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2008 DIGILAW 186 (BOM)

MARY RAMA RAO alias DARALA MARY v. STATE OF GOA

2008-02-06

D.B.BHOSALE, N.A.BRITTO

body2008
JUDGMENT N. A. BRITTO, J.:- Heard. The petitioner, who was appointed as a staff nurse on 30-1-1973, and promoted as Assistant Matron on 29-8-2003 retired voluntarily w.e.f. 11-6-2004, during the pendency of this petition, as per the Government Scheme for voluntary retirement, circulated vide circular dated 162-2004. In this petition, the petitioner has sought various reliefs, many of which are irrelevant and redundant. 2. The petition was amended from time to time. On 30-10-2001, on a· statement made by the learned Senior Counsel appearing on behalf of the petitioner, respondents Nos. 4 and 5 were deleted, the former having retired from service and the latter having expired. Subsequently, the petitioner joined respondent No. 7 who was promoted subsequent to the petitioner as Assistant Matron on 16-6-2004 and became a Matron from 4-8-2006. Apart from the fact that respondent No. 7 has not been served in this petition, by the petitioner, the petitioner can have no grievance against her promotion, either as Assistant Matron or Matron, since the petitioner herself retired as Assistant Matron on 11-6-2004. 3. The first grievance of the petitioner is that she should be placed above respondent No.6 Smt. Tereziamma Fernandes in seniority. We find there is no merit in the said submission of the petitioner. Admittedly, the petitioner and respondent No.6 Smt. Tereziamma Fernandes were appointed as Staff Nurses on 30-1-1973 in the Directorate of Health Services and respondent No.6 was senior to the petitioner. The petitioner was posted at the Primary Health Center, Aldona under the said Directorate of Health Services. Subsequently, the Staff Nurses belonging to the Directorate of Health Services were split up and some were assigned to the Institute of Psychiatry and Human Behaviour, while others continued to serve in the cadre of Directorate of Health Services. Later, the Government with a view to provide optimum medical and mental health care services and training programmes in Goa in a single department, the Government amalgamated the Mental Hospital, Altinho which was then functioning under the Directorate of Health Services and the Department of Psychiatry of Goa Medical College into one single Government Department known as "Institute of Psychiatry and Human Behaviour" with effect from 8-12-1980. Respondent No. 6 Smt. Tereziamma Fernandes by virtue of order dated 7-7-1981 along with one Mario F. D'Souza, both Staff Nurses of primary health center, Cando1im and School Health Programme, Vasco Da Gama, were transferred under FR 15 to the Institute of Psychiatry and Human Behaviour, with immediate effect. There is nothing on record, particularly, in the said order dated 7-7-1981 to suggest that respondent No. 6 Smt. Tereziamma Fernandes or the said Mario F. D'Souza were transferred from the Directorate of Health Services to the newly created Department of Institute of Psychiatry and Human Behaviour at their own instance but on the contrary, on behalf of the Government, it is stated on affidavit that they were transferred in public interest and if that is so, respondent No.6 could not have lost her seniority to the petitioner. Moreover, the guidelines issued vide OM dated 10-5-1983 were not at all retrospective in effect. The said OM dated 10-5-1983 provided that when a request was received from the Government servant for his transfer from one Department to another, it should be made clear to him that his seniority in the Department for which he applied for transfer will not be counted in the Department to which he wished to be transferred i.e. his seniority in the latter Department will be fixed from the date he joined it. The respondent No.6 Smt. Tereziamma Fernandes having been always senior to the petitioner and having been transferred from Directorate of Health Services in public interest could not have lost her seniority to the petitioner. Moreover, the said guidelines came into force only from 10-5-1983 and could not have been made applicable to the case of respondent No.6. As set out by respondent No.2 in the Seniority List dated 26-3-1979, before amalgamation, the respondent No.6 ranked at Serial No. 105 and the petitioner at Serial No. 106. By letter No. 4/9/80-PHD dated 4-4-1983 the Government had made it clear that for the purpose of seniority the date of initial appointment would be counted. As set out by respondent No. 6 in her affidavit, in the tentative Seniority List dated 4-2-1987, respondent No.6 was shown at Serial No.7 while the petitioner was shoWL at Serial No.8. By letter No. 4/9/80-PHD dated 4-4-1983 the Government had made it clear that for the purpose of seniority the date of initial appointment would be counted. As set out by respondent No. 6 in her affidavit, in the tentative Seniority List dated 4-2-1987, respondent No.6 was shown at Serial No.7 while the petitioner was shoWL at Serial No.8. Likewise, in the list dated 23-4-1991, the respondent No.6 was shown at Serial No. 1 and the petitioner at Serial No.2 and the petitioner made no grievance about the same and after much delay and latches has made the grievance for the first time in this petition, filed on 29-7-1999 and in the light of this view also, the petitioner's grievance that she ought to be treated as senior to respondent No.6 Smt. Tereziamma Fernandes needs to be rejected. 4. The petitioner can have no grievance against respondents Nos. 4 and 5 after having deleted them. The petitioner's contention that respondent No.6 Tereziamma Fernandes could not be promoted as Assistant Matron as she did not have essential qualifications has not been demonstrated with any clarity. We find that respondent No.6 Tereziamma Fernandes had become a Ward Sister w.e.f. 9-9-1992 as per 1967 Recruitment Rules and was shown at Serial No. 12 of the Seniority List of Ward Sisters dated 8-7-1996, but the petitioner came to be appointed as a Ward Sister on ad hoc basis only from 26-4-1995 due to exigency of service against a post reserved for Scheduled Caste and was regularized from 1-4-1999 after the said post was dereserved on 29-9-1998 and since there was no regular post on 26-4-1995, the petitioner was not entitled to be regularized from 26-4-1995 as prayed for by her in the petition. It appears that the petitioner acquired the qualifications of B.Sc. (nursing) only on 10-8-1996 and if respondent No.6 Tereziamma Fernandes was promoted as a Ward Sister w.e.f. 99-1992 we see no reason as to why the petitioner did not challenge her appointment then. No effort has been made by the petitioner to demonstrate what were the qualifications she had, compared to the qualifications held by respondent No.6 Tereziamma Fernandes, either at the time of her promotion as a Ward Sister or thereafter as Assistant Matron. 5. Lastly, we have to consider the preliminary objection taken on behalf of the respondents. It is contended by the learned Addl. Govt. 5. Lastly, we have to consider the preliminary objection taken on behalf of the respondents. It is contended by the learned Addl. Govt. Advocate that the petitioner having voluntarily resigned from service cannot now seek any benefits which she was entitled to while in service, and in this context, the learned Addl. Govt. Advocate has placed reliance on the case of A. K. Bindal and anr. vs. Union of India and ors. 2003(5) see 163. On the other hand, the learned Counsel on behalf of the petitioner has placed reliance on the case of UCO Bank and ors. vs. Sanwar Mal, 2004(4) see 412 and submitted that the case of A. K. Bindal and anr. (supra) is distinguishable and has further contended that the fact that the petitioner has voluntarily retired does not mean she is not entitled to retiral benefits. In our view, what is distinguishable is the case of UCO Bank and ors. (supra) as it dealt with retiral benefits. In our view, the observation of the Apex Court in A. K. Bindal and anr. (supra) are applicable to the facts of the case, since the petitioner is agitating her rights which were available to her, if at all, while in service. Referring to the Voluntarily Retirement Scheme, the Apex Court in the aforesaid decision has stated that it (VRS) is referred to as a golden hand shake because it is a package deal of give and take. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period (emphasis supplied). It is not the case of the petitioner that she had given voluntary retirement subject to her claim in the Writ Petition and that not being the position, the petitioner would not be entitled to agitate for any kind of her past rights with the respondent. In this view of the matter, the petition deserves to be dismissed, notwithstanding that the petition also deserves to be dismissed on merits, as well. Petition dismissed. Petition dismissed.-