JUDGMENT : Vijay Manohar Sahai, J. We have heard Mr. Hasit H. Joshi, learned counsel appearing for the appellant, Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing for respondent Nos.1 and 3 and Mr. Dipak Sanchela, learned counsel appearing for the respondent No.4. 2. This Letters Patent Appeal has been filed challenging the judgment dated 19.12.2003 passed by the learned Single Judge in Special Civil Application No.6142 of 2003 whereby the writ petition filed by the appellant-original petitioner has been dismissed as not maintainable as the earlier writ petitions on the same subject matter filed by the appellant were dismissed. 3. The brief facts of the case are that the appellant had served as Secretary in Dhandhuka Gram Panchayat from 3.12.1956 to 23.7.1974. Thereafter, the appellant resigned from service on 23.4.1974 and after break of eight years in service, the appellant again joined the services as Secretary in Mahemdabad Nagar Panchayat on 1.4.1982 and retired from service as Chief Officer on 30.11.1996. The appellant prayed that for the purpose of pensionary benefits, previous service rendered by him in Dhandhuka Gram Panchayat from 3.12.1956 to 23.7.1974 may be considered and the said service be clubbed with the service rendered in Mahemdabad Nagar Panchayat and accordingly, his pension be fixed and paid to him. 3.1. Since the respondents did not club his services or paid his pension, the appellant preferred Special Civil Application No.3012 of 1998. However, on 22.7.1998, the appellant withdrew the said writ petition. The order passed in the said writ petition is extracted below :- "1. The say of the petitioner is that he had worked as a Clerk and later on as Secretary with the Dhandhuka Nagar Panchayat during the period 3.12.1956 to 23.4.1974. He resigned on 23.4.1974 and joined the service of Mehmadabad Nagar Panchayat on 1.4.1982 and retired as Chief Officer of the said Nagar Panchayat on 30.11.1996. He made a representation to the respondents requesting to club the period of his service in the Dhandhuka Nagar Panchayat for the purpose of retirement benefits. The learned advocate states that there is a Circular which permits clubbing of service, but he is not in a position to produce the same. He also submitted that such Circulars are in possession of the respondents. In absence of such circular before this Court, it is not possible to decide the said controversy. The learned advocate states that there is a Circular which permits clubbing of service, but he is not in a position to produce the same. He also submitted that such Circulars are in possession of the respondents. In absence of such circular before this Court, it is not possible to decide the said controversy. In view of this, the respondents are directed to decide the petitioner's representation, if any pending, within a period of six weeks from the date of production of certified copy of this order. In case such a representation is not filed or not traceable, the petitioner may make fresh representation. 2. In view of this, the petitioner seeks permission to withdraw this petition. Permission granted. This Special Civil Application is dismissed as withdrawn. Direct service is permitted." 3.2. Since the State Government did not consider the representation of the appellant, the appellant again preferred another writ petition being Special Civil Application No.11020 of 1998. The learned Single Judge by judgment and order dated 18.10.1999 dismissed the said writ petition. The said order is extracted below :- "1. Heard learned counsel for the petitioner. Admittedly, the petitioner has retired after serving at the Mahmedabad Nagar Panchayat from April 1982 to November, 1996 he has made an application for calculating the service rendered by him at Dhandhuka Nagar Panchayat between December 1956 to July 1974 when he resigned from the service due to ill-health. Admittedly, he was not in service between 1974 and 1982. Petitioner claims that such power exists under some Circular and he refers to Special Civil Application No.3012 of 1998. Petitioner was not even in a position to lay his hands and to specify the Circular, to which he refers. Today also he is not in a better position. In these circumstances, I am not inclined to entertain this petition merely for the purpose of searching out a circular existence of which itself is doubtful." 3.3. Being aggrieved by the said order, the appellant preferred Letters Patent Appeal No.1146 of 2001. However, on 29.10.2001, the appellant withdrew the said Letters Patent Appeal. The said order is extracted below :- "Learned advocate Mr. Upadhyay under instructions at this stage, seeks permission to withdraw, the main petition stating that the Circular on which the claim is based is still not traced and made available and as and when it is obtained, liberty may be reserved. The said order is extracted below :- "Learned advocate Mr. Upadhyay under instructions at this stage, seeks permission to withdraw, the main petition stating that the Circular on which the claim is based is still not traced and made available and as and when it is obtained, liberty may be reserved. In view of the above statement, the prayer as to withdraw the petition is granted. Since we find that the petition was premature. Accordingly, the petition shall stand disposed of and consequently, this appeal would not survive." 3.4. Thereafter, in the year 2003, again the appellant preferred third writ petition being Special Civil Application No.6142 of 2003 on the same subject matter praying for pensionary benefits. 3.5. The learned Single Judge by the impugned judgment and order dated 19.12.2003 dismissed the writ petition of the appellant by holding that the petition is barred by the principles of res judicata. Hence, the appellant is before us in the Letters Patent Appeal. 4. Mr. Hasit H. Joshi, learned counsel appearing for the appellant has urged that according to Rule 327 of the Bombay Civil Services Rules, the appellant would be entitled for pension. He further submitted that the earlier writ petitions preferred by the appellant were not decided on merits and hence, the principles of res judicata would not apply to the facts of the case. He further submitted that by the Circular dated 16.12.1991 of the State Government, the respondent authority is empowered to club the services rendered by the employee. Hence, in view of the aforesaid Circular, the appellant is entitled for pension as well as pensionary benefits. 5. In our opinion, the appellant preferred first writ petition being Special Civil Application No.3012 of 1998 claiming pensionary benefits. However, the same was withdrawn by the appellant on 22.7.1998 as the Circular on which the appellant has put reliance was not traceable. Hence, the learned Single Judge directed the State Government to decide the representation of the appellant and permitted the appellant to withdraw the first writ petition. 6. Thereafter, since the State Government has not decided the representation of the appellant, the appellant preferred second writ petition being Special Civil Application No.11020 of 1998 wherein also the appellant did not annex the copy of the Circular on which reliance is placed. 6. Thereafter, since the State Government has not decided the representation of the appellant, the appellant preferred second writ petition being Special Civil Application No.11020 of 1998 wherein also the appellant did not annex the copy of the Circular on which reliance is placed. Hence, in absence of the said Circular, the learned Single Judge dismissed the writ petition of the appellant by judgment and order dated 18.10.1999. 7. Being aggrieved, the appellant preferred Letters Patent Appeal No.1146 of 2001. However, the same was withdrawn on 2.9.2002. From perusal of the said order, it appears that under some mistake, along with withdrawal of Letters Patent Appeal, the Division Bench has also permitted withdrawal of the writ petition. In our opinion, in Letters Patent Appeal, the Division Bench has no jurisdiction to permit withdrawal of the writ petition. The Division Bench can only permit for withdrawal of Letters Patent Appeal, but it was not permissible for the Division Bench to permit withdrawal of the writ petition which was dismissed. It is not permissible in law and it is nothing but an abuse of the process of the Court as it would amount to granting permission to the appellant to file another writ petition and it will tantamount to allowing the Letters Patent Appeal itself without entering into the merits of the order passed by the learned Single Judge in the writ petition. If it is accepted that in the Letters Patent Appeal, the Division Bench can permit the appellant to withdraw the writ petition, then it will amount to setting aside the order of the learned Single Judge without there being any adjudication on the merits of the matter. In this view of the matter, the order passed by the Division Bench allowing the appellant to withdraw the writ petition is without jurisdiction and cannot be given effect to and in our opinion, the order being without jurisdiction and being nullity, is coram non judice. Thereafter, the appellant filed third writ petition being Special Civil Application No.6142 of 2003 which came to be dismissed by the learned Single Judge as not maintainable. 8. From the above facts, it is clear that the appellant had filed three writ petitions for the same subject matter. Even in the third writ petition also, the Circular on which the appellant is relying is not produced. 8. From the above facts, it is clear that the appellant had filed three writ petitions for the same subject matter. Even in the third writ petition also, the Circular on which the appellant is relying is not produced. The learned Single Judge has rightly considered this aspect and while dismissing the third writ petition of the appellant as not maintainable, rightly held that the petition is barred by the principles of res judicata. The Apex Court in Sarguja Transport v. State Transport Appellate Tribunal, M.P., Gwalior and others, AIR 1987 SC 88 , considered the question of maintainability of second writ if the petitioner or by his counsel sought permission from the Court to withdraw from the writ petition without seeking permission to institute a fresh writ petition and examined Articles 226 and 32 of the Constitution of India and Order XXIII, Rule 1 of the Code of Civil Procedure and held in paragraphs 8 and 9 as under :- "8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Article 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P., ( AIR 1961 SC 1457 ) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:- "If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other." 9. The point for consideration is whether 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 can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of O. XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open." 9. Another Division Bench of the Apex Court in Upadhyaya and Co. v. State of U.P. and others, (1999) 1 SCC 81 has taken the same view as taken by the Apex Court in Sarguja Transport (Supra) and has held that once SLP challenging the order of the High Court has been withdrawn without obtaining from the Court liberty to file SLP again, fresh SLP against the same impugned order would not be maintainable. The Court approved the principles of public policy or provision of fresh suit contained in Order XXIII, Rule 1 (4) of CPC and extend these principles even to Special Leave Petitions before the Apex Court. The Apex Court held in paragraph 13 as under :- "13. The aforesaid ban for filing a fresh suit is based on public policy. The Court approved the principles of public policy or provision of fresh suit contained in Order XXIII, Rule 1 (4) of CPC and extend these principles even to Special Leave Petitions before the Apex Court. The Apex Court held in paragraph 13 as under :- "13. The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public policy applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior (1987) 1 SCC 5 . The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S. Venkataramiah, J. (as the learned Chief Justice then was) are to be quoted here (at p. 92 of AIR) :- "We are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again." 10. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again." 10. The decision in Sarguja Transport case was followed by the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 in paragraph 13 has held as below :- "The High Court was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition at the first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference." 11. In another decision, the Apex Court in Sarva Shramik Sanghatana (KV) Mumbai v. State of Maharashtra and others, (2008) 1 SCC 494 had held in this decision that Sarguja Transport case had to be understood on the basis of public policy so that the petitioner may not be allowed to indulge in Benchhunting tactics. The relevant paragraphs 12 and 13 are extracted below :- "12. We have carefully examined the decision of the Sarguja Transport Service case (supra). In the said decision it is mentioned in paragraph 8 as follows :- "8. ... It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition." 9. ... A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition." 9. ... But we are of the view that the principle underlying R.1 of O. XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in benchhunting tactics. We are of the opinion that the decision in Sarguja Transport case (supra) has to be understood in the light of the observations in paragraphs 8 and 9 therein, which have been quoted above. The said decision was given on the basis of public policy that, if while hearing the first writ petition the Bench is inclined to dismiss it, and the learned counsel withdraws the petition so that he could file a second writ petition before what he regards as a more suitable or convenient bench, then if he withdraws it he should not be allowed to file a second writ petition unless liberty is given to do so. In other words, bench-hunting should not be permitted. 13. It often happens that during the hearing of a petition the court makes oral observations indicating that it is inclined to dismiss the petition. At this stage the counsel may seek withdrawal of his petition without getting a verdict on merits, with the intention of filing a fresh petition before a more convenient Bench. It was this malpractice which was sought to be discouraged by the decision in Sarguja Transport case." 12. In view of the aforesaid decisions of the Apex Court, we are in complete agreement with the view taken by the learned Single Judge. We find no infirmity in the view taken by the learned Single Judge. 13. With regard to the submission of the appellant that according to Rule 327 of the Bombay Civil Services Rules, the appellant would be entitled for pension is concerned, we are not entering into the merits of the matter for the simple reason that for the same cause of action, earlier writ petitions of the appellant have been dismissed and hence, the third writ petition for the same cause of action is not maintainable. 14. 14. In the result, the present Letters Patent Appeal fails and is accordingly dismissed. There shall be no order as to costs. Appeal dismissed.