JUDGMENT S. P. Srivastava. J. 1. Undaunted by his failure in two successive writ petitions filed by the respondent, who is a Trade Unionist and is the Regional Secretary of Region II Meerut Module of the Delhi Circle of the State Bank of India and is also member of Delhi Circle committee of the State Bank of India, invoking the writ jurisdiction of this court for quashing the order transferring him from the post of Clerk/Cashier in the Railway Road, Bulandshahr Branch of State Bank of India to Kairana (Muzaffarnagar) Branch in the same capacity, the said respondent filed a third writ petition which has been allowed by a learned Single Judge of this Court. Feeling aggrieved the appellants who are the employers have come up in this Special Appeal seeking reversal of the judgment and order dated 6- 1-92 passed by the learned Single Judge. 2. We have heard Sri S. N. Verma, Senior Advocate, for the appellants and Sri Yatindra Singh, advocate for the respondent. The fact giving rise to the present special appeal lie in a very narrow compass. While the respondent Sri Pradeep Goel was holding the post of clerk/Cashier at the Railway Road, Bulandshahr Branch of the State Bank of India, an order was passed by the Regional Manager appellant no. 1 on 4-3-91 transferring him to Kairana (Muzaffarnagar) Branch in the same capacity. In pursuance of the aforesaid order the Branch Manager relieved Sri Pradeep Goel, the respondent from his post to join his new posting at the Kairana (Muzaffarnagar) Branch vide the order dated 5-3-91. The respondent Pradeep Goel challenged the transfer order by means of Civil Misc. Writ Petition no. 8572/91 in this Court. This court issued notice to the respondent in the said writ petition and the affidavits were exchanged between the parties. However, when the aforesaid writ petition was taken up for hearing the respondent Pradeep Goel, who was the petitioner in that case, prayed that the petition be dismissed as withdrawn. Accordingly, this Court passed an order to the following effect dismissing the writ petition :- "Writ petition is dismissed as withdrawn as prayed by the petitioner. Interim order dated 26-3-91 is vacated." 3. Pradeep Goel, the respondent, thereafter filed a second writ petition challenging the order of transfer in question. Accordingly, this Court passed an order to the following effect dismissing the writ petition :- "Writ petition is dismissed as withdrawn as prayed by the petitioner. Interim order dated 26-3-91 is vacated." 3. Pradeep Goel, the respondent, thereafter filed a second writ petition challenging the order of transfer in question. This writ petition was presented on 10-5-91 and was anally deposed of by an order dated 14-5-91 where under the writ petition was dismissed leaving the respondent free to make a representation to the higher authorities requesting that the transfer being contrary to the Circular or policy of the Government, the matter may be reconsidered. This Court further directed that in case such a representation was made then it will be decided by the competent authority within two weeks from the date of the receipt of the representation. It appears that the respondent submitted a representation on 18-5-91 which was rejected by the competent authority on 7-6-91. The respondent thereafter filed the present third writ petition seeking the quashing of the transfer order in question as well as the order dismissing his representation. 4. The learned counsel for the appellant has in support of this appeal, urged that the third writ petition filed by the respondent being in respect of the same subject matter regarding which the earlier two writ petitions had been filed, was not maintainable and consequently there was no justification for issuing any writ of certiorari quashing the impugned order of transfer as done by the learned Single Judge. It has further been asserted that in the circumstances of the case, the principles of constructive resjudicata were clearly attracted and the decision in the second writ petition barred the granting of that relief to the respondent which had been declined by this Court as was apparent from the perusal of the judgment and order dated 14-6-91. Apart from the above submissions, it has also been urged that the impugned order of transfer had been passed on account of administrative exigencies and was not penal in nature. What has been asserted is that the order of transfer in question does not amount to inflicting punishment for any misconduct. It has further been urged that the Government order dated 15-2-88 and the order dated 22-10-90 does not have the effect of a rule and are merely in the nature of administrative instructions. What has been asserted is that the order of transfer in question does not amount to inflicting punishment for any misconduct. It has further been urged that the Government order dated 15-2-88 and the order dated 22-10-90 does not have the effect of a rule and are merely in the nature of administrative instructions. They do not have the force of any statutory rule of a mandatory nature and in any case, even under the aforesaid orders a wide discretion had been left with the employer to pass an order of transfer of an employee from one place to another and there was no such infirmity in the exercise of this discretion which could warrant an interference by this court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The learned counsel for the respondent, while supporting the judgment impugned in this special appeal, has urged that in view of the nature of the order dated 14-5-91 passed by this Court in writ petition no. 16820/91 there could be no manner of doubt about the maintainability of the third writ petition inasmuch an the order dismissing the representation dated 18-5-91 had the effect of furnishing a fresh cause of action and if the order dated 7-6-1991 passed ore the representation of the petitioner could be quashed in that event that relief claimed in the representation i.e. annulment of the order of transfer would also be granted by this Court irrespective of the fact that it formed the subject matter of the two writ petitions filed earlier. It has been urged that in the circumstances of the case the question of res judicata does not arise as nothing can be deemed to have been decided in the earlier two writ petitions and the matter in controversy was left at large to be decided by the competent authority. It has further been urged that the impugned order of transfer was punitive in nature and had been passed without affording any opportunity of being heard. It has been further urged that an administrative exigency cannot be made a clerk for awarding punishment. It has further been urged that the impugned order of transfer was punitive in nature and had been passed without affording any opportunity of being heard. It has been further urged that an administrative exigency cannot be made a clerk for awarding punishment. It has further been asserted that the appellants were bound to abide by the directions contained in the orders dated 15-2-88 and 22-10-90 and consequently the impugned order of transfer having been passed in violation thereof has been rightly quashed and the order passed by the learned Single Judge does not call for any interference. 5. We have heard the learned counsel at some length and have given our anxious thought to the rival contentions raised by the learned counsel for the parties and have also carefully perused the record. 6. As has been noticed above, the first writ petition viz writ petition no. 8572/91 had been dismissed as withdrawn. An order dismissing the writ petition as withdrawn cannot operate as resjudicata inasmuch as such dismissal cannot be equated with the dismissal on merits. This position is now well established in view of the decision of the Supreme Court in the case of Daryao v. State of U. P., AIR 1961 SC 1457 . However, even though the order dated 26-4-91 may not operate as resjudicata yet it will debar the petitioner of that writ petition from filing a fresh writ petition for seeking the same relief which was claimed in the earlier writ petition, This position in law flows from the principle enshrined in order XXIII Rule 1 of the Code of Civil Procedure which principle has to be applied to a writ proceeding under Article 226 of the Constitution of India excepting the habeas corpus writs. This Court in its decision in the case of L. Kashi Nath Seth v Collector, Central Excise Allahabad and others decided by a Division Bench and reported in AIR 1979 Al!d. 128 had clarified that inspite of the explanation inserted in section 141 by the Civil Procedure Code (Amendment) Act, 1976, the salutary principles enshrined in the Code of Civil Procedure governing the trial of civil suits may be applied to the proceedings excepting the case of habeas corpus petitions under Article 226 of the Constitution of India. The principles underlying order XXIII Rule 1 of the Code of Civil Procedure, in our opinion are such which would be applicable to petitions under Article 226 of the Constitution of India also excepting of course, the petitions relating to habeas corpus The apex Court in its decision in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88 , clearly observed that a fresh petition under Article 226 of the Constitution of India in respect of the same cause of action is not maintainable and the rule of public policy as contained in Order XXIII rule 1 of the Code of Civil Procedure applies to such cases. It has been observed that "a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition cannot file a fresh writ petition in respect of the same cause of action in the High Court under that Article". The decision of this Court in the case of L Kashi Nath (supra), thus, stands impliedly approved by the Apex Court. Order XXIII Rule 1 of the Civil Procedure Code provides as follows :- 1. At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim; Provided ............ 2............... 3. Where the court is satisfied : - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. 4............. (a)............ (b) Withdraws from a suit or part of a claim without the permission referred to in sub-rule (3); he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (emphasis supplied) 5............. 4............. (a)............ (b) Withdraws from a suit or part of a claim without the permission referred to in sub-rule (3); he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (emphasis supplied) 5............. Thus, it is apparent that in the absence of the requisite permission permitting the respondent to file a fresh writ petition, the effect of the order passed by this court dated 26-4-91 is that the respondent stood precluded from instituting a second writ petition in respect of the subject matter of the writ petition no. 3572/91 which was the order of transfer in question. The second writ petition i.e. writ petition no. 16820 of 1991 was finally disposed of vide the order dated 14-5-91. In the aforesaid order it has been observed that "the writ petition is dismissed in limine as the Supreme Court has consistently taken the view that the transfer being an incidence of service, should not be interfered under Article 226 of the Constitution." It has further been observed in that order that it is not open to the counsel for the petitioner now to reagitate the matter on the same grounds". The effect of the aforesaid observations made by this court is that the decision not to interfere in the order of transfer will come in the way of the petitioner and a third writ petition for the same relief i.e quashing of the order of transfer will be barred by the general principles of resjudicata. In this connection it may be noticed that in both the previous writ petitions the counsel for the respondent (now appellants) had put in appearance and had been heard. This is not disputed by the counsel for the respondent. In this view of the matter there can be no manner of doubt that the aforesaid observations did constitute a 'decision' of the Court so as to attract the general principles of resjudicata, so far as the order of transfer in question was concerned. It was therefore, not open to the respondent to agitate the same grounds) which had been raised to challenge the impugned order of transfer in the second writ petition all over again in the third writ petition. It was therefore, not open to the respondent to agitate the same grounds) which had been raised to challenge the impugned order of transfer in the second writ petition all over again in the third writ petition. It is this principle which stands enshrined in rule 7 of Chapter XXII of the Rules of the Court which provides that where an application has been rejected it shall not be competent for the applicant to make a second application on the same facts. In the present case the aforesaid rule stood clearly attracted so far as the relief claimed by the petitioner in regard to the impugned order of transfer was concerned and on this ground also the order of transfer in question could not be interfered with. 7. However, so far as the direction contained in the order dated 14- 5-91 where under it was left open to the respondent to make a representation to the higher authorities requesting that the transfer being contrary to the circular or policy of the Government the matter may be reconsidered is concerned, it may be noticed that the aforesaid direction was of a very limited scope. It only permitted the respondent to make a representation to the competent authority for reconsidering the matter relating to his transfer in the light of the orders dated 15-:2-88 and 22-10-90 and required the competent authority to decide the representation within a prescribed period. It is obvious from the order passed by the Court dated 14-5-91 that no other ground excepting the ground of the impugned order being allegedly violative of the order dated 15-2-88 or 22-10-90 had been left open and the competent authority was required to decide this limited controversy. The scope of the third writ petition was, therefore, very limited one. The only thing which could be seen in this writ petition was as to whether the competent authority had considered the representation in the light of the observation made in the order of this Court dated 14-5-91 or not and whether any ground for interfering with the order disposing of the representation was made out in the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India or not. 8. 8. We have perused the order dated 15-2-88 as well as the order dated 22-10-90, true copies whereof have been filed as Annexures 3 and 4 respectively to the writ petition. The order dated 15-2-88 was issued by the Government of India, Ministry of [Finance Department of Economic Affairs Banking Division and was endorsed to all the public sector Banks and financial Institutions R. B. I./Nabard. The subject matter of the aforesaid order was the posting/transfer of physically handicapped person employed in public sector Banks/Financial Institutions. It appears that various representations had been received by the Government; of India where under it had been requested that physically disabled bank employees who were physically handicapped may be exempted from routine periodical transfers from the place of their original posting/appointment. It appears that the Central Government had formulated certain guidelines providing that subject to the administrative exigencies the physically handicapped persons employed in public sector banks in all cadres should normally be exempted from the routine periodical transfers. However, it was clarified that the aforesaid guideline was subject to the condition that the concession contemplated there under would not be available to such transferred physically handicapped employees of the banks who are transferred on ground of disciplinary action or are involved in fraudulent transactions etc. The other order dated 22-10-90 appears to have been issued by the Personnel Department of State Bank of India. New Delhi on the guidelines contained in the order issued by the Government of India dated 15- 2-88 to which a reference has been made above. None of the aforesaid orders have any statutory force and in fact are in the nature of mere administrative orders. These orders cannot fall under the category of a statutory rule of a mandatory nature. The respondent had assailed the impugned order of his transfer from district Bulandshair to District Muzaffarnagar on the ground that the said order was violative of the guidelines indicated in the aforesaid orders. Under the direction issued by this Court in its judgment and order dated 15-5-91 the appellant was required to consider as to whether the impugned order of transfer was contrary to the guidelines contained in the aforesaid Circulars The representation of the respondent made in this connection was disposed of by the order dated 7-6-91, true copy of which has been filed as Annexure 12 to the writ petition. In the aforesaid order it has been observed that the order of transfer had not been passed in violation of the Circular and that the action of the appellant was well within the jurisdiction inasmuch as it fell within the exception contemplated under the aforesaid orders. It has been observed in the order that the respondent bad been transferred on account of his suspected involvement in the fraudulent transaction. It has further been specifically provided in the order dated 7-6-91 disposing of the representation that the order of transfer may be reviewed subject to the outcome of the disciplinary proceedings initiated against the respondent. We are of the opinion that taking into consideration the nature of the guidelines contained in the orders dated 15-2-88 and 22-10-90, the view taken by the appellant while disposing of the representation, which specifically reserved the right of the respondent to get the order of transfer annulled subject to the out-come of the disciplinary proceedings initiated against him can not be held to be vitiated on account of any manifest error of law more so when a wide discretion had been left with the appointing authority to order a transfer even under the guidelines contained in the aforesaid orders dated 15-2-88 and 22-10-90 which were expressly made subject to administrative exigences. 9. The counsel for the respondent has asserted that in para 5 of the order dated 7-6-91 disposing of the representation of the respondent it has been observed that the order of transfer was passed on account of his suspected involvement in fraudulent transation and this sufficiently indicated that the impugned order was punitive in nature. We are not impressed with this submission. The order dated 7-6-91 has to be read as a whole. It appears from the perusal of the aforesaid order that what was being indicated in the order was that the case of the respondent fell within the ambit of the exception provided under the guidelines contained in the orders dated 15-2-88 and 22-10-90 A perusal of the order dated 7-6-91 in the context of the aforesaid two orders makes apparent that the recitals contained in para 5 of the order could not lead to an inference that the impugned order of transfer had been passed as measure of punishment for any misconduct. It is admitted to the parties that the disciplinary proceedings had in fact been initiated against the respondent and they have not concluded. It is in this view of the matter that the appointing authority has specifically provided in the impugned order that the order of transfer will be liable to be reviewed subject to the out come of the disciplinary proceedings. We are, therefore, clearly of the view that the impugned order of transfer had not been passed as a substitute for punishment and on the materials on record, there was nothing which could lead to an inference to the contrary. The order dated 7-6-91 passed by the appellant disposing of the representation of the respondent does not suffer from any such infirmity which may justify an interference in the exercise of our equity jurisdiction under Article 226 of the Constitution of India. 10. The question whether an order of transfer is punitive or not depends upon the circumstances of each case. It should however, be realised that punishment must be something more than mere inconvenience inasmuch as a transfer in almost all cases involves some amount of inconvenience. An employer has an inherent right of transferring its employee and the liability of transfer is in fact an incidence of service. The exercise of this right may however be controlled by some statutory rule of mandatory nature. Obviously, therefore, the inconvenience caused on account of a transfer is always a consequence of transfer and needs to be suffered. However, the right of the employer to transfer an employee should not be in colourable exercise of power. Further it should not be with a view to victimisation. If an order of transfer has been passed with a malafide intention or for a collateral purpose or is without jurisdiction or tin violation of any statutory rule or has the effect of imposing a punishment or visits the employee with penal consequences, in that case the equity may intervene and forbid the enforcement of such an order. If an order of transfer has been passed with a malafide intention or for a collateral purpose or is without jurisdiction or tin violation of any statutory rule or has the effect of imposing a punishment or visits the employee with penal consequences, in that case the equity may intervene and forbid the enforcement of such an order. It is indeed "great to have a giant's strength but it is tyrannical to use it as a giant." In other words in case of the exercise of this power of transfer in an arbitrary or capricious manner or where the case is of a total non application of mind or the order stands vitiated on account of any such infirmities as indicated above, this Court may intervene in the exercise of its equity jurisdiction under Article 226 of the Constitution of India otherwise not. In this connection it may further be noticed that in view of the decision of the Supreme Court in the case of Mrs. Shilppi Bose v. State of Bihar, AIR 1991 SC 532 , it is obvious that an appointee against a transferable post cannot claim to have any vested right to remain posted at one place and further that in case the order of transfer has been passed by a competent authority and did not violate any mandatory rule, the High Court had no jurisdiction to interfere with such an order of transfer. It has further been observed in the aforesaid case as follows :- "In our opinion, the court should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory, statutory rule or on the ground of malafide." It has further been observed that "even if a transfer order is passed in violation of executive instructions or orders the courts ordinarily should not interfere with the order instead affected party should approach the higher authority in the department." In the case of Union of India v. H. N. Kirtania, 1989 Volume III SCC 445, the Supreme Court observed thus- "We do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post ................Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on grounds of malafide." 11. Keeping in view the aforesaid principles if we examine the order of transfer in question it will be apparent that by no stretch of imagination it can be held to be punitive in nature. The petitioner has been transferred in the same capacity to the district of Muzaffarnagar. The order of transfer does not visit him with any penal consequence. It cannot be categorised as an order which has been parsed in am arbitrary manner or without any application of mind, which may justify any interference. 12. The counsel for the respondent has placed reliance upon a Division Bench decision of this Court of which one of us Honourable S. D. Agarwala, J. was a member which has been reported in 1991 Vol II UP LB and EC 1303 and sought to draw support from certain observations made therein. In this connection it may be observed that as clarified by the Supreme Court in its decision in the case of State of Orissa v. Sudhansu Sekhar Misra, AIR. 1968 SC 647, a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. 1968 SC 647, a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has further been observed in that case that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it. In the decision of this court referred to above an order of transfer had been quashed on the ground that it had been passed in an arbitrary manner without there being any valid basis The order impugned in the present case however, does not suffer from any such vice. The aforesaid decision is therefore, of no assistance to the respondent. The counsel for the respondent has further placed reliance upon the decisions reported in 1978 (2) SLR 136 as well as the decision reported in 1979 (1) SLR 309 and the decision reported in 1988 (2) SLR 545. We have perused the aforesaid judgments and have found that they are distinguishable and have no application to the facts involved in the present case. In view of our conclusions indicated herein before, this special appeal succeeds. Allowing the special, appeal was hereby set aside the judgment and order passed by the learned Single Judge dated 6-1-82 and dismiss the writ petition filed by the respondent. We however, direct that the parties will bear their own costs. Petition dismissed.