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The Bench held that the leave without pay had been sanctioned to regularise the petitioner’s unauthorised absence so as to facilitate his voluntary retirement. The Court found that the proper provision for such regularisation was Fundamental Rule 85, which empowers the authority to sanction extraordinary leave retrospectively by converting absence without leave into leave. The erroneous citation of Rule 73 instead of Rule 85 did not, in the Court’s view, invalidate the order.

The Court further observed that, had the leave not been sanctioned, the petitioner’s unauthorised absence would have constituted an interruption in service under Regulation 420 of the Uttar Pradesh Civil Services Regulations. Such an interruption would have resulted in the forfeiture of past service, thereby depriving him of the qualifying service necessary for voluntary retirement under Rule 56(c). In other words, the regularisation of absence was a precondition for the grant of retirement benefits.

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The Bench then turned to the petitioner’s contradictory stance. It held that the petitioner was seeking to avail the benefit of voluntary retirement – which was predicated on the regularisation of his absence – while simultaneously challenging the very mechanism that made that benefit possible by denying salary for the same period. The Court characterised this conduct as invoking the doctrine of approbate and reprobate, stating that a party cannot approbate and reprobate the same transaction.

The Court quoted its own observation: “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.” It added that allowing the petitioner to claim the benefit of voluntary retirement on one hand and contest the salary denial on the other would defeat the purpose of the regularisation.

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Operative Outcome

Having found the petitioner’s claim untenable, the Bench dismissed the writ petition. Although the Court noted that the matter was a fit case for imposing costs for abuse of process, it refrained from doing so in view of the petitioner’s retirement in 2016.

The decision underscores that a government servant who obtains a benefit – such as voluntary retirement – on the basis of an administrative regularisation cannot later challenge an incidental consequence of that regularisation, namely the denial of salary for the period covered by the regularisation, without running afoul of the principle of approbate and reprobate.

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