1. GHULAM RABBANI, J.--- Petitioners have challenged the orders dated 31-7-2005 and dated 2-8- 2005 passed by learned Returning Officer for Union Council Mole Taluka Thano Bula Khan District Jamshoro and learned District Returning Officer/Appellate Authority, respectively as consequence whereof the Nomination Form of petitioners was rejected on the ground that both the petitioners were found to be in Government service as teachers.
2. Mr. Zaki Muhammad learned counsel for petitioners contended that petitioners were appointed on contract basis for a period of three years vide orders dated 3-12-2000 and 8-12-2001 respectively, and their services stood terminated automatically in the month of December, 2004, therefore, they could not be said to be in Government service within six months before filing of Nomination Form to hold that they were ineligible to contest the elections for the post of Nazim and Naib Nazim of Union Council Mole Taluka Thano Bula Khan District Jamshoro. In support of his contentions he placed reliance on Certificate issued by Assistant District Officer Education Elementary (Male) Thano Bula Khan revealing that the contract period of service of petitioners was up to December, 2004 and not that wrongly mentioned in another certificate of the same officer of education before learned Returning Officer and the appellate Authority to the effect that petitioners were no more in Government service w,e,f, 31-5-2005.
3. On the other hand, Mr. Muhammad Sarwar Khan Additional Advocate-General, Sindh argued that petitioner had produced two identical sets of certificates i,e, one before learned Returning Officer and the others before learned District Returning Officer/appellate authority revealing therein that petitioners herein were no more in service w,e,f, 31-5-2005, therefore, they were ineligible to be elected or to hold elective office or membership of Local Government as per proviso of clause (g) to subsection (1) of section 152 of Sindh Local Government Ordinance, 2001 (hereinafter to be called as "the Ordinance"). Mr. Sarwar stated that learned Returning Officer as well as District Returning Officer had passed proper and legal order, which need no interference. Mr. Riazat Ali Saahar learned counsel for respondent No,4 adopted the above arguments of learned Additional Advocate-General, Sindh. He had also taken various pleas in his submissions to be discussed, hereafter.
4. We have gone through the impugned order dated 2-8-2005 which reveals that learned counsel for petitioners had produced two sets of certificates. According to one set the contract period of petitioner was up to December, 2004. And according to another set of certificates dated 30-7-2005 of same Education Officer produced before the learned Returning Officer and before learned District Returning Officer; as well, the petitioners were shown to be no more in Government service with effect from 31-5-2005. As it appears, in view of the above conflicting certificates, the said officer was summoned vide order, dated 5-8-2005 of this Court. He appeared before us on 9-8- 2005 and filed yet another certificate to indicate that no salary was paid to the petitioners after November, 2004 whereafter petitioners were no more in service.
5. It may be noted that Mr. Saahar learned counsel who represented respondent No,4 had, in his submissions on 9-8-2005, made statement at bar that both the petitioners were in service after December, 2004 and that they used to get salary up to May, 2005 and that such entries were available in the record of National Bank of Pakistan, Thano Bula Khan Branch and the Treasury Officer Dadu. Accordingly directions were issued to the Manager of the above branch and to the District Account Officer/Treasury Officer; as well, to issue certificate whether petitioners drew salary up to May, 2005.
6. In compliance of the above order the District Accounts Officer, Dadu, vide his letter bearing No,DAO/DU/Admin/353/2005, dated 11-8-2005, has furnished certificate in respect of salaries drawn by both the petitioners and he has also produced copies of the pay bills, amongst others, for the month of May, 2005. In the above certificate so received from the District Accounts Officer, Dadu, he has mentioned that pay bill of contract teacher for the month of December, 2004 to May, 2005 of the Assistant District Officer Elementary (Male) Thano Bula Khan shows that Shafi Muhammad son of Jan Muhammad, petitioner No,1 has drawn salary from Government Primary School Badal Barejo of Union Council Mole and that other petitioner, Munawar son of Muhammad Morial has drawn his pay for the months of December, 2004,. April, 2005 and May, 2005 from Government Primary School Nagar Barejo of Union Council Doung (in the name) as Munawar son of Mor Muhammad, Mir Muhammad son of Morial and Munawar son of Mor Khan respectively. In support of above certificate District Accounts Officer has also produced pay bills, amongst others for the month of May, 2005, which reveals that petitioners have drawn their pay as is mentioned in the certificate. It may be noted that petitioner No,2 according to certificate and the pay bills may have drawn the pay in different names i,e, Munawar son of Mor instead of Munawar son of Morial and which may require more clarification in view of difference of names; but there is no doubt that petitioner No,1 Shafi Muhammad son of Jan Muhammad has drawn his pay as is shown in the certificate and the pay bill mentioned above, as well. Apart from the above, learned counsel for respondent No,4 has, today, with his statement filed statements of account of National Bank of Pakistan (0147) Thano Bula Khan Branch to show that both the petitioners had drawn salaries for the month of May, 2005. Perusal of D the said statements of accounts show that petitioner Munawar son of M. Morial had drawn salary through Cheque No,297037 dated 7-6-2005 which was credited to his Account vide No,290333. These statements of account have gone unchallenged. From the foregoing, it is quite clear that petitioners were in service in the month of May, 2005 and drew their salary. Thus, Nomination Form filed by both the petitioners stand rejected in view of clause (g) of subsection (1) of section 152 of the Ordinance which is reproduced as follows:--
152. Qualifications for candidates and elected members.---(1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,--
(a) to (f)
(g) is not in the service of the Federal, a Provincial or a Local Government or, any statutory body or a body which is controlled by any such government or, in which any of such government has a controlling share or interest, except the holders of elected public office and part time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement; In view of whatever is stated above, by our short order, dated 15th August, 2005 we had dismissed this constitutional petition in limine together with listed application and these are the reasons for the same.