JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus calling for the records and quash the order in reference No.29548/PHC5/A3-09 dated 30.04.2009 read with Reference No.6057/E1(1/09) dated 25.06.2009 and direct the respondents to issue the order relieving the petitioner from Government service with effect from 15.06.2009.)

1. The petitioner was appointed as Assistant Professor in the Government Royapettah Hospital, Chennai in the year 1997. Charges had come to be framed as against the petitioner on 07.04.2003 that had been pending for long. The petitioner challenged the delay in finalizing the proceedings initiated vide charge sheet dated 07.04.2003 by way of a writ petition in W.P.No.21476 of 2008 seeking a mandamus directing the respondents to pass final orders thereupon.

2. The writ petition came to be disposed on 10.09.2008, this Court recording that the matter had been hanging fire for over three years and directing the first respondent to pass final orders relating to charge memo dated 07.04.2003 on or before 28.11.2008. On 27.11.2008, with due regard to the order passed by this Court on 10.09.2008, an order came to be passed by R1 imposing punishment of stoppage of increment for a period of one year with cumulative effect.

3. That apart, in 2008, a charge-sheet was laid against the petitioner and an order passed on 31.03.2008 imposing a penalty of stoppage of increment for a period of six months with cumulative effect. Learned counsel would state that effect has been given to both punishments imposed, as aforesaid.

4. The petitioner thereafter tendered his resignation on 17.03.2009 stating that he wishes to resign on account of compelling family circumstances. Resignation was sought with effect from 17.03.2009, the petitioner submitting that all parameters as set out in terms of the Section 41-A of the Tamil Nadu State and Subordinate Services Rules (Service Rules) stood satisfied.

5. While there was no order passed in regard to the request for resignation, seven memos appears to have been issued to the petitioner, the one dated 25.06.2009 filed as part of the compilation before me, calling upon the petitioner to report for duty and calling for an explanation as to his continued absence under threat of necessary action to be taken against him as per Rules.

6. In the meantime, there was a communication inter se the Director of Public Health and Preventive Medicine and the Director of Medical Education /R2 wherein the former seeks a clarification as to whether the amendment made to the Fundamental Rules of the Tamil Nadu Government (FR) specifically Rule 56(3) by way of insertion of sub-clause (f) in the aforesaid sub-Rule relatable to voluntary retirement, would also apply to Rule 41-A of the Service Rules.

7. The application of the petitioner for resignation came to be rejected on 30.04.2009, impugned in this writ petition. The reason for the rejection was that the petitioner fell within the 'scarce' category and hence his duties in services were not liable to be dispensed with, as sought for.

8. The petitioner has challenged order dated 30.04.2009 as well as the memos issued thereafter calling for his explanation and that he report for duty, under threat of coercive action. Pending writ petition it appears that the charge memos issued for his continued and allegedly unsanctioned absence, have culminated in an order of termination of employment, dated 28.09.2011.

9. Though the petitioner has received the said order, he has not chosen to challenge the same perhaps for the reason that the order rejecting his request for resignation is already under challenge in the present case.

10. In order to decide the question that arises in this writ petition, it is necessary to take note of Rule 56(3) of the FR Rules as well as Rule 41-A of the Service Rules and both are extracted below:

Rule 56 of the Fundamental Rules

Chapter IX-Retirement

Rule 56

.......

(3). V