' MOAZZAM HAYAT (MEMBER).---Appellant Dr. Muhammad Javaid Asif was appointed as Demonstrator (Haematology) in BPS-17 on 5-5-1987. The Departmental Promotion and Selection Committee of the respondents considered him for the post of Assistant Professor (Haematology) in its meeting on 20-8-1992, but did not recommend him for the said post. It appears from the record that respondent Dr. S. Majid Naorose Abidi had been working with the respondents as Professor and as Associate Professor in an honorary capacity. He possessed qualifications of M.R.C. (Path)
London. He was recommended for appointment as Assistant Professor by the Departmental Promotion and Selection Committee in its aforementioned meeting held on 20-8-1992. Dr. Shahida Amjad Riaz respondent No,2 had joined the respondent-Institute on deputation from the Government of the Punjab as Demonstrator on 1-3-1990. She was redesignated as Assistant Professor (Haematology) w,e,f, 13-3-1990 vide order dated 20-3-1990. She was absorbed in the service of the respondents as Assistant Professor (Haematology) under the directive of the then Minister of Health. The grievance of the appellant is that being senior to respondents Dr.S. Majid Naorose Abidi and Dr. Shahida Amjad Riaz he was entitled to promotion to the post of Assistant Professor but this post was given to the respondent No,3 and thereafter to respondent No,4 in violation of the rules. Following prayer has been made by him in his present appeal:- "Under the aforesaid submissions and circumstances, it is, therefore, most humbly prayed that the Appeal may kindly be accepted and the impugned order of unlawful appointment/ induction of the Respondents Nos.3 and 4 dated 11-11-92, 7-12-92, 9-12-92 and 10-12-92 against and the original promotion post of the Appellant and the subsequent order of promotion of the Respondent No,4 dated 25-11-1995 as Associate Professor BPS-19, the impugned order dated 23-12-99 regarding induction of the Respondent No,3 against the basic post of Promotion of the Appellant as Assistant Professor Haematology/BPS 18 w,e,f, 11-11-92 and the placing of the Respondent No,3 at Serial No,1 of the seniority list dated 15-32000 instead of the Appellant be declared to be mala fide, arbitrary, excessive, unlawful, void ab initio against law and facts and the same may kindly be set aside and the Respondent Nos.1 and 2 be directed to provide to the appellant his due and entitled right of promotion and seniority as Assistant Professor Haematology BPS.I7 w,e,f, 11-11-92, since the post as such for promotion of the appellant fell vacant, and the Appellant be allowed the resultant promotion as Associate Professor BPS-20 against the existing available vacant posts. The respondents Nos.1 and 2 may also kindly be directed to provide to the appellant his due and entitled right of Moveover since 1995 and Annual Increments with all back-benefits uptil now."
2. The appeal is resisted by the respondents. It is submitted by them that the appellant did not qualify for appointment as Assistant Professor Haematology, therefore, he was not appointed against the post which had fallen vacant in the year 1992. A legal objection has been taken that the appeal is time-barred.
3. We have heard the learned counsel for the parties and have also perused the record.
4. The appellant is aggrieved by orders dated 11-11-92, 7-12-92, 9-12-92, 10-12-92 and 25-11-1995. He is also not satisfied with the seniority list publishcd by the respondents Nos.1 and 2 on 15-3-2001 in which the name of respondent No,3 is mentioned at the top and he is placed at Serial No,28.
Against all those orders and the publication of seniority list the appellant did not file appeals in this Tribunal within the statutory period. The present appeal was filed on 29-7-2000. The respondents have taken a correct objection that the appeal is hopelessly time-barred. The appellant was required by law to challenge the aforementioned orders by filing departmental appeals within one month and then to wait for the result of his appeals for 90 days and then to file appeals in the Tribunal within the next 30 days. Since he has not done so, therefore, we are constrained to hold that the present appeal is hopelessly time-barred. The objection raised by the respondents is sustained.
5. The learned counsel for the appellant has submitted that the impugned orders were without jurisdiction and void ab initio. He has argued that for challenging such orders there is no fixed period of limitations. The contention of the learned counsel is that appointments of respondents Nos.3 and 4 have been made in violation of rules and instructions relating to the promotion of Assistant Professors and Associate Professors. An order does not become void if it is passed in violation of instructions. It is conceded by the learned counsel himself that in the event a serving doctor is not found fit for promotion rules can be relaxed and an eligible person can be appointed against the post in the promoted cadre. The learned counsel has himself conceded that the appointment of the respondents could be made by relaxation of rules. He cannot be permitted to argue that the orders passed in favour of these respondents were without jurisdiction and void ab initio. There is a gulf of difference between an order which is not legal and an order which is void ab initio. A void order is that order which is passed without jurisdiction or in excess of jurisdiction. In the present case the respondents. Nos. I. And 2 had not exceeded their jurisdiction in making appointments of respondents Nos.3 and 4. The appellant was not found eligible for appointment against the post of Assistant Professor Haematology. The respondents were, therefore, fully justified in making appointments of the respondents Nos.3 and 4 against the said post. The appointment orders so issued in favour of the respondents Nos. 3 and 4 cannot be labelled as void orders. We hold that the orders in question were perfectly legal and valid and it was for that reason that the appellant did not challenge them in time. In any event his this contention cannot be upheld that the impugned orders were void and the question of limitation did not arise.
6. It is explained by the respondents that the appellant was considered by the Departmental Promotion Committee but was not found eligible to be appointed against the post of Assistant Professor Haematology. It is an established law that seniority and promotion are not vested rights of a Civil Servant. The only right given to him is to be " considered for promotion and for fixation of his seniority. It is categorically stated by the respondents Nos.1 and 2 that the appellant
7. Was considered for appointment to the post of Assistant Professor Haematology but he was found not fit. This was the prerogative of the respondents Nos.1 and 2 to decide the competence of the appellant to fill in the post of Assistant Professor Haematology. As stated above the only right available to the appellant was for consideration for appointment against the said post. The respondents had thus acted strictly in accordance with the law and the prescribed rules. The claim of the appellant was considered but he was not found eligible. When a civil servant is considered and not found fit for promotion he cannot file an appeal in this Tribunal. Poviso-B to section 4 of the Service Tribunals Act, 1973 clearly says that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. In view of this very clear provision of law we hold that the appellant had no locus standi to file the present appeal challenging the decision of the respondents Nos.1 and 2 wherein it was held that he was not fit for appointment against the post of Assistant Professor Haematology'.
7. For the above circumstances the appeal is dismissed as time-barred and as not competent in view of Proviso-B to section 4 of Service Tribunals Act, 1973.
8 No order as to costs. Parties be informed.