' SH. RIAZ AHMAD, J.---These three appeals through leave of this Court are directed against the judgment dated 15-4-1996 whereby the appeals preferred by the appellants were dismissed.
Before touching the facts giving rise to the institution of these appeals, it will be appropriate to narrate the background in which the appellants litigated.
2. One Mubarik Ali, who was a Senior Engineer in the Central Design Office invoked the jurisdiction of the N.-W.F.P. Service Tribunal by way of filing an appeal praying that his appropriate seniority position in the seniority list of the Executive Engineers circulated by the Secretary to the Government of N.-W.F.P., C & W Department be determined. He voiced his grievance by stating that his name was missing in the list of Executive Engineers of C & W Department and instead was included in the seniority list of the Central Design Office. He also claimed that the Central Design Office was an attached department of C&W Department under Rule 3 read with the Schedule to the Government of N.-W.F.P. Rules of Business, 1985, and therefore, he was entitled to be brought on the seniority list of the Department. Mubarik Ali impleaded the Government as a respondent and the Tribunal also did not deem it appropriate to issue notice to any officer of the Department. The Tribunal vide its judgment dated 7-9-1991 allowed the appeal and also declared that the Central Design Office was not an independent or a different cadre. The N.-W.F.P. Government assailed the said order by way of filing a petition seeking leave to appeal in this Court, which was dismissed vide order dated 31-3-1992.
3. In this background the Department circulated seniority list of the Superintending Engineers as it stood on 29-11-1992 wherein for the first time respondents Nos.4 and 5 were placed above the names of the appellants and objections were also invited. The appellants then made a representation with the competent Authority in the department and it was urged by them that since the appellants and other Superintending Engineers were not parties before the Tribunal or before this Court, therefore, the judgment in Mubarik Ali's case was not binding on them. The N.- W.F.P. Government, C&W Department, respondent No,2, vide its letter dated 3-2-1993, placing reliance upon the judgment of the Tribunal as well as that of this Court, turned down the representation made by the appellants. Aggrieved by the said orders, the appellants then invoked the jurisdiction of the Tribunal calling in question notification dated 19-11-1992 i.e, the seniority list issued by the respondent No,2 wherein respondents Nos.4 and 5 had been shown senior to the appellants in the seniority list of the Superintending Engineers, C&W Department and also the letter dated 3-2-1993 whereby their representation was rejected. These appeals were dismissed by the Tribunal without touching merits of the case on the ground that the Tribunal has already given its finding on the issue vide its judgment dated 7-9-1991 and since the said order has been upheld by the Supreme Court, therefore, the Tribunal was bound by it--the same being a judgment in rem and not in personam. The Tribunal, thus, vide its order dated 31-3-1992 dismissed those appeals.
The said order was then assailed by way of a petition seeking leave to appeal in this Court, which was converted into appeal and allowed holding that judgment in Mubarik Ali's case was not a judgment in rem and the case of the appellants ought to have been decided on merits, and thus, the case was remanded to the Tribunal for fresh decision. On remand the Tribunal dismissed the appeal by the judgment impugned.
4. Leave to appeal was granted against the said order by this Court on the ground that N.-W.F.P.
Engineering Service (Building and Road Department, Irrigation Department and Public Health Engineering Department) Rules, 1973 (hereinafter called the Rules of 1973) envisaged two separate cadres--one general cadre comprising Chief Engineers, Superintending Engineers, Executive Engineers mentioned in Schedule I appended to the Rules of 1973 and the other sub-cadre of specialized posts such as Principal Engineers, Project Managers and Senior Engineers under Schedule II and that respondents Nos.4 and 5 belong to separate cadres, and therefore, the names of the respondents could not be included in the seniority list of the appellants cadre.
5. With the assistance of the learned counsel for the appellants, we have gone through the provisions of the Rules and have also heard the learned counsel for both sides at length. It was vehemently argued that the Rules of 1973 clearly set up two cadres, and therefore, two separate seniority lists were to be maintained. To substantiate this contention it was urged before us that the nomenclature of officers of both cadres has been differently described, inasmuch as for the general cadre, i.e, the field work, the officers have been described as Chief Engineers, Superintending Engineers, Executive Engineers whereas for the other cadre, these officers have been described as Principal Engineers, Project Managers and Senior Engineers, and therefore, in view of this distinction, they cannot be equated with each other in so far as seniority was concerned. It was also contended before us that the Tribunal fell into grave error by placing reliance on its earlier judgment and also that of this Court upholding the same. It was contended that the Tribunal had decided the case of Mubarik Ali on the basis of rules framed in 1979 and the Rules of 1973 were not touched or interpreted, and therefore, the case of the appellants will have to be decided in the light of both sets of Rules framed in 1973 and 1979.
6. We have carefully considered this aspect of the case. The Tribunal rightly concluded that only to the extent of conflict, Rules of 1973 cannot be given effect to and that superseded rules in the Rules of 1973 are only three in number, viz., rules 6, 7 and 8, which deal with the method of recruitment, the minimum age and qualification of a candidate respectively. The remaining rules of 1973 would still govern the situations falling within their purview. Sub-rule (i) of Rule 3 deals with the constitution and composition of service which sub-rule (ii) speaks of cadre posts of service and reads as under:- "The cadre posts of service shall be the posts of Chief Engineers, Superintending Engineers, Executive Engineers, Assistant Engineers and temporary Assistant Engineers in the Department and such other posts as may be sanctioned by the Government for the Department from time to time."
Sub-rule (iii) of rule 3 deals with sub-cadre of specialised jobs is also reproduced below for facility of reference:-- "A separate sub-cadre of Assistant Engineers, Executive Engineers and Superintending Engineers and equivalent posts will be maintained for staff appointments, planning and pension cell, Research Laboratory and similar other specialised jobs in the department. The members of the sub-cadre up to the post of Superintending Engineer and equivalent posts will not be eligible for transfer to the field charges."
Perusal of Rules of 1973 and those of 1979, clearly postulates that the' distinction between the cadre posts and sub-cadre posts as envisaged by the Rules of 1973 has been kept alive by the 1979 Rules in its Schedules I and II separately. Schedule II of 1979 Rules relates to posts of sub-cadre as envisaged by sub-rule (iii) of rule 3. It is, thus, obvious that the framers of the rules kept manifest distinction between the cadre posts and sub-cadre posts as created by sub-rule (iii) of rule 3. In fact, with the advance technology for the field staff and for the implementation of various plans, the expertise is also required and that is why the Department created sub-cadre posts.
7. The crucial question arising for determination is whether distinction between the cadre posts and sub-cadre posts would lead one to conclude that there are two different categories. Obviously, the answer is 'no' because the expression 'sub-cadre posts' itself connotes that it is part of the cadre and not a separate entity by itself. It is also pertinent to mention that even 1979 Rules also lay down that they govern the Department of C & W as a whole including its various branches and sub- cadres. It will not be out of place to mention here that if at all the Government of N.-W.F.P. Desired to create separate cadre for such specialised posts, there could be no impediment in its way under the 1985 Rules of Business, which empowered the Government to create a Department consisting of a separate cadre as the case may be. On behalf of the appellants reliance was placed upon judgment of this Court reported as Salimullah Khan and 10 others v. Raqib Khan and 15 others (1989 SCM R 1879). After having gone through this judgment, we find it has no relevance as the facts are entirely different, and therefore, it is not attracted to the present controversy.
8. The upshot of the above discussion is that the findings arrived at by the Tribunal vide order impugned are not open to exception. We do not find any flaw therein so as to justify interference by this Court, therefore, these appeals are dismissed without any order as to costs.