IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06-09-2008 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE K.KANNAN W.P.NO.42814 OF 2002 1.S.Natarajan (deceased) N.Kannammal(wife) L.R. of the deceased S.Natarajan P2 impleaded as L.R. of the deceased petitioner as per court order dated 25.8.2008 in WP.MP.nO.1245 OF 2007 IN W.P.NO.42184/2002 by P.K.M.J & K.K.J ...Petitioner Vs. The State of Tamil Nadu represented by its Commissioner and Secretary to Government, Home Department, Fort St.George, Chennai 600 009. ...Respondent Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified mandamus calling for the records of the respondent culminated in order dated 18.4.2002 of the Tamil nadu Administrative Tribunal at Chennai, in T.A.No.545 of 1992 (W.P.NO.13304 OF 1986) and quash the said order and direct the respondent to retrospectively give deemed promotion to the petitioner a Additional Superintendent of Police/Superintendent of Police on the dates on which his juniors had Superintendent had been promoted in the absence of the petitioner in service and accordingly revise the pay and allowances of the petitioner and revise pension of the petitioner and settle all arrears of pay and pension arrears within the time fixed by this Court. For Petitioner: Mr.N.S.Sivam for V.Sankaranarayanan For Respondents: Ms.Geetha Thamaraiselvam Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by K.KANNAN,J) Heard Mr.N.Sivam for V.Sankaranarayanan, learned counsel appearing for the petitioner and Ms.Geetha Thamaraiselvan, learned Government Advocate appearing for the Respondents. 2. The writ petitioner has died subsequently to the filing of the writ petition and his wife has been added as his legal representative. The original writ petitioner has challenged the order of dismissal dated 18.4.2002 in T.A.No.545 of 1992 of the Tamil Nadu Administrative Tribunal rejecting his claim to give deemed promotion to the petitioner as Additional Superintendent of Police on the day when his juniors were promoted and revise his pay and allowances on such basis. 3. The Tribunal while dismissing the application took note of the fact that in the order passed earlier in W.P.No.1519 of 1977 when the order of compulsory retirement made by G.O.Ms.No.1846 Home Department dated 29.7.1976 during the period of emergency was quashed and since at that time, the petitioner had already reached the age of superannuation, this Court had observed that he shall be treated as reinstated into service and retired on attaining the age of superannuation and the consequential relief was to be granted to the petitioner in the form of grant of backwages for the period of unemployment. The Tribunal while dismissing the petition observed that it would not be possible to presume that the petitioner would have been promoted and hence the difference in amounts between the post actually occupied by him and the post to which he could have been promoted and increase of retiral benefits worked on such basis could not be given. 4. The petitioner is aggrieved about the order of the Administrative tribunal and he is before us challenging the same by means of this writ petition. It is not in dispute that after the petitioner had completed 50 years, as on 10.8.1973, his service record was reviewed and he was retained in service in September, 1975. In March 1976, the petitioner's name had been proposed for promotion as Additional Superintendent of Police and the same was under the consideration of the State Government. It was at this time that he was ordered to be compulsorily retired which was subsequently quashed by the order of the High Court in W.P.No.1519 of 1977 on 4.1.1984.The writ appeal filed by the Government was dismissed on 26.9.1984, confirming the order quashing the order of compulsory retirement. 5. When the High Court allowed the writ petition filed by the petitioner, the petitioner had already been superannuated and therefore all that it could do was to treat him as superannuated and https://hcservices.ecourts.gov.in/hcservices/ grant him all the arrears of pay and benefits. The question of assumption of his duties in the promoted post did not therefore arise. In our view, the Tribunal had not noticed the fact that the petitioner had been actually recommended for promotion and if it did not happen, it was only on account of the wrongful order of compulsory retirement which was set aside. The High Court while allowing the writ petition did not direct the payment of salary for the promotion post only because by that time he was superannuated. In other words, the question of reworking the pay for the promotion post or the retiral benefits did not enter into its ken of reasoning. 6. Under the circumstances, we are clearly of the view that the petitioner's claim could be considered atleast in a limited way. He had not after all worked in the promotion post and therefore by applying the principle of "no work no pay", he could not be granted the relief of payment of arrears of salary for the promoted post. As held by the Supreme Court where the notional promotion is given, no backwages would be admissible and principle of "no work no pay" should invariably apply. (Union of India Vs. D.M.Jha (2007 (11) SC 632). The proper remedy in all such cases will be only reworking the scale of pay for the purpose of future benefits, as in this case, terminal benefits, as laid down by the Supreme Court in a earlier ruling in A.K.SOUMINI VS. STATE BANK OF TRAVANCORE reported in AIR 2003(7) SCC 238 :2003 SC 3137. 7. Hence, the writ petition is ordered as under: The original petitioner shall be deemed to have retired as Superintendent of Police and on that basis the pay shall be notiionaly calculated. There will not be payment of backwages for the said period for the post of Superintendent of Police, but on such basis, pensionary benefits shall be made. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. VJY To The Commissioner and Secretary to Government, State of Tamilnadu Home Department,Fort St.George,Chennai 600 009. + 1 CC To Mr.Sivam Sivanandraj Advocate SR NO.50785 + 1 CC to the Government Pleader SR NO.50983 W.P.NO.42814 of 2002 SJ(CO) SRA(22/09/2008) https://hcservices.ecourts.gov.in/hcservices/