MUHAMMAD KURSHID KHAN (CIIAIRMAN).-This is a petition for the review of the order of the Civil Services (Appellate) Tribunal, North-West Frontier Province, dated March 20, 1972, in Appeals Nos.
24 and 27 of 1970, accepting the appeals of Messrs Gul Wali Khan and Fazal Quaider, by declar-- ing them senior to Messrs Altaf Elahi, Iqbal Muhammad, Noor Elahi and Abdur Rashid Nawaz. The review is sought on to grounds, firstly, that the observations made in paragraphs loos. 7 and 8 of the order on which the impugned decision proceeded run counter to the North-West Frontier Province Subordinate Educational Service Rules, 1945, and secondly, that the Civil services (Appellate) Tribunal had no jurisdiction to set aside the order confirmation of the petitioner by accepting the appeals.
In the impugned paragraphs of the orders, it was observed as follows :- "7. So far as Rashid Nawaz respondent is concerned, there was no joint cadre of grade I Assistants and Stenographers in the Old Rules of 1945. Stenographers had a separate cadre and this is evident from Memo. No. 59733/A-14, dated June 22, 1963 of the Director of Education, Peshawar Region, addressed to Gul Wali appellant in reply to his representation, copy of which was endorsed to Rashid Nawaz respondent as well. According to the Rules of 1963, combined list of Grade I Assistants and Stenographers had to be kept according to note in column 4 of Appendix to the Rules and after the coming into force of the Rules of 1961, Rashid Nawaz was also brought on the list of the Grade I Assistants. Since he had started officiating in the same scale earlier than the appellants and had as a matter of fact been confirmed on 17-2-1962, that is to say, before the coming into force of the Rules of 1963, he was, therefore, placed senior to to the appellants in the combined seniority list.
(8) Now apparently an official in a particular cadre cannot be adversely affected by bringing officials from another cadre to his cadre and a person coming trope one cadre to another must naturally be placed at the bottom of the cadre to which he comes. Rashid Nawaz could not, therefore, be placed above the appellants in the cadre of Assis--tants. Besides, he entered the cadre of Assistants in December, 1963 when the Rules of 1963 came into force, and since the appellants had already entered that cadre earlier than him, he could not be made senior to them."
2. It has been contended on behalf of the petitioner that these observa--tions are factually incorrect and are based on the erroneous assumption that Memorandum No. 59733/A-14 dated June 22, 1961 of the Director of Educa--tion, Peshawar Region, addressed to Gul Wali in reply to his representation, a copy whereof was endorsed to Abdur Rashid Nawaz petitioner as well, was, in consonance with the North-West Frontier Province Subordinate Educational Service Rules, 1945 which govern the present case. In the circumstances, it has been contended that the order dated March 20, 1972 suffers from an error apparent on the face of the record and since the error is of such a nature that, but for it the Tribunal might well have come to a different conclusion, this is a fit case in which the order should be reviewed. To support his contention that even in the absence of a specific provision for review in the North-West Frontier Province Service Tribunals Act, 1974, a review like the" one sought by the petitioner was permissible, the learned counsel for the petitioner has relied on a Supreme Court decision i.e. The case of Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 1). In that case, the Court expressed the grounds of review thus :- "The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the ques--tions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding."
Support for this view was also sought from another decision of the Supreme Court in Chief Settlement Commissioner, Lahore v. Muhammad Fazil Khan and others (PLD 1975 SC 331).
3. The authority in the case of Hussain Bakhsh v. Settlement Commissioner, relied on by the learned counsel for the petitioner, can only be said to lay down to that the provisions of the Civil Procedure Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdic--tion in a civil matter, whatever may be the nature of that jurisdiction."
While the decision reported in PLD 1975 SC 331, lays down the principles that even a Tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud and that there can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is exercised.
4. It may be stated that it does not seem necessary for us to determine the relevancy or otherwise, of the cases relied on by the learned counsel for the petitioner, to the facts of the case now before us, nor does it appear necessary to decide if a review of the impugned order before this Tribunal was competent under the law for the the being in force, because even with--out determining these points, tie present petition for review can effectively be disposed of. We will, however, proceed to determine the position on the assumption that there was no bar for this Tribunal to consider the review of an order like the present one, passed by it's predecessor, namely, the Civil Services (Appellate) Tribunal, Even then it will have to be seen if the present petition for review could succeed on merits.
5. A perusal of paragraphs 7 and 8 of the impugned order would make it clear that although letter No. 59733/A-14, dated June 22, 1963 of the Director of Education, Peshwar Region, containing the views that there was no joint cadre of Grade I, Assistants and Stenographers in the Rules of 1945, was taken into consideration by the Civil Services (Appellate) Tribunal deciding the case, yet it had also before it the 1945 Rules which were inter--preted by the Tribunal to lay down that there was no such joint cadre, under these Rules. All the parties to those cases including Abdur Rashid Nawaz who is now petitioner before us, were heard by the Tribunal and it is not possible to conceive that the petitioner did not then agitate this point. It will thus be seen that the impugned order proceeded upon the interpretation of the 1945 Rules. On going through these Rules as also on considering the other relevant facts, we feel that the Tribunal was perfectly justified in coming to the conclusion that there was no joint cadre of Grade I Assistants and Stenographers in the 1945 Rules. But even if it be assumed for the sake of arguments that the interpretation of these Rules, as made by the Civil Services (Appellate). Tribunal, did not represent the correct position, the matter will not end there. It would further require to be seen if, in the circumstances, the review could legally succeed.
It is well settled that a point which may be a good ground of an appeal may not be a good ground for an application for review. The power to review is a restricted power which authorises the Court or the Tribunal which passed the judgment sought to be reviewed to look over through the judgment not in order to substitute a fresh or second judgment but in order to correct it or improve it because some material which it ought to its considered had escaped its consideration or could not be placed before any other reason The Court or the Tribunal cannot under cover of it arrogate to itself the power to decide the case over again because it now feels that the assessment of evidence or a correct legal position, done formerly was faulty or even incorrect. The words "mistake or error" contemplated by rule 1 of Order XLVII of the Code of Civil Procedure, no doubt, include an error of law but the law must be definite and capable of ascertainment. An erroneous view of the law or rules on a debatable point or a wrong exposition of the law or the rules cannot be considered a mistake or error apparent on the face of the record. A Court or Tribunal has jurisdiction to decide wrongly. No review lies if the decision is erroneous, if the Court or the Tribunal was aware of what it was doing. Whether it is an error of law or an error of fact, it must be an error of inadvertency. In the case of an error of law, it should not have been arrived at by a process of conscious reasoning. In the instant case, the conclusion was arrived at by considering the 1945 Rules as well as by a process of conscious reasoning. It could not, therefore, be the result of inadvertency on the part of the Tribunal. In this view of the matter, there can be no doubt, that the review on the first ground taken up by the learned counsel for the petitioner was not legally maintainable.
6. In support of the second ground for review, it has been contended by the learned counsel foe the petitioner that the Civil Services (Appellate) Tribunal had no jurisdiction to set aside the order of confirmation of the petitioner. This argument is wholly misconceived. The said Tribunal was constituted to determine the seniority of the civil servants. In the present case also, the Tribunal determined the seniority of the appellants via-a-via the respondents, by declaring the former senior to the latter, which it was competent to do. If the decision resulted in the deconfirmation of the peti--tioner by the authority concerned, the decision or the action resulting from it do not suffer from any legal defect. It was wholly wrong to suggest that the Civil Services (Appellate) Tribunal had no jurisdiction to pass the impu--gned order.
7. It would follow from the discussion given above that no review can be asked for on the grounds taken by the petitioner in this case. Eat even if it be assumed for the sake of arguments that such a view was permissible under the law, we would not exercise our discretion in favour of the petitioner for the reason that objection on the ground of want of jurisdiction was not taken by him at the hearing of the appeals. The result, therefore, is that the petition for review fails and is hereby rejected. We, however, make no order as to costs.