ORDER The petitioner retired as Additional District & Sessions Judge, Jamui. He has prayed for payment of appropriate statutory interest on 90% of gratuity and pension paid to him in 2002 pursuant to the order dated 16.10.2001 in C.W.J.C. No.7248 of 2001. 2. Before I take up the prayer of the petitioner for consideration, it would be necessary to notice the facts of the case in brief. The petitioner was a member of Bihar Judicial Service. He retired on 31.1.1995 as Additional District & Sessions Judge, Jamui. No departmental or criminal proceeding was instituted against him during his service tenure. Only after retirement, a criminal case being Jamui P.S. Case No.50 of 1996 dated 30.4.1996 was lodged under sections 419, 466, 408 and 471 of I.P.C. Pension and gratuity were not paid in view of criminal proceeding. The petitioner filed C.W.J.C. No.7248 of 2001 for payment of his pension and other retiral dues with interest. The writ petition was disposed of by a learned Single Judge on 16.10.2001 with a direction to the concerned authorities to sanction and authorize provisional pension which would include gratuity too in accordance with the government circulars within a period of two months. The learned Judge in his order observed that in appropriate cases provisional pension and gratuity can be granted even during the continuance of criminal or disciplinary proceeding. 3. In view of direction of this Court, 90% of the provisional pension and gratuity was sanctioned and authorized. The petitioner continued to receive his provisional pension and gratuity. In the meantime, the criminal trial concluded and the petitioner was convicted under sections 419, 466, 468, 471 of I.P.C. vide judgment dated 3.7.2008 of trial court. He was sentenced to two years imprisonment under section 419 I.P.C. and three years simple imprisonment under sections 466, 468, 471 IPC. Being aggrieved, the petitioner preferred Criminal Appeal No.20 of 2008 and was acquitted vide judgment dated 23.1.2009. 4. The petitioner filed C.W.J.C. No.14820 of 2009 for releasing remaining 10% of gratuity and pension with 11% interest. The matter was listed before a Division Bench of this Court. In the meantime, the Standing Committee of the High Court in its meeting held on 17.11.2009 had allowed the representation of the petitioner for grant of remaining 10% of pension and gratuity along with permissible statutory interest. The matter was listed before a Division Bench of this Court. In the meantime, the Standing Committee of the High Court in its meeting held on 17.11.2009 had allowed the representation of the petitioner for grant of remaining 10% of pension and gratuity along with permissible statutory interest. The Division Bench accordingly disposed of the writ petition by order dated 23.11.2009 directing the respondents to process the claim of the petitioner expeditiously and consequential relief by way of payment of arrears or revision of pension to be made available within two months. 5. Pursuant to the aforesaid direction, the petitioner was paid the balance of 10% pension and gratuity with statutory interest and thus he now got full pension and gratuity. 6. On 28.6.2010, the petitioner made a representation to the respondent no.3 for payment of 5% interest from the date of retirement on 31.1.1995 till the date of final payment of 90% of pension and gratuity in 2002. Representations to the said effect were also made to the Under Secretary, Karmik and Prasashinik Vibagh, Government of Bihar vide his letter dated 13.7.2011 and 1.8.2011. The respondent no.3 requested the General Administration Department vide its letter dated 10.8.2011 with regard to early payment of amount (Annexure-1). The department of General Administration sought certain queries from respondent no.3 vide letter dated 5.9.2012. On 21.9.2012 a representation was also made to the Special Work Officer, Department of General Administration, Government of Bihar for interest on 90% of provisional pension and gratuity from the date of retirement on 31.1.1995 till the time it was unpaid. As such there was no positive response, hence another writ petition. 7. The petitioner states that now that he has been acquitted vide judgment dated 23.1.2009 in Criminal Appeal No.20 of 2008, he would be entitled to 5% interest also on 90% of provisional pension and gratuity paid pursuant to the direction of this court dated 16.10.2001 in C.W.J.C. No.7248 of 2001. The petitioner has relied upon Finance Department’s memo no.3155 dated 7.11.1981 in support of his claim for interest. 8. A counter affidavit has been filed on behalf of respondent no.4, Accountant General of Bihar, Patna wherein in paragraph 5 it has been stated that as per sanction accorded by the department vide memo no.4825 dated 17.6.2002, 90% pension and 90% gratuity were duly authorized. 8. A counter affidavit has been filed on behalf of respondent no.4, Accountant General of Bihar, Patna wherein in paragraph 5 it has been stated that as per sanction accorded by the department vide memo no.4825 dated 17.6.2002, 90% pension and 90% gratuity were duly authorized. Further more, 5% interest on 10% pension and gratuity was authorized on 4.3.2010. 9. A counter affidavit too has been filed on behalf of the contesting respondent nos.2 and 3 on 29.4.2013. Paragraph 3 counter affidavit states that the writ petition was disposed of on 16.10.2001 with direction for payment of provisional pension and gratuity without allowing his claim for interest, though the petitioner specifically claimed penal interest thereon. Further more, after acquittal in the criminal case, the petitioner filed C.W.J.C. No.14820 of 2009 for grant of remaining 10% pension and gratuity with permissible statutory interest and no relief was sought with respect to interest on provisional pension and gratuity which was sanctioned in the year 2002. 10. Counsel for the respondent nos.2 and 3 submits that the petitioner has made a claim for interest after 12 years. Further more, the petitioner acquiesced in accepting the payment without interest. There is no explanation for inordinate delay in approaching this court. The said relief though prayed was not granted in C.W.J.C. No.7248 of 2001. The petitioner even did not seek the said relief in C.W.J.C. No.14820 of 2009. The petitioner as such stands precluded from taking the plea which now stands bar by constructive res judicata. The petitioner otherwise would also not be entitled to any interest much less 5% interest on provisional pension and gratuity granted in 2002 pending criminal proceeding as there was no administrative lapse on the part of the High Court in not forwarding the pension paper to government. The respondents contended that the High Court on its administrative side considered the matter and ordered that the pension of the petitioner be stopped till he is exonerated from the criminal charge. Later on, in view of direction of this Court dated 15.10.2001 on judicial side in C.W.J.C. No.7248 of 2001, 90% of provisional pension and gratuity were paid from 2002. 11. The petitioner in reply submits that the State cannot hold pension or any part thereof till such time an order is passed under Rule 43(b) of Bihar Pension Rules. Later on, in view of direction of this Court dated 15.10.2001 on judicial side in C.W.J.C. No.7248 of 2001, 90% of provisional pension and gratuity were paid from 2002. 11. The petitioner in reply submits that the State cannot hold pension or any part thereof till such time an order is passed under Rule 43(b) of Bihar Pension Rules. It is only in case of proven misconduct that a part or whole pension can be withheld. The petitioner in support of his submissions has relied upon a decision in the case of Bajrang Deo Narayan Sinha vs State of Bihar & Ors reported in 1993 PLJR 949. 12. In my view the judgment rendered in the case of Bajrang Deo Narayan Sinha (supra) would not be relevant in the facts and circumstances of the case as the petitioner did not challenge the Single Judge order dated 16.10.2001 which had only allowed provisional pension and gratuity. Further more, the petitioner is getting now full pension and gratuity. 13. I have heard the counsel for the parties. The issues arising for consideration in this case is as follows: (i) Whether the writ application for claim of interest on provisional pension and gratuity filed in 2012 is barred by principles of res judicata? (ii) Whether an employee has indefeasible right of interest on delayed payment of pension and gratuity? Issue no.(i): Whether the writ application for claim of interest on provisional pension and gratuity filed in 2012 is barred by principles of res judicata. 14. It is not in dispute that the petitioner had prayed for pension etc. in the year 2001 with interest. This court allowed provisional pension and gratuity but made no order as to interest. The petitioner after acquitted in 2008 filed another writ application in 2009 and prayed only payment of balance 10% pension and gratuity with interest, but omitted to pray for interest on 90% of provisional pension and gratuity in 2001. Thus, at first instance, the relief as to interest was sought in 2001 which was not granted. Subsequently also the petitioner did not pray for the said relief e.g. interest on 90% pension and gratuity in writ application filed in 2009. Thus, at first instance, the relief as to interest was sought in 2001 which was not granted. Subsequently also the petitioner did not pray for the said relief e.g. interest on 90% pension and gratuity in writ application filed in 2009. The issue is whether he would be permitted to raise the matter again when he did not challenge the previous order in writ application passed in 2001 in appeal and even omitted to raise the subsequent writ application filed in 2009. The answer to the issue would have to be in negative in view of principle of constructive res judicata and the principle underlining section 11 of C.P.C. particularly Explanation IV to it, which is based on equity, justice and public policy. 15. In the case of P.K. Vijayan vs Kamalakshi Amma & Ors, reported in A.I.R. 1994 SC 2145, the Hon’ble Apex Court observed that where a party omits to raise all available and relevant pleas which he might and ought to have raised in the earlier proceeding would be deemed to have been waived in subsequent proceeding. The omission would constitute constructive res jduicata. 16. Further more in case of Home Plantations Limited vs Talaku Land Board, Peermada & another, reported in 1999(5)SCC 590, the Hon’ble Apex Court observed that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of litigations and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The relevant extract of the order in Home Plantations Limited is quoted herein below: “9. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of litigations and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation-IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. The principle underlying Explanation-IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force”. 17. Reliance also can be placed on a decision rendered in the case of Rajesh Kumar Jaiswal vs. State of Bihar, reported in 2010 (1) PLJR 98 . In the said case, the petitioner was a candidate of 47th Combined Preliminary Examination conducted by the Bihar Public Service Commission. He challenged the result in C.W.J.C. No.2404 of 2007. The learned Judge vide order dated 16.4.2007 declined interference noticing the challenge that the number of vacancies for backward class community was far less then required by law. The petitioner thereafter filed Civil Review No.157 of 2007 making out a new case that the cut off marks for backward class candidates and general category candidates were similar. The review application was dismissed with liberty to file a fresh writ petition. The petitioner thereof filed a fresh writ petition on the said basis taking it as a new point. The learned Single Judge noticed that the said point was available to the petitioner earlier and he himself was to blame for not having gathered all the facts before filing the earlier writ petition. The writ petition was thus dismissed on the principle of res judicata. This court held that if constructive res judicata is not applied to such proceeding, a party can file as many writ petition he likes and can take one or two points every time. The learned Judge held that such action would be opposed to consideration of public policy on which res judicata is based. It was further observed that the Courts are meant to protect those who are vigilant and diligent of their rights and not ones who move the court unmindful with lack of caution. 18. In the instant case I find that this court did not grant specific prayer of interest in C.W.J.C. No.7248 of 2001 rather observed that he would be granted provisional pension and gratuity as per the government’s circular in force. 18. In the instant case I find that this court did not grant specific prayer of interest in C.W.J.C. No.7248 of 2001 rather observed that he would be granted provisional pension and gratuity as per the government’s circular in force. There was no reference to interest in the order. Besides this, the petitioner did not raise any grievance all these years for none payment of interest on the provisional pension and gratuity, In the year 2009, the petitioner filed another writ petition bearing C.W.J.C. No.14820 of 2009 for payment of balance 10% pension and gratuity with interest. In the aforesaid case, the petitioner too did not choose to make a prayer for grant of interest on 90% of pension and gratuity paid in 2002-03 pursuant to the direction of this court on 16.10.2001 in C.W.J.C. No.7248 of 2001. The petitioner having not availed of the opportunity of making such prayer even in writ petition in 2009, the plea of interest in the instant writ petition filed in the year 2012 on 90% of pension and gratuity paid long back in 2002 is barred on the principles of constructive res judicata as well as principles enshrined in Explanation IV to Section 11 of C.P.C. The petitioner having not availed of the opportunity of making such prayer even in writ petition in 2009, the plea of interest in the instant writ petition filed in the year 2012 on 90% of pension and gratuity paid long back in 2002 is barred on principles of constructive res judicata as well as on principle enshrined in Explanation IV to Section 11 of C.P.C. Section 11 of C.P.C. states that no court shall try any suit or issue in which the matter directly and substantially in issue has also been an issue in the former suit between the said party or between the parties under whom they or any of them claim, in a court competent to try such suit in which such issue has been raised, heard and decided by such court. 19. Explanation IV states as follows: “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit.” 20. 19. Explanation IV states as follows: “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit.” 20. This court in the case of Kishori Singh vs. State of Bihar, reported in 1985 PLJR 605 observed that though terms of C.P.C. may not apply but the High Court under Article 226 may draw on the principle enunciated in C.P.C. which is based on equity, justice and good conscience. Further more, the Hon’ble Apex Court in case of Sarguja Transport Service Vs State Transport Appellate Tribunal, Gwalior & Ors, reported in A.I.R. 1987 SC 88 observed that principles underlining the provision of C.P.C. can be extended to writ proceedings in the interest of administration of justice and public policy. 21. The petitioner prayed for interest in the first writ in the year 2001 in which there was no order as to the interest. The petitioner has not even challenged the said order. On this score alone, the petitioner was precluded from raising the same issue again and again. The petitioner filed second writ application in respect of balance 10% pension and gratuity and omitted to raise the issue of interest on provisional pension and gratuity granted earlier. In the instant writ application he has raised the issue of interest once again which he had prayed in 2001. His case is hit both by section 11 C.P.C. as well as Explanation IV to it and the writ application has to fail on this count too. 22. Issue no.(ii): Whether an employee has indefeasible right of interest on delayed payment of pension and gratuity: 23. The other issue is whether an employee has an indefeasible right of interest on payment of pension and gratuity in view of delayed payment. There is no provision in the Bihar Pension Rules that specifically deals with interest on delayed payment of pension and gratuity. But some guide lines and instructions relating to pension can be found in Finance Department’s memo no.3135 dated 7.11.1981. There is no provision in the Bihar Pension Rules that specifically deals with interest on delayed payment of pension and gratuity. But some guide lines and instructions relating to pension can be found in Finance Department’s memo no.3135 dated 7.11.1981. According to the circular, interest to the tune of 5% would be payable on all kinds of pension including family pension and DCR Gratuity where there is a delay in payment of the same on account of administrative lapses on the part of the department and there is no laches on part of employee in putting in his papers. In such circumstances, the payment of interest shall be considered case by case by administrative department in consultation with the Finance Department. 24. The circular further states that only provisional pension is authorized to government servant who is under suspension or against whom departmental proceeding or enquiries have not concluded on date of their compulsory retirement vide Finance Department’s memo no.9144F dated 22.8.1974.Thus, it is evident that an employee would not be entitled to interest on pension and DCR Gratuity if there is no administrative lapse on part of department which processes the pension paper. On the contrary if there is administrative lapse on part of authorities and the delay, if any, on part of employees was for reasons beyond control, interest can be imposed even at current market rate. Reference can be made to a decision in case of State of Kerala & Ors vs. M. Padmanathan Nair, reported in (1985) 1 SCC 429 . 25. As I have already held that claim of interest on provisional pension and gratuity paid in 2002 is barred on principles of constructive res judicata, I need not go into the issue whether there was any administrative lapse on the part of the High Court in not processing the pension papers of the petitioner for its sanction between 1995 to 2001. 26. In backdrop of aforesaid discussion, I conclude that the petitioner is precluded from raising a claim for payment of interest on provisional pension and gratuity sanctioned in the year 2002 as he has waived his right by omitting to make such prayer in C.W.J.C. No.14820 of 2009 and again as he did not prefer appeal against order dated 16.10.2001 in C.W.J.C. No.7248 of 2001 which did not pass any order with respect to interest though prayed. 27. 27. Thus, the writ application fails and is accordingly dismissed.