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IN THE HIGH COURT OF ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Dr. Bharat Sah - Appellant
Versus
S.G.P.G.I. Of Medical Sciences, Lucknow Thru. Director & Ors – Respondents
Service Single No.17450 of 2020
Decided on : 09-09-2021
SGPGIMS Act of 1983 - Section 11 - General Rules of SGPGI - Regulation 95 - Constitution of India, 1950 - Article 14,16 and 21 - Post of Assistant Superintendent - Writ of Mandamus - Whether information provided to employee that if he would not follow direction of superior authority departmental inquiry for awarding major punishment would be initiated may be treated as initiation of departmental inquiry or departmental inquiry is said to have been initiated after service of charge-sheet upon incumbent - Seeking to issue a writ order or direction in the nature of Mandamus restraining the respondents from compelling the petitioner to join back in SGPGI, and to take any disciplinary proceedings against the petitioner.
Finding of the Court :
Disciplinary authority can take any decision on conduct of an employee or can absolve him considering his/her bona fide, or could pass any alternative or substitute order instead of issuing charge- sheet for conducting full fledged disciplinary inquiry. However, as soon as the charge-sheet is provided to incumbent indicating charges then it would be very first stage of initiation of departmental inquiry - Court do not find any cogent reason for not accepting application of petitioner whereby petitioner has sought voluntary retirement when he was fulfilling twin conditions of Regulation 95 of General Rules of SGPGI i.e. he has already completed required age and completed requisite period of service and no disciplinary inquiry was initiated or pending against him at that point of time. For the repetition sake I again say that departmental inquiry can be said to have been initiated or pending w.e.f. date when charge-sheet is issued against an employee and there is no doubt that no departmental inquiry/disciplinary proceedings was initiated or pending against petitioner. Court also fail to understand as to why petitioner was being forced to submit his joining on such post which has been declared as 'Dying Cadre' and none was posted on such post after 15.1.2014 when petitioner submitted his joining at NIFT nor any person would be holding such post after 3.11.2023, date of superannuation of petitioner.
Result: Writ petition is allowed.
JUDGMENT :
1. Heard Sri Sunil Sharma assisted by Sri Kushagra Sah, learned counsel for the petitioner and Sri Abhinav Trivedi, learned counsel for the S.G.P.G.I.
"(i) Issue a writ of certiorari setting aside the impugned order dated 04.07.2020 and 23.04.2020 passed by respondent No.2, and the order dated 17.04.2020 passed by the respondent No.4. [as contained in annexure no. 1 to 3]
(ii) Issue a writ order or direction in the nature of Mandamus to the Respondents commanding them to consider the Petitioner's application dated 05.05.2020 for voluntary retirement afresh as per SGPGI Regulations, within the stipulated time and after its acceptance, the consequential service benefits admissible to the petitioner under rules be also released thereafter expeditiously.
(iii) Issue a writ order or direction in the nature of Mandamus restraining the respondents from compelling the petitioner to join back in SGPGI, and to take any disciplinary proceedings against the petitioner.
(iv) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the petitioner alongwith the cost of the petition."
2. The brief facts of the case are that the petitioner was appointed on the post of Assistant Superintendent (House Keeping) at Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow (hereinafter referred to as S.G.P.G.I.) on 28.7.1988. The petitioner was subsequently promoted on the post of Associate Superintendent (Non-Medical) in S.G.P.G.I. in 2013.
3. The petitioner applied for the post of Campus Director, National Institute of Fashion Technology, Raebareli, Ministry of Textile, Government of India (hereinafter referred to as NIFT) through proper channel for an open selection. No objection certificate has been issued by the competent authority of S.G.P.G.I. on 29.8.2013 in favour of the petitioner to apply on the post of Director, NIFT.
4. The petitioner thereafter appeared in interview and was subsequently selected and was offered appointment on the post of Campus Director, NIFT on contract basis vide letter dated 25.11.2013 for an initial period of one year from the date of assuming charge with the condition that on satisfactory performance during the period of probation, the period of contract for a further period of four years may be extended. Therefore, it was a contract appointment of five years.
5. On receipt of the aforesaid order dated 25.11.2013 the petitioner applied for grant of lien to his post of Associate Superintendent (Non-Medical) S.G.P.G.I. and the Chief Administrative Officer with the approval of President, S.G.P.G.I., Lucknow issued office order dated 13.1.2014 allowing the petitioner to maintain lien on his post for a period of two years.
6. Thereafter, the petitioner joined at NIFT as Campus Director on 15.1.2014.
7. However, the petitioner was informed by the Chief Administrative Officer, S.G.P.G.I. vide letter dated 25.1.2016 that on the petitioner's request of extension of lien of his post of Associate Superintendent (Non-Medical), S.G.P.G.I. such lien has been granted for a period of three years w.e.f. 16.1.2016 by the President, S.G.P.G.I.. Therefore, the tenure of the petitioner as Campus Director, NIFT was expiring on 14.1.2019. The Board of Governors, NIFT in its 44th meeting took a decision to extend the term of the petitioner for a further period of three years w.e.f. 15.1.2019 and the said extension was conveyed to the petitioner vide order dated 10.12.2018.
8. The petitioner thereafter moved an application on 12.12.2018 to the Director, S.G.P.G.I. requesting for further extension of his lien on the post of Associate Superintendent (Non-Medical) for a period of three years w.e.f. 16.1.2019. The petitioner was informed by the Chief Administrative Of
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