' TARIQ SHAMIM, J.---This is an appeal against the orders of the learned Returning Officer, dated 2- 6-2008 and 46-2008, whereby the nomination papers of respondent No,2 were accepted for contesting election from PP-121 Sialkot-IV in the bye-elections scheduled to be held on 5-7-2008 and the objections filed by the appellant were rejected.
2. According to the learned counsel for the appellant on the day fixed for submission of nomination papers, the appellant submitted written objections to the candidature of respondent No,2 on the premise that respondent No,2 was a permanent employee of Irrigation Department, Government of the Punjab and from the date of his induction in service as Gauge Reader on 18-1-1993 he had neither resigned nor removed from service, therefore, being in service of the Government of the Punjab he was disqualified to contest the election. He has further argued that the Returning Officer while solely relying on an affidavit submitted by respondent No,2 asserting that he had resigned in the year 2000, had dismissed the objection petition ,without adverting to the true facts of the case.
It was established from the record that respondent No,2 after obtaining medical leave for 117 days w.e.f, 10-7-1998 to 3-11-1998 remained absent and consequently was suspended on 14-6-2000.
From the service file of respondent No,2 it was established beyond any doubt that despite issuance of repeated notice he had failed to appear before the competent authority and, therefore, no final order regarding his removal from service had been passed. It has also been argued that there is no formal order regarding termination of his service or his removal from service on the record, therefore, respondent No,2 is disqualified in terms of section 99 (1-A) (k) of the Representation of the People Act, 1976.
3. Conversely, it has been asserted on behalf of respondent No,2 that the impugned order was in accordance with law, facts and the circumstances. Respondent No,2 had been living in United States for the last 8 years and could not, by any stretch of imagination, be deemed to be in Government service and even if his service record was silent from 2000 onwards, then the only logical conclusion which could be drawn would be that he was not in service. Even otherwise inaction on the part of the Government could not prejudice the cause of respondent No,2. The Returning Officer while passing the impugned order was not satisfied as to the vires of the claim of the petitioner, particularly as the affidavit of respondent No,2 was not controverted. The order of the Returning Officer was in accordance with law, therefore, the appeal deserved to be dismissed.
4. We have heard the learned counsel and have gone through the service record of respondent No,2.
5. The service record of respondent No,2 reveals that respondent No, 2 did not report for duty after expiry of leave obtained by him from 10-7-1998 to 3-11-1998 therefore, two notices were issued by the Executive Engineering dated 20-9-2002 and 13-12-2002. Since respondent No,2 did not respond to the said notices, he was placed under suspension on 14-6-2000 and on 27-6-2003 an Inquiry Officer was appointed by the competent authority to proceed against him under the Punjab Removal from Service (Special Powers) Ordinance, 2000. It has been observed by us that after the appointment of the Inquiry Officer no further proceedings were conducted by the department. It has also been observed that contrary to what has been stated by respondent No,2 before the Returning Officer in his affidavit as well as the rejoinder filed in the instant appeal, the record is bereft of any document which could be termed or considered as letter of resignation. Even the affidavit relied upon by respondent No,2 is undated. If for the sake of argument we accept that respondent No,2 had resigned, the fact remains that mere tending or submitting of resignation is not tantamount to termination of service of a Government servant. In order for the same to become effective, its acceptance by the competent authority is an essential requirement. Till such time the resignation is accepted by the competent authority, the Civil / Government servant would continue in service and would be under an obligation to perform his duties and if he omits to perform his duties without prior authorization, he would be deemed to be an absentee and would be liable for disciplinary action. Since there is no order or document available on the record which would reflect that resignation, if any, tendered by respondent No,2 was accepted A by the competent authority, we are constrained to hold that at the time of filing of nomination papers respondent No,2 was a Government servant and, thus, disqualified from contesting the election. We are fortified in our view by the observations made by the honourable Supreme Court of Pakistan in the case of Hafiz Hamdullah v. Saifullah Khan & others PLD 2007 S.C. 52 as well as the case of Muhammad Ayub v. Ubedullah Khan PLD 2004 SC 479.
' In view of what has been discussed above, we accept this appeal and set aside the orders of the Returning Officer, dated 2-6-2008 and 4-6-2008 whereby he had accepted the nomination papers of respondent No,2 and dismiss the objections filed by the petitioner. The nomination papers of respondent No,2 stand rejected.