1998 PLP 2318 (SCMR)

IRSHAD HASAN KHAN, J.

Through this common judgment we propose to dispose of Civil Petitions Nos. 56 of 1997 and 188 of 1998, arising out of the order dated 22-9-1996 in Miscellaneous Petition No. 143 of 1997 in Appeal No. 27-P of 1996 and order dated 27-6-1996 passed in the said appeal by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal).

2. The petition has been working in WAPDA since 1963 and was selected as Computer Operator in B-14 in 1977.

3. Grievance of the petitioner is that he has been repeatedly superseded by less qualified, less experienced and junior people, and unjustifiably denied selection grade. The petitioner made a representation to the respondents for redress of his grievances, and allegedly, in consequence whereof, he was transferred from Peshawar to Mardan on 22-1-1991. Consequently, he moved a Constitutional Petition No.386, for the redress of his grievance which was dismissed on 25-3-1996 for lack of jurisdiction. Being dissatisfied, he filed a petition for leave to appeal which was also declined on the ground that the matter fell within the exclusive jurisdiction of the appropriate Service Tribunal. The petitioner, therefore, approached the Tribunal through Service Appeal No. 1257-P of 1996, which was dismissed vide order dated 27-6-1997 on ground of limitation and that no application for condonation of delay, was moved by him. The review petition filed by the petitioner was also dismissed with the observation that an application for condonation of delay, was available on record but the review petition was not maintainable, under rule 22 of the Service Tribunals (Procedure) Rules, 1974.

4. By order dated 26-12-1998 passed in Civil Petition No.56 of 1997 the case was adjourned to enable the petitioner to file another petition against the original order of the Tribunal dismissing his appeal.

5. We have heard the petitioner, who appeared in person, Mr. Gul Zarin Kiani, learned counsel for the respondents in Civil Petition No.56 of 1997 and Mr. Anwar H. Mir, learned counsel for the respondents in Civil Petition No. 188 of 1998 and perused the material available on record.

6. The question which requires consideration in these petitions is whether the Tribunal was right in holding that it had no power to review its own orders and rectify the injustice caused to the petitioner by non -consideration of the application filed by the petitioner for condonation of delay. 6-A. It is well-settled that the power of review is not a law of procedure but of jurisdiction and unless a power is conferred expressly it could not be p exercised. Refer Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), wherein this Court held that the right of review is a substantive right and is always a creation of relevant statute on the subject. It cannot be assumed on these premises that a review of an order in appeal is a continuation of appeal nor is it sufficient 'to recognise such a right as to open the judgment of scrutiny. The above views were reiterated in S.A. Rizvi v. Pakistan Atomic Energy Commission (1986 SCMR 965). Also refer Muhammad Yousaf v. The Government of Pakistan through General Manager, Pakistan Railways, Lahore (1992 SCMR 1748), wherein it was held:-- " .The language of Rule 22 of the Service Tribunals (Procedure) Rules, 1974, is almost similar to that of section 152 of the Code of Civil Procedure and, therefore, in our view all such errors which could be corrected under section 152, C.P.C. should also fall within the scope of Rule 22 (ibid) for correction.' In the case of Muhammad Farid Khan v. Water and Power Development Authority (1984 SCMR 603), the appeal of the appellant therein had been dismissed on the ground of limitation without considering his application under section 5 of the Limitation Act, for condonation of delay. The appellant therein filed an application for review under rule 22 of the Service Tribunals (Procedure) Rules, 1974 before the Tribunal for recalling the order. The application was, however, dismissed by the Tribunal on the ground that it had no jurisdiction to review its own order. This Court set aside the aforesaid order of the Tribunal and remanded the case to it to decide the question of limitation afresh after hearing the parties.

7. The facts of the present case are somewhat identical with that of Muhammad Farid Khan's (supra). Since the petitioner herein had filed an application under section 5 of the Limitation Act, he was entitled to a consideration of that application before the bar of limitation was held against him. We, therefore, convert these petitions into appeals and set aside the orders of the Tribunal dated 27-6-1996 and 22-9-1996 and remand the case to the Tribunal to decide the question of limitation afresh after hearing the parties. The appeal shall be deemed to be pending and disposed of as expeditiously as possible in the light of the aforesaid directions. We would reiterate the observations made in the case of Muhammad Yousaf (supra) that suitable amendment is needed in the Service Tribunals Act, 1974 to vest the Tribunal with the power to correct its own mistake in a case where it results in obvious injustice to a party before it. A copy of this order be forwarded to the Secretary, Ministry of Law, Justice, Human Rights and Parliamentary Affairs, Islamabad.

8. Resultantly, the appeals are allowed to the extent indicated above with no order as to costs. A.A./K-12/S Case remanded.