' This order will dispose of Writ Petitions Nos.5439 and 5295 of 1999/BWP because common questions of law and facts are involved therein. The petitioners were employees of Municipal Corporation, Bahawalpur. Their grievance is that the respondent proceeded to retire them from service after they had put in more than 25 years of service qualifying for pension vide order dated 5-11-1999 which was passed under rule 4(I) of the Punjab Local Council and Municipal Committee Servants, Retirement Rules, 1966. Both the Constitutional petitions have been directed against the order dated 5-11-1999.
2. Learned counsel for the petitioners contended that the main order passed by the respondent, Administrator, Municipal Corporation, Bahawalpur is illegal and not maintainable as the same has been passed in violation of rule of natural justice as no opportunity of hearing was granted to the petitioners and no show-cause notice was issued to them.
3. Conversely, Mr. Muhammad Ozair Chughtai, Advocate, for the respondent has raised preliminary objection about maintainability of the writ petition on the ground that the petitioner have not availed remedy of departmental appeal as provided in the Punjab Local Council (Efficiency and Discipline) Rules, 1981, hence this writ petition is not maintainable and liable to be dismissed. It was also argued that the factual controversy regarding general reputation and service record whether it is extremely bad or the petitioners services are not required in the public interest cannot be resolved in writ jurisdiction. On merit learned counsel has supported the impugned order.
4. I have heard learned counsel for the parties and have also perused the record. Both the petitioners who were employed in different capacity by respondent-Municipal Corporation, Bahawalpur, have been compulsorily retired from service under rule 4(I) of the Punjab Local Council and Municipal Committee Servants, Retirement Rules, 1966 after completion of 25 years' service. The admitted position is that before passing the order of retirement neither any show- cause notice was issued to them nor they were heard. This is clear violation of law. In Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others (1995 SCM R 1593), it was held as under:-- "Colonial heritage which had cast dark shadow on our jurisprudence has now vanished and a new concept has developed which has introduced not only the principles of natural justice but also such principles of justice and equity which are enshrined in the Injunctions of Islam. The orders, acts and actions of Government functionaries, corporate authorities and statutory bodies can be examined on the basis of well-recognized principles of Islamic Common Law and Injunctions of Islam. Supreme Court in PLD 1987 SC 304 while exercising jurisdiction of the Shariat Appellate Bench considered the provision relating to compulsory retirement of civil servants. Time was granted to amend it so as to allow the civil servant an opportunity to know about the grounds on which he was compulsorily retired. Compulsory retirement without any reasonable ground, cause or excuse, which at one time was treated not to carry stigma does not hold the field, particularly as it involves dignity of man as contained in Fundamental Right No,14 and violates the principles of natural justice. The extent of tenure of a civil servant up to the age of 60 years is the law of the land but it is curtailed by giving arbitrary power to a competent authority to retire a civil servant/employee on completion of 25 years of service without giving any reasonable ground or informing him the grounds which had persuaded the competent Authority to do so. One may say that it is a subjective satisfaction and conducive to the discipline of the civil servants but this alone may not be sufficient enough to allow deviation from the recognized principles of justice. More particularly in cases of civil servants who do not enjoy Constitutional protection as before. In these circumstances and developments which have happened in the last two decades, the exercise of such arbitrary power which is always considered to be against the norms of justice will not help in establishing a disciplined service. Therefore, any order passed compulsorily retiring a civil servant without giving due notice of the action proposed to be taken and opportunity of showing cause against such action shall be deemed to be repugnant to the Injunctions of Islam and in view of the judgment referred above, it cannot be justified:Law relating to such provisions was allowed to be amended by 11-3-1987. The consequence of not complying with the judgment would be that such law would cease to have legal effect."
' In this judgment it was further observed:-- "The contention that the judgment relates to Civil Servants Act and, therefore, it cannot apply to the rules and regulations for the Corporation is misconceived. The regulations of a Corporation relating to compulsory retirement which are similar to section 13 of Civil Servants Act could also attract the same principle and will be governed by this judgment. In PLD 1987 SC 304 at page 358, Nasim Hassan Shah, J (as he then was) observed that 'there exists no difference in this respect between cases of civil servants who are in the employment of the Government and employees of the statutory Corporation like WAPDA, Cantonment Board and Universities etc' ."
5. The Municipal Corporation falls within this category and covered by the observation referred to above. In regard to preliminary objection raised by learned counsel for the respondent as to maintainability of the writ petition, suffice it to say that only those orders which are passed strictly in accordance with law and rules which attained finality under rule 4(I) of the Rules, 1966 and not the orders which are passed in utter disregard to the law declared by the Hon'ble Supreme Court, the law under which such retirement is made as held by the Hon'ble Supreme Court of Pakistan in the above referred case, involves element of completion and carries stigma and disgrace in the public eye and if such action is taken in public interest, the opportunity of hearing must be given to the effected civil servants. As no opportunity of hearing has been provided in the present case, it will be liable to be corrected in the Constitutional jurisdiction. As held in Government of the Punjab through Collector Faisalabad and other v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others (2001 SCM R 209):-- "The resolution of Question No,1(i) above was that in cases where it was argued that there was lack of jurisdiction or where the impugned orders suffer from illegality on the face of record, a writ may be issued even though the right of statutory appeal has not been availed. Reliance in their behalf was placed on Nagina Silk Mills Ltd. v. I.T.O. And another (PLD 1963 SC 322), Premier Cloth Mills v.
Sales Tax Officer (1972 SCM R 257) and Salahuddin and two others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others (PLD 1975 SC 244) for holding that writ petition before the High Court was maintainable. We also find that appellant's criticism that alleged remedies were available to the writ petitioners under the West Pakistan Land Revenue Act, 1967 read with section 7 of the Colonization of Government Lands (Punjab) Act, 1912, is not well-founded."
' Therefore, both the preliminary objections raised by learned counsel for the respondent are devoid of any force and are hereby repelled.
6. In this light of above discussion both the writ petitions are accepted and the impugned orders of the respondent are set aside. Consequently the petitioners would continue in service till they attain the age of superannuation or should retire in accordance with law. It is, however, made clear that it is open to the competent Authority to take fresh action, if so intended, in accordance with law.
There shall be no order as to costs.