Through this order , we propose to decide intra Court appeals No.529, 530 and 532 of 2021 since they entail certain common features.
2. The appellants impugn the judgment dated 28.10.2021 passed by the learned Judge-in-Chambers, whereby their writ petitions were dismissed as not maintainable. The primary reason for the dismissal of their writ petitions was that the matter agitated by the appellants in their writ petitions lay within the jurisdictional domain of the Federal Service Tribunal, and that the jurisdiction of this Court was barred under Article 212 of the Constitution.
3. All the appellants are civil servants and are presently serving in the Federal Directorate of Education ("F.D.E.").
They are all aggrieved by the notification (SRO 373(I)/2019) dated 15.03.2019 issued by the Ministry of Federal Education and Professional Training pursuant to Rule 3(2) of the Civil Servant s (Appointment, Promotion and Transfer) Rules, 1973. The said notification provides for the methods, qualification and other conditions for appointment to the posts in the Federal Government Schools under the F .D.E.
4. The appellants assert that by virtue of the said notification, civil servants in the teaching and 532/2021 cadre and the non-teaching cadre in BPS-16 and BPS-17 have been merged. The posts of Deputy Headmaster (BPS-17), Senior Teacher (BPS-17) and Senior School Teacher (BPS-17) have been merged and re-designated as Secondary School Teacher (BPS-17). The said merger , according to the appellants, is detrimental to their prospects for promotion. Furthermore, the appellants are also aggrieved by the introduction of the qualification of second class Bachelor / Master degree with B.Ed. / M.Ed. or equivalent qualification for further promotion. This requirement was also introduced in the said notification.
5. The vital question that needs to be determined is whether the learned Judge-in-Chambers erred by dismissing the appellants' writ petitions as not maintainable due to the bar contained in Article 212 of the Constitution.
6. All the appellants are civil servants, and are aggrieved by the notification dated 15.03.2019 which, according to them, has an adverse affect on their prospects for promotion. Therefore, the said notification dated 15.03.2019 has an af fect on the appellants' terms and conditions of service.
7. It is well settled that in view of the express bar provided in Article 212 of the Constitution, the High Court does not have the jurisdiction under Article 199 of the Constitution to determine the challenge made to rules or notifications or office memoranda, which adversely affect a civil servant' s prospects for promotion. This is so even if such rules or notifications or office memoranda are challenged on the ground that they infringe the civil servant' s fundamental rights or are and 532/2021 based on the malafides on the part of the government / department.
8. True, an "order" was not impugned by the appellants in their writ petitions. However, for the purposes whether the writ petitions were maintainable, the notification dated 15.03.2019 would be treated as an order . There was nothing preventing the appellants from challenging the vires of the said notification before the Federal Services Tribunal, subject to law. In holding so, we derive guidance from the law laid down by the Superior Courts in the following cases:- i) In the case of I.A. Sherwani Vs. Government of Pakistan ( 1991 SCMR 1041 ), it has been held as follows:- "9. From the above quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order , whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order , original or appellate, passed by a departmental authority in respect of any terms and conditions of service.
10. From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order , whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy , if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a and 532/2021 notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer . We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsectio n (1) of section 4 of the Act in order to file an appeal before the Service Tribunal . However , in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However , we may clarify that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
(Emphasis added) ii) In the case of National Assembly Secretariat Vs. Manzoor Ahmed (2015 SCMR 253), it has been held as follows:- "8. We have heard the learned counsel for the parties and have perused the record . Admittedly , respondent No.1 is a Civil Servant and, therefore, he could not have approached the High Court unde r Article 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his Service in view of the Bar created under Article 212(2) of the Constitution. The High Court, therefore, was not competent to adjudicate the issue raised in the Writ Petition. The High Court has fallen in error while proceeding on the erroneous assumption that respondent No.1 had raised the issue of violation of the statutory Rules, therefore, it was competent to decide the issues. This was an incorrect approach of the learned High Court to entertain a Constitution Petition of a Civil Servant on the ground of the statutory violation. Such and 532/2021grievances of a Civil Servant fall within the domain of the Federal Service T ribunal as mandated by the Constitution." iii) Recently , in the case of Irfan Aman Yousafzai Vs. Federation of Pakistan (2017 PLC (C.S.) 905), the Division Bench of the Hon'ble Peshawar High Court, after referring to a catena of case law, has laid down the following principles with respect to a challenge being made by a civil servant to the vires of rules/notification:- "(i) A Civil Servant can move the Apex Court under Article 184(3) of the Constitution, in cases where vires of service rules or notifications are challeng ed on the touch stone of being against their fundamental rights with the paramount condition that the matter be of public importance.
(ii) Civil Servant can move the High Court in its constitutional jurisdiction under Article 199 of the Constitution only in cases where the bar of Article 212 of the Constitution cannot be invoked, as the Federal Services Tribunal lacks the jurisdiction to entertain the impugned matter .
(iii) Civil Servant can challenge the Service Rules or Notification before the Federal Services Tribunal, as the same are deemed to be final orders, within the contemplation of section 4(1) of Civil Servant T ribunal Act, 1973.
(iv) Civil Servant can move the Services Tribunal challenging the vires of the rules even on the touch stone of being in violation of fundamental rights or mala fide.
(v) The Civil Servant cannot move the Constitutional jurisdiction of a High Court challenging the vires of a service rule or notifications, which affects the prospects of promotion of a civil servant even if the challenge is made on the touch stone of breach of fundamental rights of the civil servant or mala fide on the part of the Executive to frame the said rules or Notification."
Law to the said effect has also been laid down in the cases of Iqan Ahmad Khurram Vs. Government of Pakistan (PLD 1980 S.C. 153), Khalid Mahmood Wattoo Vs. Gover nment of Punjab (1998 SCMR 2280 ), Government of the Punjab Vs. Muhammad Zafar Bhatti (PLD 2004 S.C 317), Peer Muhammad Vs. Government of Balochistan (2007 SCMR 54) and Engineer Musharaf Shah Vs. Government of Khyber Pakhtunkhwa ( 2015 PLC (C.S.) 215 ).
9. In view of the above, these appeals are dismissed in limine .