Reference No. 20 of 1980 decided on 22nd/25th January 1982 was concerned with the question as to whether a party who had sought the reference to this Court under Section 61 (1) of the Bombay Sales Tax Act 1959 is entitled to withdraw the reference. In that context the Division Bench speaking through P. D. Desai J. considered inter alia the aspect of the question whether there is any rule of law or practice de hors the Bombay Sales Tax Act which prevents the party seeking reference from requesting the Court as of right not to answer the question. The Division Bench referred to three decisions of the Supreme Court viz. (1) Bijayananda Patnaik v. Satrughna Sahu AIR 1963 SC 1566 (ii) Hudas Rai Bail Nath v. Firm K. B. Das and Company. AIR 1968 SC 111 and (iii) R. Ramamurthi Aiyar v. Rajeswararao AIR 1973 SC 643 where the Supreme Court had ruled that it is for the party to determine whether the wants to proceed with the suit or to withdraw from it. AIR 1968 SC 111 and (iii) R. Ramamurthi Aiyar v. Rajeswararao AIR 1973 SC 643 where the Supreme Court had ruled that it is for the party to determine whether the wants to proceed with the suit or to withdraw from it. The Division Bench after reference to these decisions summarised the legal position in the following terms: The principle which emerges from these decisions governing the right of a plaintiff with regard to the withdrawal of a suit under the general law is that the plaintiff being the dominus lites is entitled to withdraw the suit unless the withdrawal has the result of defeating a vested right which has come into existence in favour of the defendant before the prayer for withdrawal is made. If at such right has come into existence the Court is not bound to allow the withdrawal. ( 18 ) IT was urged on behalf of the respondents before me that the Appellate Court had no power or authority to allow the petition to be withdrawn before notice of the Letters Patent Appeal was issued. Reliance was sought to be placed in support of this submission on the decision of the Bombay High Court in Eknath Bin Ranoli Falka v. Ranoli Bin Bawaji Falka (1911) 35 ILR 261. It was further urged on behalf of the respondents that the petitioner-appellant us not entitled as a matter of right to withdraw his original petition and in any case he could not hat been permitted to do so if the effect of allowing him to withdraw it could be to deprive the respondents of the benefit of the lower Courts adjudication in their favour. The contention was sought to be fortified by reference to the decision of Allahabad High Court in Kanhaiya and Others v. Mst. Dhaneshwari and Another AIR 1973 All. 212 Mr. Mehta however urged that if the Court is inclined to take the view that the order of the Division Bench in the appeal was not a proper order in the sense that it was made without issuing notice to the other side and without admitting the appeal the petitioner was prepared to go back to the Division Bench and obtain a proper order in the matter. He further urged that the learned Single Judge reserved liberty to the petitioner of being heard by the authorities in the Institute be fore an order of his dispossession was made and if therefore the petitioner is seeking to challenge that order which has been made after hearing the petitioner it is a different cause of action and on principle of the decision in Hoshnak Singhs Case he was entitled to reagitate the question since the earlier order of dispossession no more exists. He further urged that in any case unconditional withdrawal cannot operate as estoppel and for that matter as res judicata since in the ultimate analysis the bar of res judicata is a bar of estoppel on record. Mr. Mehta sought to fortify his contention by referring to the decision of the Supreme Court in Ahmedabad Mfg. and Calico Printing Co. v. Workmen AIR 1981 SC 960 . In that case a dispute arose between the Company and its workmen in respect of certain demands raised by the Union. The dispute was referred to the Industrial Tribunal under Section 10 of the Industrial Disputes Act. The Tribunal took up about four demands pertaining to basic wages dearness allowance gratuity and the retrospective effect of the said demands. The Tribunal gave its award on November 30 1971 which was published in the Maharashtra Government Gazette on January 20 1972 It could be effective after one month of its publication in the Gazette. The Company preferred special leave petition before the Supreme Court being aggrieved with the award. In response to the notice issued by the Court the workmens union filed its appearance. After hearing was held for some time the Company chose to withdraw the special leave petition. The Court permitted the withdrawal by ordering that upon hearing the Counsel the Court allowed the special leave petition to be withdrawn. The Company thereafter moved the Maharashtra High Court under Art. 226 of the Constitution challenging the award on the same grounds as those urged in the special leave petition. At the time of hearing for its admission it was contended inter alia on behalf of the Union that the High Court should not exercise discretion and grant relief to the Company under Art. 226 after the withdrawal of the special leave petition unconditionally which objection was upheld by the learned Single Judge of the High Court. At the time of hearing for its admission it was contended inter alia on behalf of the Union that the High Court should not exercise discretion and grant relief to the Company under Art. 226 after the withdrawal of the special leave petition unconditionally which objection was upheld by the learned Single Judge of the High Court. The appeal before the Division Bench also met with the same facts. What weighed with the Division Bench in dismissing the appeal was that the Court should not exercise its jurisdiction under Art. 226 since special leave petition based on the same contention was unconditionally withdrawn. The Company therefore carried the matter in appeal before the Supreme Court. The Supreme Court speaking through Misra J. posed two questions for consideration namely whether unconditional withdrawal of special leave petition would amount to dismissal and if so what would be its impact on the petition under Art. 226 of the Constitution. Misra J. referred to the earlier decisions of the Supreme Court in Cochin Port Trusts Case Hoshnak Singhs Case (supra) and Daryaos Case (supra) and in support of the view which the Court was inclined to take relied on the decision in Cochin Port Trusts Case (supra) and held as under:" 18 There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally. In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust ( AIR 1978 SC 1283 ) (supra) the decision in Allisons Case has lost its efficacy. 19. . . . 20 After having analysed the various cases cited we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. 19. . . . 20 After having analysed the various cases cited we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally. "i do not think that this decision in Ahmedabad Mfg. and Calico Printing Co. s Case (supra) can advance the cause of the petitioner particularly having regard to the ratio of the decision in Cochin Port Trusts Case (supra) which has been approved and heavily relied upon by the Supreme Court in Ahmedabad Mfg. and Calico Ptg. Co. s Case. On the first question therefore I am of the opinion that withdrawal of the petition on the facts and in the circumstances of this case would operate as an estoppel against the petitioner in respect of the same cause of action. Re: Question No. 2: ( 19 ) ASSUMING that the withdrawal did not amount to dismissal and that it does not operate as estoppel or bar other remedy on the same cause of action is the petitioner entitled to all or any of the reliefs prayed for in this petition ? I am afraid that the petitioner is not entitled to any relief in this petition. The reasons are obvious. In paragraphs 7 and 8 of the petition the petitioner has contended that he is the only officer in the campus who is entitled to rent-free accommodation and that his appointment order did not specify that accommodation once allotted is liable to be disturbed under the rules made from time to time. According to the petitioner under clause 3 of the allotment Rules of 1966 the Director of the Institute had the discretion to reserve houses for some specific posts the incumbents of which were required to be present on the campus for the administrative convenience or for maintaining essential supplies. According to the petitioner under clause 3 of the allotment Rules of 1966 the Director of the Institute had the discretion to reserve houses for some specific posts the incumbents of which were required to be present on the campus for the administrative convenience or for maintaining essential supplies. The present bungalow No. 402 which has been allotted to the petitioner has been so reserved for Assistant Warden since the time of his predecessor one Shri K. S. Murthy Being an Assistant Warden his presence at the campus is essential for administrative convenience and for maintaining essential supplies to the inmates of the hostel. The Institute therefore cannot deprive him of bungalow No. 402 which has been reserved for Assistant Warden even under the proposed new rules for house allotment of 1980. The letter of the Administrative Officer of the Institute addressed to the members of the staff dated February 29 1980 by which it was proposed to revise the allotment norms for campus houses for various categories of staff which inter alia prescribe that the members of the staff drawing basic salary in the range of Rs. 1 0 to to Rs. 1 499 are entitled to accommodation of Type II category makes it abundantly clear that the aforesaid norms would be made applicable for allotment of houses prospectively. In the reply affidavit of one Shri Rameshchandra Chib who happens to be the Administrative Officer of the Institute these averments in paragraphs 7 and 8 are sought to be repelled. It has been inter alia stated in paragraphs 10 and 11 of the affidavit as under:"10. As regards para 7 of the petition I state that the averments and submissions made therein are not true and are denied. I deny that the petitioner was entitled to accommodation on the campus as a matter of right. I clarify that the same was to be provided to him only in lieu of House Rent Allowance as explained hereinabove. I also deny that the petitioner is the only officer on the campus who is entitled to rent-free accommodation. I also assert that the petitioners appointment order specified that the terms and conditions of service would be governed by the rules and regulations in force from time to time. I further state that the petitioners reference to Rule 3 of Annexure-8 is both irrelevant and misleading. I also assert that the petitioners appointment order specified that the terms and conditions of service would be governed by the rules and regulations in force from time to time. I further state that the petitioners reference to Rule 3 of Annexure-8 is both irrelevant and misleading. I assert that the petitioner was not placed in possession of the house presently under his occupation either under Rule 3 i. e. to say by way of special allotment neither was he permitted to occupy the same by virtue of any other allotment rules. I specifically assert that the petitioners occupation of the house in question is not by virtue of any allotment but that the petitioner was merely in permissive use of the same. I state that no formal letter of allotment has ever been issued in favour of the petitioner since the petitioner is not and was not eligible for allotment under the rules at Annexure 5 for the faculty house. Only faculty houses (Type IV and III) houses were avaiable and the petitioner was permitted to use one such Type IV house and a part of the house was locked up for some other purpose. He was subsequently permitted to use another faculty house which was at that time called Type III house (which is presently a type IV house) and which he is currently occupying. . . . I again clarify that both the petitioner as well as predecessor Shri K. S. Moorthy were both only permitted to use the same. . . . 11. As regards para 8 of the petition I state that the averments made therein are irrelevant and misleading and also factually incorrect and I therefore deny the same. I state that the new allotment rules have been brought into effect from March 1980 I further state that the discussion of the norms of allotment adopted by the new Allotment Rules is both irrelevant and redundant since in the present case as already explained hereinabove the petitioner is not entitled as of right to any allotment either under the old rules or the new rules or by virtue of his terms and conditions of service. I state that the New Allotment Rules are being implemented with effect from March 1980 and that these norms applied to such employees who are in fact allotted accommodation provided they are eligible for such allotment. . . . I state that the New Allotment Rules are being implemented with effect from March 1980 and that these norms applied to such employees who are in fact allotted accommodation provided they are eligible for such allotment. . . . ( 20 ) IN view of the above pleadings I do not think that the petitioner is entitled to raise these contentions again merely because he was permitted to withdraw the earlier petition by the Division Bench with a view to enable him to make a representation to the Institute. In any view of the matter the appointment order of the petitioner dated July 21 1970 which is produced at Annexure 3 to the petition his appointment was subject to the terms and conditions specified therein. The material conditions relevant for the purpose of this petition are conditions as contained in clauses (e) and (f) of paragraph 2 of the said order which read as under:" 2. Your appointment will be subject to the following terms and conditions: e. You will be provided with free unfurnished accommodation on the campus in lieu of House Rent Allowance. f. Other service conditions will be subject to such bye-laws and rules of the Institute as may be in force from time to time. The special conditions which have been specified in clauses (a) to (d) are pertaining to his probation termination of his employment age of retirement and his medical fitness. Clause (e) would therefore not entitle the petitioner to any particular category of accommodation nor to the accommodation as a matter of right. He is entitled either to free unfurnished accommodation in lieu of the house rent allowance. Assuming that he is so entitled as a matter of right it does not entitle him to a particular category of accommodation. What type of accommodation is to be allotted to him is to be determined under the rules which may be made effective by the Institute from time to time. This position is apparent from the condition prescribed in clause (f) of para 2 of the appointment order. The only question therefore which remains is whether the petitioner is discriminated upon in the matter of allotment of accommodation. The grievance about the discrimination is made in paragraph 11 and paragraph 16 of the petition. The grievance is that the post of Assistant Warden carried the time scale of Rs. The only question therefore which remains is whether the petitioner is discriminated upon in the matter of allotment of accommodation. The grievance about the discrimination is made in paragraph 11 and paragraph 16 of the petition. The grievance is that the post of Assistant Warden carried the time scale of Rs. 400-950 and that it is grouped with other posts of Research Assistant Programme Officers Administrative Officers Internal Auditor Medical Officer etc. in category G which carried the same pay scale. The grievance of the petitioner is that Medical Officer has been allotted reserved accommodation of Type IV house similar to that occupied by the petitioner though he is a part-time employee and permitted to have private practice. It has been further urged in paragraph 6 that though he had raised this point in the representation made to the Director in response to the notice issued to him asking him to show cause why he should not be required to required Type II-A quarter the Director has not satisfactorily dealt with all the points raised in the representation. This has been sought to be repelled in the reply affidavit as under in paragraph 14:"14. As regards para 11 of the petition I state that the averments contained therein are not entirely correct and are therefore denied. I emphatically deny the suggestions and averments made in respect of Dr. B. G. Desai. I assert that the said Dr. B G. Desai is not an employee of the respondent No. 1 that he is not a Medical Officer in category G and that the service rules do not apply to him in any manner whatsoever. I state that the said Dr. B. G. Desai is a Medical Practitioner of eminence having an independent private practice and that his services are utilised on the campus by the management as and when necessary. Since the management felt that the presence of doctor on the campus is a necessity a Type IV house befitting his status is placed under his occupation only by way of permissive user and the same is not allotted to him under either the old or new allotment rules. Moreover the amount of Rs. 600/- per month paid to him is an honorarium and is neither a salary nor a retainer. Thus the case of Dr. Desai is in no way comparable to that of the petitioner. " . Moreover the amount of Rs. 600/- per month paid to him is an honorarium and is neither a salary nor a retainer. Thus the case of Dr. Desai is in no way comparable to that of the petitioner. " . ( 21 ) I do not think that in view of the above pleadings it can be successfully urged by the petitioner that he has been discriminated upon firstly because the case of Dr. Desai is not comparable with that of the petitioner and secondly it is not the case of the petitioner that any incumbent of the comparable post included in category G particularly that of Assistant Administrative Officer was allotted any reserved accommodation. It also cannot be gainsaid that though the presence of Assistant Administrative Officer on the campus site is essential for administrative convenience he has not been allotted any reserved house. The relief prayed for by the petitioner in the matter of the order of the Director rejecting his representation in the matter of accommodation is tot warranted on the facts and in the circumstances of the case and is liable to be rejected. ( 22 ) THE second relief which he has prayed for directions to enjoin the respondents to consider him for promotion or upgradation of his post is also one which I do not think can be granted. The grievance about his stagnation as compared to the incumbents of the other posts in category G is made in paragraph 18 of the petition. The petitioner has also contended that even stenographers have been promoted to the posts of Executive Assistants and then to the posts of Officers in time scale of Rs. 700-1300/ -. According to the petitioner the incumbents of the posts included in category G and carrying a time scale of Rs. 400-950 have been given one or two promotions or the said posts have been upgraded and the revised time scale is Rs. 1100-1600 or Rs. 1500-1800 according to the importance of the post. The petitioner has summed up his grievance in this respect as under in paragraph 18. "18. . . Thus the petitioner was qualified and eligible for being considered for promotion/upgradation to higher posts in the same manner as persons who were in his category or similar pay-scale. The petitioner has not been considered at all for any promotional post or upgradation. "18. . . Thus the petitioner was qualified and eligible for being considered for promotion/upgradation to higher posts in the same manner as persons who were in his category or similar pay-scale. The petitioner has not been considered at all for any promotional post or upgradation. The petitioner has reason to believe that the authorities of the Institute have acted on the basis of irrelevant factors and in disregard of relevant factors in denying promotions/upgradation to the petioner while granting the same to persons below him and to persons in his category. "this grievance has been sought to be repelled in the reply affidavit as under in paragraph 21:"21 As regards para 18 of the petition I state that the contents thereof are misconceived and misleading and are therefore denied. It is not true that when the petitioner joined the respondents in service only 8 officers were responsible for the entire administration. In fact there were many more. . . . The officers listed at item Nos. 1 to 7 in the said para are all carrying different functions and belonged to different cadres and are therefore not comparable. The names listed by the petitioner in this para were either holding higher scales than that of the petitioner or have been senior to the petitioner in his own scale. While some stenographers who hold the scale much junior to the sc ale of the petitioner have been promoted to Executive Assistant whose scale is also lower than the scale of pay of the petitioner some of the Executive Assistant have also moved to the scale of the petitioner through normal channels of promotions. These promotions are not comparable with the petitioner. I further state that this aspect has been fully dealt with by me in para 15 of Annexure-1 hereto as well as para 7 in Annexure-2 hereto. I deny the suggestion of the petitioner that he has been denied any promotional avenues which are in fact open to him and that this has resulted in discrimination and/or violation of the petitioners fundamental rights. . . . "mr. Mehta for the petitioner in this connection relied on thee decision of the Supreme Court in the matter of Workmen Williomson Magor and Co. v. Williamson M. and Co. AIR 1982 SC 78 . . . . "mr. Mehta for the petitioner in this connection relied on thee decision of the Supreme Court in the matter of Workmen Williomson Magor and Co. v. Williamson M. and Co. AIR 1982 SC 78 . One of the grievances of the workmen before the Industrial Tribunal was indiscriminate and arbitrary promotion and/or upgradation of some of the employees who were favourites of the management disregarding the rightful claims of a number of other employees. The Union was claiming that since there were no norms and/or standards guiding the promotion and/or upgradation of the employees the action of the management was arbitrary malafide and intended to victimise the Union members. In that context the Supreme Court speaking through Baharul Islam J. ruled that although promotion/ upgradation is a managerial function it must not be on the subjective satisfaction of the management but must be on some objective criteria and if there are grades and scopes of upgradation/promotion and there are different scales of pay for different grades in a private undertaking and in fact promotion is given or upgradation is made there should be no arbitrary or unjust and unreasonable upgradation or promotion of persons superseding the claim of persons who may be equally or even more suitable. The grievance of the petitioner in the present case is a bald one and no particulars are furnished to show that he has been discriminated upon. Merely because the time-scale for the post of Assistant Warden is the same for other posts in different categories it cannot be said that they belong to the same cadre. It is no doubt true that the posts of Assistant Administrative Officer Reference Librarian and Admission Officer are included in the category G but that would not make the same cadre. Merely because these different posts are included in category G the incumbents of such posts would not necessarily be similarly situated. It depends on number of factors namely qualifications experience nature of duties the load of work etc. It would be essentially a question of fact which has to be investigated and decided upon. It is no doubt true that the revised pay scale of Assistant Administrative Officer Admission Officer and Reference Librarian carrying the time scale of Rs. 400 is more than the revised time scale of the post of Assistant Warden carrying the original time scale of Rs. 400-900. It is no doubt true that the revised pay scale of Assistant Administrative Officer Admission Officer and Reference Librarian carrying the time scale of Rs. 400 is more than the revised time scale of the post of Assistant Warden carrying the original time scale of Rs. 400-900. The revised time scale of Assistant Warden is Rs. 700-1300 while in case of Assistant Administrative Officer it is Rs. 1500 the Admission Officer and the Reference Librarian it is Rs. 1100-1600/ -. It will thus be seen that in respect of the different posts included in one category the revised time scale is not the same. The authorities while revising the time scales might have considered the relevant factors before effecting the revision. It may have a reference to the increased load of work the responsibility etc. It therefore cannot be said that in the matter of upgradation of these posts which are not comparable contemplated posts and the petitioner is dicriminated upon or there are no norms and arbitrary. It is no doubt true that there is some stagnation as far as the post of the petitioner is concerned and I hope that the Institute will bear in mind at the time of next revision that there is no further chance of promotion for a person holding the post of Assistant Warden and therefore the said factor of stagnation will be borne in mind and given some weightage while deciding about the revision of the time scale for the post of Assistant Warden. But that would not justify the exercise of the jurisdiction of this Court under Article 226 of the Constitution of India. The second relief therefore about the direction enjoining the respondents for giving promotion or upgrading the post of the petitioner is not capable of being granted particularly in view of the paucity of material which can be only investigated by the fact finding Tribunal. The second question also is therefore answered against the petitioner that he is not entitled to any relief in this petition. ( 23 ) THE result is that this petition fails and is dismissed. There should be no order as to costs. ( 24 ) MR. The second question also is therefore answered against the petitioner that he is not entitled to any relief in this petition. ( 23 ) THE result is that this petition fails and is dismissed. There should be no order as to costs. ( 24 ) MR. Mehta for the petitioner makes an oral application that the interim relief granted in this petition be continued for a further period of six weeks so as to enable the petitioner to file letters patent appeal and obtain appropriate interim relief from the Division Bench. Heard Mr. K. S. Nanavati. Interim relief to continue for a period of six weeks as prayed for. .