Uttarakhand High Court
WPSB/45/2019 on 3 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:4460-DB
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
WPSB/45/2019
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
1. Mr. Bhagwat Mahra, learned counsel
for the petitioner.
2. Mr. Bhupendra Bisht, learned counsel
for the respondent.
3. Mr. Yashpal Singh (petitioner) was
initially appointed as Junior Engineer (Civil)
in U.P. Jal Nigam w.e.f. 08.08.1978.
Thereafter he was promoted as Assistant
Engineer (Civil) w.e.f. November 2008 and
ultimately, he retired from service on
31.12.2014. Since his retiral dues were not
released in time, therefore, petitioner filed
WPSB No. 182 of 2017, seeking the
following relief:-
(i) To issue a writ order or direction in the nature of
mandamus commanding the Respondent No. 1 to
forthwith release the outstanding retiral benefits to
the petitioner forthwith, details whereof is given in
Para 8 of the Writ Petition.
4. The said writ petition was disposed of
by Division Bench with certain directions
vide order dated 05.05.2017. The operative
portion of the said judgment, rendered in
WPSB No. 182 of 2017, is extracted below:-
"5. We dispose of the writ petition as follows:
(i) Within a period of two months from today, the
amount of leave encashment will be paid to the
petitioner.
(ii) Within a period of five months from today, the
amount due by way of commutation of pension
will be paid to the petitioner.
(iii) The balance amount due by way of other
benefits be paid to the petitioner within a period
of seven months from today.
(iv) We also direct that if the Corporation has
moved the Government of Uttarakhand seeking
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funds for the payment of the said amounts, the
Government of Uttarakhand will consider the
said request in accordance with law at the
earliest. It is brought to our notice that the
Corporation had moved the Government of
Uttarakhand seeking funds by communication
dated 12.04.2017."
5. Now, petitioner has filed this
subsequent writ petition in 2019, seeking
the following relief:-
(i) To issue a writ order or direction in the nature of
mandamus commanding the Respondent to pay
interest on the delayed payment of retiral dues
from the period 1.1.2015 till its actual payment to
the petitioner in 2017 (details of which is given in
para 8 of the writ petition), at a rate to be
specified by this Hon'ble Court.
6. Thus, in this writ petition, petitioner
has laid claim for interest on the delayed
payment of the retiral dues, description
whereof is given in para 8 of the writ
petition.
7. Mr. Bhupendra Singh Bisht, learned
counsel appearing for the respondent
submits that this subsequent writ petition is
barred by principle of constructive res
judicata, as petitioner had earlier also filed a
writ petition for release of retiral dues and
that time he did not stake claim for interest,
therefore, subsequent writ petition, only for
interest, would not be maintainable, as such
relief could have been sought in the earlier
writ petition. He further submits that details
of retiral benefits, which were outstanding,
as indicated in para 8 of the writ petition,
are identical to the retiral outstanding dues
which were mentioned in para 8 of the
earlier writ petition being numbered as
WPSB No. 182 of 2017.
8. In support of this contention, learned
counsel for the respondent has drawn our
attention to a judgment rendered by Hon'ble
Supreme Court in the case of Commissioner
of Income Tax, Bombay vs. T.P. Kumaran,
reported in (1996) 10 SCC 561. Para 3 & 4
of the said judgment are reproduced
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below:-
"3. This appeal by special leave arises against an
order of the Central Administrative Tribunal,
Ernakulam made on 16-8-1994 in OA No. 2026 of
1993. The admitted position is that while the
respondent was working as Income Tax Officer, he
was dismissed from service. He laid a suit against the
order of dismissal. The suit came to be decreed and
he was consequently reinstated. Since the arrears
were not paid, he filed a writ petition in the High
Court. The High Court by order dated 16-8-1982
directed the appellant to pay all the arrears. That
order became final. Consequently, arrears came to be
paid. Then the respondent filed an OA claiming
interest at 18% per annum. The Administrative
Tribunal in the impugned order directed the payment
of interest. Thus, this appeal by special leave.
4. The Tribunal has committed a gross error of law in
directing the payment. The claim is barred by
constructive res judicata under Section 11,
Explanation IV, CPC which envisages that any matter
which might and ought to have been made ground of
defence or attack in a former suit, shall be deemed to
have been a matter directly and substantially in issue
in a subsequent suit. Hence when the claim was
made on earlier occasion, he should have or might
have sought and secured decree for interest. He did
not seek so and, therefore, it operates as res
judicata. Even otherwise, when he filed a suit and
specifically did not claim the same, Order 2 Rule 2
CPC prohibits the petitioner to seek the remedy
separately. In either event, the OA is not
sustainable."
9. Per contra, Mr. Bhagwat Mehra,
learned counsel for the petitioner has relied
upon judgment dated 06.05.2015 rendered
by Division Bench in SPA No. 100 of 2010
(Smt. Poonam Verma vs. Cantonment
Board, Dehradun & others). The facts in the
judgment, relied upon by learned counsel
for the petitioner, are different, therefore,
the said judgment would not be applicable
here.
10. We find substance in the submission
made by learned counsel for the
respondent. The subsequent writ petition
filed by petitioner, only for interest, which
he could have claimed in the earlier writ
petition, would be barred by principle of
constructive res judicata and also barred by
the principle, as contained in Order 2 Rule 2
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of CPC.
11. Hon'ble Supreme Court in the case of
Samir Kumar Majumder vs. Union of India &
others, reported in AIR Online 2023 SC 777
has considered and discussed the principle
of constructive res judicata, as follows:-
"33. Almost two centuries ago, in Henderson v.
Henderson, (1843) 3 Hare, 100, the Vice-Chancellor
Sir James Wigram felicitously puts the principle thus:
"In trying this question I believe I state the Rule
of the Court correctly when I say that, where a
given matter becomes the subject of litigation in,
and of adjudication by, a Court of competent
jurisdiction, the Court requires the parties to that
litigation to bring forward their whole case, and
will not (except under special circumstances)
permit the same parties to open the same subject
of litigation in respect of matter which might have
been brought forward as part of the subject in
contest, but which was not brought forward, only
because they have, from negligence,
inadvertence, or even accident, omitted part of
their case. The plea of res judicata applies, except
in special cases, not only to points upon which the
Court was actually required by the parties to form
an opinion and pronounce a judgment, but to
every point which properly belonged to the
subject of litigation, and which the parties,
exercising reasonable diligence, might have
brought forward at the time. ...."
34. This principle popularly known as the doctrine of
constructive res judicata, based on the might and
ought theory, has been recognized by this Court in
several judgments. In Maharashtra Vikrikar
Karamchari Sangathan v. State of Maharashtra and
Anr. (2000) 2 SCC 552, this Court held as under:
22. It was then contended on behalf of the
appellants that neither the Recruitment Rules of
1971 nor the Seniority Rules of 1982 provided for
carrying forward the vacancies falling in either
category. In the absence of such Rules which
specifically provide for carrying forward the
vacancies falling in either category, no such carry-
forward Rule could be implied either in the
Recruitment Rules or in the Seniority Rules. This
contention need not detain us any longer because
such a contention was available to the appellants
in the earlier proceedings, namely, Transfer
Application No. 822 of 1991 and the same was
not put in issue. That not having been done, it
must follow that such a contention is barred by
the principles of constructive res judicata. Neither
the contesting respondents nor the appellants
ever raised this contention at any stage of the
proceedings in Transfer Petition No. 822 of 1991.
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It would, therefore, be too late to raise such a
contention when the seniority list has been
finalized pursuant to the judgment of MAT,
Bombay Bench in Transfer Petition No. 822 of
1991.
Interest reipublicae ut sit finis litium:
35. The doctrine itself is based on public policy
flowing from the age-old legal maxim interest
reipublicae ut sit finis litium which means that in the
interest of the State there should be an end to
litigation and no party ought to be vexed twice in a
litigation for one and the same cause (See M.
Nagabhushana v. State of Karnataka and Ors.
(2011) 3 SCC 408.
36. The contention raised on behalf of the Appellant
that he should at least be paid the salary and
allowances as paid to the Assistant Teachers in the
Higher Secondary Section for the time he functioned
should also fail for the reason as set out herein
above."
12. In view of the law declared by Hon'ble
Supreme Court, the subsequent writ
petition, filed by petitioner, is barred by
principle of constructive res judicata. On this
short point alone, the writ petition is
dismissed.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)
03.06.2025
Aswal
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
NITI RAJ SINGH
ou=HIGH COURT OF UTTARAKHAND,
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85f9802a3a08b08d1369512ea30f3,
ASWAL
postalCode=263001, st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D
26F5C22DACF4F4610C1FE58A58531726FBB0,
cn=NITI RAJ SINGH ASWAL
Date: 2025.06.20 04:16:53 -07'00'
2025:UHC:4460-DB
