' MUHAMMAD MUNIR PERACHA, J.---Although, I have already dismissed a writ petition filed against the order impugned through this writ petition on the ground that the said order can be challenged before the Federal Service Tribunal, which has the exclusive jurisdiction in the matter and Article.
212 of the Constitution bars the jurisdiction of this Court, learned counsel for the petitioner submits that he will raise grounds other than urged by the learned counsel for the petitioner in the earlier writ petition in support of the maintainability of the writ petition. I, therefore, asked the learned counsel to make submissions regarding bar of Article 212 of the Constitution. The post to which, the petitioner is desirous of getting promotion is Drugs Controller (BPS-20). The post of Drugs Controller under the rules is to be filled 80% by promotion and 20% by initial appointment. The eligibility for promotion and the condition of eligibility is:-- Person eligible Condition of Eligibility Chairman Quality Control/ Deputy Director General (E&M)/Director Central Drugs Laboratory (BPS-19)(i) Degree in Pharmacy (ii) 17 years service in BPS-17 and above or 12 years service in BPS-18 and above for initial recruits in BPS-18 or 5 years service in BPS-19 for initial recruits in BPS-19
2. It appears that in Central Selection Board's meeting held on 8-8-2005, it was opined by the CSB that it is essential to impart NIPA training to the officers of the cadre of the Drugs Controller before promotion to BS-20.
3. The requirements of NIPA training for promotion was examined in Ministry of Health and vide office memorandum dated 21-8-2006. The Ministry opined:- "(0 According to the policy laid down by the Federal Government, the requirement of NIPA training is not applicable to Civil Servants in specialized cadres such as Doctors, Teachers and Professors, research Scientists and incumbents of purely technical posts or promotion within the own line of specialization as envisaged in the Promotion Policy (Establishment Division's O.M. No,1/3/2001-CP-H dated 4th January, 2005 (Annex-III). The post of DC (BS-20) falls in this category.
(ii) The recruitment of NIPA training is being imposed on departmental candidates but the same condition has not been imposed on the officers being appointed through direct recruitment/deputation, which amounts to discrimination.
(iii) The requirement of NIPA training has also never been imposed for recruitment/promotion to the post of Drugs Controller in the past.
(iv) No administrative or financial power has been delegated to the Drugs Controller. These powers rest with and are exercised by the Admn Wing of Ministry of Health. The Drugs Controller performs the duties of purely technical nature under the supervision of Secretary Health and Director- General Health. Therefore, the requirement of NIPA training for promotion to the post of Drugs Controller is seems to be irrational.
(v) NIPA training is not mandatory even for promotion to the post of D.G(Health), Medical Superintendent, FGSH and EDs PIMS, JPMC who otherwise have to perform important administrative functions.
' In view of the foregoing facts, the position needs rectification. It is therefore, requested that the decision taken by the Central Selection Board in the meeting held on 8-8-2005 may kindly be reviewed and the cases of the BS-19 officers of the Drug Wing of this Ministry for promotion as Drugs Controller (BS-20) may be considered and decided by the Central Selection Board in its meeting reportedly being held on 29th August, 2006."
3-A. On 20-12-2006, the Establishment Division vide letter Annexure-"E" gave its opinion:- "According to the Recruitment Rules for post of Drugs Controller (BS-20) notified on 19-9-1996, NIPA training is not mandatory for promotion to the said post Regulation Wing, therefore, endorses the views of Ministry of Health and C.P. Wing as contained in para 5 of C.P. Wing's U.O. Note dated 16-11- 2006 referred to above."
4. Vide letter dated June 9, 2008, and June 19, 2008, Ministry of Health wrote to the Central Selection Board and the Secretary Establishment Division respectively that NIPA course is not essential for promotion to the post of Drugs Controller BS-20. Ministry of Health vide letter dated 18-3-2008 requested the Establishment Division:-- "It is therefore requested that all doctors including those of Administrative cadre and officers of Drug Wing of Ministry of Health may be exempted from Mandatory training for promotion to BS-19 posts, being purely of technical nature."
5. However, on 16-8-2008, petitioner was informed vide letter Annexure-"A":-- "The undersigned is directed to refer to your departmental appeal dated 17-3-2008 on the subject cited above and to say that the Establishment Division was requested to accede to the request that the requirement of advanced NIPA course (now SMC) is not applicable for promotion to the post of Drugs Controller being a purely technical post but the request has not been acceded to.
Copies of the correspondence exchanged with the Establishment Division and CSB are enclosed."
6. The petitioner has filed the present writ petition with the following prayer:-- "It is, therefore, respectfully prayed that this Court may be pleased to issue a direction to the respondents to convene the meeting of CSB within one month to consider promotion of the petitioner to the post of Drugs Controller."
7. The case of the petitioner is that the petitioner is not required to pass NIPA training course for promotion to BPS-20.
8. Learned counsel for the petitioner raised the following points to contend that Article 212 of the Constitution does not bar the jurisdiction of this Court in this matter:--
(a) Article 199 of the Constitution confers wide powers on a High Court to issue a writ. If any bar was intended to be imposed on the exercise of the jurisdiction of the High Court, it has been mentioned in the Article itself like sub-Article 3 of Article 199. Article 212 of the Constitution, therefore, does not impose an absolute bar on the jurisdiction of the High Court to issue writ if an order impugned before it has been passed without lawful authority.
(b) The Federal Service Tribunal Act, 1973, although, enacted under mandate of Article 212 of the Constitution is an ordinary legislation and cannot over-ride the provision of Article 199 of the Constitution.
(c) Under section 4 of the Federal Service Tribunal Act, 1973, an appeal is competent before the Service Tribunal against an order of the Departmental Authority and Departmental Authority has been defined as:-- "Departmental authority" means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
' The appeal is competent before the Federal Service Tribunal only if the order is passed by a Departmental Authority competent to pass such an order. Establishment Division not being competent to pass impugned order herein, the appellate jurisdiction of the Service Tribunal cannot be invoked.
(d) Apart from the condition of eligibility mentioned in S.R.O. No,903(1)/96, no other additional qualification can be prescribed for promotion to the post of Drugs Controller.
9. The contention raised by the learned counsel for the petitioner and noted in paragraph 8(a) did not impress me. Article 199 of the Constitution opens with phrase "Subject to the Constitution". Apart from sub-Article 3 of Article 199 of the Constitution imposing a bar on the jurisdiction of a High Court to issue a writ, the jurisdiction of the High Court under Article 199 has been excluded by other provisions of the Constitution. For example, Article 184 confers exclusive jurisdiction on the Supreme Court to determine any dispute between any two or more Government. Similarly, Article 203(A) of the Constitution provides that the provisions of Chapter 3 of the Constitution shall have effect notwithstanding anything contained in the Constitution. Through this Chapter, the Federal Shariat Court has been given a power to examine and decide the question whether any law or provision of law is repugnant to the injunction of Islam. Similarly, Article 225 of the Constitution provides that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to an Election Tribunal. Article 41(6) provides that the validity of the election of the President shall not be called in question by or before any court or other authority. Therefore, on the mere ground that the bar of jurisdiction is not mentioned in Article 199 itself, it cannot be assumed that bar of the jurisdiction under Article 212 is not absolute. All the provisions and Articles of the Constitution have to be given effect.
10. The contention noted in paragraph 8(b) is equally devoid of force. It may be true that the Service Tribunal has been constituted under an ordinary law, Federal Service Tribunal Act, 1973, but once the Tribunal is constituted the bar of jurisdiction is provided in the Constitution and it has not been imposed by an ordinary law.
11. Submission mentioned in paragraph 8(c) is also misconceived. The objection of the learned counsel for the petitioner that Establishment Division is not competent authority to add a qualification for promotion to the post of Drugs Controller, in the condition of eligibility mentioned in S.R.O. No,903(1)/96, can be considered by the Federal Service Tribunal. The ground raised and noted in paragraph 8(d) is also within the exclusive jurisdiction of the Service Tribunal.
12. The learned counsel for the petitioner submits that one of the grounds of attack is discriminatory treatment. It has been ruled out by the Supreme Court that if a civil servant challenges the service rules and also pleads the ground of discrimination, the Service Tribunal has the jurisdiction to examine the rules as well as ground of discrimination.
13. For all these reasons, I am of the opinion that the proper remedy for the petitioner is to approach the Federal Service Tribunal and the jurisdiction of this Court is barred under Article 212 of the Constitution. The writ petition is therefore, dismissed being incompetent.