JUDGMENT : PER Sujit Narayan Prasad, J. I.A. No.11639 of 2023 1) Having heard the learned counsel for the parties and being satisfied with the grounds shown, the delay of 74 days in filing the instant appeal is condoned. 2) I.A. No. 11639 of 2023 stands allowed and disposed of. L.P.A. No. 257 of 2023 3) This intra-court appeal under Clause 10 of the Letters Patent is directed against the order dated 19.01.2023 passed by the learned Single Judge in W.P. (S) No. 1687 of 2021, whereby and whereunder the writ petition filed by the appellant for grant of upgradation under the Modified Assured Career Progression Scheme by quashing Memo No.1848 dated 29.10.2018, has been dismissed on the ground that the Hon’ble Apex Court in Civil Appeal No.1809 of 2018 has denied the backwages or benefits of the period of discontinuity in service. FACTS 4) Brief facts, as per the pleadings made in the writ petition, are as under:- 4.1) The appellant was appointed as Constable on 10.05.2005 in terms of the advertisement dated 13.01.2004, but he was dismissed from service vide order dated 14.10.2012 and this order of dismissal was affirmed by the Appellate Authority vide order dated 07.04.2013. The appellant being aggrieved with the dismissal orders dated 14.10.2012 and 07.04.2013 approached this Court by filing writ petition being W.P. (S) No. 3277 of 2013. The learned Single Judge of this Court vide order dated 13.11.2013 while allowing the writ petition had directed the appellant to be reinstated with backwages. The said order was challenged by the State of Jharkhand by filing L.P.A. No.328 of 2014 which was allowed by the Coordinate Division Bench of this Court vide judgment dated 27.01.2016. Being aggrieved, the appellant challenged the said order by filing S.L.P. (C) No.25738 of 2016, which was converted into Civil Appeal No.1809 of 2018, wherein the Hon’ble Apex Court has been pleased to set aside the judgment passed by the Coordinate Division Bench by restoring the judgment passed by the learned Single Judge. However, in the said Civil Appeal, the appellant has been found not entitled to any backwages or benefits for the period he has not served. However, in the said Civil Appeal, the appellant has been found not entitled to any backwages or benefits for the period he has not served. 4.2) The appellant, after being reinstated in service and completing 10 years of service from the date of his initial appointment, claimed for grant of 1st upgradation under the Modified Assured Career Progression Scheme by filing representation, but the same was rejected on the ground that once the Hon’ble Apex Court has held the appellant not entitled for backwages or benefits for the period he remained out of service, the appellant cannot be said to have completed 10 years of continuous service. 4.3) Being aggrieved, the appellant approached this Court by filing the instant writ petition being W.P. (S) No. 1687 of 2021. The learned Single Judge has agreed to the reason assigned by the administrative authority while rejecting the claim and has refused to interfere with the decision taken by the administrative authority by dismissing the writ petition by a judgment dated 19.01.2023. Hence, the present appeal. CONTENTIONS OF THE APPELLANT 5) Mr. Shadab Bin Haque, learned counsel appearing for the appellant, has raised the following grounds for assailing the impugned judgment:- (i) The Administrative Authority has passed the order solely relying upon the judgment passed by the Hon’ble Apex Court in Civil Appeal No.1809 of 2018, wherein the order of reinstatement has been passed reversing the judgment passed by the Coordinate Division Bench in L.P.A. No. 328 of 2014, however, by making a rider that the appellant will not be entitled for backwages or benefits for the period he has not served. (ii) The backwages or benefit for the period the appellant has not served mainly construe the monetary terms and if the entire words would be taken into consideration together, then it will be evident that the principle of ‘No Work No Pay’ will be applicable for the simple reason that the appellant has not discharged duty for the aforesaid period, but that does not mean that for all benefits accruing to the service like substantive promotion to the higher post or upgradation of pay scale the appellant will be held disentitled. (iii) If the contention of the Administrative Authority in denying the claim of the appellant is accepted as has been held by the learned Single Judge in the impugned judgment, then the very implication of the word ‘reinstatement’ will be frustrated. (iv) The judgment passed by the Hon’ble Apex Court will only disentitle the appellant to the benefit of monetary terms for the aforesaid period, but there is no stipulation and that also cannot be inferred that the continuity of service will not be there. If the continuity of service is not there, then the order of reinstatement has no meaning. The learned counsel for the appellant based upon the aforesaid contentions has submitted that the judgment passed by the learned Single Judge since is without considering the aforesaid aspects of the matter, hence not sustainable in the eyes of law. CONTENTIONS OF THE RESPONDENTS 6) Mr. Indranil Bhaduri, learned S.C.-IV appearing for the respondents-State, while defending the impugned judgment has mainly taken the ground that the moment the Hon’ble Apex Court has made an observation that that the appellant will not be entitled for backwages or benefits for the period he has not served, the implied meaning of such observation would be that no benefit for the said period is to be granted to the appellant. 7) The learned Single Judge by taking into consideration the aforesaid aspect of the matter and fully relying upon the judgment passed by the Hon’ble Apex Court in Civil Appeal No.1809 of 2018 has passed the impugned judgment by declining to interfere with the impugned order passed by the Administrative Authority. Hence, the judgment impugned does not require any interference. ANALYSIS 8) We have heard the learned counsel appearing for the parties and gone across the pleadings made in the writ petition and the memo of appeal as also the findings recorded by the learned Single Judge in the impugned judgment. 9) The appellant has approached this Court while his claim for 1st upgradation under the Modified Assured Career Progression Scheme has been denied. The reason for denial in the impugned order is that the appellant has not completed 10 years of continuous service as required for the purpose of consideration of 1st upgradation under the Modified Assured Career Progression Scheme as per the Circular dated 01.09.2009. The reason for denial in the impugned order is that the appellant has not completed 10 years of continuous service as required for the purpose of consideration of 1st upgradation under the Modified Assured Career Progression Scheme as per the Circular dated 01.09.2009. The reference of the said condition as contained in the Circular dated 01.09.2009 needs to be referred herein for better appreciation of the rival submissions advanced on behalf of the parties, which reads as under:- 10) It is evident from the aforesaid stipulation as well as the condition for consideration of upgradation in pay scale under the Modified Assured Career Progression Scheme, the requirement is that in addition to the eligibility required for the purpose of consideration of substantive promotion to a public servant, he is required to complete 10 years’ continuous service. 11) The appellant had been appointed on 10.05.2005, but was dismissed from service vide order dated 14.10.2012. The said order of dismissal was confirmed by the Appellate Authority vide order dated 07.04.2013. However, the orders of dismissal had been quashed by the coordinate learned Single Judge vide judgment dated 13.11.2013 passed in W.P. (S) No. 3277 of 2013 by passing an order of reinstatement. 12) For ready reference, the relevant part of the judgment passed by the coordinate learned Single Judge in W.P. (S) No. 3277 of 2013 is referred hereinbelow: - “14. In view of the aforesaid, I find that the procedure which has been adopted by the enquiry officer and the departmental authority for arriving at a conclusion that the petitioner had obtained appointment by furnishing false information, is erroneous and no reasonable person would have arrived at such a conclusion. I further find that there is no legal evidence brought on record by the department to establish the charge against the petitioner and therefore, the impugned orders dated 14.10.2012 and 07.04.2013 are liable to be quashed and are hereby quashed. 16. In the result, the writ petition is allowed and the respondents are directed to reinstate the petitioner with full back wages.” 13) Against the aforesaid judgment, the State preferred an intra-court appeal being L.P.A. No. 328 of 2014 in which the judgment passed by the coordinate learned Single Judge was set aside and the appeal was allowed. The appellant preferred a Special Leave Petition (C) No.25738 of 2016 which has been converted into Civil Appeal No.1809 of 2018. The appellant preferred a Special Leave Petition (C) No.25738 of 2016 which has been converted into Civil Appeal No.1809 of 2018. 14) The Hon’ble Apex Court vide judgment dated 09.02.2018 has quashed and the set aside the judgment passed by the Coordinate Division Bench by restoring the judgment passed by the learned Single Judge with a direction for reinstatement in service, however, making it clear that the appellant will not be entitled for backwages or benefits for the period he has not served. 15) For ready reference, the order passed by the Hon’ble Apex Court in Civil Appeal No.1809 of 2018 dated 09.02.2018 is being quoted as under:- “The appellant had worked for about seven years on the post of constable when he was removed on a technical ground that he was not a trained home guard in which category he was recruited. The State had an opportunity to examine this aspect at the time of the recruitment. In the peculiar facts and circumstances of the case, the Single Judge was justified in quashing the order of removal and restoring the appointment of the appellant. The Division Bench was not justified in reversing the same. Accordingly, we allow the appeal and restore the judgment of the Single Judge. We make it clear that the appellant is not entitled to any backwages or benefits for the period he has not served.” 16) The appellant was accordingly reinstated in service. The appellant, after completion of 10 years of service counting from the date of initial appointment to which he has been reinstated by the judgment passed by the Hon’ble Apex Court and when the claim for upgradation on completion of 10 years of service had been denied, had made representation but the same had been negated by passing the impugned order. The reason has been assigned in the rejection order by quoting the judgment passed by the Hon’ble Apex Court that the appellant will not be entitled for back wages or benefits for the period for which he has not served. 17) The learned Single Judge has also accepted the said ground by dismissing the writ petition which is under challenge in his appeal. 17) The learned Single Judge has also accepted the said ground by dismissing the writ petition which is under challenge in his appeal. 18) Therefore, this Court has to consider the implication of the judgment passed by the Hon’ble Apex Court wherein the claim of the appellant has been denied holding him not entitled for any backwages or benefits for the period he has not served. 19) The consideration is to be made by this Court that what would be the implication while the appellant has been held not entitled for any backwages or benefits for the period he has not served. 20) The stand of the respondents-State that the word “backwages” only speaks the issue of salary while the word “benefits” inserted in that observation includes all the benefits including the promotion and upgradation in pay scale. 21) This Court in order to consider the aforesaid ground as has been agitated by the learned State Counsel in defending the impugned judgment needs to refer herein the meaning of backwages or benefits in context of the factual aspects involved in this matter. 22) The context is to be seen right from the order passed by the coordinate learned Single Judge which has been restored by the Hon’ble Apex Court. 23) The coordinate learned Single Judge vide order dated 13.11.2013 has reinstated the appellant with all backwages which would be evident from paragraphs 14 and 16 as has been quoted hereinabove. Meaning thereby, the appellant had been directed to be reinstated in service along with “backwages”. 24) The Hon’ble Apex Court while reversing the judgment passed by Coordinate Bench in L.P.A. No. 328 of 2014 has been pleased to restore the judgment passed by the coordinate learned Single Judge by reinstating the appellant in service, however, it has been clarified holding the appellant not entitled to any backwages or benefits for the period he has not served. 25) The Hon’ble Apex Court while restoring the order passed by coordinate learned Single Judge has taken into consideration the last part of the direction wherein the coordinate learned Single Judge has directed for reinstatement along with backwages. The words “with full backwages” have been taken into consideration by the Hon’ble Apex Court and in this context, observation has been made holding the appellant not entitled to the backwages or benefits for the period he has not served. The words “with full backwages” have been taken into consideration by the Hon’ble Apex Court and in this context, observation has been made holding the appellant not entitled to the backwages or benefits for the period he has not served. 26) Such interpretation by the State, according to our considered view, cannot be said to be acceptable, otherwise, if the contention of the State would be accepted, then the appellant for all time to come will be deprived from any promotional benefit and upgradation in pay scale and not only that, he will also be held disentitled for the consequential benefits after his retirement since the said period if not to be considered in continuity in service, then the same will amount to discontinuity and the consequence would break in service. 27) This Court is further of the view that once the appellant has been directed to be reinstated, then only the backwages can be withheld on the applicability of ‘No Work No Pay’. 28) The ‘No Work No Pay’ does not say that the consequential benefits, by way of granting promotion or upgradation of one or the other public servants who are entitled under the Service Rules or the scheme, cannot be denied, otherwise, the implication of reinstatement will be diluted. 29) Reinstatement means that all the position on the day when the order of dismissal or removal has been passed will be said to be restored with all consequential benefits, subject to any rider. Here the rider has been inflicted by the Hon’ble Apex Court by holding the appellant not entitled to any backwages or benefits for the period he has not served. The interpretation of the Hon’ble Apex Court while making such observation by disentitling the appellant from backwages or benefits for the period he has not served would only mean that for the said period the appellant will not be entitled for any backwages. The benefit has to be construed as backwages in the judgment passed by the coordinate learned Single Judge if taken into consideration wherein the order of reinstatement along with backwages has been passed. 30) We are deriving the aforesaid interpretation on the basis of the provision of Rule 74-a of the Service Code wherein the two words are having bearing on the issue, i.e., 21 years of discharge of duty and 25 years of continuous service. 30) We are deriving the aforesaid interpretation on the basis of the provision of Rule 74-a of the Service Code wherein the two words are having bearing on the issue, i.e., 21 years of discharge of duty and 25 years of continuous service. For ready reference, the aforesaid provision is being referred herein: - “74. (a) The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained.” 31) This Court is considering the aforesaid provision in the light of the fact that the public servant is working under the State of Jharkhand to which the provision of the said Rule 74-A applies. The reference of the said provision has also necessitated by this Court in order to have the clarification on the subject that what is the difference between “duty” and “discharge of continuous service”. 32) The aforesaid provision, thus, reflects that the discharge of duty is different to that of discharge of continuous service. “Continuous service” means continuity in service on the date of appointment, while, “discharge of duty” means actual discharge of duty in service. 33) Herein, as per the Modified Assured Career Progression Scheme, the provision, as contained holding one or the other public servant entitled for the back wages of completion of 10/20/30 years of continuous service, means that continuity in service is to be taken into consideration and not the actual discharge of duty. 34) The actual discharge of duty if is to be considered for the purpose of consideration of claim of upgradation, then without inflicting any punishment the person concerned will be denied from his legitimate right to have upgradation in pay scale. CONCLUSION AND DIRECTIONS 35) This Court having discussed the aforesaid fact and coming to the judgment passed by the learned Single Judge is of the view that the judgment passed by the learned Single Judge, requires interference. 36) Accordingly, the judgment dated 19.01.2023 passed by the learned Single Judge in W.P. (S) No. 1687 of 2021 is hereby quashed and set aside and the writ petition is allowed. 36) Accordingly, the judgment dated 19.01.2023 passed by the learned Single Judge in W.P. (S) No. 1687 of 2021 is hereby quashed and set aside and the writ petition is allowed. 37) It has been submitted that the all the consequential benefits as referred to in the impugned order has been released save and except the benefit of upgradation under the Modified Assured Career Progression Scheme. Therefore, the competent authority of the respondents-State of Jharkhand is directed to consider the issue of upgradation in pay scale of the appellant in accordance with law by taking a decision within a period of three months from the date of receipt/production of a copy of this judgment. 38) With the aforesaid observations and directions, this Letters Patent Appeal is allowed. 39) Pending Interlocutory Application, if any, stand disposed of.