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Petitioner: MUHAMMAD HUSSAIN VS Respondent: CHAIRMAN, MUNICIPAL COMMITTEE, KAMALIA
1994 P L C (C
1994 P L C (C.S.) 793
[Lahore High Court]
Before Irshad Hasan Khan, JJ
MUHAMMAD HUSSAIN
Versus
CHAIRMAN, MUNICIPAL COMMITTEE, KAMALIA and others
Writ Petition No. 4138 of 1993, heard on 23rd January 1994.
(a) West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966‑‑‑
‑‑‑R. 4‑A(2)‑‑‑Retirement on .completion of twenty five years of service qualifying for retirement and pensionary benefits‑‑‑Validity‑‑‑Petitioners were entitled to continue in service till completion of sixty years of age‑‑‑Order of premature retirement would have the effect of deprivation of petitioner's right to continue as such‑‑‑Show‑cause notice as also opportunity of hearing ought to have been given to petitioners by competent authority before passing orders of premature retirement and denial thereof, would tantamount to Zulm and Ziadti and thus,‑not maintainable.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules 1966, R.4‑A(2)‑‑‑Constitutional jurisdiction, exercise of‑‑‑Availability of alternate remedy‑‑‑Situations where High Court will exercise Constitutional jurisdiction in favour of petitioner not availing alternate remedy‑‑‑High Court would not ordinarily entertain a Constitutional petition where other alternate remedy was available, but where a public or statutory functionary had acted mala fide or impugned order was unjust, oppressive and ex facie without lawful authority, High Court in exercise of Constitutional jurisdiction, has power to grant relief to aggrieved party‑‑ Where orders in question, were without lawful authority, petitioners were entitled to the relief claimed.
Mian Muhammad Arshad for Petitioner
Irfan Qadir, Addl. A‑G for Respondents
Date of hearing: 23rd January 1994.
JUDGMENT
This judgment shall dispose of Writ Petitions Nos. 4138, 4149, 4151, 4387, 4388 and 4389 of 1993 involving identical questions of law and facts and arising out of stereo‑typed orders dated 24‑2‑1993 passed in each case by the Chairman, Municipal Committee, Kamalia, under Rule 4(i) of the West Pakistan Local Councils and Municipal Committees Servants (Retirement) Rules, 1966, hereinafter referred as Rules, whereby the petitioners were retired n completion of twenty‑five years of service qualifying for retirement and other pensionary benefits.
2. it is an admitted fact that no show‑cause notice was issued to the petition s before passing the impugned orders.
3. Mr. Irfan Qadir, learned Additional Advocate‑General, appearing on behalf o the Municipal Committee, however, argued that under Rule 4, a Local Council servant is liable to be retired from service, notwithstanding anything contained in the terms and conditions of his service, after he has completed twenty‑five years of service qualifying for pension or other retirement benefits as the appointing authority may, in the public interest, direct. He argued that provision for issuance of notice is not laid down in the aforesaid rule and, therefore, the impugned orders did not suffer from any infirmity. He further argued that the writ petitions were not maintainable, inasmuch as, the petitioners had not exhausted their remedy of appeal under Rule 4‑A ibid.
4. The contention is devoid of force. The retirement of the petitioners is admittedly premature in terms of sub‑rule (2) of Rule 4‑A ibid. The petitioners were entitled to continue in service till the completion of 60 years of their age like other civil servants and impugned orders have the effect of deprivation of their right to continue as such. Therefore, show‑cause notice as well as opportunity of hearing ought to have been given to the petitioners by the competent authority before passing the impugned orders and denial thereof tantamount to Zulm and Ziaditi. Refer Pakistan and others v. Public at Large and others PLD 1987 SC 304, which I respectfully follow.
5. As to the plea of non‑maintainability of writ petitions, it is true that the High Court will not ordinarily entertain ' a writ petition where other alternate remedy is available, but where a public or statutory functionary acts mala fide or the impugned order is unjust, oppressive and ex facie without lawful authority, this Court in the exercise of its Constitutional jurisdiction, has the power to grant relief to the aggrieved party. Here the impugned orders have been found to be without lawful authority, therefore, petitioners are entitled to the relief claimed.
6. In view of the above, the orders impugned in the writ petitions are declared as without lawful authority and of no legal effect.
7. This order shall not debar the Municipal Committee, Kamalia, to initiate fresh proceedings against the petitioners, if so advised, after examining each case on merits and issuing show‑cause notice against the proposed action and providing them with an opportunity of being heard before passing any order detrimental to their interest.
With the above observation, the writ petitions are accepted with no order as to costs.
AA./M‑1461/L Petitions accepted.