SAJJAD ALI SHAH, J: --This appeal with leave of the Court is directed against judgment dated 22-12- 1991 of Federal Service Tribunal, whereby appeal of the appellant is dismissed in limine.
2. Briefly stated the relevant facts giving rise to this appeal are that after passing Matric examination appellant acquired professional qualifications and did requisite training as Nurse, Midwife, Ward Administrator and Teacher from recognised Institutes. She was appointed as Nursing Instructor in B.P.S.14 on 23-11-1982 in Jinnah Post-Graduate Medical Centre, Karachi. She was put on probation for a period of six months, which was extendible. Record shows that vide letter dated 17-7-1983, the Director, J.P.M.C. (College of Nursing) at Karachi requested Director- General, Health, Ministry of Health, Government of Pakistan at Islamabad, for up gradation of the post of Nursing Instructor in B.P.S. 14 held by appellant to B.P.S. 17. In reply the Health Division questioned the appointment of appellant in B.P.S.14 on the ground that on the date of appointment post of Nursing Instructor was not available in B.P.S. 14 as there was revision of pay scales vide letter dated 26-12-1981 placing all Nursing Instructors in B.P.S. 17 from B.P.S. 14 and such appointment to B.P.S. 17 could be made by establishment Division, hence appointment of appellant by the Director of J.P.M.C. Was not competent. The Director went on pressing for up gradation of appellant, which remained pending as draft recruitment rules to the various posts of nursing staff had not been finalised. Request was made for up gradation of the post of appellant as a special case as she had been working satisfactorily in the College of Nursing.
3. A notification was issued on 5-5-1985, whereby methods, qualifications and other conditions have been laid down for appointments of nursing staff as required under Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It is provided therein that the posts of Nursing Instructors (B.P.S. 17) are to be filled 50% by promotion and 50% by initial appointment.
Posts of Staff Nurses/Charge Nurses (B.P.S. 14) can be filled 100% by initial appointment. Health Division vide letter dated 29-11-1988 informed that appointment of appellant as Nursing Instructor in B.P.S. 14 on 23-11-1982 was irregular as earlier than that on 26-12-1981 pay scales were ,revised and Nursing Instructors were placed in B.P.S. 17. Accordingly regular Nursing Instructors were promoted to B.P.S. 17. Since direct appointment could not be made in B.P.S. 17 without approval 'of Federal Public Service Commission, therefore request of appellant for up gradation was turned down with declaration that her services are liable to be terminated and she could compete along with others for selection before Federal Public Service Commission. The Director recommended strongly that appellant be appointed on ad hoc basis in B.P.S. 17 as she was competent and committed to the profession and in response Health Division vide letter dated 5-2-1989 agreed to wait till appellant was approved by F.P.S.C. And to maintain status quo in the meantime.
4. Appellant was not selected for interview and her form was rejected on the ground that she did not possess required experience. Apprehending termination of services, she filed Constitution petition in the High Court of Sindh at Karachi, which was dismissed on 13-3-1991 after hearing on the ground that the same was not maintainable as jurisdiction of the High Court was barred' under Article 212 of the Constitution. Petition was filed in this Court seeking leave to appeal from the judgment of the High Court but leave was refused vide order dated 15-4-1991 on the ground that no exception could be taken to the view of the High Court. The Director, J.P.M.C. Informed the appellant through letter dated 16-6-1991 that for the reason of non-availability of post of Nursing Instructor in B.P.S. 14, her services are liable to be terminated unless she is willing to be adjusted against the post of Charge Nurse (B.P.S. 14) for which she had to give consent in writing within 7 days, failing which the offer would be treated as cancelled.
Appellant filed departmental appeal against the offer of adjustment in B.P.S. 14 and after not getting response within 90 days filed appeal before Federal Service Tribunal under section 4 of Service Tribunals Act, 1973, which is dismissed in limine on merits and also on the ground that appeal is time-barred as per judgment dated 22-12-1991, which is impugned before us.
6. The point involved is very simple that appellant was appointed on 23-11-1982 as Nursing Instructor in B.P.S. 14 by the Director, J.P.M.C. And her appointment was invalid for the reason that before such appointment there was revision of scales on 26-12-1981 and in consequence Nursing Instructors in B.P.S. 14 were placed in B.P.S. 17 and existing Nursing Instructors were promoted to B.P.S. 17 vide Notification dated 22-11-1982. Neither post of Nursing Instructor (B.P.S. 14) was available on the day when appellant was appointed nor Director was competent to make such appointment because by that time posts of Nursing Instructors were in B.P.S.17 for which appointment could be made with approval of Federal Public Service Commission. The Director, J.P.M.C. Was made aware of such factual position vide letter dated 31-8-1983 in which appointment of the appellant was called in question in very clear terms on the grounds mentioned above and however, she was allowed to continue to work in B.P.S. 14 till she was cleared by F.P.S.C. After she failed in all forums in getting redress of her grievance, she was offered adjustment to continue in service as Charge Nurse (B.P.S. 14) which is the only post available in that grade as per S.R.0.424 (1)/85 dated 5-5- 1985.
7. It appears that for promotion to B.P.S. 17, three years service in B.P.S.16 is required, which comes in the way of appellant. Learned counsel for the appellant was unable to satisfy us that appointment of appellant as Nursing Instructor in B.P.S. 14 on 23-11-1982 was regular or she lead made out a case for promotion or up gradation to B.P.S. 17. In the circumstances it appears that there is no other alternative for the Health Division except to offer the appellant retention, in service in B.P.S. 14. It also appears from the record that appellant has put in about 11 years service in B.P.S. 14 and if she is asked to start afresh in the same grade as Charge Nurse, she would suffer in seniority and monetary benefits for which mistake is not made by her but by the authority concerned, who appointed her as Nursing Instructor in B.P.S. 14 when such post in that grade was non-existent. This mistake can be attributed to the concerned Department for which it would be unfair to make the appellant suffer. In the circumstances we direct that appellant is to be treated as Charge Nurse in B.P.S. 14 from the date of her initial appointment on 23-11-1982 and entitled to benefits accruing therefrom under the rules. Appeal is disposed of in terms mentioned above.