' The petitioner through the Constitutional petition has challenged the order of her compulsory retirement dated 10-2-1990.
2. The relevant facts are that the petitioner was serving as P.T.C. Teachers in the Municipal Corporation, Faisalabad. She completed her 25 years' service qualifying for pension and other retirement benefits. The respondent proceeded to retire her vide order dated 10-2-1990. The petitioner has assailed this order through this petition, which was admitted to hearing and notice was issued to the respondent.
3. The learned counsel for the petitioner in support of the petition has argued that the provisions of Punjab Local Councils and Municipal Committees Servants (Retirement) Rules, 1966 are against the Injunctions of Islam as contained in Holy Book and Sunnah. In this behalf the learned counsel for the petitioner has referred to the cases of Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and Siddique Ahmad Khan v. Secretary, Housing Planning, Local Government and Rural Development Karachi and 2 others 1988 CLC 1877. It is added that in view of the judgment of Honourable Supreme Court in the case of Pakistan and others ibid, the provision is to be deemed a dead letter.
4. On the other hand, Mr. Aamar Raza A. Khan, Advocate, for the respondent has argued that the impugned order is legal as the provision of Rule 4 of Rules of 1966 is a valid provision of law. It is added that the provisions of these rules and of Local Councils Ordinance were not the subject- matter either before Federal Shariat Court or the Shariat Bench of Honourable Supreme Court.
Therefore, the judgment in the case of Pakistan and others is not relevant while in the case of Siddique Khan, with utmost respect it is submitted that it cannot be followed because in that case the 'Order of the Court' was not taken into consideration and it was assumed that all similar provisions have been declared ultra vires being repugnant to the Injunctions of Islam. In fact this is not the position. The arguments are concluded with the submission that the petitioner has an alternative remedy of appeal under Rule 4-A, therefore, she cannot successfully maintain this Constitutional petition.
5. The learned counsel for the petitioner while replying to the arguments of the learned counsel for the respondent submitted that since the Controlling Authority while hearing appeal against the impugned order cannot go into vires of rules, therefore, the appeal is not an adequate remedy. The petitioner has rightly filed this petition. It is added that the Supreme Court in the judgment of Pakistan and others has clearly held that the notice is to precede an order of compulsory retirement.
6. I have, given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, provisions of law and precedents relied by the learned counsel for the parties. The foremost question for determination is whether Rule 4 of Rules, 1966 stands scrapped in view of the judgments of Federal Sahriat Court in Muhammad Ramzan Qureshi v. Federal Government and others PLD 1986 F SC 200 and Government of Pakistan and another ibid. It is clear for the opening paragraph and Order of the Court, at pages 392-393 that the provisions of statutes and statutory rules specified therein have only been found repugnant to Injunctions of Islam. The 'Order of the Court' reads as under:-- "The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action:
(i) section 13; clauses (i) and (ii) of Civil Servants Act, 1973.
(ii) Section 12, clauses (i) and (ii) of Punjab Civil. Servants Act, 1973.
(iii) Section 13, clause (i) of Sindh Civil Servants Act, 1973.
(iv) Section 13, clauses (i) and (ii) of Balochistan Civil Servants Act, 1974.
(v) Section 13, clause (i) of the N.-W.F.P. Civil Servants Act, 1973.
(vi) Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924.
' The competent authorities are hereby allowed a period of six months from today (11-3-1987) to amend the law so as to bring it into conformity with the Injunctions of Islam, failing which they shall cease to have legal effect."
' In face of this clear finding the decision in the case of Siddique Ahmad Khan cannot be followed. It is clear from above portion that this judgment is only confined to the statutes and rules specified therein while remaining similar provisions in laws and Rules are to be declared when brought before Shariat Court. The conclusion is further supported by the judgment in the case of S.A. Zubairi v. National Bank of Pakistan PLD 1989 F SC 35.
The next question which falls for determination is whether this Court is vested with the jurisdiction to declare any provision of statutes or Rules repugnant to Injunctions of Islam. The learned counsel for the respondent rightly submitted that in view of the clear provisions of Articles 203-D, 203-G and 203- GG of the Constitution of Islamic Republic of Pakistan, it is the Federal Shariat Court alone which can adjudicate as to the vices of statutes with reference to Quran and Sunnah. Therefore, the petitioner cannot raise the question that Rule 4 of Rules, 1966 is repugnant to Injunctions of Islam in this Court and in these proceedings.
7. Now I take up the preliminary objection raised by the learned counsel for the respondent that since the petitioner can maintain an appeal under section 4 against the impugned order, therefore, the writ petition is incompetent. The learned counsel for the petitioner while meeting this objection submitted that since the question of vires of Rule 4 cannot be raised before the Commissioner in appeal under Rule 4-A, therefore, that remedy is not proper and adequate. The same difficulty arises in the way of the petitioner in this petition because no Court including Supreme Court of Pakistan and this Court can determine whether a statute or rule is repugnant to Injunctions of Islam or not. The jurisdiction is absolutely barred in view of clear provision of Article 203-G. Therefore, the argument of the learned counsel for the petitioner has no merit that the appeal was not adequate remedy. Rule 4 will hold field till the time it is declared repugnant to the Injunctions of Islam by Shariat Court. Therefore, raising the question of repugnancy will not help the petitioner.
8. It is clear from Rule 4-A that the petitioner can maintain an appeal against the impugned order, therefore, resort to Constitutional petition is not proper. The petitioner can file appeal forthwith with an application under section 14 of the Limitation Act, which shall be decided by the appellate authority in accordance with law.
9. The result is that this petition is dismissed as incompetent. However, the petitioner can agitate her grievance through an appeal. There is no order as to costs.