SANJAY SHARMA Vs. TATA MEMORIAL HOSPITAL MUMBAI

JUDGEMENT

(1.) The petitioner joined the services of respondent no. 1 from 29th November, 1985 as Assistant Surgeon and was appointed as professor of Surgery in 1998 and continued to hold that post. At the time of employment the petitioner had completed 31 years of age. By application dated 13th February, 2003 the petitioner sought to voluntarily retire from the services of the respondent No. 1 and accordingly tendered his application for V. R. S. under the applicable Rules effective from 1st September, 2003. By communication dated June 17, 2003, pursuant to petitioner's letter dated 30th april, 2003, wherein the petitioner had clarified that he has sought to retire voluntarily on and from 1st September, 2003 under Rule 56 (k) of the Central civil Service (CCS) Rules, the petitioner was informed that the request of premature retirement under FR 56 (k) cannot be accepted in view of the serious allegations levelled against the petitioner and as also the case was under investigation by Central Bureau of Investigation. It is this communication which is the subject-matter of the present challenge.

(2.) The reliefs prayed for by the petitioner may now be set out as under :- (a) that this Hon'ble Court be pleased to declare that the petitioner stood voluntarily retired on 1-9-2003 pursuant to his application dated 15-4-2003. (b) that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction under Article 226 of the Constitution of India, directing the respondents to release the petitioner's retiral dues.

(3.) It is the case of the petitioner that there occurred a vacancy of Head of department of Surgery in the year 2002. As the petitioner was holding the post of professor of Surgery in the hospital from 1998 onwards in the normal course and as per the guidelines of the Medical Council of India, the petitioner expected as the Senior most professor to be made the Head of the Department as it is a teaching institution. The respondents, however, malafidely chose to advertise the post. The petitioner responded to the advertisement and as per the averments he was the only eligible candidate. In spite of that, to his shock the petitioner was not selected and the junior Doctor who was not even Professor was offered the post. The petitioner, therefore, filed a Writ Petition before this Court being Writ petition No. 2243 of 2002. The respondents were served and opposed the admission of that petition. The petition came to be admitted on 29th November, 2002 and is pending. The petitioner has further averred that after the admission of the petition the attitude of the respondents which was earlier also vindictive became more vindictive and the petitioner was issued various false and frivolous memos. In respect of the allegations by communication of 14th March, 2003 the petitioner was forwarded the letter by the head of the Department to meet him personally. The petitioner remained present and at the meeting at which two other doctors were also present denied the allegations. The petitioner was disturbed by these allegations and could not concentrate on his work and under these circumstances thought it proper to take voluntary retirement from the hospital. It is the case of the petitioner that he was entitled for voluntary retirement under the provisions of Rule 56 (k) of the Fundamental Rules and supplementary Rules (FRSR) as applicable to the applicant hospital on reaching the age of 50 years. The petitioner has averred that he was due to reach the age of 50 years on 20th August, 2003. As set out earlier that application came to be rejected. In the meantime it appears that the Memorandum was issued to the petitioner and a charge sheet was served on 7th July, 2003, to which a reply has been filed on 1st August, 2003. It is the petitioner's contention that considering fr 56 (k) having met the requirements of the Rules petitioner was entitled to voluntarily retire and the respondents could not have rejected the application for voluntary retirement.