338 Mass. 25 | Mass. | 1958
This is a petition for a writ of mandamus to restore the petitioner to her position in the civil service, from which, it is alleged, she has been improperly removed.
The facts are not in dispute. The petitioner was employed as a laboratory technician in the sanatorium division of the Boston City Hospital. Following a hearing held on April 26, 1957, by the hospital board of trustees (the appointing authority under G. L. c. 31, § 43) the petitioner was notified
There was no error.
The notice of decision did not state “fully and specifically the reasons therefor” as required by G. L. c. 31, § 43 (a), and the petitioner could then have asserted her rights in mandamus proceedings. Peckham v. Mayor of Fall River, 253 Mass. 590, 593. Bois v. Mayor of Fall River, 257 Mass. 471. She did not adopt that course but instead requested a hearing before the commission under § 43 (b). The case at bar is governed in principle by Daley v. District Court of Western Hampden, 304 Mass. 86, 92. There the petitioner was removed in proceedings conducted under G. L. c. 31, § 42B, pursuant to an invalid notice. The petitioner thereafter sought judicial review under § 42B and in those proceedings attempted to challenge the sufficiency of the notice. It was held that the petitioner could have challenged the removal on the ground of improper notice by bringing a petition for a writ of mandamus, but having failed to avail himself of that remedy and having sought judicial review under the statute, he thereby admitted that there had been such a hearing before the commission as to entitle him to review, and that he thereby waived the deficiency in the notice and could not raise it thereafter. So here, the petitioner could have challenged the removal in mandamus proceedings on the ground of insufficient notice at the time
Judgment affirmed.