JUDGMENT : 1. The instant intra-court appeal is against the order dated 17.01.2018 passed by learned Single Judge in W.P. (S) No. 6019 of 2013 whereby and whereunder the learned Single Judge has declined to regularize the service of the appellant/writ-petitioner for the period from 23.05.2001 to 24.01.2006. 2. Before entering into the legality and propriety of the impugned order, it requires to refer herein certain factual aspects which led the appellant/writ-petitioner to invoke the jurisdiction of this Court as conferred under Article 226 of the Constitution of India, which are as follows. The appellant/writ-petitioner, who was appointed as Medical Officer sometime in the year 1973, proceeded on leave on 23.05.2001 for medical reasons. He gave his joining on 17.01.2002 and submitted medical certificates along with cadre allocation letter dated 24.04.2001. He claimed that he was waiting for posting for the period from 17.01.2002 to 14.01.2004. In the meantime, vide order dated 19.08.2003, he was directed to tender his joining in the office of Civil Surgeon, Dumka, whereupon he submitted application on 06.09.2003 to Commissioner, Health, Bihar, Patna objecting to the said direction citing various reasons. On 03.02.2004, he gave his joining in the office of Civil Surgeon, Dumka, however, he was orally instructed by the Civil Surgeon, Dumka to give his joining to the Health Department, in compliance to the said oral direction of Civil Surgeon, Dumka, the appellant/writ-petitioner claims that he tendered his joining in the Health Department, Jharkhand on 11.04.2004. These facts have been asserted by him in representation dated 09.03.2011. He further claims that he was waiting for posting from 11.04.2004 to 16.01.2006 and vide notification dated 16.01.2006, was posted at Primary Health Centre, Satgawan, where he tendered his joining on 25.01.2006, from where he has superannuated from service on 28.02.2007. The appellant/writ-petitioner had approached to this Court by filing a writ petition being W.P. (S) No. 7483 of 2006, when post-retiral benefits were not paid to him. The said writ petition stood disposed of vide order dated 06.02.2013 directing the respondent authority to decide his claim raised under different heads and, if found genuine, to grant the benefit of the same to the appellant/writ-petitioner within a period of eight weeks. In compliance of the order dated 06.02.2013 passed by the Writ Court, the respondent authority, vide order dated 08.05.2013 (impugned) declined to regularize the period between 23.05.2001 to 24.01.2006. In compliance of the order dated 06.02.2013 passed by the Writ Court, the respondent authority, vide order dated 08.05.2013 (impugned) declined to regularize the period between 23.05.2001 to 24.01.2006. The appellant/writ-petitioner had challenged the order dated 08.05.2013 by way of writ petition being W.P. (S) No. 6019 of 2013 which was dismissed vide order dated 17.01.2018, inter-alia, on the ground that the appellant/ writ-petitioner who had proceeded on leave, had not submitted any medical certificate and only when he gave his joining to the Health Department, Bihar on 17.01.2002, he had submitted medical certificates. The excuse taken by the appellant/writ-petitioner about ailment has been discarded by the respondent authority in its order dated 08.05.2013 recording therein that the discharge summary submitted by the appellant/writ-petitioner from Batra Hospital and Medical Research Centre disclosed treatment of the appellant/writ-petitioner from 18.07.2001 to 19.07.2001. Another medical certificate has been submitted by the appellant/writ-petitioner only on 06.12.2006. The said medical certificates have not been taken into consideration in view of the fact that there was no order of the competent authority granting medical leave to the appellant/writ-petitioner. The writ court has declined to interfere with the decision of the respondent authority vide order dated 08.05.2013 mainly on the ground that the appellant/writ-petitioner has not produced any evidence to establish that except for 239 days, when he allegedly was absent on account of his illness, he had reported for duty. The respondent-authority, taking note of the material available on record, the medical certificate submitted by the appellant/ writ-petitioner, has recorded a finding that the appellant/writ-petitioner remained absent unauthorizedly between the period from 23.05.2001 to 24.01.2006. The learned Single Judge came to conclusive finding that the decision taken therein does not require any interference since the same is based upon the cogent evidence and the material available on record. The aforesaid order is under challenge. 3. Learned counsel for the appellant/writ-petitioner has submitted that the learned Single Judge has committed error in not interfering with the impugned decision taken by the authority vide order dated 08.05.2013 mainly on the ground that the reason for absence was beyond his control since he was suffering from cardiac problem and to that effect, medical certificates have been produced but the same have not been taken into consideration either by the authority while considering the claim of the appellant/writ-petitioner or by the learned Single Judge. Learned counsel, in course of argument before this Court, has referred to certain medical certificates as also on-going treatment. 4. Mr. Jai Prakash, learned Additional Advocate General representing the State of Jharkhand has defended the impugned decision passed by the authority and has submitted that the learned Single Judge by appreciating the entire factual aspects, came to right conclusion by showing no interference therein since merely by taking the plea of ailment, is not sufficient to take aid of medical leave in absence of sanction of the medical leave and further no application has been filed by the appellant/writ-petitioner for extension of the leave. It has further been submitted by referring to the impugned order dated 08.05.2013 (Annexure-11 to the paper-book) wherein it has been reflected that the appellant/ writ-petitioner had given his joining on 17.01.2002 in the Health Department of the State of Bihar while his posting was at Dumka, falling under the State of Jharkhand. 5. The appellant/writ-petitioner had shown to have treated in Jeevak Heart Hospital, Patna from 24.05.2001 to 25.05.2001 and from Batra Hospital from 18.07.2001 to 19.07.2001 which is only for the period of two days while he had produced the medical certificate dated 06.12.2006 given by Dr. S.N. Singh wherein he was undergoing treatment from 23.05.2001 to 16.01.2002 and only when his appearance had been tried to be secured by making proper publication, he gave his joining on 17.01.2002, therefore, whatever the plea has been taken about the medical ailment the same is false, taking into consideration these aspects of the matter, the competent authority has declined to regularize the aforesaid period, therefore, there is no infirmity in the same. 6. This Court having heard the learned counsel for the parties and after appreciating the argument advanced on behalf of the appellant/writ-petitioner, who has submitted in course of argument that the appellant/writ-petitioner was suffering from cardiac disease that is the reason he was on medical leave but the medical certificate which had been produced before the competent authority has not properly been considered. It is not in dispute that even for medical leave, the procedure is provided under the leave rule as under Jharkhand Service Code, 2001 wherein the provision of Rule 149 provides that any leave ‘admissible’ under these rules may be granted by the State Government. It is not in dispute that even for medical leave, the procedure is provided under the leave rule as under Jharkhand Service Code, 2001 wherein the provision of Rule 149 provides that any leave ‘admissible’ under these rules may be granted by the State Government. Rule 152 clarifies that leave cannot be claimed as of the right and if exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Under Rule 179, leave not due may be granted to an employee, however, subject to the following conditions: (i) on medical certificate, without limit of amount. (ii) otherwise than on medical certificate, for not more than three months at any one time and six months in all. For ready reference, Rule 235 is being quoted herein-below: “235. Save in the case of leave preparatory to retirement, leave not due may be granted on medical certificate, such leave being limited during the entire service to 180 days in the case of a Government servant in superior service and 120 days in case of a Government servant in inferior service. This will be debited against the half pay leave which the Government servant earned subsequently. Leave not due should be granted only if the authority empowered to sanction leave is satisfied that there is a reasonable prospect of the Government servant retuning to duty on expiry of the leave and earning equal amount of half pay leave thereafter.” 7. These statutory provisions govern the field of leave applicable to the public servant working under the State of Jharkhand. The admitted position herein is that when the appellant/writ-petitioner had proceeded on leave, he had not submitted any medical certificate and only when he gave his joining to the Health Department, Bihar on 17.01.2002, had submitted medical certificate. 8. It is evident from the impugned decision as has been annexed as Annexure-11 that the appellant/writ-petitioner who was posted in Sadar Hospital, Dumka on 14.04.1993, went on casual leave on the ground of ill health from 23.05.2001. The Health Department of State of Jharkhand came out with a public notice on 13.01.2002 for securing the attendance of the appellant/writ-petitioner. It is only thereafter the appellant/writ-petitioner submitted his joining in the Health Department, Patna, Bihar, on 17.01.2002 while his posting was at Dumka. The Health Department of State of Jharkhand came out with a public notice on 13.01.2002 for securing the attendance of the appellant/writ-petitioner. It is only thereafter the appellant/writ-petitioner submitted his joining in the Health Department, Patna, Bihar, on 17.01.2002 while his posting was at Dumka. It requires to refer herein that on or after 15.11.2000, the erstwhile State of Bihar was divided into two successor States, one is the State of Bihar and another is the successor State of Jharkhand. It further requires to refer herein the provision of Section 73 of the Bihar Reorganization Act, 2000 (hereinafter referred to as the Act, 2000) that so long as the final allocation of cadre is not issued by the Central Government in the light of the provision of Section 72 of the Act, 2000, the provisional cadre of the employees would be with the State where he/she is discharging the duty in pursuance to the provision of Section 73 of the Act, 2000 subject to final decision to be taken by the Central Government under Section 72 of the Act, 2000. For ready reference the provision of Sections 72 and 73 are being reproduced herein-below: “72. Provisions relating to services in Bihar and Jharkhand:- (1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand: Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government. 73. Other provisions relating to services:- (1) Nothing in section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. (2) All services prior to the appointed day rendered by a person: (a) if he is deemed to have been allocated to any State under section 72, shall be deemed to have been rendered in connection with the affairs of that State. (b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service. (3) The provisions of section 72, shall not apply in relation to members of any All-India Service.” 9. (3) The provisions of section 72, shall not apply in relation to members of any All-India Service.” 9. The admitted position herein is that the appellant/writ-petitioner was posted at Sadar Hospital, Dumka and the district of Dumka has come under the territorial jurisdiction of the State of Jharkhand, therefore, in view of the provision of Section 73 of the Act, 2000, the tentative cadre of the appellant/writ-petitioner would be State of Jharkhand and therefore, he is required to submit his joining at Sadar Hospital, Dumka but contrary to the aforesaid statutory provision as also against the order of posting issued by the competent authority whereby and whereunder the appellant/writ-petitioner was posted at Sadar Hospital, Dumka, he instead of giving his joining at Sadar Hospital, Dumka had given his joining in the Health Department of the State of Bihar. 10. Further it is evident from the impugned order that the appellant/writ-petitioner has tried to justify his absence from 24.05.2001 to 25.05.2001 showing himself under the treatment in one Jeevak Heart Hospital, Patna and from 18.07.2001 to 19.07.2001 in Batra Hospital as per the discharge summary. From 23.05.2001 to 16.01.2002 he has produced a medical certificate issued by one Dr. S.N. Singh, dated 06.12.2006, that is after the period of four years which itself is suspicious. 11. It further transpires from the impugned decision that the State of Bihar has published notice in the daily newspaper on 13.01.2002 but he has submitted his joining on 17.01.2002 and due to that reason, the authorities came to conclusion that the appellant/ writ petitioner was not ill rather by taking false plea of ailment, he was unauthorizedly absent from duty. 12. Further it transpires from the notification issued by the department showing the appellant/writ-petitioner under the ‘waiting for posting’ and for the waiting for posting is of which date that is absent in the document and therefore, it has been gathered by the authority that with the connivance of the employee working under the Health Department, the appellant/writ-petitioner by misleading the authority showing himself under the ‘waiting for posting’ was intending to get salary. The appellant/writ-petitioner has given his joining at Satgawan in the District of Koderma by virtue of the notification issued by the Health Department of the State of Jharkhand as contained under the Notification No. 68/2005-08(4) dated 16.01.2006. The appellant/writ-petitioner has given his joining at Satgawan in the District of Koderma by virtue of the notification issued by the Health Department of the State of Jharkhand as contained under the Notification No. 68/2005-08(4) dated 16.01.2006. There he found to remain unauthorizedly absent and for that reason, his salary has been withhold vide letter No. 847 dated 16.12.2006. In view of the facts referred hereinabove, the authorities came to conclusive finding about unauthorized absence of the appellant/writ-petitioner from 23.05.2001 to 24.01.2006 and as such, the aforesaid period has been treated to be ‘leave without pay’ on the basis of the principle of ‘no work no pay’ and declined to regularize the aforesaid period. 13. Learned counsel for the appellant/writ-petitioner has tried to impress upon this Court that the appellant/writ-petitioner was genuinely suffering from cardiac problem and in support of his argument, he has shown various medical certificates. 14. This Court has gone across the aforesaid medical certificates wherefrom it transpires that all the medical certificates are in the nature of diagnostic test in order to reach to a conclusion about any ailment. No such document by way of medical certificate or in other form has been produced or no chit of medical paper has been brought on record either before the authority or before the learned Single Judge or even before this Court to the effect that after the aforesaid medical examination, the doctors diagnosed any particular ailment and treatment had been suggested by the concerned cardiologist/cardiac surgeon leading the appellant/writ-petitioner for confinement to the bed. This Court, therefore, has gathered from the aforesaid documents that merely on the ground of diagnostic tests, it cannot be said that the reason for absence was beyond his control. An employee might have suffered from medical disease and if the nature of disease is so serious that he even cannot make correspondence to the administrative controlling authority apprising his medical status leading him not joining his duty, the matter could be understood but merely on the ground that an employee is going for medical examination for diagnosis of the disease, it cannot be said that the reason was beyond his control which restricted him even to make an application for grant of leave on medical ground. 15. 15. In view of such situation, the authorities, while discarding the medical certificates which pertains to the test in order to diagnose the cardiac disease, has rightly not accepted the said medical certificates. Non acceptance of these medical certificates is coupled with the conduct of the appellant/writ-petitioner who even though was posted at Dumka in Sadar Hospital and when a notice was published in the daily newspaper, instead of giving his joining at Dumka he had given his joining in the Health Department of State of Bihar and shown the medical certificate of the local doctors treating him at Patna, that too the said certificate does not pertain to any remedial measure related to cardiac disease. 16. It is further admitted fact that no application for medical leave or any leave has been furnished rather the appellant/writ-petitioner by presenting a leave application has proceeded on leave and subsequent thereto, has tried to justify the leave on the basis of medical reasons. 17. The learned Single Judge has appreciated the entire aspect of the matter as has been dealt with by the authority concerned and has reached to conclusive finding that the decision suffers from no infirmity. 18. Learned counsel for the appellant/writ-petitioner has failed to impress upon this Court by showing any reason for making interference either with the impugned decision of the authority or by the learned Single Judge. 19. Learned counsel for the appellant/writ-petitioner has further submitted that due to non-regularization of the aforesaid period, the benefit of second up-gradation under the Assured Career Progression Scheme cannot be denied but this Court has considered the argument also in the ends of justice from Circular dated 14.08.2002 as contained in Circular No. 5207 wherein the specific condition has been laid down that the benefit of up-gradation under the Assured Career Progression Scheme would be granted after completion of 12 years of “regular continuous” service which does imply that merely on completion of 12 years of service is not the sufficient requirement rather the “continuous” regular 12 years of service is the condition precedent for grant of up-gradation under the Assured Career Progression Scheme, therefore, the appellant/writ-petitioner cannot be extended with the benefit of second up-gradation under the Assured Career Progression Scheme due to non-regularization of the aforesaid period. It has further been argued that the first up-gradation under the Assured Career Progression Scheme cannot be denied since the appellant/writ-petitioner has completed 12 years of service prior to the period of leave. On this plea, the matter was adjourned on behest of the prayer made by the learned counsel for the State to seek instruction in this regard. In pursuance thereto, learned Additional Advocate General has produced a copy of notification as contained in Notification No. 35(3) dated 11.01.2018 wherefrom it has been demonstrated that the benefit of first up-gradation under the Assured Career Progression Scheme has been granted to the appellant/writ-petitioner with effect from 09.08.1999 (the said notification has been taken on record) wherein the name of the appellant/writ-petitioner appears at Serial No. 70. 20. Learned counsel for the appellant/writ-petitioner at this juncture has submitted that he requires to seek instruction with respect to this factual aspect. 21. This Court has declined to adjourn the matter and deems it fit and finds it proper to pass an order to the effect that if the first up-gradation in pursuance to the Notification No. 35(3) dated 11.01.2018 has not actually been acted upon by releasing the financial benefit, the same shall be released/disbursed within specific period. 22. In view thereof, if financial benefit of first up-gradation under Assured Career Progression has not been disbursed, the same shall be disbursed within three months from the date of receipt of copy of this order. 23. In the result, since this Court is not inclined to interfere with the impugned decision, the instant appeal is dismissed with the aforesaid observation.