Wg.Cdr.A.K.Aggarwal (Retd.) vs Uoi & Anr.
2011 Latest Caselaw 4535 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: September 15, 2011

+                       WP(C) 6721/2011

        WG.CDR. A.K.AGGARWAL (RETD.)            ..... Appellant
                 Through: Mr.Avijit Bhattacharjee, Advocate.


                              versus


        UOI & ANR.                                ..... Respondents
                  Through:    Mr.Sachin Datta, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR


     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?

     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. Having lost the battle before the Armed Forces Tribunal when WP(C) No.2967/1999 filed by the petitioner; re- numbered as TA No.549/2009, was dismissed by the Tribunal vide impugned order dated 14.1.2010, petitioner tried his luck

before the Supreme Court by directly seeking Leave to Appeal vide SLP(C) No.12067/2010 in which after show-cause notice was issued, leave was declined vide order dated 12.11.2010.

2. Since notice had been issued in the Petition seeking Special Leave to Appeal and counter affidavit was filed, petitioner relied upon certain documents in the pleadings before the Supreme Court and filed RP No.2325/2010 seeking review of order dated 12.11.2010. The Review Petition was dismissed on 18.1.2011.

3. Thereafter, instant writ petition has been filed on 12.9.2011 challenging the order dated 14.1.2010 passed by the Armed Forces Tribunal.

4. Being conscious of the fact that dismissal of a Petition seeking Special Leave to Appeal would not be a bar for the maintainability of the instant writ petition, we do remind ourselves that it is not a case where the Petition seeking Special Leave to Appeal was dismissed in limine at the preliminary hearing. Though without any reasons, dismissal of the Petition seeking Special Leave to Appeal is after notice was issued and in all probability the matter was argued on merits.

5. Commissioned in the Indian Air Force on 2.7.1979, petitioner was promoted as a Sqn.Ldr. in the year 1989 and on 14.7.1997 was posted to Air Headquarters as „Supernumerary‟ with effect from 8.9.1997 and promoted as a Wing Commander on 30.10.1998 from which date he received salary as Wing Commander. Claim of the petitioner before the Tribunal was to be paid salary as a Wing Commander with effect from the date

he was posted at Air Headquarters as „Supernumerary‟ with effect from 8.9.1997.

6. The claim has been negated by the Tribunal with the following reason:-

"6. The petitioner was working against the post of Wing Commander on transfer of Wing Commander M.R.Ahir but he was not working as Wing Commander or as Acting Wing Commander. He was posted against the post of supernumerary created in the Directorate of Value Engineering in the rank of Squadron Leader only. Therefore, he is not entitled to the benefits for the post of Wing Commander or even the benefits of rank of Acting Wing Commander. The expression „supernumerary‟ defined in the Dictionary reads as under:-

"Supernumerary : adj. additional to the normal or required number; extra. Noun (supernumeraries): 1. Someone or something that is extra or surplus to requirements. 2 an actor who does not have a speaking part. Often shortened to SUPER (noun 3). 3. Someone who is not part of the regular staff, but who can be called on to work or serve, eg in the army or navy when necessary."

Normally in the Indian Army, Air Force and Navy such arrangements are not new and a person from regular staff can be called to work or serve in the Army against the supernumerary post. Therefore, petitioner‟s transfer order is very clear that he was made to work on the supernumerary post against the post of Wing Commander in his own rank of Squadron Leader. Therefore, no benefit flows therefrom either monetary or seniority. He will get the benefit for the post of Wing Commander when he was regularly selected i.e. with effect from 02.11.1998 by the order dated 30.10.1998. Since, he was not working as

Acting Wing Commander, he is not entitled to any benefit flowing therefrom either monetary or otherwise. Since, he was working on supernumerary post, he cannot get any benefit of the rank against the post of Wing Commander. He has already been selected on the post of Wing Commander after regular selection by the order dated 30.10.1998. He got the benefit for the post of Wing Commander w.e.f. 02.11.1998. Consequently, we do not find any merit in the petition. Same is dismissed. No orders as to costs."

7. We concur with the reasoning of the Tribunal and refuse to go into other issues sought to be advanced before us on the subject for the reason the impugned order passed by the Tribunal clearly shows that of the various grounds pleaded in the writ petition only one was pressed before the Tribunal. The same was: Whether the petitioner was posted to Air Headquarter as Supernumerary with effect from 8.9.1997 or not?

8. Though raised in the writ petition which was transferred for adjudication before the Tribunal, that the post could not be treated as supernumerary, but we find that before the Tribunal the same was not advanced as an argument for the reason had it been argued it would have found reflection in the decision of the Tribunal. It is apparent that the other ground was not pressed.

9. Law is clear. If an issue is argued before a Court, Tribunal or a Judicial Fora, and is not dealt with, an application has to be moved before the Court, Tribunal or Judicial Fora drawing its attention that plea(s) urged has/have not been dealt

with and only then can the issue be raised at the next above Forum.

10. The writ petition is dismissed.

11. No costs.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

SEPTEMBER 15, 2011 dk