' Mir petition for leave to appeal has been directed against the judgment of the High Court, dated 9-10-2001, whereby the writ petition filed by Mst. Sakina Bibi, respondent. Herein, was accepted and a writ of prohibition was issued against the respondents not to cancel the order, dated 28-3-2000 without due process of law.
2. The brief facts of the case are that Mst. Sakina Bibi, respondent. No,1, filed a writ petition in the High Court alleging that she had applied for the appointment as Primary Teacher in response to an advertisement published in a newspaper. Thereafter, she gave test and interview etc. And a merit list was prepared wherein she was placed at Serial No,2 of the same; her merits were ignored but consequently, in pursuance of order of the Ombudsman, dated 4-1-1996, she was appointed as Primary Teacher vide order, dated 6-5-1996. Thereafter, an appeal was filed by her against one Nasreen Akhtar and this Court vide its judgment, dated 4-2-1998 confirmed the orders passed by the Ombudsman, dated 27-11-1994 and 6-5-1996, which implies that her appointment as Primary Teacher was intact. Afterwards, the proceedings for her adjustment as Primary Teacher remained in progress as is evident from the orders passed by the concerned authorities, copies of which were placed on the record and marked as R.C., R.D., R.E. And R.F. It was also the case of Mst. Sakina Bibi respondent herein, that she was finally appointed as Primary Teacher vide order dated 6-10- 1999. It was further alleged that previously Mst. Yasmeen Bibi, petitioner herein, filed a writ petition against the appointment order, dated 6-10-1999 of the respondent which was dismissed vide judgment of the High Court, dated 2-12-1999. However, despite all that the order of her appointment was disturbed repeatedly by the concerned departmental authorities vide their orders, dated 14-1-2000 and 22-1-2000. The Secretary, Education vide his order, dated 27-1-2000 ordered not to disturb the petitioner. Afterwards, the order, dated 14-2-2000 was cancelled vide order, dated 18-2-2000. Again on 28-3-2000 the order, dated 21-2-2000 was cancelled and she is serving as Primary Teacher vide the order, dated 28-3-2000. Consequently, she filed a writ petition praying that the order, dated 28-3-2000 might be protected by issuing a writ of prohibition. The writ petition was accepted by the High Court but an appeal was preferred by Mst. Yasmeen Bibi, petitioner herein, to this Court alleging that as she was not impleaded by the respondent in her writ petition, as party the same was liable to be dismissed. The appeal was accepted by this Court and the case was remanded to the High Court with the direction that the writ petition might be disposed of afresh after taking necessary proceedings after impleading Mst. Yasmeen Bibi as party. The High Court after hearing the parties, again accepted the writ petition filed by Mst. Sakina Bibi, respondent and issued the writ of prohibition prayed for. It is against the aforesaid order of the High Court that the present petition for leave to appeal has been preferred.
3. It has been contended by Raja Muhammad Hanif Khan, the learned counsel for the petitioner, that neither the Ombudsman nor this Court ever held that Mst. Sakina Bibi, respondent, should be appointed as Primary Teacher. He has also contended that the written statement was filed by respondents Nos.1 to 5, the departmental authorities, wherein it was contended that the respondent did not appear in test and interview etc. Was not considered by the High Court.
According to the learned counsel for the petitioner Mst. Sakina Bibi, respondent, was not eligible to be appointed as Primary Teacher due to her failure to appear in the test and interview. He has further submitted that the High Court had no jurisdiction to issue the writ prayed for by respondent No,1 in view of the dictum of this Court given in a case reported as Ejaz Ahmad Awan and 5 others v.
Manzoor Ali Shah and another 1999 PLC (C.S.) 1439, wherein it was held that if a final order has not been passed by the concerned Departmental Authority, the civil servant should wait till passing the same and then challenge it before the Service Tribunal, instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service. According to the learned counsel for the petitioner the proper course for the respondent was that she should have waited till an order was passed against her by the concerned Departmental Authorities and thus, the High Court had no jurisdiction to issue the writ prayed for. He has contended that the points raised by him could be raised in this Court despite the fact that the same were not argued before the High Court.
4. Mr. Mujahid Hussain Naqvi, the learned counsel for respondent No,1, has drawn the attention of the Court to the judgment of.The High Court entitled Mst. Yasmeen Bibi v. Azad Government and others, decided on 2-12-1999, whereby the previous writ petition filed by Mst. Yasmeen Bibi, the petitioner herein, was dismissed. He has contended that the appointment of Mst. Sakina Bibi, respondent, was challenged in the said writ petition but the same was dismissed and no appeal was preferred to this Court. Thus, he has argued that the matter attained finality and the same cannot be reopened in the subsequent proceedings. He has further submitted that the points which were not raised in the High Court have been agitated by the learned counsel for the petitioner which could not be permitted at this stage.
5. I have given due consideration to the matter. It is evident from the chequered history of the case, briefly stated above, that Mst. Sakina Bibi, respondent, has been repeatedly ousted from service and then reinstated by the departmental authorities without following, the due process of law. It has never been the case of the petitioner, herein, in previous round of litigation that she did not appear in the interview etc. Rather in view of her stand in paragraphs 3 and 4 of the writ petition, it would be deemed to have been admitted by her that Mst. Sakina Bibi, respondent, did appear in test and interview and she was placed at Serial No,2 of the merit list. So far as the written statement filed by the concerned departmental authorities is concerned, their stand that Mst. Sakina Bibi, respondent, did not appear in test and interview etc., implies that according to them she did not appear in some interview which was held somewhere in the year 1997 but they did not deny the fact that actually she has been holding the post of Primary Teacher in consequence of tests and interviews which were held prior to her appointment in 1996. It has also not been the case of the petitioner that the writ petition was not competent and only the remedy for Mst. Sakina Bibi, respondent, was to seek the relief from the Service. Tribunal. It is well-settled principle of law that a party after submitting itself to the jurisdiction of the Court, cannot turn round and say, after an adverse order is passed against it, that such Court had no jurisdiction. Even otherwise, the principle laid down in Ejaz Ahmad Awan's case, referred to by the learned counsel for the petitioner, does not apply to the case in hand because no proceedings were pending before any Departmental Authorities at the time when she filed the writ petition; the guideline No,4, relied upon by the learned counsel for the petitioner, cannot be considered in isolation to the fact of the said case; the said guideline implies that if any matter is sub judice before any Departmental Authority, an aggrieved person should wait for a reasonable time before filing a writ petition. In the instant case as no proceedings were pending before the Departmental Authorities, the aforesaid principle has no application. It has not been even alleged in the petition for leave to appeal that the question of jurisdiction or the question that Mst. Sakina Bibi, respondent, did not give test and interview was argued before the High Court but the same was not dealt with while passing the impugned judgment. In view of the fact that Mst. Sakina Bibi, respondent, was appointed as Primary Teacher as early as 1996 and she has been repeatedly disturbed by the concerned Departmental Authority, the High Court did not commit any illegality while directing the respondents not to disturb her anymore without due process of law and that if rules permit the case of Mst. Yasmeen Bibi, the petitioner herein, may be dealt with against a vacancy which is vacant. Before parting with the case it may observed that in view of the fact that previously a Writ Petition No,5 of 1999 instituted on 19-10-1999 was filed by Mst. Yasme en Bibi, petitioner herein, was dismissed by the High Court on 2-12-1999 and thus, the petitioner, herein, is even otherwise debarred from challenging the order of appointment of respondent No 1, ' In the light of what has been stated above, finding no force in this petition for leave to appeal, it is hereby dismissed.