1. SHAFIUR RAHMAN, J.-Leave to appeal was granted under Article 212 (3) of the Constitution to examine whether N.-W. F. P. Service Tribunal was justified in denying to the appellant adjustment as a Trained Staff Nurse in N. P. S. No, 9 in spite of earlier judgments of the civil Courts in her favour.
2. ' The appellant was appointed as Nurse on 12-2-1952 in the Municipal Zanana Hospital, D. I. Khan in the Pay Scale of 60-2-70/5-90 plus D. A. Rs, 35 and Dhobi Allowance of Rs, 2 with free quarter. Her pay scale was changed to 72-2-80/5-100 from 1-4-1952 when she was working against the post of Staff Nurse. Her qualifications as appearing in the records and at no stage disputed are as follows :- "(i) Anglo-Vernacular Middle
(ii) Assistant Nurse
(iii) Nurse Dai"
3. ' Subsequently the following supporting documents were filed:- "(1) Middle Standard Certificate (Original)
(2) Enrolment Certificate as an existing Assistant Nurse (Original)
(3) Certificate of Nurse Dai
(4) Registration Certificate of Nurse Dai (Original)
4. ' West Pakistan Nursing Services Council after examining these certificates in 1968 reported that these "are certainly not equivalent to B Grade Nurses Certificates issued by this Council."
5. ' The Government of N.-W. F. P., provincialized as from 1-4-1952 the Municipal Hospital and created 16 posts of Staff Nurses in the scale of 72-280/5-100. The appellant was adjusted against one such post.
6. ' The Government of West Pakistan introduced the (Non-Gazetted) Civil Services Pay Revision Rules, 1959 giving them effect from 14-10-1955 and laying down "prescribed scales" of pay in the following terms :- {{TABLE}} Staff Nurse [Revised on 11 1960) 160 10 300 Nurse Dai) 50 2 80 Dai) 35 1 45 ' The Government of West Pakistan by Notification No, F. D. P. C. (1) 14/63 dated 2-3-1963 enforced the West Pakistan (Non-Gazetted) Civil Services (Pay Revision) Rules, 1963 providing for the consolidated scales of pay from 1-12-1962. For the Health Department provision was made, inter alia, for the following scales of pay:- {{TABLE}} "Staff Nurse220 15 400 Nurse Dai Midwife/Junior midwife 953 125 Dai75 1 90 "
7. ' While the adjustment of the appellant in the revised scale of pay was pending consideration of the Government the following order was passed on 24-2-1968 :- "The following Nurse Dais working against the posts of Staff Nurses in Civil Zanana Hospital D.
1. Khan may please be relieved at once and directed to report to the District Heath Officer, Kohat for duty at the existing vacancies of Nurse ' Dais under his control."
8. ' At No. 1 was listed the name of the appellant.
9. ' The appellant filed a civil suit on 26-3-1968 challenging this order treating it as a reversion order and claiming declaration with regard to pay as Staff Nurse since 1-2-1952. The Senior Civil Judge by his judgment, dated 12-2-1970, held as follows:- "The post of Nurse Dai carries a maximum pay scale of Rs, 125 p.m. Whereas the pay scale of Staff Nurse is much more than this. The present emoluments of plaintiff are 182/50 whereas the pay scale of a Nurse Dai was Rs, 115 p.m. Inclusive of dearness allowance and even in the old scale the plaintiff was getting more pay than the said maximum. If the impugned order is implemented then clearly the pay of the plaintiff ; will be affected adversely. She will not be given more emoluments than what is she drawing now because her present emoluments are more than the maximum pay of Dai Nurse.
10. ' From the above discussion it is very clear that the impugned order dated 24-2-1968 copy Exh. P. W.
11. 1/2 tantamounts to reversion in the status of plaintiff."
12. ' One of the issues framed in the suit and relevant to the sent dispute was "Is the plaintiff not a trained staff nurse and not entitled to confirmation as such". The finding was "It has been clearly proved from the evidence on the file that the plaintiff was initially appointed as a staff nurse and she has been drawing the pay of a Staff Nurse, whether she was qualified or not for that post.
13. According to the Service Rules she is considered to have been confirmed in the year 1956 or thereabout.
14. ' Her suit was decreed on 12-2-1970. She was held entitled to the post, pay, privileges of staff nurse and the required declaration was granted to her. The Government's appeal against this decision failed on 29-5-1971. The matter was not agitated further in the hierarchy.
15. ' An event of relevance to the case was the promulgation of West Pakistan Nursing Services (Non- Gazetted) Rules, 1966. These rules came into force on 1-10-1967. The service comprised the post of Staff Nurse and such other nurses post in the Department as may be determined by the Government from time to time. The service was to have regional cadres. There was a proviso to rule 5 which provided an exception to the method of recruitment which reads as follows :- "Provided that in the case of Local Fund or Voluntary Hospitals taken over by Government, the Nursing Staff already employed in those hospitals may, notwithstanding anything contained in these rules, be absorbed in the service on such terms and conditions as Government may specify in this behalf if such staff or any of missing are considered suitable by the Selection Committee for appointment to the service."
16. ' Rule 7 prescribed the qualification and eligibility in the following terms:- "Qualification and eligibility.-(1) Only females shall be appointed to the service:
(2) No person shall be appointed to the service unless she is registered as 'A' Grade Nurse and a Mid-wife with the Nursing Council : ' Provided that for a period of five years from the coming into force of these rules a person may be appointed to the service -
(1) if she is registered as 'B' Grade Nurse and a Mid-wife with the Nursing Council ; or
(ii) if she is registered as 'A' Grade Nurse only with the Nursing Council : ' Provided further that a person appointed to the service under the proceeding proviso shall notwithstanding anything contained in rule 8, not be confirmed in the service unless she qualifies as 'A' Grade Nurse Or Mid-wife, as the case may be and is registered with the Nursing Council as such : ' Provided also that if a person appointed to the service under the first proviso fails to qualify as 'A'
17. Grade Nurse or Mid-wife as the case may be, within five years from the date of her appointment to the service, her increments shall be withheld till she so qualifies and on her qualifying no arrears of pay shall be allowed to her."
18. ' While the decision of the civil Court with regard to the entitlement and status of the appellant was pending consideration. Before the Government National Pay Scales were introduced by the notification dated 17-4-1972 having effect from 1-3-1972. The entries which are relevant are at Sr.
19. No, 10, 11 and 15 of Schedule of the notification- {{TABLE}} "10. Staff Nurses 22015 400 225 15 300/16 380/20 480 11.Staff Nurses 702 80/ 100 2 116/3 140 (untrained)
20. 5100
12. Nurse Dais 953 125 120 3 150/5 180"
21. "
22. ' The Administrative Department consulted the Finance Department and the Law Department of the Government of N.-W. F. P. In the matter. Both these departments advised the Administrative Department to allow the appellant consolidated/N. P. S. Admissible to the Staff Nurses (i,e, 220-15- 400 and Rs, 225-15-300/16-380/20-480) N. P. S. No, 9 subject to the condition that no arrears on this account are to be paid to her.
23. ' The Administrative Department by an order dated 13-5-1972 held that the appellant was drawing pay in the old scale of Rs, 72-2-80/5-800. On the introduction of prescribed pay scales and consolidated pay scales the appellant did not exercise option in favour of the prescribed scale of pay and for that reason no question arose of fixing her pay in the consolidated scale of pay. As regards fixing of pay in N. P. S. It was decided to fix it in Pay Scale No. 1 which happened to be the scale of Rs, 100-2-116-E. B.-3 -140 admissible as will appear from Schedule II to untrained Staff Nurses.
24. ' In this background of events the petitioner in July, 1973, instituted a civil suit claiming pay and allowances as Staff Nurse in the prescribed pay scale consolidated pay scale and in the N. P. S. No,
9. She also claimed her due place in seniority as a Staff Nurse and promotion as a Nursing Sister.
25. The Senior Civil Judge by order dated 8-5-1974 held that the suit had abated in view of section 8 of N.-W. F. P. Ordinance No. 1 of 1974.
26. ' The appellant took her grievance to the N.-W. F. P. Service Tribunal. She attacked the order of the departmental authority dated 13-5-1972. She claimed pay as Staff Nurse in the prescribed Pay Scale from 14-10-1955 to 30-11-1962, in the consolidated pay scale from 1-12-1962 to 29-2-1972 and in the National Pay Scale No, 9, thereafter with full arrears of salary. She also claimed to be placed at the proper place in the seniority list and to be promoted being the senior most, as a Nursing Sister with effect from 24-1-1970, from which date a vacancy in the grade of Nursing Sister existed.
27. She based her claim on the fact that she had been working as a Staff Nurse since 1952, her rights as such were recognized by the decree of the civil Court and even the Finance Department and the Law Department had accepted her point of view with regard to the claim for the proper scale of pay.
28. ' The Tribunal distinguished the judgment of the civil Court by observing as follows:- "A reference to the judgment in the civil suit shows that she was declared a confirmed Staff Nurse and the declaration was affirmed by the appellate Court. This judgment, therefore, does not lend support to her claim for Scale No, 9 as this was not a point at issue between the parties to the suit nor was determined by the Court. It is significant to note that there are two categories of Staff Nurses, namely, trained Staff Nurses and untrained Staff Nurses having different scales of pay. The former are entitled to National Pay Scale No, 9 and the latter to No. 1.
29. ' The operative finding of Service Tribunal was as follows :- "We hold that the appellant is, in fact, a Nurse Dai working as untrained Staff Nurse and is entitled to draw pay in National Pay. Scale No,
3. The representative of respondent 4 appearing before us disclosed that Scale No, 3 has been recommended for the appellant and the decision of the Government in this behalf is awaited. We feel that this recommendation is in consonance with the relevant rules and would be accepted by the Government."
30. ' The other questions raised in the petition, namely, her entitlement to prescribe pay of scale and thereafter consolidated scale of pay was not adverted to at all nor the effect of the judgment of the civil Court with regard to it determined.
31. ' Learned counsel for the appellant has contended that the previous litigation between the parties conclusively determined once for all the question of the status and entitlement of the appellant.
32. She was adjudged to be Staff Nurse whether trained or not, confirmed as such and entitled to all the privileges and appurtenances of the post. In such a situation she could not be denied the benefit of the prescribed scale and consolidated scale of pay by the departmental authority nor could the service Tribunal ignore her claim with respect to it. Once the entitlement of the appellant was fixed in the consolidated scale of pay before the promulgation and enforcement of the national pay scale her adjustment in the national pay scale would have presented no difficulty notwithstanding the fact that it for the first time created a distinction and a very material and substantial one between a trained Staff Nurse and unrained Staff Nurse.
33. ' We have already pointed out that the order of the departmental authority dated 13-5-1972 which was impugned by the appellant had denied to her adjustment in the prescribed pay scale and consolidated pay scale on the ground that she had not opted for it. Thereafter by that order she had been fixed in N. P. S. No. 1 as against her claim to be placed in National Pay Scale No,
9. A reference to the decree of the Senior Civil Judge which was maintained in appeal would show that she was allowed the pay as a Staff Nurse as from 1-2-1952. The departmental authority could not plead absence of option for disallowing her pay in consolidated scale for rule 4(6) of 1963 pay revision rules provided "If a Government Servant entitled to opt failed to opt within the period prescribed under sub-rule (2) it will be presumed that he has opted for the consolidated scale." For entitling her to claim pay in the consolidated scale of pay neither option was necessary nor training as Staff Nurse. Given its due effect the judgment and decree of the trial Court would entitle the appellant to the prescribed scale of pay as a Staff Nurse in the scale of 160-10-300 from 14-10- 1955 to 30-11-1962. From 1-12-1962, she would be entitled to pay in the consolidated scale of 220-15- 400 and her pay will have to be fixed in this scale on a date immediately before the enforcement of the National Pay Scale on 1-3-1972. Rule 5(c) of the National Pay Scale provides that "the maximum of the existing scales of pay shall be adopted as the basis for conversion into the National Scales of Pay. The table below indicates the ranges of the maximum of the existing scales of pay which are "to be adopted in converting the existing scales into National Scales of Pay." On the formula prescribed she would be entitled to N. P. S. No, 9 because the maximum of the scale enjoyed by her immediately before the promulgation of the National Pay Scale was Rs, 400. The next sub rule i. e.
34. Contained in clause (d) prescribed the formula by reference to which the pay is to be fixed. It is true that the Schedule II provides two pay scales for Staff Nurses, the higher one for trained and the lower one for the untrained Staff Nurse. The Schedule being part of a rule will have prospective effect and will not affect the vested rights of the appellant or her entitlement to a pay scale. Her pay scale cannot be reduced by reference to it. It is true that neither the civil Court adjudged the appellant to be a trained Staff Nurse nor does she appear to be so from the record made available.
35. Nevertheless as in previous pay scale no such distinction existed in the matter of pay scale, the civil Court decree entitled her to the normal grade of a Staff Nurse. If the Service Trihunal had kept in view the entitlement of the appellant in the matter of pay scale immediately before the enforcement of the National Pay Scale it would not have come to the conclusion that after enjoying for about 10 years the pay scale of 220-15-400, she could be brought down on an interpretation of National Pay Scale rules to the scale of 120-3-150/5-180. The rules could not so radically reduce the pay scale and entitlement to pay of a civil servant.
36. ' On a consideration of all the facts and materials before us, we allow this appeal, hold that the appellant is entitled on the strength of the decree of the civil Court to be fixed in the prescribed scale of pay from 14-10-1955 and in the consolidated scale of pay from 1-12-1962 and in N. P. S. 9 from 1-3-1972 and to payment of arrear according to those rules. She shall he paid accordingly. As regard her claim to be shown at her due place on seniority list and to be promoted as Nursing Sister against a clear vacancy, we find that no seniority list has been placed on record and none whose seniority disputed has been impleaded. The question of the seniority cannot be decided in the absence of concerned party and, in any case, not without first determining appellant's induction into the regular Nursing Service. Her claim to seniority and promotion was in the circumstances untenable. The appeal is accepted with costs in terms indicated above.