1. Mian Shakirullah Jan, J.--The petitioner is seeking leave to appeal against the judgment of the Lahore High Court, Lahore whereby while maintaining the order of two forums below i.e. the Returning Officer and District Returning Officer rejecting the nomination papers of the petitioner for the election of the seat of Nazim from Union Council No. 100 Manawala, his writ petition was dismissed.
2. 2.The facts of the case briefly stated are that the petitioner alongwith one Muhammad Arshad filed nomination papers for the seat of Nazim and Naib-Nazim, respectively from Union Council No. 100, Manawala for the election to be held under the Punjab Local Government Ordinance, 2001 (hereinafter may be referred to as the Ordinance, 2001). The rival candidates raised objection to the nomination papers of the petitioner on the ground that he was Administrator Market Committee, Manawala being appointed by the Government under Agricultural Produce Markets Committee Ordinance, 1978 (hereinafter may be referred to as the Ordinance, 1978) and is disqualified to contest the election. The objection was accepted by the Returning Officer and the petitioner's nomination papers were rejected. His appeal before the District Returning Officer, Sheikhupura also failed who then filed a writ petition before the Lahore High Court, Lahore which also met the same fate, now the present petition.
3. 3.The question involved in the case is as to whether petitioner holding the office of Administrator of Market Committee appointed under Section 33 of the Punjab Agricultural Produce Markets Committee Ordinance, 1978 was debarred to contest the Election of Local Councils in view of the provisions of Section 152(1)(g) of the Punjab Local Government Ordinance.
4. 4.A notification regarding the appointment and authorization of the petitioner as Administrator of the Market Committee was issued by the Punjab Government, which is reproduced herein below:-- "NOTIFICATION.
5. 'NO. SO(E)302/2005. WHEREAS the members and Chairman of the Market Committees mentioned below have completed their tenure of three years.
6. 'AND WHEREAS it is expedient that such Chairman and members should not continue to hold their office any longer.
7. 'NOW, THEREFORE, in pursuance of the provisions of Section 10 of the Punjab Agricultural Produce Markets Ordinance, 1978, the Governor Punjab is pleased to direct that the said Chairman and members shall cease to hold their office with immediate effect.
8. 'AND CONSEQUENTLY, in exercise of the provisions of Section 33 of the Punjab Agricultural Produce Market Ordinance, 1978, the Governor Punjab is pleased to declare that pending the constitution of the Market Committees mentioned at Column 3, the persons mentioned in column 4 of the Schedule given below are authorized to exercise the functions of the said Market Committees, under the said Enactment, Rules, and Bye-laws framed thereunder with immediate effect till further orders.
9. 'In consideration of the interim nature of appointment, the Governor Punjab, is further pleased to direct that the funds of the Market Committee shall stand frozen except pay/allowances and recurring establishment expenditures, with immediate effect till further orders. In case of special circumstances, however, funds may be released with the prior approval of the Government."
10. (underlining is ours to supply emphasis).
11. 5.A Notification of Honorarium was also issued by Government vide which monthly honorarium was fixed, relevant extract whereof is reproduced herein below:-- "Category of Market Committee. Amount of Monthly Honorarium
(i) Chairman of 'A' Class Market Committees with an average Annual income of rupees Sixty lacks or more. Rupees two thousand only (ii)Chairman of other 'A' Class Market Committees. Rupees fifteen hundred only.
12. (iii)Chairman of 'B' Class Market Committees.Rupees one thousand only.
13. (iv)Chairman of 'C' Class Market Committees.Rupees five hundred only.
14. (v)Administrators, Market Committees.Rupees two hundred and only."
6. The disqualification provisions are contained in Section 152 of the Ordinance,. 2001 and the case of the petitioner is stated to come under subsection (1) clause (g) of the aforesaid section which reads as under:-- "152. Qualification for candidates and elected members.--
(I) A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he-
(a) .............
(b) ............
(c) .............
(d) ..............
(e) ............... (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."
7. The provisions relating to disqualification of candidate to contest the election, with little variation, are found in different election laws and also in the Constitution vide Article 63.
8. In order to find out the real import and meaning of the expression service, one has to look into the scheme of the law and the purposes sought to be achieved, by debarring the persons in service of the Government or of the statutory body or other body owned and controlled by the Government, from being elected as the member of any local body.
9. Time and again the Courts have elucidated the reasons for such disqualification i.e., a person being in service of the Government, statutory body or body which is controlled by the Government or in which the Government has a controlling share of interest, cannot be elected as a member of an elected body. The true representation of the people is the essence of the democracy. The elected representative should not be opened to any influence or temptation, which may not be stumbling block in their way to serve the people of their constituency truly and freely. Possibility of the existence of such influence or interest or temptation is sufficient disqualification unless law provides otherwise. That is the ruling concept. Conflict of duty and interest in the elected representative should be avoided.All the possible traces of influence and temptation be removed which may stand in their way from discharging their duties to the people. If such persons were allowed to participate in the election process, then there is danger that the elected bodies would loose their independence, objectivity, capacity to execute the duties and functions entrusted to them by law or the Constitution. The idea to keep the democracy free from and independent of the executive control and influence. The executive through introduction, in the elected institution of its Officer or on whom it can exert its influence or control will be able to check the freedom and independence of the elected institution. The inclusion of these Officers in the elected institution may result in lessening the control and superintendence of the executive berefting of its authority holding over its employees, in the public interest office smooth running of its functions.
15. 10.In Section 152 (g) the expression in the service" is of significance. Herein the service would not be taken in the strict, restricted and narrow technical sense as defined in the Civil Servant Act or in other service laws or in the Constitution but would be construed in the general, plain, and liberal sense. This Court in the case of 'Muhammad Naseem Turyali vs. Ghulam Sarwar Khan and others"
16. (unreported Civil Appeal No. 1374 of 2003 and other connected appeals) held that the service of a statutory body etc should not be confused with the civil service or civil servant. In the cited case the appellant was in the service of Sui Southern Gas Company as Management Trainee at the time of filing nomination papers and also at the time of poll, whose election, after he being declared as returned candidate, was challenged by the other contesting candidates on the ground that he being in the service of a Company which was owned and controlled by the Federal Government was disqualified to contest the election in view of Article 63 (1) clauses (e) & (k) of the Constitution.
17. The petitions filed by the respondents were allowed and the petitioner was held being an employee of the company controlled by the Government, was disqualified to contest the election. His writ petition before the High Court failed who then filed an appeal before this Court and while dismissing his appeal, it was observed in Para-9 which reads:- "The expressions service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest: should not be confused with "Civil Service" or a "Civil Servant'. It is not circumscribed by any concept of salary or fee,"
18. 11.In this context, i.e., the expression "in the service" to be taken and construed in general sense and not in the restricted sense, it would be advantageous to refer to the meaning given in 79 CJS. P. 1139 which is reproduced herein below:- "Service or services. The word 'service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with the simple meaning, leaving no room for construction, but rather it is broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context. Thus, the Courts have found it impracticable to attempt a definition by which to test very case that may arise.
19. 'As a noun. As lexically defined, the word 'service' means the act of serving, the act or instance of helping or benefiting; the act of helping another; the deed of one who serves.
20. 'The word 'service' is further defined as meaning aid or assistance rendered, a benefit, advantage, or obligations conferred; that which promotes interest or happiness; useful office, avail. `service' indicates a master-servant relationship, or it implies a submission to the will of another as to direction and control, and when employed to indicate these concepts it is defined as meaning the performance of labour for the benefit of another or at another's command; labour performed in the interest under the direction of others; any work done for the benefit of another; employment in the interest of a person or of a cause.
21. 'The word 'service' is also defined as meaning the being employed to serve another; the position of a servant; the state of being a servant; the occupation, condition, or status of a servant; the work of a servant; the work of a slave, hired man, or employee; the attendance of any inferior, hired helper, slave, etc, Now according to the definition described above, service means being employed to serve another, it implies the submission to the will of another as to direction and control, to do work for another.
22. The determining factor to hold a person to be in the service of a body or authority, implies subordination to that body. There are five tests for such sub-ordination, namely, the power of the authority of the appointment to the office (ii) the power of removal or dismissal of the holder from the office (iii) the payment of remuneration (iv) the nature of functions of the holder of the office, he performs (v) the nature and strength of control and supervision of the authority. The decisive test is that of appointment and removal from service while the remuneration is neutral factor and not decisive. All the aforesaid tests need not be cumulated and not necessarily must co-exist and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case and whether stress will be laid on one factor or the other will depend on each particular case.
12. In the instant case, as evident from the notification referred herein above, it is the Government which has appointed the petitioner as Administrator. There is no express provisions in the statutes for his removal or dismissal but according to Section 15 of the West Pakistan/Punjab General Clauses Act, 1956, it is the same authority having the power of appointment is also has the power of removal or dismissal of the holder of the office. Though the salary or remuneration is not a condition precedent, to be in service of the Government or of statutory body under the Ordinance, 2001 as existed previously in the relevant provisions of some of the statutes e.g. Sindh Local Government Ordinance, 1978, Section 37(2) "Salaried Person" or in some clauses of the Constitution "office of profit", yet an honorarium, with different scales, has also been fixed for the different administrators of different committees which varies from Rs. 250/- to Rs. 2000/- P.M. vide notification referred herein above. The honorarium has been defined in Corpus Juris Secundem Vol. 44 at page 325 as under:-- "In common understanding, the word means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment fora service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money. While it has been said to denote a compensatory payment, it may, be context, be construed as a gift."
23. 13.The term honorarium, the other condition of remuneration, also exist in the instant case, which according to the aforesaid definition is a voluntary payment for the services rendered for which no remuneration under the law has been provided.
24. 14.Regarding the other test i.e. the supervision by and control of the body/Government over the person in its service can best be explained from the various provisions of the Ordinance with the following resume. The object of the Ordinance as given in the preamble is to provide for the better regulation of purchase and sale of agricultural produce 'and for that purpose to establish markets and make rules for their proper administration, the ordinance, was promulgated. Sections 3 & 4 relate to the establishment of markets with a control over the sale and purchase of agricultural produce by the Government. Sections 7 & 8 deal with the establishment and Constitution of the Market Committee. According to Section 9, the duties to be performed by the Market Committee are;- (i) to establish a market (ii) to enforce the provisions of the Ordinance, (iii) to issue licenses to the brokers etc for carrying on their occupation in the market area. The committee shall elect the Chairman and Vice-Chairman vide Section 12. The status of the Committee provided under Section 14, is that it should be body corporate, the perpetual succession and a common seal, and may sue and be sued in its corporate name. The committee is having its own staff consisting of Officers and other servants. The employees and the members of the committee are to be public servant within the meaning of Section 21 PPC. The committee is having the power to enter into contract vide Section 18 and can also levy fee under Section 19. The committee is having its own fund which may be expended for different purposes vide Section 21. It can also levy surcharge on loss. The market committee may, with the sanction of the Government has power to borrow the money as provided under Section 26. The Government is having the power to annul all the proceedings of the committee under Section 27 of the Ordinance. The Government under Section 28 can supersede the committee if it is incompetent to perform the duty etc. According to Section 28-A, the Government is having the power to dissolve the Market Committees on the announcement of the general elections to the National and. Provincial Assemblies if the Government is satisfied that it is in the public interest to prevent the Market Committees from using their funds or influence for political purposes. According to Section 33, under its emergency powers, the Government may exercise/perform the functions of the Market Committee or to be exercised by a person as it may direct. These are the important provisions relating to the establishment, duties, functions of the committee and the powers of the Government to control and supervise the same with power of annulment of the proceedings of the Committee now the Administrator.
25. 15.In view of what has been discussed above, it is the Government having the power to hire and fire an Administrator and to pay compensation to him for the services rendered by him, may be described as honorarium, and having over all control and supervision of the functions performed by him. Thus it can safely be held that for all intents and purposes, the petitioner is in the service of the statutory body under the control/supervision and with power of appointment and removal with the payment of remuneration/compensation by the Government.
16. The consequence of what has been stated above, it would neither be in the interest of elected body and the public at large to have an elected representative, who would be under the influence of the Government, and at the same time, nor it would be in the interest of the Government as it would be having no effective control in superintendence over the employees in its department, so elected for an elected body. A third factor has been added by the Ordinance, 1978 vide Section 28- A, that when the general election to the National or the Provincial Assembly or both is announced and the Government is satisfied that it is in the public interest to prevent the Market Committee from using their funds and influence for political purpose, the Government may dissolve the market committee, and this testify the fact that the market committee, at present represented by the administrator who is petitioner, that it (the Committee) or he (the Administrator) can influence even the general elections, so necessarily he may influence the local bodies election and particularly when he is a candidate himself.
26. 17.Resultantly, what has been discussed above, we are of the view that the petitioner is disqualified to be elected on account of he being appointed as Administrator of the Market Committee with the resultant consequence that this petition is dismissed.