JUDGMENT : I.A. No. 7777 of 2019: 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual quality. 2. The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 59 days in preferring the instant appeal. 3. This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay of 59 days in filing the appeal, is condoned. 4. In the result, the instant interlocutory application is disposed of. L.P.A. No. 528 of 2019: 5. This is an appeal under Clause 10 of the Letter Patent directed against the order/judgment dated 16.05.2019 passed by learned Single Judge of this Court in W.P. (S) No. 1380 of 2018. The writ petitioner in the aforesaid writ petition has challenged the order dated 08.08.2017 as contained in Memo No. 472(4) that instead of regularizing the period from 08.03.2007 to 29.06.2008 counting it for the purpose of pensionary benefits, it was treated as extraordinary leave. The learned Single Judge has quashed the aforesaid order by allowing the writ petition against which the respondent/State of Jharkhand has filed the instant appeal. 6. The brief facts of the case which requires to be enumerated herein reads as hereunder: The writ petitioner was appointed as Medical Officer under the State on 22.03.1979. He was transferred from Hazaribagh to Palamau as Medical Officer where he joined on 28.06.2006. On 29.06.2006 he went to Hazaribagh for shifting his belongings and accommodation but due to illness of his mother he made a request to Civil Surgeon-cum-Chief Medical Officer for extending his leave till 26.07.2006. Thereafter, again an application was filed for seeking extension of leave till 01.03.2007 but during the intervening period the mother of the writ petitioner expired. After performing all rituals, the writ petitioner gave his joining on 02.03.2007 in the office of the Civil Surgeon-cum-Chief Medical Officer, Palamau. The Civil Surgeon-cum-Chief Medical Officer vide letter No. 253 dated 02.03.2007 directed the writ petitioner to submit his joining at the headquarters at Ranchi and thus, he was relieved. After performing all rituals, the writ petitioner gave his joining on 02.03.2007 in the office of the Civil Surgeon-cum-Chief Medical Officer, Palamau. The Civil Surgeon-cum-Chief Medical Officer vide letter No. 253 dated 02.03.2007 directed the writ petitioner to submit his joining at the headquarters at Ranchi and thus, he was relieved. The writ petitioner subsequently gave his joining at the headquarters at Ranchi. No order, thereafter, was passed in spite of repeated request made by the writ petitioner to post him at a particular place. Ultimately, on 28.06.2008 the writ petitioner was posted as Principal, Training Centre, Hazaribagh where he joined on 30.06.2008. Thus, the period between 08.03.2007 (the date when the writ petitioner gave his joining at Headquarters) till 29.06.2008 (the date when the writ petitioner was transferred to join as Principal, Training Centre, Hazaribagh) was the subject matter of dispute and the writ petitioner separated himself from service by taking voluntary retirement on 19.02.2013 but the period from 08.03.2007 to 29.06.2008 has been treated to be break in service. The writ petitioner has challenged the said order by filing writ petition being W.P. (S) No. 3439 of 2013 praying therein to regularize the aforesaid period as also to treat that period for the purpose of pensionary benefits. The aforesaid writ petition was disposed of vide order dated 20.06.2017 by issuing a direction upon the respondents to count the period from 08.03.2007 to 29.06.2008 for the purpose of pensionary benefits of the writ petitioner. Further direction was given to the Principal Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand to calculate the retiral benefits after taking the aforesaid period for all practical purposes and also for the pensionary benefits. Consequent upon the aforesaid order, the respondent concerned had passed the impugned order. In compliance to the aforesaid order, the period between 08.03.2007 to 29.06.2008 was regularized but as extraordinary leave. The writ petitioner had contended before the writ Court that the aforesaid period could not have been treated as extraordinary leave since extraordinary leave is to be granted in such a situation where there is no other leave admissible to the public servant. He has further taken the ground that there was no question of granting any leave as the writ petitioner did not seek any leave. He has further taken the ground that there was no question of granting any leave as the writ petitioner did not seek any leave. According to the writ petitioner once the Chief Medical Officer, Hazaribagh, directed him to give his joining at headquarters. In compliance to the aforesaid direction, the writ petitioner should have been posted but even on joining at headquarters, he was kept waiting for posting up till 29.06.2008 and hence, he was entitled to get the salary and further it cannot be said in that factual background that the writ petitioner was on leave for the said period. The writ Court, after taking into consideration all these aspects of the matter, came to a conclusive finding that when the writ petitioner was asked to wait for posting, the aforesaid period cannot be treated to be as extraordinary leave and accordingly, the part of the order dated 08.08.2017 treating the period between 08.03.2007 and 29.06.2008 as extraordinary leave has been set aside with a direction upon the respondents to pay the salary and other allowances of the writ petitioner for the aforesaid period treating him to be in service. The aforesaid order is the subject matter of the instant intra-court appeal. 7. Mr. P.A.S. Pati, learned counsel for the appellant/State of Jharkhand has submitted that the learned Single Judge had not appreciated the fact that even if the writ petitioner was waiting for posting, he should have marked his attendance at the headquarters but having not done so, the said period will be said to be as no work no pay and accordingly, the writ petitioner cannot be held entitled to get the salary rather the said period will be treated to be break in service but taking lenient view, the respondent authority has treated the aforesaid period as extraordinary leave, hence, there is no infirmity in the decision of the State authority. 8. This Court on special query made to Mr. Pati, learned counsel for the appellant/State of Jharkhand that is there any decision of the State authority by way of policy decision warranting a public servant, if asked to remain on waiting for posting, to mark his attendance at the headquarters? Mr. 8. This Court on special query made to Mr. Pati, learned counsel for the appellant/State of Jharkhand that is there any decision of the State authority by way of policy decision warranting a public servant, if asked to remain on waiting for posting, to mark his attendance at the headquarters? Mr. Pati, learned counsel for the appellant/State of Jharkhand, in response, has submitted that sometime in the year 2011 one Circular has come from the competent authority of the State of Jharkhand warranting to mark attendance at headquarters if a public servant has been asked to remain on waiting for posting. 9. The question, herein, would be that the extraordinary leave is to be granted to a public servant when there is no leave in the account of the public servant. Further, the question of granting leave would only arise if any application to that effect will be made by a public servant in a case when a public servant has gone on leave and remained on leave excess to the admissible leave but on the facts of this case, we have not found the case in the like nature because it is the admitted fact as would be evident from the materials available on record as also the facts recorded in the impugned order that the writ petitioner had been directed to give his joining at the headquarters by an order issued in this regard by the Civil Surgeon as contained in Letter No. 253 dated 02.03.2007. In compliance to the same, the writ petitioner gave his joining at the headquarters at Ranchi. Finally on 29.06.2008 he was posted as Principal, Training Centre, Hazaribagh where he joined on 30.06.2008, therefore, the writ petitioner was forced to remain on waiting for posting for the period between 08.03.2007 to 29.06.2008. 10. Learned counsel for the appellant/State of Jharkhand has argued that since the writ petitioner had not performed his duty, therefore, the principle of no work no pay will be applicable but we are not in agreement with such submission because the principle of no work no pay cannot be said to be a normal rule rather if a public servant is ready and willing to discharge his duty and it is the State or its functionary not allowing the public servant to discharge his duty, in that circumstances, the principle of no work no pay will not be applicable. Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in Union of India and Others vs. K.V. Jankiraman and Others, (1991) 4 SCC 109 wherein at paragraph-25 it has been observed which reads as hereunder: “25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.” 11. This Court has scrutinized the issue as to whether the principle of no work no pay will be applicable or not and according to the considered view of this Court, the aforesaid principle will not be applicable because it is the State authority which had compelled the writ petitioner to remain on waiting for posting from 08.03.2007 to 29.06.2008, the date when the writ petitioner was transferred to join as Principal, Training Centre, Hazaribagh and immediately after issuance of such order, the writ petitioner had joined on 30.06.2008, therefore, it is not the writ petitioner, who, on his own wish, had not discharged his duty rather it is the State authority who had compelled the writ petitioner to remain on waiting for posting at the headquarters, therefore, the principle of no work no pay will not be applicable. 12. Further, the question as to whether the decision of the authority in treating the period from 08.03.2007 to 29.06.2008 as extraordinary leave can be said to be justified? According to the considered view of this Court, the same is absolutely incorrect because the writ petitioner was never on leave rather he was at the headquarters waiting for posting, hence, when the writ petitioner was not on leave, there is no question of adjusting the aforesaid period as extraordinary leave. Further the extraordinary leave is to be granted in such a situation where the public servant is having no leave to avail but that is not the case herein because the writ petitioner had never sought for any leave. 13. Further the extraordinary leave is to be granted in such a situation where the public servant is having no leave to avail but that is not the case herein because the writ petitioner had never sought for any leave. 13. So far as the assertion of the learned counsel for the appellant/State of Jharkhand that in pursuance to the policy decision of the State issued sometime in the year 2011 the public servant if asked to remain waiting for posting at the headquarters, it is incumbent upon him to mark his attendance but no such Circular has been placed before this Court for its consideration. Even accepting the averment of the learned counsel for the appellant/State of Jharkhand to be true that the aforesaid Circular said to have been issued sometime in the year 2011, the question would be whether the Circular issued in the year 2011 will be made applicable for the period from 08.03.2007 to 29.06.2008 by giving it a retrospective application? The position of law is well settled that any Circular, being executive instruction, cannot be given retrospective application. Further, the aforesaid legal situation is to be in the context of statue and if the statute has been issued with a clear cut wording that the said statute is to be given its retrospective application then it can have its retrospective application but the said principle is not applicable so far as it relates to executive instruction. 14. This Court is of the view that it is the competent authority of the State Government to issue an order of posting and when the competent authority has not issued any order of posting, the public servant cannot be penalized for the same and simultaneously for that the State Government or its functionary is having no authority to take adverse decision for his own wrong by not issuing the order of posting within a reasonable period. 15. We have closely scrutinized the order passed by the learned Single Judge and has found therefrom that the period from 08.03.2007 to 29.06.2008, which has been treated to be as extraordinary leave, has rightly been declared to be unjustified and illegal decision for the reason aforesaid. 16. 15. We have closely scrutinized the order passed by the learned Single Judge and has found therefrom that the period from 08.03.2007 to 29.06.2008, which has been treated to be as extraordinary leave, has rightly been declared to be unjustified and illegal decision for the reason aforesaid. 16. This Court, after taking into consideration the fact in entirety as aforesaid and looking to the finding recorded by the learned Single Judge, is of the view that the authority has taken unjustified decision by treating the period from 08.03.2007 to 29.06.2008 to be extraordinary leave and as such, the same has rightly been set aside and directed the respondents to treat the said period towards pensionary benefits. 17. Before parting with the order it requires to refer herein the attitude of the State authorities in not taking uniform decision in the same context. We have occasioned to pass an order in L.P.A. No. 316 of 2018 wherein also the State preferred an appeal against an order passed by the learned Single Judge of this Court with respect to an issue as to whether an employee if asked to remain on waiting for posting, can he be penalized? The writ Court had passed an order regularizing the service against which intra-court appeal was preferred. In course of hearing of the appeal, the State had taken decision by regularizing the service by taking a decision which was brought on record by way of supplementary affidavit basis upon which the appeal had been held to be infructuous. The question is, can the functionaries of the State be allowed to take different stand department wise? In the case in hand, the State is taking a view of not regularizing the period during which the respondent /writ petitioner was asked to remain on waiting for posting while in the case of Human Resource Development Department, the said period of waiting for posting was regularized. According to us, the decision of the State must be uniform and it cannot be different department wise. 18. In the result, the instant appeal stands dismissed. 19. In consequence thereof, I.A. No. 7778 of 2019 stands disposed of.