Akhtar Zaman Malghani, J.--The following reliefs have been claimed in the instant Constitutional Petition:-- "It is accordingly respectfully prayed that Respondent No, 1 may be called upon the show as to under which lawful authority he is holding the office of the Member of the Balochistan Provincial Assembly and the Respondent Nos, 2 and 3 be directed to place on record the requisite documents of Respondent No, 1 relating to his appointment and resignation etc. It is further prayed that a writ of quo-warranto or any other appropriate writ may be issued declaring election of the Respondent No, 1 as without lawful authority and the Election Commission may also be directed to de-notify him.
Declaring that the order No, A-132/10589-94/EB dated 13.11.2003 issued by Direction Education (Schools) Balochistan, Quetta, is illegal, void, malafide and of no legal effect.
Any other order as may be deemed fit and appropriate in the circumstances of the case may also be awarded in the interest of justice."
2. Briefly stated, facts of the case are that the Respondent No, 1 contested the election for the constituency PB-11 Killa Abdullah-I for Balochistan Provincial Assembly in general election held on 12th October, 2002. He was declared as the notified returned candidate. It is the case of the petitioner that at the time of filing of nomination papers the Respondent No, 1 has not given correct information. In fact he was employed as JV Teacher, Government Primary School, Mudrissa Taleem-ul-Quran, Chaman and tendered his resignation on 1.12.2001 to the Executive District Officer (Education) Killa Abdullah. According to the petitioner the Respondent No, 1 disqualified from being elected or being member of Provincial Assembly under Section 8-D(2)(k) of the Conduct of General Election Order, 2002 read with Section 99 (1A)(K) of the Representation of the People Act, 1976 and period of two years was not elapsed since he ceased to be in such service.
3. After hearing preliminary arguments we decided to issue pre-admission notice to respondents, in response whereof Mr. Nasrullah Khan, Executive District Officer, Killa Abdullah appeared in person and submitted that the Respondent No, 1 tendered his resignation from service on 1.12.2001 which was accepted by the competent authority w,e,f, 1.1.2002 on the expiry of one month's notice. He also placed on record photostat copy of the resignation, affidavit of the Respondent No, 1 and order dated 25.1.2002 with regard to acceptance of resignation of the Respondent No, 1 whereupon petition was admitted for regular hearing.
4. We have heard the learned counsel for the petitioner as well as learned counsel for the Respondent No, 1 and learned Advocate General. The learned counsel for the petitioner raised following contentions:--
(1) After admission of petition for regular hearing Respondent No, 1 failed to submit counter affidavit till 19.11.2003 when after nine mouths counter affidavit was submitted, along with which an order dated 13.11.2003 issued by Respondent No, 5 was annexed showing that the resignation of Respondent No, 1 was accepted with retrospective effect w.e.f 1st December, 1999 which clearly shows that the said order was procured by Respondent No, 1 during pendency of the petition by exerting influence on Respondent N. 5 being minister in the Provincial Government whereas service record produced by Respondent No, 2 shows that the resignation was accepted w,e,f, 1.1.2002. Up to that date there was no dispute and the Respondent No, 1 never objected on such entries incorporated in his service book. He further contended that authenticity is attached to official record unless proved otherwise.
(2)Even the order produced by Respondent No, 1 shows that resignation was accepted on 13.11.2003 with retrospective effect which could not have been competently and legally accepted retrospectively in view of the judgments of Hon'ble Supreme Court of Pakistan and it would be deemed that the Respondent No, 1 was in government service till 13.11.2003, as such; disqualified to become member or being member of Provincial Assembly.
In support of his contentions the learned counsel referred to the judgments reported in PLD 1974 Supreme Court 284, PLD 1987 Supreme Court 32 and unreported judgment passed in CA 1374, 1375 and 1672 of 2003 dated 31.3.2005.
5. On the other hand, the learned counsel for the Respondent No, 1 raised following contentions:--
(1) The petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan to maintain the instant petition as he failed to annex the voter list with the petition to show that he was voter of the Constituency.
(2) The petition was not maintainable under, Article 225 of the Constitution of the Islamic Republic of Pakistan.
(3) Second portion of relief clause praying to declare the order passed by Respondent No 5 as illegal, void and without any legal effect cannot be granted on the petition of any person who is not an aggrieved person.
(4) The Respondent No, 5 was competent to accept the resignation with retrospective effect.
(5) In view of notification dated 17.11.2001 Executive District Officer (Education) was not competent to accept the resignation.
(6) Disputed question of facts are involved in the petition which could not be determined in exercise of Constitutional jurisdiction.
(7) The petition may not be found competent as alternate remedy was available under Section 8-E of the Conduct of General Election Order, 2002 and Article 63(2) of the Constitution of the Islamic Republic of Pakistan.
In support of his contentions the learned counsel placed reliance on the judgments reported in PLD 1988 Supreme Court 416, PLD 2003 Quetta 94 and PLD 1991 Lahore 200.
6. We have carefully considered the contentions put forth by the parties' learned counsel in light of the relevant provisions of law.
7. As regards maintainability of the petition in view of bar contained in Article 225 of the Constitution of Pakistan, which provides that no election to a house or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament), it may be observed that question of disqualification could be raised, firstly; at the stage when the candidate is being elected and secondly having become a member. First stage was over when nomination papers, without any objection from any of the candidates or elector, were accepted by the Returning Officer. Question of second stage could be considered by the Election Tribunal on the appeal filed by a candidate against the successful candidate or by the Election Commission under Article 63 (2) read with 113 of the Constitution where question of disqualification from being a member was referred to him by the speaker of the Assembly. Thus, no remedy is available to an elector or voter to question the membership of a successful candidate, once election is over, even though the disqualification carried by the member has come to his knowledge after the election. In the judgment reported in PLD 1970 Supreme Court 98 (Farzand Ali vs. Province of Pakistan) the question with regard to maintainability of writ of quo warranto was considered by the Hon'ble Apex Court in the light of Article 171 of the Constitution of 1962, somewhat similar to Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 and their Lord Ships held that there is no reason why relief by way of quo-warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one, which de-bars a person not only from being elected to an office but also from holding that office.
Relevant observations are reproduced herein below:-- "Learned counsel for the appellants have also adopted this line of reasoning and contended that clause (2) of Article 104 of the Constitution of 1962 necessarily refers only to a post-election disqualification.
This Clause is in the following terms:-- If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member."
It will be clear from the language of the clause itself that it refers to the case of a member "becoming" disqualified "after his election" and not to the case of a pre-election disqualification.
The question however, is whether, even so, a pre-election disqualification can be questioned under Article 98. It has been strenuously contended on behalf of the respondents that once the name of the person has been registered on the roll of electors, his nomination paper accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections, notwithstanding the fact, that no provision has been made in the Constitution or any other law, for prescribing a special procedure to meet such a case.
I regret my inability to accept this contention for more than one reason. Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not, a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a Member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The letter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for in forcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for the properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto unless expressly barred by some statute, is available precisely for such a purpose.
In this view of the matter it cannot also decide that there was any adequate alternative remedy available within the meaning of Clause (2) of the Article 98 of the Constitution of 1962 to defeat the right given by sub-clause (b) (ii) of Clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
To refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an illegality.
In my view, therefore, Article 171 of the Constitution of 1962 did not and could not bar a proceeding under sub-clause (b) (ii) of Clause (2) of Article 98 for challenging the title of the disqualified persons from continuing to hold the office of a Member of the National Assembly which was in every sense of the term a public office."
8. The learned counsel for Respondent No, 1 also questioned maintainability of the petition on the ground that the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution. Bar that the person applying for writ under Article 199 should be an aggrieved person does not apply to the petition for writ of quo-warranto, because it in its nature is an information laying against a person who claimed or usurped an office, franchise or liberty and was intended to enquire by what authority he supported his claim in order to have the right to the office, franchise or liberty may be determined, therefore, the term "aggrieved person" does not apply stricto-senso to the writ of quo-warranto and any person can lay information before the Court for enquiring from the person holding a public office as to under what authority he was holding the office. In the judgment reported in PLD 1963 Supreme Court 203, the Hon'ble Supreme Court held as under:-- "But, that was not the only relief which Masudul Hasan could claim. He could have moved for an order in the nature of a writ of quo warranto with equal efficacy. Referring again to the monograph on Crown Proceedings in Volume 11 o Halsbury's Laws of England, the now absolute writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office. Here, the office was that of member of a Town Committee, created by the statute, namely, the Basic Democracies Order 1959, and its duties were of a public nature. Khadim Hussain was in possession of the office. A private relator (i,e, a petitioner) is competent to apply for an information against a member of the corporation on a ground affecting is individual title, to show by what authority he claimed to exercise his individual functions. All that is necessary in a case of a private petitioner was that he should have some interest in the election which he impeaches.
I fully agree with the Chief Justice that the only suitable writ which could be asked for in such a case was a writ in the nature of quo warranto challenging the validity of appointment of the respondent Khadim Hussain. This view also find support from Rex v. Speyer (1). In the above case it was held that a private relator could maintain an application for a writ of quo warranto challenging the validity of appointments of Privy Councillors on public grounds."
9. It is not disputed that the Respondent No, 1 was employed as J.V teacher in education department of Government Balochistan and could not have contested election unless a period of two years was elapsed since he ceased to be in such service. According to the petitioner's case the Respondent No, 1 resigned from his service on 1st December, 2001, wherein; he requested that his resignation be accepted with effect from 1st January, 2002 and the competent authority accordingly accepted his resignation from 1st January, 2002 and from that date he ceased to be in service of Pakistan. Since two years had not elapsed when he contested election, held on 12th October, 2002, he was disqualified to become member of Provincial Assembly as provided under Section 8-D (2) (k) of the Conduct of General Election Order, 2002 read with Section 99 (1A) (k) of the Representation of the People Act, 1976. On the contrary the Respondent No, 1 claims to have resigned from his service on 3rd November, 1999 and he was no more in service since then, notwithstanding his resignation was not accepted. In this regard he relied on the order No, A132/10589-94/EB. No date has been mentioned on the said order but Respondent No, 5 in his counter affidavit stated that the resignation of the Respondent No, 1 was accepted on 13th November, 2003 with effect from 1st December, 1999. Similar stand was taken by the Respondent No, 1 in his counter affidavit. Thus, it is not disputed that till 13th November, 2003 the resignation of Respondent No, 1 was not accepted by the competent authority, which according to them was Director Education (Schools). Now the question arises whether by tendering resignation the Respondent No, 1 ceased to be in service of Pakistan and mere pendency of resignation without approval of competent authority was sufficient enough to presume that the Respondent No,. 1 was no more in service of Pakistan. No Rules of service have been brought to our notice, which provide that a government servant is considered to be not in the service from the date when he tendered his resignation. Ordinary rule as mentioned in ESTA Code is that a person is considered to have resigned from his office only when his resignation is accepted. The relevant para is reproduced herein below:-- SI. No 13: Permanent Government servants.--A question has been raised whether the undertaking given by a temporary Government servant at the time of his entering service, that he shall give one month's notice of his intention to resign or in default forfeit to Government a sum not exceeding one month's pay, remains binding on that employee or lapses from the time he is confirmed. It is stated that the undertaking of the kind mentioned above lapses when the persons concerned become permanent, as notice is not provided for in the case of permanent Government servants.
2. The position regarding permanent Government servants is different. 'Permanent service' is the result of a bilateral contract for the termination of which the consent of both the employer and the employees is necessary. If a permanent Government servant tenders his resignation, he continues to be in service untill the resignation is accepted, for the reason that, for the cancellation of the contract of service, the consent of the other party is also necessary. Till his resignation is accepted, the employees continues to be in the employment of the employer and, if he absents himself from duty, he incurs a penalty prescribed for such default which may be dismissal in certain cases. A permanent Government servant, therefore, continues to remain in service till his resignation is accepted."
In the judgment reported in PLD 1958 Karachi 75 it was observed that before acceptance the resignation can be withdrawn. Relevant observations are reproduced herein below:-- "The next contention of the learned counsel for the petitioner that if this Court comes to the conclusion that the petitioner was wrongly reverted to the post of Head Constable and his order of reversion is held to be ultra vires, the resignation in question was not accepted by a competent authority and did not come into effect is not without force. It is a well established rule of law that a resignation can be withdrawn or recalled before its acceptance by the competent authority."
Thus, it is clear that the respondent's resignation became effective only when it was accepted on 13th November, 2003, for it was open to the respondent to withdraw his resignation at any time until it was accepted. However, it was submitted by the learned counsel for the respondent that the resignation was accepted with effect from 1st December, 1999, therefore; the respondent would be deemed to have resigned on that date. It is already stated that resignation becomes effective, in absence of any rule or law, only when it is accepted. The fact that the Respondent No, 1 was posted as J.V. teacher cannot be obliterated by the retrospective acceptance of the resignation. In the judgment reported in 1985 SCMR 1178 the Hon'ble Apex Court observed as under:-- "Be that as it may, the law is quite clear that an order of a departmental authority cannot be made to operate retrospectively because no executive authority is vested with such powers unless expressly empowered in this behalf by the rules, which is not the case here. Hence the order of dismissal/removal could take effect only from that date when it was passed. See Province of Punjab v. Khan Khaliq Dad Khan PLD 1953 Lah. 295 and Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others PLD 1964 Dacca 647. Consequently, the petitioner must be deemed to be in service until 19.10.1963 and simply because the order passed on that date stated that it would take effect from 19.7.1981 would not have. the effect of making the order to take effect from the said date but it would be deemed to take effect from the date on which it was actually passed, namely, from 19.10.1983."
Likewise in the judgment reported in 1984 SCMR 1578, the Hon'ble Supreme Court of Pakistan held as under:-- "Before us the main contention urged on petitioner's behalf was that since according to his service record the petitioner had been removed from service w,e,f, 29.7.1981 (i,e, from a date prior to the election day) his disqualification therefore stood removed retrospectively and as such his election was valid. This contention is wholly misconceived and overlooks the fact that on the day-of election, i,e, on 28.9.1983, no order of his dismissal or removal had yet been passed by the Government. Obviously, therefore, on that date he was in Government service The result is that irrespective of the fact as to whether or not the Government was legally empowered to remove him from service with retrospective effect, he was disqualified from contesting election on the date when it is actually held."
It was open to the Government to accept the resignation even on the date when it was tendered i,e, 3rd November, 1999 or even from a latter date or not to accept it at all. But the acceptance of the resignation with retrospective effect could not remove disqualification as provided in Section 8-D (2) (k) of the Conduct of General Election Order, 2002 read with Section 99 (1A) (k) of the Representation of the People Act, 1976 under which the Respondent No, 1 was. Therefore the Respondent No, 1 was disqualified to be elected as and to be a Member of Provincial Assembly.
10. The case law referred to by the learned counsel for the Respondent No, 1 are distinguishable on facts. In the judgment reported in PLD 2003 Quetta 94 it was held that the Election Tribunal while exercising jurisdiction under sub-section (5) and (5A) of Section 14 of the Representation of the People Act, 1976 was not conferred with jurisdiction to examine the validity, legality, justification or vires of an order passed by a competent authority or a notification issued by such authority in exercise of the powers vesting in it and in the circumstances it has no jurisdiction to examine vires of the subsequent notification nor could the tribunal determine that the same was issued without any lawful authority and was of no legal effect as the Election Tribunal was vested with the limited specified jurisdiction to decide the validity or invalidity of the nomination papers in light of the subsequent notification issued by he competent authority because the tribunal could not go behind such notification and to find out justification, reasons or grounds for exercising powers vesting in the competent authority under the relevant service laws and to substitute the same with its own reasons and grounds by examining the vires of the subsequent notification, whereas; in the instant petition the petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, as such; in our (sick) view this Court in exercise of his writ jurisdiction has wider powers than the Election Appellate Tribunal constituted under Section 14(5) (5A) of Act, 1976 for limited purpose. Likewise; the judgment reported in PLD 1991 Lahore 200 is also of no help to the Respondent No, 1 in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported in PLD 1970 Supreme Court 98.
In view of above discussion, we; are inclined to hold that the Respondent No, 1 has been unable to show the authority of law under which he claims to have been elected to and continues to be Member of Balochistan Provincial Assembly from the constituency PB-11 Killa Abdullah-I, as such; action of Election Commission (Respondent No, 4) having notified the Respondent No, 1 in the official gazette to have been duly elected as such member is without lawful authority and of no legal effect. As a necessary corollary to this finding a declaration would go to the Respondent No, 4 to undo the wrong and to withdraw notification by which Respondent No, 1 was declared to have been duly elected. As a result thereof constituency PB-11 Killa Abdullah-I would fall vacant. The petition is accordingly allowed with no order as to cost.