Allahabad HC Dismisses Seenchpal's Salary Claim, Applies Approbate and Reprobate Doctrine

An irrigation department employee who voluntarily retired could not then challenge the leave sanctioned to regularise his absence, the Allahabad High Court's Lucknow Bench held.

A Division Bench of the Allahabad High Court at Lucknow dismissed a writ petition filed by Vijay Singh, a Seenchpal in the Uttar Pradesh Irrigation Department, who had sought salary for two periods of unauthorised absence stretching from February 2015 to January 2016. The judgment, delivered on 8 July 2026 by Justice Amitabh Kumar Rai (with Justice Alok Mathur concurring), held that Singh could not simultaneously enjoy the benefit of voluntary retirement — which was possible only because the department had regularised his absence by sanctioning leave — and also claim that the very same leave sanction was invalid as a ground for denying him salary. The bench applied the doctrine of approbate and reprobate to bar the challenge.

The Dispute Before the High Court

Singh was appointed as a Gaze Reader on 28 August 1989 in the work-charged establishment and was later posted as Seenchpal at Bhoganipur Division, Lower Ganga Canal, Etawah. A State Government order dated 14 October 2014 merged Sub-Division Shikohabad under Bhoganipur Division with Irrigation Construction Division, Firozabad at Shikohabad. As a consequence, Singh was required to work at Shikohabad.

Citing a physical problem that prevented him from discharging the duties of a Seenchpal, he submitted an application on 16 February 2015 seeking alternative work, or in the alternative, voluntary retirement under Rule 56(c) of the Fundamental Rules contained in Financial Handbook Volume 2, Parts II to IV. When the department took no action, he filed Claim Petition No. 2067 of 2015 before the U.P. State Public Services Tribunal. The Tribunal, by its order dated 4 December 2015, directed the authorities to decide the representation.

In compliance, the Executive Engineer, Irrigation, Construction Division, Firozabad issued Office Memo No. 100 dated 29 January 2016. That memo sanctioned Singh's absence from duty — for the period 1 February 2015 to 28 February 2015 and then from 1 April 2015 to 29 January 2016 — as leave without pay under Fundamental Rule 73. A second memo dated 29 January 2016 granted him voluntary retirement under Rule 56(c) with effect from 29 January 2016. A further memo dated 9 February 2016 revised the effective date of voluntary retirement to the afternoon of 31 January 2016.

Singh then filed Claim Petition No. 299 of 2016 challenging Office Memo No. 100, arguing he was entitled to salary for the contested periods. The Tribunal dismissed that petition on 7 March 2019. Singh brought the present writ petition challenging both the Tribunal's order and the office memo insofar as they denied him salary.

The Legal Argument: Fundamental Rules 73 and 56

Singh's case rested on two propositions. First, he submitted that Fundamental Rule 73 applies only where a government servant remains absent after the end of sanctioned leave, and his absence was not preceded by any sanctioned leave, so the rule had no application. Second, he contended that if the department viewed his absence as unauthorised, it ought to have initiated disciplinary proceedings rather than simply denying salary while purporting to sanction leave. Because no disciplinary proceedings were initiated, the department, he argued, could not treat his absence as unpaid.

The bench accepted the first factual premise. Fundamental Rule 73 covers overstay after the expiry of sanctioned leave. The court found that Singh had not been on any sanctioned leave before his absence in February 2015 or during the longer stretch from April 2015 to January 2016. There was nothing on record — and Singh himself had not pleaded — that he had applied for any form of leave prior to those absences. The court therefore agreed that Fundamental Rule 73 was, strictly speaking, inapplicable to his facts.

But the court did not stop there. It went on to identify which provision did apply.

Recharacterising the Leave as Extraordinary Leave Under Fundamental Rule 85

Fundamental Rule 85 empowers the competent authority to grant extraordinary leave in special circumstances — including when no other leave is admissible — and, under sub-rule (b), to commute retrospectively periods of absence without leave into extraordinary leave. No leave salary is admissible during such extraordinary leave, and the period is not debited against the leave account.

The bench found that Office Memo No. 100 dated 29 January 2016, though it cited Fundamental Rule 73, was in substance an exercise of power under Fundamental Rule 85. The authorities had regularised Singh's unauthorised absence so that his service record would not carry a break, which in turn enabled him to be considered for voluntary retirement. The incorrect reference to Fundamental Rule 73 did not, the court held, render the memo invalid.

Regulation 420 of the U.P. Civil Services Regulations was also brought into the analysis. That regulation provides that an interruption in service entails forfeiture of past service, subject to enumerated exceptions. Unauthorised absence that is not in continuation of any authorised leave does not fall within any of those exceptions. The court reasoned that if the leave sanction were to be set aside as Singh sought, his absence would constitute an interruption in service, causing forfeiture of all prior service. That would have deprived him of qualifying service for pension and, critically, would have rendered him ineligible for the very voluntary retirement he had sought and obtained.

Approbate and Reprobate: The Decisive Bar

The court identified a fundamental inconsistency in Singh's position. He had sought voluntary retirement through his letter of 16 February 2015. The department granted that voluntary retirement precisely because it first regularised his absence by sanctioning leave. Having retired on the basis of that regularisation, Singh could not turn around and challenge the leave sanction on the ground that salary should have been paid during the same period.

The bench quoted from the Supreme Court's decision in Union of India and others v. N. Murugesan and others, reported in (2022) 2 SCC 25, which articulated the doctrine: “no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold.” The Supreme Court had observed that a person who enjoys the fruits of a transaction cannot later challenge the very basis of that transaction, and that such conduct attracts the principle of estoppel rooted in equity.

Applying that principle, the Division Bench held that Singh had claimed the benefit of voluntary retirement arising out of Office Memo No. 100 and Office Memo No. 102 dated 29 January 2016, and he could not simultaneously repudiate those memos to claim salary for the period of unauthorised absence. The court described the situation as ironic: the very memos he was challenging were the instruments that enabled his retirement.

The bench observed that the authorities had in fact taken a lenient approach. Given Singh's long service and the facts disclosed in his letter of 16 February 2015, the department chose to regularise the absence rather than initiate disciplinary proceedings. If disciplinary action had been taken and proved, Singh would have faced a far worse outcome. The court noted that the authorities had accepted the request for voluntary retirement in circumstances where, had they refused it and proceeded departmentally, the consequences would have been severe for Singh.

On Costs

The bench observed that Singh's conduct amounted to abusing the process of law by challenging an order that had been issued in his favour and upon which he had acted. The court said the matter was one where imposition of costs would ordinarily be warranted. However, taking into account that Singh had retired as far back as 2016, the bench exercised restraint and declined to impose costs.

Order

The writ petition was dismissed. The judgment and order dated 7 March 2019 passed by the U.P. State Public Services Tribunal in Claim Petition No. 299 of 2016 was upheld. The challenge to the orders dated 29 January 2016 sanctioning leave without pay and granting voluntary retirement was rejected. Singh's claim for salary for the periods 1 February 2015 to 28 February 2015 and 1 April 2015 to 29 January 2016 was not granted.