Unauthorized Absence Regularized Retrospectively to Enable Retirement Precludes Claims for Salary Under Doctrine of Election

The petitioner was appointed as a Seenchpal in the Irrigation Department in 1999.

Following a departmental merger in 2014, he was required to work at Shikohabad but remained unauthorizedly absent from duty during two periods: 01.02.2015 to 28.02.2015 and 01.04.2015 to 29.01.2016.

On 16.02.2015, citing physical ailments, he requested alternative work or voluntary retirement under Rule 56(c) of the Fundamental Rules.

The department issued orders on 29.01.2016 regularizing his absence as "leave without pay" under Fundamental Rule 73 to facilitate his voluntary retirement, which was granted effective 31.01.2016.

The petitioner challenged the denial of salary for the absent periods before the State Public Service Tribunal, which dismissed his claim on 07.03.2019.

He subsequently filed this writ petition challenging the Tribunal's order and the "leave without pay" sanction.

1. Whether the departmental authorities were justified in sanctioning "leave without pay" for the period of unauthorized absence instead of initiating disciplinary proceedings.

2. Whether an employee can challenge the conditions of an order (denial of salary) while simultaneously accepting the benefits (voluntary retirement) derived from the regularization of service through that same order.

Fundamental Rule 56(c), which governs voluntary retirement after 20 years of qualifying service.

Fundamental Rule 73, regarding absence after the expiry of leave.

Fundamental Rule 85, which empowers authorities to retrospectively commute unauthorized absence into "extraordinary leave" without pay.

Regulation 420 of the U.P. Civil Services Regulations, which mandates that unauthorized absence entails forfeiture of past service (break in service) unless regularized.

Doctrine of Approbate and Reprobate, as elucidated in Union of India v. N. Murugesan, prohibiting a party from accepting the benefits of a transaction while rejecting its burdens.

The court reasoned that the petitioner was not entitled to salary because his absence was admittedly unauthorized and not in continuation of any sanctioned leave.

Under Regulation 420, this absence would have resulted in a "break in service," forfeiting his past service and disqualifying him from voluntary retirement benefits.

The court found that although the department cited the wrong rule (FR 73 instead of FR 85), the substance of the action was to treat the absence as "extraordinary leave" to benefit the petitioner by regularizing his service record.

The court noted that the petitioner sought to "blow hot and cold" by enjoying the fruits of voluntary retirement (which required regularization of his service) while contesting the "leave without pay" status that made such retirement legally possible.

The court held that the petitioner's conduct was hit by the doctrine of approbate and reprobate, as he could not challenge the denial of salary for a period during which he did no work and which was regularized solely to facilitate his retirement.

The writ petition was dismissed and the order of the Tribunal was upheld.