The Allahabad High Court has deprecated the conduct of a government servant who secured voluntary retirement, by the regularization of his unauthorized absence from duty through a sanction of leave without pay, but still challenged the denial of salary for the period of absence.

The bench of Justice Alok Mathur and Justice Amitabh Kumar Rai held,

“The conduct of the petitioner amounts to availing the benefit of voluntary retirement arising out of the same set of facts, while simultaneously challenging the denial of salary for the period of absence. Such conduct cannot be appreciated and is hit by the doctrine of approbate and reprobate.”

Petitioner was appointed in the Irrigation Department in 1989 and was later posted as a Seenchpal. After a 2014 merger required him to work at Shikohabad, he cited a physical problem and, by a representation dated 16.02.2015 sought alternative work. Failing grant of alternate work, he sought voluntary retirement under Rule 56(c) of the U.P. Fundamental Rules, which permits a government servant to retire voluntarily after attaining 45 years of age and completing 20 years of qualifying service.

On 29.01.2016, the Executive Engineer sanctioned his absence for the periods 01.02.2015 to 28.02.2015 and 01.04.2015 to 29.01.2016 as leave without pay under Fundamental Rule 73. By a separate order, the Executive Engineer granted him voluntary retirement under Rule 56(c).

Petitioner challenged the leave sanction to the extent it denied him salary for those periods. His claim petition was dismissed by the U.P. State Public Services Tribunal on 07.03.2019. This order was challenged by the petitioner before the High Court.

Petitioner argued that Fundamental Rules 56 and 73 do not provide for leave without pay. If the authorities believed he was illegally absent, they ought to have initiated disciplinary proceedings against him rather than deny him salary while sanctioning leave, it was argued.

Rule 73 of the Fundamental Rule provides that where an employee stays on leave even after the end of his sanctioned leave, he is not entitled to salary for such period.

The Court held that Fundamental Rule 73 was not attracted as it applies only where a servant remains absent after the end of sanctioned leave, whereas the petitioner had not been on any leave before his absence. It held that the leave without pay had been sanctioned only to regularize his unauthorized absence so as to enable his voluntary retirement. It held that the same was referable to Fundamental Rule 85, which permits extraordinary leave to be sanctioned retrospectively by commuting absence without leave.

The Court held that the incorrect mention of Fundamental Rule 73 instead of Fundamental Rule 85 did not by itself render the order invalid. It observed that had the leave not been sanctioned, petitioner's unauthorized absence would have amounted to an interruption in service under Regulation 420 of the U.P. Civil Services Regulations, which would result in forfeiture of his past service and consequent denial of qualifying service and of the very voluntary retirement he had sought.

The Court noted that the petitioner had availed the benefit of voluntary retirement founded on the regularization of his service, while at the same time challenging that regularization on the ground that salary could not be denied for the period of absence.

“The petitioner cannot be allowed to claim the benefit of voluntary retirement on one hand and on the other hand challenge the denial of salary for the period of his unauthorized absence from duty as it would not have been possible to grant him voluntary retirement without regularization of his unauthorized absence from duty by sanctioning of leave. No one can claim the benefit of a transaction at one time claiming that he is entitled to it and later to challenge it for another advantage, as it does not suit his interest.”

The Court observed that it was a fit case for imposing costs on the petitioner for abusing the process of law, but declined to do so given that the petitioner had retired in 2016. Accordingly, the writ petition was dismissed.

Case Title: Vijay Singh v. State of U.P. and others 2026 LiveLaw (AB) 430

Case Citation: 2026 LiveLaw (AB) 430

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