High Court · 2025

2. Mr. Bhupendra Bisht , lear ned counsel for t he r espondent .

3. Mr. Yashpal Singh ( pet it ioner) was init ially appoint ed as Junior Engineer ( Civil) in U.P. Jal Nigam w.e.f. 08.08.1978. Ther eaft er he was prom ot ed as Assist ant Engineer ( Civil) w .e.f. Novem ber 2008 and from ser vice on ult im at ely, he 31.12.2014. Since his ret iral dues wer e not released in t im e, t herefor e, pet it ioner filed t he WPSB No. 182 of 2017, seeking following relief: - r et ired ( i) To issue a w rit order or direct ion in t he nat ure of m andam us com m anding t he Respondent No. 1 t o fort hwit h release t he out st anding ret iral benefit s t o t he pet it ioner fort hwit h, det ails wher eof is given in Para 8 of t he Writ Pet it ion. The said writ pet it ion was disposed of 4. by Division Bench wit h cert ain direct ions vide or der dat ed 05.05.2017. The operat ive port ion of t he said j udgm ent , r ender ed in WPSB No. 182 of 2017, is ext ract ed below: - “ 5. We dispose of t he w rit pet it ion as follows: ( i) Wit hin a period of t w o m ont hs from t oday , t he am ount of leave encashm ent will be paid t o t he pet it ioner. ( ii) Wit hin a period of five m ont hs from t oday , t he am ount due by way of com m ut at ion of pension will be paid t o t he pet it ioner. ( iii) The balance am ount due by way of ot her benefit s be paid t o t he pet it ioner wit hin a period of seven m ont hs from t oday. ( iv) We also direct t he Corporat ion has m ov ed t he Gov ernm ent of Ut t arakhand seeking t hat funds for t he paym ent of t he said am ount s, t he Governm ent of Ut t arakhand will consider t he said request in accor dance wit h law at t he earliest . I t is br ought t o our not ice t hat t he Corporat ion had m oved t he Gov ernm ent of Ut t arakhand seeking funds by com m unicat ion dat ed 12.04.2017.” Now, pet it ioner t his 5. subsequent w rit pet it ion in 2019, seeking t he following relief: - ( i) To issue a w rit order or direct ion in t he nat ure of m andam us com m anding t he Respondent t o pay int erest on t he delayed paym ent of ret iral dues from t he period 1.1.2015 t ill it s act ual paym ent t o t he pet it ioner in 2017 ( det ails of which is given in para 8 of t he w rit pet it ion) , at a rat e t o be specified by t his Hon’ble Court . Thus, in t his writ pet it ion, pet it ioner 6. has laid claim for int erest on t he delayed t he ret iral dues, descript ion paym ent of t he writ wher eof pet it ion. in para 8 of is given t he

7. Mr. Bhupendra Singh Bisht , lear ned counsel appearing r espondent subm it s t hat t his subsequent writ pet it ion is barr ed by principle of const ruct ive j udicat a, as pet it ioner had earlier also filed a writ pet it ion for release of ret iral dues and t hat t im e he did not st ake claim for int erest , t her efore, subsequent writ pet it ion, only for int erest , would not be m aint ainable, as such relief could have been sought in t he earlier writ pet it ion. He furt her subm it s t hat det ails of ret iral benefit s, w hich w er e out st anding, as indicat ed in para 8 of t he w rit pet it ion, are ident ical t o t he ret iral out st anding dues which w ere m ent ioned in para 8 of t he earlier w rit pet it ion being num bered as WPSB No. 182 of 2017. I n support of t his cont ent ion, learned 8. counsel for t he r espondent has dr awn our at t ent ion t o a j udgm ent render ed by Hon’ble Supr em e Court in t he case of Com m issioner of I ncom e Tax, Bom bay vs. T.P. Kum aran, report ed in ( 1996) 10 SCC 561. Para 3 & 4 reproduced j udgm ent ar e t he said below: - t hat while “ 3. This appeal by special leave arises against an order of t he Cent r al Adm inist rat ive Tribunal, Ernakulam m ade on 16- 8- 1994 in OA No. 2026 of 1993. The adm it t ed posit ion t he respondent was working as I ncom e Tax Officer , he was dism issed from ser vice. He laid a suit against t he order of dism issal. The suit cam e t o be decreed and he was consequent ly r einst at ed. Since t he arr ear s wer e not paid, he filed a writ pet it ion in t he High Court . The High Court by order dat ed 16- 8- 1982 direct ed t he appellant t o pay all t he arrear s. That order becam e final. Consequent ly, arr ears cam e t o be paid. Then filed an OA claim ing int erest at 18% per annum . The Adm inist rat ive Tribunal in t he im pugned order direct ed t he paym ent of int erest . Thus, t his appeal by special leave. t he respondent under Sect ion t he paym ent . The claim j udicat a

4. The Tribunal has com m it t ed a gross er r or of law in direct ing is barr ed by 11, const ruct ive Explanat ion I V, CPC which envisages t hat any m at t er which m ight and ought t o have been m ade gr ound of defence or at t ack in a form er suit , shall be deem ed t o have been a m at t er dir ect ly and subst ant ially in issue in a subsequent suit . Hence when t he claim was m ade on earlier occasion, he should have or m ight have sought and secur ed decr ee for int erest . He did it operat es as r es t her efor e, not seek so and, j udicat a. Ev en ot herwise, when he filed a suit and specifically did not claim t he sam e, Order 2 Rule 2 CPC pr ohibit s t he pet it ioner t o seek t he r em edy is not separat ely. sust ainable.” I n eit her ev ent , t he OA Per cont ra, Mr. Bhagw at Mehra, 9. learned counsel for t he pet it ioner has relied upon j udgm ent dat ed 06.05.2015 rendered by Division Bench in SPA No. 100 of 2010 ( Sm t . Poonam Verm a vs. Cant onm ent Board, Dehradun & ot her s) . The fact s in t he j udgm ent , r elied upon by learned counsel for t he pet it ioner , ar e differ ent , t her efore, t he said j udgm ent would not be applicable her e. lear ned counsel We find subst ance in t he subm ission 10. m ade t he respondent . The subsequent writ pet it ion filed by pet it ioner , only for int erest , which he could have claim ed in t he ear lier writ pet it ion, would be barr ed by principle of const r uct ive r es j udicat a and also barred by t he principle, as cont ained in Or der 2 Rule 2 of CPC.

11. Hon’ble Supr em e Court in t he case of Sam ir Kum ar Maj um der v s. Union of I ndia & ot hers, r eport ed in AI R Online 2023 SC 777 has considered and discussed t he principle of const r uct ive r es j udicat a, as follows: - “ 3 3 . Alm ost t wo cent uries ago, in Henderson v. Hender son, ( 1843) 3 Hare, 100, t he Vice- Chancellor Sir Jam es Wigram felicit ously put s t he principle t hus: “ I n t rying t his quest ion I believe I st at e t he Rule of t he Court corr ect ly when I say t hat , wher e a given m at t er becom es t he subj ect of lit igat ion in, and of adj udicat ion by, a Court of com pet ent j urisdict ion, t he Court r equires t he part ies t o t hat lit igat ion t o bring forw ard t heir whole case, and will not ( except under special circum st ances) perm it t he sam e part ies t o open t he sam e subj ect of lit igat ion in respect of m at t er which m ight have been br ought for ward as part of t he subj ect in cont est , but which was not brought forward, only negligence, because inadvert ence, or ev en accident , om it t ed part of t heir case. The plea of r es j udicat a applies, except in special cases, not only t o point s upon which t he Court was act ually required by t he part ies t o form an opinion and pronounce a j udgm ent , but t o ev ery point which properly belonged t he t o lit igat ion, and which subj ect of t he part ies, ex er cising reasonable diligence, m ight hav e brought forward at t he t im e. ....” have, t hey 3 4 . This principle popularly known as t he doct r ine of const ruct ive res j udicat a, based on t he m ight and ought t heory, has been recognized by t his Court in sev eral Vikrikar Karam chari Sangat han v. St at e of Maharasht r a and Anr. ( 2000) 2 SCC 552, t his Court held as under: I n Maharasht ra j udgm ent s. I t was forward for car rying im plied eit her t hen cont ended on behalf of

22. t he appellant s t hat neit her t he Recruit m ent Rules of 1971 nor t he Seniorit y Rules of 1982 provided for car rying forward t he v acancies falling in eit her cat egory . I n t he absence of such Rules which specifically provide t he vacancies falling in eit her cat egory , no such car ry- t he for ward Rule could be Recruit m ent Rules or in t he Seniorit y Rules. This cont ent ion need not det ain us any longer because such a cont ent ion was available t o t he appellant s t he earlier pr oceedings, nam ely, Tr ansfer Applicat ion No. 822 of 1991 and t he sam e was not put in issue. That not having been done, it m ust follow t hat such a cont ent ion is barred by t he principles of const r uct ive res j udicat a. Neit her t he cont est ing respondent s nor t he appellant s ev er raised t his cont ent ion at any st age of t he proceedings in Transfer Pet it ion No. 822 of 1991. I t would, t herefore, be t oo lat e t o raise such a list has been cont ent ion when finalized pursuant j udgm ent of MAT, Bom bay Bench in Transfer Pet it ion No. 822 of 1991. t he seniorit y t he t o I nt er est reipublicae ut sit finis lit ium : t he age- old legal m axim 3 5 . The doct rine it self is based on public policy int er est flowing reipublicae ut sit finis lit ium which m eans t hat in t he int erest of t he St at e t here should be an end t o lit igat ion and no part y ought t o be vexed t wice in a t he sam e cause ( See M. lit igat ion Nagabhushana v. St at e of Karnat aka and Ors. ( 2011) 3 SCC 408. for one and 3 6 . The cont ent ion raised on behalf of t he Appellant t hat he should at least be paid t he salary and allowances as paid t o t he Assist ant Teacher s in t he Higher Secondary Sect ion for t he t im e he funct ioned should also fail for t he reason as set out her ein abov e.” I n view of t he law declar ed by Hon’ble 12. subsequent writ t he Supr em e Court , pet it ion, filed by pet it ioner, is barred by principle of const r uct ive r es j udicat a. On t his short point alone, dism issed. t he writ pet it ion ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.)

03.06.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa 85f9802a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D 26F5C22DACF4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL