' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).--- All the above mentioned appeals, based on identical facts and law, will be disposed of by this single common judgment.
2. Briefly the facts leading to these appeals are, that in the year 2001, consequent upon their selection by the Federal Public Service Commission, the appellants and other successful candidates were offered appointment as Assistant Accounts Officer in the office of Auditor-General of Pakistan vide offer letter No,ADMN-II/Prob-AAO/1103, dated 7-4-2001, inter alia, on the following terms and conditions:-- "(viii) Your period of probation shall be governed under section 6 of the Civil Servants Act, 1973 read with Rule 21 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as reproduced below: "6. Probation.--- (1) An initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed."
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed.
' Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to successfully complete course or the training shall, except as may be prescribed otherwise:--
(a) if he was appointed to such service or post by initial recruitment, be discharged; or
(b) if he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged."
(x) Your appointment on regular basis shall be made to the post of Assistant Accounts Officer Assistant Audit Officer (BPS-16) after you have completed five months training at the Audit and Accounts Training Institute, Central Government Offices Building, Gulberg-III, Lahore and passed the P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-16) for which three chances will be allowed to you during the period of probation.
(xii) If you fail to qualify P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-13-16) mentioned in para.(viii) above during the period of probation your services will be liable to termination.
(xiii) No increment shall be admissible to you during the period of probation unless you have qualified the P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-16).
' The appellants and other accepted the terms and conditions contained in the above mentioned letter and joined the A.A.T.I. (Audit and Accounts Training Institute), Lahore. After completing the five months' training, the appellants availed of all the three chances of passing in S.A.S. (New Syllabus)
Examination, but failed to qualify the same in three attempts. Due to their such failure, they were liable to be terminated, but the competent authority i,e, the Auditor-General of Pakistan (respondent No,2) allowed them another chance to qualify the said examination and for that purpose extended the probation period from 1-7-2003 to 31-12-2003 as special case. It appears that the appellants did not take the examination fourth time and made an undated representation to the Auditor-General of Pakistan. The said representation of the appellants is reproduced as under:-- ' Through Proper Channel.
' The Honourable Auditor-General of Pakistan Constitution Avenue, Islamabad.
' Subject Request for consideration. Respected Sir, ' With profound reverence I feel honoured to submit that I have been selected as an A.A.O.(D.R.) by Federal Public Service Commission and am currently going under training at A.A.T. Lahore. I deem it appropriate to express my gratitude because I think it is only through your visionary leadership that the whole conventional scenario of the department has been revolutionized. It has been made possible only by your dynamic leadership that the right people have been included for the right job for the very first time in the history of the department. You have chosen very highly qualified professionals in the field of audit and accounts.
' Sir, I had received an office letter of your esteemed department and accepted it. In due course of time a judgment has been passed by the Federal Service Tribunal, Islamabad, dated 28-6-2001.
According to that judgment para. 5(v), "The issue regarding terms and conditions of the accounts, who joined service as direct recruits, was examined by establishment division and that the Federal Public Service Commission had already adjudged their fitness for appointment through test and interview and upon successful completion of departmental training they were not required to take accountant promotion examination meant for clerical staff", para.5(vi) "under rule 3(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, direct recruitment and promotion are two independent methods of appointments and a direct recruit, selected through F.P.S.C., cannot be subjected to Departmental Promotion Examination for appointment to the same post. The Establishment Division by its O.M. Dated 7-9-1990, impugned in the appeal declared that the conditions for passing the departmental examination have no relevance to the probationers appointed through initial recruitment.
' I humbly request your kind attention on the matter for sympathetic re-consideration of the para. Of my letter.
' Thanking you in anticipation. Yours obedient servant A.S.O. (D.R.), A.A.T.I., Lahore ' The above representation was rejected vide letter, dated 1-1-2002 of the Director-General, Audit and Accounts Training Institute, Lahore. It is reproduced as under:-- Subject:-- Representation made by the A.A.O.(D.R.) against their terms and conditions of appointment.
' Please refer to your representations made against the Terms and Conditions of Appointment.
(2) The competent authority has reviewed your representation and passed following comments on them:--
(i) In the Establishment Division's letter No,13/2/84-R-5, dated 7-9-1999, enclosed with your representations, it is laid down that the condition of passing of a departmental examination prescribed in any rule for promotion has no relevance to the issue of termination of probation through initial recruitment. The above referred memo. Does not bar the concerned authority from holding departmental examination, rather it indicates towards the departmental examination, under any rule, for promotion.
(ii) You had accepted appointments according to the terms and conditions in the offer of appointment letters, wherein it is mentioned that you have to receive 5 months training at A. A.T.I., Lahore and have to pass P.I.P.F.A./S.A.S. New Syllabus Examination of Pakistan Audit Department.
(3) In view of the above there is no case in the representations, as the officials have accepted the offer of appointment containing condition of passing the departmental examination.
(4) This issues with the approval of the competent Authority.
(Sd.) (Nasir Mehmood C.I.D.) Accounts Officer (Admn.).
3. After rejection of representations of 73 Audit and Accounts Officers including the present 10 appellants, five appellants namely S. Imtiaz Haider, Atiqur Rahman, Miss Rizwana Solangi, Salman Qutbi and Rafique Ahmed Channer (five others do not appear to have filed) filed Constitution Petition No,D-1898 of 2002 before the Honourable High Court of Sindh on 5-10-2002, seeking relief, inter alia, to restrain the respondent No,2 from calling/directing the petitioners to appear and qualify the departmental examination for terminating their probationary period and from taking any adverse action against the petitioners for not appearing or not qualifying the said examination. The above mentioned petition was dismissed by the Honourable High Court vide order dated 25-4-2003 observing, ".... The petitioners may exhaust remedy before the proper forum provided under the law....."
4. Appellants Atiqur Rehman and Imtiaz Haider then filed separate appeal before the Tribunal on 24-5.-2003 whereas rest of other eight appellants filed their respective appeals before the Tribunal on 26-5-2004. The appeals were filed under section 4 of the ,service Tribunals Act of 1973 against the rejection of their departmental appeal dated 1-2-2002, praying as under:-
(a) declare that the condition of passing a departmental examination prescribed in any rule for promotion has no relevance to the issue of termination of probation period of petitioners appointed on probation through initial recruitment particularly whose suitability had already been adjudged by the Federal Public Service Commission;
(b) declare that the terms and conditions contained at Serials Nos.VIII, X, XII and XIII of the offer of appointment, thereby the petitioners have to qualify the Departmental Promotion Examination to be confirmed in Government Service and/or to Execute Personal Bond for further period of .5 years in case of confirmation are unlawful, illegal, inoperative, malicious in law, corum non judice, without jurisdiction and ultra vires to the Civil Servants Act and Rules made thereunder and thus, void ab initio and have nullity in the eye of law and also inapplicable in the case of direct recruitment as Assistant Accounts/Audit Officer in BPS-16 through Federal Public Service Commission;
(c) restrain the respondent NO.2 his subordinate employees and servant from calling/directing the appellant to appear and qualify the departmental examination for terminating ,their probationary period and from taking any adverse action against the appellant for not appearing or not qualifying the said examination; and
(d) any other relief which this Honourable Court may deem fit and proper in the circumstances of the case."
5. In the identical written comments filed on behalf of respondents, it has been stated that for filling in the post of Assistant Accounts Officer/Assistant Audit Officer lying vacant in various field offices, the Federal Public Service Commission held examinations and recommended the successful candidates for appointment against the vacant posts; that on the recommendation of the Federal Public Service Commission a batch of 193 recommendees and then another batch of 26 recommendees were inducted in the service of the respondent. They joined the Training Institute Lahore on 3-7-2001 for five months in service training as per terms and conditions of offer of their appointments Nos.VIII, X, XII and XIII (already reproduced above). The appointment of the appellants and others was to be regularized on the post of A.A.O. (B-16) only on (a) successful completion of five months training at Audit and Accounts Training Institute, Lahore and (b) on passing of Departmental Examination i,e, P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus)
Examination (B-16) for which three chances were to be allowed to them during the period of probation. It has been further stated that in case of non-qualifying the said examinations during the period of probation their services were liable to be terminated and that no increment was admissible to them during the period of probation unless they qualified the said examination. It has been stated that immediately on termination of the five months training at Audit and Accounts Training Institute, Lahore, the appellants along with others appeared in S.A.S. (New Syllabus)
Examination (B-16), but appellants namely (1) Atiqur Rehman (2) Syed Imtiaz Haider, (3) Imam Bux Malik, and (4) Ejaz Ahmed Memon availed three chances to qualify the departmental examination, but failed to qualify the same. In spite of that the Controller-General of Accounts, Islamabad, under letter No,931/Estt.-AA0/111/71-2002, dated 5-7-2003 extended the probation period of these persons/appellants for further six months from 1-7-2003 to 31-12-2003 in order to provide them another chance to qualify the S.A.S. Examination.
6. We have heard the learned counsel for the appellants namely Mr. M.M. Aqil Awan and Mr. S. Jehangir H. Shah and Mr. Asif Hussain Mangi, learned Standing Counsel for the respondents.
Besides arguing the appeals at length, Mr. M.M. Aqil Awan and Mr. Asif Mangi filed their written notes also. Mr. S. Jehangir Hussain Shah adopted the arguments of Mr. Aqil Awan.
7. Mr. M.M. Aqil Awan, built up the edifice of his arguments, inter alia, mainly on the premise that the conditions Nos.VIII and X of the offer of appointment regarding passing of P.I.P.F.A. (Public Sector)/S.A.S. (New Syllabus) Examination are ab initio void and nullity in the eye of law and for that he has referred to us to section 6 of the Civil Servants Act of 1973 read with section 21 of the Civil Servants (Appointment Promotion and Transfer) Rules, 1973. These sections are reproduced as under:--- "6. Probation.--- (1) An initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed.
(2) Appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed.
(3) Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to successfully complete course or the training shall, except as may be prescribed otherwise:---
(a) if he was appointed to such service or post by initial recruitment, be discharged; or
(b) if he was appointed to such service or post by promotion or transfer, he reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged: ' Provided that, in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointment authority."
21 of Civil Servants (Appointment, Promotion and transfer) Rules, 1973:-- "21.(1) Persons appointed by initial appointment promotion or transfer shall be on probation for a period of one year.
(2) The period of probation may be curtailed for good and sufficient reasons, to be recorded, or, if considered necessary, it may be extended for a period not exceeding one year as may be specified at the time of appointment.
(3) On the successful completion of probation period, the appointing authority shall, by specific order; terminate the probation.
(4) If no order is issued under sub-rule (3) on the expiry of the first year of probation period, the period of probation shall be deemed to have been extended under sub-rule (2): ' Provided that subject to the provisions of proviso to subsection (2) of section 6 of the Civil Servants Act, 1973, in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2), be deemed to have successfully been completed."
8. The learned counsel for the appellants emphatically argued that the condition of examination embodied in the terms and conditions conveyed to the appellants, is ab inito void and nullity in the eye of yaw for the reason that the examination envisaged is a prescribed examination and "prescribed" has been defined under section 2(f) of Civil Servants Act of 1973 as prescribed means prescribed by rules; for the reason that such examination was neither prescribed in the statutory notification (S.R.O.) published in the Gazette of Pakistan dated 22-1-2000 nor was it prescribed under any Rules of the respondents unlike the rule for such examination _made by Ministry of Defence in connection with such examination of the identical probationary Assistant Accounts Officer Assistant Audit Officers; for the reason that condition of such departmental examination was laid down in the notification dated 22-1-2000 only for the candidates to be promoted to the said post of Assistant Accounts Officer/Assistant Audit Officers and not for the candidates like the appellants to be recruited directly; for the reason that the probationary period of the appellants had already come to an end under the law after two years in consequence whereof they stood confirmed for the reason that the respondents were not competent to extend the statutory period of their probation and ask the appellants to appear in the examination once more, for the reason that the appellants having been confirmed by operation of law could not be discharged from, service due to their failure to pass an examination which was not legally prescribed. The learned counsel for the appellants further argued that the appellants were not estopped from seeking the legal remedy for compelling them to take unprescribed examination after confirmation as there was no estoppel against law and as held in 1975 SCMR 457 one has to look at the substance and not at the mere form or terminology used. On the point of void condition, the learned counsel referred to us PLD 2002 SC 101. On the point of probation and confirmation the learned counsel cited 2002 PLC (C.S.) 1361 and 2003 PLC (C.S.) 1418. Regarding the estoppel the learned counsel for the appellants pressed into the service 1975 SCMR 457 and 1976 SCMR 48. The learned counsel, relying on the same judgment of Federal Service Tribunal, dated 28-6-2001 passed in Appeal No,2361(R) of 1999 on the identical point of examination (also relied by the respondents) argued that the condition of examination had no relevance to the issue of termination of probation through initial recruitment. The learned counsel has forcefully argued that big mistake committed in these cases by the office of the Auditor-General of Pakistan is that it is enforcing Recruitment Rules of 1988, framed by the Ministry of Defence, on all the probationer Assistant Auditors/Accountants, notwithstanding the fact that they (the appellants) were not appointed under the Ministry of Defence, and as such the enforcement of 1988 rules against the appellants who are not posted in any department under the Ministry of Defence, is without lawful authority.
The learned counsel has pointed out that the respondents, as a matter of fact have "re-casted"
Ministry of Defence's said Rules 11, 12 and 14(b) of 1988 (Recruitments) Rules in the offer letter of the appointment, dated 7-4-2001 at Conditions Nos.VII, VIII, X and XIII.
9. Forestalling/anticipating the arguments of the respondents on the point of bar of limitation, the learned counsel for the appellants argued that the disputed condition about the examination was embodied in the offer letter dated 7-4-2001; that admittedly, the departmental appeals representations did not bear any date and it was rejected vide order, dated 1-1-2002, but the rejection was not on the ground of limitation; hence, even if it were assumed that the departmental appeal/ representation was time-barred, the Service Tribunal of its own could not hold the appeal to be incompetent in view of the said bar of limitation. For such contention the learned counsel relied on 2000 SCMR 36. The learned counsel further argued that the appeal before the Tribunal against the order, dated 1-1-2002 was to be filed within 30 days from the communication of the said order, but neither party pleaded when such order was communicated to the appellants, as such, the respondent could not plead the bar of limitation. Reliance was placed on 1996 SCMR 850 and 1994 PLC (C.S.)
46. The learned counsel further argued that the service appeals had been filed by the appellants against the appellate order dated 1-1-2002 on 24th and 26th May, 2003 and the delay can be condoned by keeping in view the aggregate situation vise the appellant filed the C.P.
No,D-1898 of 2002 before the Honourable High Court which was dismissed on 25-4-2003 and the appellants had, thereafter, filed the present appeals within time. Lastly the learned counsel for the appellants urged that the appellate order being illegal and the condition of passing the examination being void, superfluous and non-existing, the question of limitation had to be considered sympathetically as held by the Honourable Supreme Court in a case reported in PLD 2002 SC 101 in the famous case of Dr. Ali Saheto. On the basis of above arguments, the learned counsel for the appellants urged that the appellants be extended the relief, prayed for.
10. In rebuttal of the above mentioned arguments of the learned counsel for the appellants, the standing counsel relying on the judgment of this Tribunal in Appeal No,2361(R) of 1999, contended that the passing of the examination had no relevance to the issue of termination of probation through initial recruitment. He stated that in dealing with the cases of the appellants, the competent authority took compassionate view and had shown the grace to allow the appellants to take the examination once more after their having failed to qualify the said examination in three attempts, but the appellants abused the relaxation and dragged the respondents into unwarranted litigation by filing the constitutional petition before the Honourable High Court and then these appeals before the Tribunal. The learned standing counsel argued that if the appellants had been successful in the passing the said examination, they would have, perhaps, not termed the condition of examination as void and nullity in the eye of law; that they had not raised any objection to the terms and conditions embodying the condition of examination on receipt of the letter of terms and conditions, but it was only after the failure to clear the departmental examination in three attempts, they rushed to the Honourable High Court and this Tribunal to prevent them from the impending action against them necessitated by their inefficiency to clear the said examination. The learned counsel argued that the appellants were, therefore, estopped from challenging the condition of examination as laid down in the letter of terms and conditions.
Regarding bar of limitation the learned counsel for the respondents stated that, the delay in filing the petition before the Honourable High Court was obvious and patent from the record and admittedly for such delay an application for condonation had also been filed by the appellants.
The order of rejection of the representation was passed on 1-1-2002 and the petition was filed before the Honourable High Court on 5-10-2002 without filing departmental appeal against said rejection order. No reason has been assigned for filing the petition with a delay of nine months and four days. The learned counsel for the respondents argued that the appellants must have known that the service matters could not be challenged before the Honourable High Court even then they resorted to dragging the respondents unnecessarily in litigation before the Honourable High Court instead of coming to the Tribunal if they had any genuine grievance against the respondents. The learned counsel for the respondents argued that for these reasons the appellants did not deserve any sympathy for condonation of delay and the time spent by them in frivolous litigation before the Honourable High Court of Sindh could not be excluded under section 14 of the Limitation Act as it was not bona fide. He strongly urged the Tribunal to dismiss the appeals of the appellants with costs. In support of the averments made in the written comments the, respondents have relied on judgment, dated 11-2-1992 of the Honourable Supreme Court in Civil Petitions Nos.135 and 169 of 1999 in cases almost identical to the present appeals supporting the stand of respondents herein.
11. We have carefully considered the above arguments of the learned counsel for the parties as also the authorities and relevant law cited by them.
12. At the very outset, we would like to observe that all the conditions of the offer letter impugned in the appeals were not the subject-matter of representation. As a matter of fact, the representation was in the form of request to consider the case of the appellants after their failure thrice in the departmental examination in the light of the judgment dated 28-6-2001 rendered by the Islamabad Bench of this Tribunal. The learned counsel for the appellants also confined their arguments to the conditions of holding the departmental examination, vis-a-vis termination of the period of probation of the appellants. We shall advert to the question of probation and the effect of the above mentioned judgment subsequently.
13. There is no cavil about the departmental examination prescribed in the Notification dated 22-1- 2000 for the promotees only. The learned counsel for the appellants contended that no such examination was prescribed for the direct candidates/appellants as envisaged under Rule 6(3) of the Civil Servants Act of 1973, therefore, laying down a condition of passing such examination by the appellants/direct recruits was ab initio void and a nullity in the eye of law and for that reason failure of the appellants to pass such departmental examination would not make them liable to be discharged as their probationary period was already over and they would be deemed to have been confirmed.
14. In view of the arguments of the learned counsel for the appellants we have first to see what is meant by "void" and "nullity in eye of law". Order passed in utter lack of jurisdiction or in exercise of jurisdiction not vested is called void order PLD 1973 SC 236. The expression "void" in its accurate sense would mean absolute "null", incapable of rectification or confirmation and of no effect whatever PLD 1976 SC 258. Authority passing orders if possesses necessary jurisdiction and in exercise of such jurisdiction passes a wrong order, such wrong order cannot be regarded as void order PLD 1973 SC 236+1985 CLC 1411. Such wrong order is only a type of illegal order -PLD 1987 Lah.
1012. An order which is termed as a void order and create consequence, therefore, there cannot be a hard and fast rule to say that void order must always be struck down PLD 1996 Kar.
429. If the authority competent to pass an order it may howsoever, be illegal is not void 1978 SCMR 367+PLD 1977 SC 599. Nullity has been defined as non-existent, but an order is not a nullity merely passed in violation of some provision of law -PLD 1975 Kar. 28+PLD 1964 SC 97. And to quote the authority reported in 1996 SCMR 856, cited by the learned counsel for the appellants, there is a difference between void order and erroneous order.
15. Having reproduced some of the authorities about -a void order and an order 'nullity in the eye of law', we have now to see whether condition about examination laid down by the respondents in the letter of terms and conditions is void, nullity in the eye of law or wrong and erroneous. It may be pointed out here that under subsection (3) of section 6 of Civil Servants Act of 1973 passing of an examination may be a condition for satisfactory completion of probation, but such examination must be prescribed and the authority of prescribing' condition of such examination is Ministry or Division concerned in consultation with the Establishment Division under sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. There is no gainsaying that the respondents had, the jurisdiction to prescribe any examination for successful completion of probation, but in the instant case, the respondents had not got the disputed examination prescribed under the sub-rule (2). Of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in the words of the learned counsel for the appellants, enforcing of Recruitment Rules of 1988 framed by Ministry of Defence on the appellants, was a big mistake on the part of respondents. To us also this appears to be a mistake on the part of respondents, but this was a bona fide mistake, which could be corrected or rectified if the appellants had raised any objection to the holding of or passing of the departmental examination earlier, but the mala fide of the appellants was that they raised objection to the condition of passing the examination only after having failed thrice and also failing to avail of the fourth chance graciously offered by the respondents so much so that sympathaticising with the appellants they (the respondents) had gone to the extent of illegally extending the period of probation beyond the maximum statutory period of two years prescribed under Rule 21 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
16. Under the circumstances, we do not find any reason to strike down the condition of passing the examination by the appellants for satisfactory completion of probation.
17. About estoppel, we agree with the learned counsel for their appellants that there is no estoppel against law, but here there is no question of law, but it was a mistake only of the respondents not to have resorted to the prescribed method which gave a chance to the appellants to belatedly challenge the condition of examination after failing to qualify the same in three attempts. As a matter of fact, the appellants had, after accepting all the terms and conditions of their appointment and without any objection, taken three chances to pass the examination in question.
They cannot, therefore, be allowed to come round and challenge the impugned condition of the examination. In their case, the doctrine of acquiescence and the principles of consent and waiver will come into play and they would be estopped from raising any objection to the condition of examination extremely belatedly.
18. Belatedly brings us to the question of bar of limitation. The impugned conditions came to the knowledge of the appellants in April, 2001 vide offer letter dated 6-4-2001. They made representation against it by an undated letter which was responded to by the respondents vide their letter, dated 1-1-2002, which means that the representation was made somewhere, perhaps, in the month of December 2001. However, the representation was not rejected on the basis of bar of limitation, but no departmental appeal was made by the appellants against the rejection of their representation and they directly filed the Constitutional Petition No,D-1898 of 2002 before the Honourable High Court on 5-10-2002 which was ultimately dismissed on 25-4-2003. This shows that the constitutional petition before the Honourable High Court was also barred by more than nine months and for which there is absolutely no explanation whatsoever, (The appellants having admitted the receipt of the rejection order, dated 1-1-2001, but burden of proof of the date of receipt was on them). The appellants have filed the present appeals before the Tribunal in time within about one month of the dismissal of their petition by the Honourable High Court. The contention of the learned counsel for the appellants that there is no limitation in case of a void order may be correct, but we have already observed that the impugned condition pertaining to the departmental examination, was not, in our view, ab initio void and nullity in the eye of law; hence, the authority 1996 SCMR 856 cited by the learned counsel for the appellants is not applicable to the case of the appellants. Secondly, even if it were assumed that the impugned condition of departmental examination was void and nullity in the eye of law, bar of limitation could not be ignored in the case of the appellants for the reason that challenging of the condition of departmental examination by the appellants was mala fide for the reason that they would not have knocked the door of the Honourable High Court and that of the Tribunal after expiry of the period of limitation, if they had passed the examination in question even within three attempts. In addition to that, it has been held in 1985 CLC 1411+1988 MLD 1341 that where an order is void, illegal and without jurisdietion or is inherently found void, or nullity in the eye of law 1988 MLD 341+PLD 1970 Lah.6 or contravenes mandatory provision of law PLD 1988 Lah.184+1987 SCMR 1543, it can be set aside without having strict regard to the period of limitation provided the party seeking relief is vigilant to invoke indulgence of the Court at the earliest possible opportunity (underline is ours). It has been held in PLD 1974 SC 139 that, "if a Court acts in accordance with law and order passed by it is not only with due care and diligence but with jurisdiction, at the most it can be said the order to be erroneous or irregular but such order is not without lawful authority". It has further been held that, "it does not mean that void order should be left unchallenged even brought to notice. Void order has to be challenged when same has been enforced, period of limitation starts from the date of its enforcement" 1989 PLC 638+1991 PLC (C.S.) 689+PLD 1959 SC 104. A void order is like an illegal order 1993 CLC 255 has to be challenged in time PLD 1977 SC 599+1978 SCMR 367. The rule is that if it is a just and proper order then notwithstanding it being otherwise void, it need not be set side in writ jurisdiction 1978 SCMR 367+1989 CLC 937. Void order when in the knowledge of a party it is under legal obligation to challenge the same before competent forum in accordance with law before expiry of statutory period of limitation PLD 1993 Quetta 121+1987 SCMR 66. Lastly it has been held in 2002 PL (C.S.) 1282 reported in PLD 2004 SC (AJ&K) 1, void order effecting interest of a person same should be challenged within a reasonable time. It has further been held that the appellant having accepted the legality of Notification dated 10-7-1998, cannot under law challenge the same and turn round to say it is not in consonance with the provisions of rules of business.
19. Based on the above authorities, the conclusion is that delay in filing the appeals cannot be condoned even if the impugned condition of the departmental examination was void or nullity in the eye of law. Moreover, the appellants having failed to file the departmental appeals as D provided under provision (a) to section 4 of the Service Tribunals Act of 1973 read with Rule 4 of the Civil Servants (Appeal) Rules, 1977 their appeals are not maintainable under the law. The defect of non-filing of departmental appeal is not curable.
20. Reverting to the question of probation a perusal of section 21 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, already reproduced above, shows that the period of probation of a Government servant is one year extendable to another year to be terminated by specific order and in the absence of such order the period of probation would be deemed to have successfully been completed after expiry of the extended period of one year. Under subsection (3) of section 6 of the said Act, satisfactory completion of probation period including the examination test or course or successful completion of any training before expiry of the original or extended period of probation. In case of failure to pass such examination, test, course or training shall be discharged, if appointed by initial recruitment, except as may be prescribed otherwise (underline is ours). This means that if a person fails to qualify the prescribed conditions, even then, the competent authority may not discharge him and his case may be treated as prescribed otherwise. This gives the authority discretion to deal with such a person in accordance with the procedure prescribed otherwise. In the instant appeals, the period of probation of the appellants appears to have been extended by the Auditor-General for a period of six months from 1-7-2003 to 31-12-2003 beyond the statutory period of probation of two years. We do not know whether Auditor-General was competent to do so and whether he had done so under the discretionary powers "except as may be prescribed otherwise" under subsection (3) of section 6 of the Civil Servants Act of 1973.
21. Lastly, we advert to the judgment of this Tribunal, dated 28-6-2001 in Appeal No,2361(R) of 1999 which has been cited by both the parties. We have perused this judgment. Brief facts of the case in the said judgment arc that some of the failure candidates were re-appointed which caused prejudice to the other employees of the same department, who, apprehending that their seniority etc. Would be adversely affected, challenged the action of the respondents, therein. The respondents took the stand that the persons re-employee were the direct recruits, who had failed in the departmental examination not prescribed for the direct recruits. That case was not (akin) to these appeals inasmuch as in the instant appeals condition pertaining to the examination has been challenged whereas, in the said appeal the direct recruits, who had failed in the departmental examination held by the respondents, had not challenged the condition of the departmental examination. The said judgment of the Tribunal, might be of some help to the present appellants to the extent of consideration of their cases sympathetically under the discretion "as prescribed otherwise". So far as the contention of the respondents in the rejection of the representation about the departmental examination prescribed in any rule for promotion has no relevance to the issue of termination of probation through initial recruitment and the memo dated 7-9-1999, does not bar the concerned authority from holding departmental examination, appears to be correct.
22. The appellants without any objection appeared in the departmental examination thrice but having failed to clear the examination, they have taken refuge in technicality. Even then, we have anxiously thought how relief can be given to the appellants, vis-a-vis, the incumbents/direct recruits, who' had already passed the departmental examination held by the respondents as also held by other departments, but giving relief to them as prayed, would amount to giving them edge 'over the said incumbents by unequal treatment. Another aspect of the case is that if the appellants are given relief on technical grounds, holding the condition of examination as void, then serious problems are likely to crop up. For instance, all the failures of present and past would seek the same relief provided to the appellants. This might cause lot of disturbance in various departments, putting the respondents and other departments in an embarrassing position.
Therefore, keeping in view the over all position, and for the reasons and in the circumstances of the appeals, discussed above, in our view, no relief as prayed for by the appellants, can be granted to them. The appeals are dismissed accordingly, but with no order as to costs.
23. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.