' QAZI FAEZ ISA, C J.---Through the instant petition the petitioners have sought declaration that they, "are serving in the Education Department" and that they be allowed to perform their jobs as Junior Arabic Teacher or Moallim-ul-Quran, as the case may be and the salary withheld by the respondents may be directed to be released to them.
2. Para wise comments were filed by the respondents and on 16-6-2010 it was ordered that as the matter is pending since 2008, it may be disposed of on merits. We accordingly heard Mr. Tahir Ali Baloch, Advocate for petitioners and Mr. Abdul Aziz Khilji, Additional Advocate-General ("Add.A.-G.") for respondents.
3. At the very outset the learned Addl.A.-G. Drew our attention to the fact that the subject-matter of instant petition was earlier agitated in Constitutional Petition No,673 of 2007, wherein para wise comments too 'were filed. Learned Addl.A.-G. Stated that the said Constitutional petition was withdrawn by the petitioners, vide order dated 7-1-2008, which is reproduced as under:-- "Learned counsel for the petitioner after having gone through the para wise comments filed by the respondent does not press the petition at this stage and request for withdrawal of the same, the petition is dismissed as withdrawn."
4.Learned Addl.A.-G. Stated that the degrees of the petitioners were not issued by any madrassa affiliated with the Education Department and or by Higher Education Commission and this objection was also taken in the comments filed in C.P. No,673 of 2007. He further stated that the very same objection is also taken in the comments filed in the instant petition, but despite such specific denial of status of petitioners no rejoinder to the same has been submitted nor any document to show the affiliation of Ittihad-ul-Madaris, Al-Arabia with Higher Education Commission. Learned Addl.A.-G. Has also relied upon section 11 and sub-rule (3) of Rule 1 of Order XXIII, C.P.C., which respectively stipulate as under:---"Section 11. Res Judicata.--No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
"Order XXIII, Rule 1(3)--Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (Emphasis added)".
5. When confronted with the aforesaid, learned counsel for the petitioner stated that after withdrawal of C.P. No,673 of 2007 he filed contempt application, which was dispoied of vide order dated 19-8-2008 and pursuant to the said order the instant petition was filed. Order dated 19-8- 2008 passed on said Contempt Application No,5 of 2008 is reproduced below:-- "After going through the reply filed by respondents, learned counsel for the applicants contemplates to file a Constitutional Petition against the concerned persons who are not allowing him to perform his duties and requests for withdrawal of the application. Order accordingly. The application is dismissed as withdrawn and the applicants if so desire, may approach the competent forum for the redress of their grievance. Application stands disposed of in the above terms."
6. Constitutional Petition No,673 of 2008 was dismissed vide order dated 7-1-2008 and to such extent the matter stood concluded. The subsequent order dated 19-8-2008 passed on the contempt application, allegedly filed on the ground that the earlier order of this court had been violated, could not create any fresh right in the petitioners or be made the basis of the instant petition. The disability stipulated under sub-rule (3) of Rule 1 of Order XXIII, C.P.C. Can also not be overcome in such manner. Moreover, the petitioners have not produced any document to show that the degrees allegedly held by them, copies whereof have not even been filed, were issued by a recognized institution nor have rebutted the specific denial of the respondents in this regard.
Accordingly, this petition is dismissed in limine, but with no order as to costs.