' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Muhammad Akram was appointed as Inspector (B-8) in WAPDA on 1-7-1972. Vide Office Order dated 17-6-1974 WAPDA Authority had approved the redesignation of Inspectors employed on Terbela Dam Project and other I.B.P. Projects of WAPDA, as Overseer with immediate effect provided they have completed 5 years' service as Inspector.
Appellant who completed his 5 years' service on 1-7-1977 approached the General Manager, (Water) Central Lahore for redesignation as Sub-Engineer. Consequently the appellant was redesignated as Sub-Engineer vide office order dated 21-5-1983 which reads as under:-- "In terms of Authority's decision contained in General Manager (Water)'s Office Order No, IBP/C- 2/74-Admn/1840-44, dated 17-6-1974 Mr. Muhammad Akram, Inspector presently working in Simly Dam Project, Islamabad who has more than five years' service at his credit is hereby redesignated as Sub-Engineer, with immediate effect.
' While so redesignated his pay will be fixed under the Operation of Normal Rules of the Authority.
' This issues with the approval of General Manager, (W) Central WAPDA Lahore."
' After about 10 years a show-cause notice dated 31-7-1993 was served on the appellant whereby he was informed that order dated 21-5-1983 regarding redesignation as Sub-Engineer was without jurisdiction having been passed by the General Manager, Central Division (Water) WAPDA Lahore in contravention of the orders of the Authority on the point. The appellant was required to show cause why Order No, GM(W) C/Admn-I/74/7170, dated 21-5-1983 may not be withdrawn. Appellant submitted reply to the show-cause notice on 7-8-1993 stating that he fulfilled all the requirements for redesignation as Sub-Engineer, therefore, withdrawal of redesignation order is unjustified. But vide order dated 19-6-1994 the redesignation order of the appellant was withdrawn on the ground that the post of Inspector is not a Technical or supervisory one. In this connection, the learned counsel for the appellant brought our attention to office order dated 21-12-1973 whereby the appellant was assigned duty in the Soil and Foundation Division (Geology Section) of M/s. TAMS Tarbela Dam Project which clearly indicates that the duties in the Geology Section of Soil and Foundation Division are purely of technical nature. Learned counsel argued that some other persons like the appellant were also Inspectors and are still working as Sub-Engineers on their redesignation as such. Further, the appellant had been serving as Sub-Engineer for the last about 11 years in pursuance of his redesignation order dated 21-5-1983. Resultantly a decisive step had been taken and the order cannot be recalled or modified to the prejudice of the appellant. Thus, the impugned order is illegal Without jurisdiction void ab initio and as such is not sustainable in the eye of law.
2. Prima facie the appeal is time-barred. But an application for condonation of delay is filed. On this point the learned counsel for the appellant submitted that since the impugned order dated 19-6- 1994 was passed without jurisdiction, therefore, it was challenged before the High Court on 14-7- 1994 and simultaneously a departmental appeal was also preferred but no reply was received by the Department. The writ petition filed before the High Court was disposed of on 29-11-1994 with the direction to file the appeal before the Federal Service Tribunal. Therefore, in accordance with provisions of section 5 read with section 14(1) of the Limitation Act (IX of 1908) in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in the Court of first instance or in a Court of appeal against the Defendant shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. Therefore, the delay may be condoned. We see there is some substance in the contention of the appellant's counsel. The appellant was pursuing his remedy deligently and some points of law are involved in this case we, therefore, in the interest of justice condone the delay by computing the period spent in the High Court. Moreover, the limitation is not pressed by the respondents as well.
3. It has been argued by the respondent's counsel that redesignation order of the appellant dated 21-5-1983 was without jurisdiction and was therefore void ab initio. It is a settled principle of law that a wrong could not be allowed to perpetuate. Therefore, redesignation order of the appellant was withdrawn and he was adjusted against existing vacancy of Junior Store-Keeper (B-5). In support of their contention the respondents have produced an illegible copy of Chairman's letter dated 16-4-1979. Relying on this document the respondents have stated that a list of Matric and non-qualified persons was prepared and those who were redesignated after 1979 were demoted to lower posts. Since the appellant was also non-qualified and redesignated after 1979. The order of his redesignation dated 21-4-1983 was withdrawn being violative of the Authority's order.
4. We are unable to understand as to how the redesignation of the appellant was in violation of the Authority's order because bare reading of the redesignation order of the appellant dated 21-5-1983 negates the contention of the respondents. It is clearly mentioned in the redesignation order that in terms of Authority's decision, Mr. Muhammad Akram, Inspector who has more than 5 years service at his credit is hereby redesignated as Sub-Engineer with immediate effect. The very base of redesignation order was the approval of the Authority communicated vide order dated 17-6-1974 is reproduced below:-- "Approval of the Authority is hereby communicated to the redesignation of Inspectors employed on Tarbela Dam Project and other I.B.P. Projects WAPDA as Overseer with immediate effect provided they completed five years service as Inspector."
' There is no other condition mentioned for redesignation as Sub-Engineer. On going through record, we find that the show-cause notice was issued to the appellant on the basis of Chief Engineer's letter dated 31-7-1993 where in it is mentioned that The General Manager (Water)
Central Division WAPDA has intimated vide his letter dated 13-7-1993 that Mr. Muhammad Akram, unqualified Inspector redesignated as Sub-Engineer". The very subject of this letter is regarding redesignation of unqualified Inspector and the appellant was also shown as unqualified Inspector which is totally incorrect and misconceived the factual position because the appellant was initially appointed as Inspector (B-8) which is evident from his appointment letter on the record. There is nothing to show that he was unqualified Inspector. In the impugned order dated 19-6-1994 the appellant was adjusted against the post of Junior Store-Keeper (B-5) which is highly unjustified and against the principle of natural justice because no person can be reverted to a post on which he was not appointed initially. The appellant initially appointed as Inspector (B-8), he cannot in any way be reverted to a post lower than (B-8) post. It is admitted fact that the appellant had worked as Sub-Engineer from the date of his redesignation i.e, with effect from 21-5-1983 upto the passing of the impugned order dated 19-6-1994 whereby he was demoted to lower post with retrospective effect. It means that the appellant had worked as Sub-Engineer for about more than 10 years. So his scale and status could not be snatched after such a long time. We agree with the contention of the respondents to the extent that wrong could not be allowed to perpetuate but it is a settled principle of law and also held by the Lahore High Court in 1990 PLC (CS) 253 that power of receding till a decisive step is taken is available to the Government or the relevant authorities but subject to exception that where the order had taken legal effect and in pursuance thereof certain rights had been created in favour of any person such order cannot be withdrawn or rescinded to the detriment of his rights. We also find that other persons who were working as Inspectors and were redesignated as Sub-Engineer in pursuance of the Authority's decision dated 17-6-1974 like the appellant are still working as such merely because they were redesignated prior to 1979. This is a clear discrimination with the appellant which is also against the principle of natural justice and fair play. The letter dated 16-4-1979 is a mere observations of the Chairman, which could not be said to be a law or rule and the respondents could not convince as on this point also.
5. For the foregoing reasons we accept the appeal and set aside the impugned order dated 19-6- 1994. Consequently the appellant is restored to his original post of Sub-Engineer (B-11) from the date of withdrawal of his redesignation, with all consequential benefits. There will be no order as to costs. Parties be informed.
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