MIAN SAQIB NISAR, J. --- The instant petition i.e. Writ Petition No. 5757 of 2009 as also Writ Petition No. 1679 of 2009 are being disposed of together; as both involve common questions of law and facts.
2. The present petition is directed against the impugned order dated 21.3.2009 passed by the Pakistan Bar Council whereby the petitioner has been declared ineligible to contest the election, for the Secretary-ship of the District Bar Association Rahim Yar Khan and thus his election as the returned candidate has been annulled.
3. The other petition is also against the same order as respondent No. 6 (hereinafter referred to as the respondent and is the petitioner of Writ Petition No. 1679 of 2009) is aggrieved that after having declaring the petitioner as disqualified to contest the election, she being the next in line should have been declared elected as per Rule 66 of the Bar Council (First Elections) Rules, 1973 (hereinafter be referred as Rules 1973).
4. Brief facts of the case are:--- That the petitioner and the respondent filed their nomination paper to contest the annual election for Secretary-ship of District Bar Association, Rahimyar Khan; latter filed objection before the Election Board/respondent No. 5 (hereinafter referred to as the Board) to the petitioner's nomination on the ground that he is a full time employee of Sheikh Zayed Medical College/Hospital (SZMC/SZH), Rahimyar Khan, employed by the said Organization in BS-18 and thus is ineligible to be a candidate for the post. The objection was overruled by the Board vide order dated 9.1.2009 (Annexure "B"); the respondent challenged this order in appeal before the Executive Committee of the Punjab Bar Councils on 10.1.2009, which has been dismissed vide order dated 23.1.2009. Anyhow, after the polls, the petitioner having secured 321 votes as against the respondent 148 (with a difference of 173 votes), has been declared to be successful. Aggrieved of the aforementioned order, the respondent preferred an appeal before respondent No. 2, the Appeal Committee, Pakistan Bar Council, which was accepted and the election of the petitioner has been annulled; the operative part of the order is reproduced as below:- "It is an admitted fact that the respondent is serving as Legal Advisor in a graded post of BPS-18 and by doing so has violated the relevant provisions of the Legal Practitioners & Bar Councils Act and the Rules. He being in regular service is not entitled to remain on the Roll of Advocates and be a Member of a Bar Association. The case-law (PLD 2001 LHR 365) presented by him in support of his contention is not relevant to his case as by joining regular service, he has violated Rule 175 of the Pakistan Legal Practitioners & Bar Council Rules, 1976.
We are, therefore, of the opinion that in view of his having joined regular service he was not competent to contest election of District Bar Association, Rahimyar Khan at the relevant time. It would, therefore, be in the interest of justice and fair play that fresh election for the office of Secretary General is held by inviting fresh nomination papers and on the basis of the same voters list which was issued for the last election. The same Election Board will conduct the election within a month."
Both the parties are aggrieved of the noted decision, the grievance of the respondent is that she should have been declared as successful according to rule 66 of Rules, 1973; hence these petitions.
5. Mr. Shehram Sarwar Chaudhry, learned counsel for the petitioner contends that the petitioner in terms of Rule 5(d) and (i) of the Memorandum of Association, 1981 framed by the Punjab Bar Council (hereinafter be referred Rules, 1981) was an "eligible voter" and eligible candidate, and therefore, was qualified to contest the election to the office of the Secretary-ship, when he possessed the membership of the Rahim Yar Khan Bar Association for a period of 7 years prior to the date of the nomination; since even after the date of his appointment as a Legal Advisor of the SZMC/SZH, which was not a permanent or a full time job, his name was borne on the rolls of Advocate maintained by Punjab Bar Council in view of Rule 5(a) thereof; he has been throughout practicing as an Advocate in the lower Courts as also the High Court; this was permissible to him under his contract with SZMC and is so envisaged by the certificates of the Principals of the College dated 25.2.2009 and 10.4.2009 respectively; that there is no provision in law, which enabled the respondent to file an appeal, against the decision of the Board; the only remedy provided under the provisions of' Rule 64 read with Rule 65 of Rules, 1981 is to challenge an election of any particular office i.e. Alter the election has been held and the respondent has not availed any such remedy.
Above all no appeal could competently be filed by the said respondent before Pakistan Bar Council, which has no jurisdiction in the matter, therefore, the impugned order is void and nullity in the eyes of law; he has also argued that the petitioner was only a Legal Advisor of SZMC/SZH, which was a part time job; his name duly appeared on the roles of the Bar Council and the Bar Association, and this was enough for his eligibility to contest the election, therefore, the impugned order on this count too is untenable in the eyes of law. In support of his contentions, he has placed reliance on Muhammad" Muazzam Butt, Advocate v. Qazi Muhammad Anwar, Advocate and -4 others (1998 CLC 1810), Mian Tariq Ahmad v. The Executive Committee, Punjab Bar Council through Chairman and 8 others (PLD 1999 Lahore 527), Chaudhry Riyasat Ali v. Returning Officer/Advocate- General Punjab and 2 others (PLD 2001 LAHORE 365), Riaz Hanif Rahi and others v. Registrar, Lahore High Court,. Lahore and others (PLD 2008 SC 587) and Sanaullah Qureshi, Advocate v. Pakistan Bar Council through Secretary and another (PLD 1998 KARACHI 245); it is further stated that the provisions.Of Rule 175 of the Pakistan Legal Practitioners & Bar Council Rules, 1976 (hereinafter referred to Rules, 1976) are not applicable to the instant case. It is lastly submitted that the judgment reported as Reconsideration/Consideration of Applications of Advocates for Enrolment as Advocates for the Supreme Court of Pakistan (PLJ 2001 Tr.C. (E,C) 461) is distinguishable on its on facts and has no application to the instant matter.
6. Conversely, Mr. Mushtaq Ahmad Mohal, learned counsel for the respondent has stated that the petitioner was enrolled as an advocate in 2001; he joined full time employment in the SZMC/SZH on 12.4.2005 and thus he automatically ceased to be a practicing advocate and therefore , his name was automatically liable to be struck of from the rolls under the provisions of Rule 175 read. With Rule 108-0 of Rules 1976; it is also stated that action should be taken against the petitioner as per provisions of Section 58 of the Legal Practitioners and Bar Councils Act, 1973 (hereinafter be referred as Act, 1973) read with the noted Rules; letter of the petitioner's appointment proves his permanent nature of employment in the SZMC/SZH, which is an autonomous/semi-government body and, therefore, he could not practice in the Courts under the law and resultantly being a non- practicing lawyer was ineligible to contest the election of the Secretary-ship.
7. As regard the competency of respondent's appeal before the Punjab Bar Council against the order of the board and thereafter to the Pakistan Bar Council, it is argued by Mr. Mohal that such was available under Rule 61 of Rules, 1973. In the same context about the appeal to the Pakistan Bar Council, he has mentioned Section 47 of the , Act, 1973. It is also argued that the petitioner was enrolled on 23.7.2001, he joined the service on 12.4.2005 and therefore after that till the date of filing his nomination as he ceased to be a practicing Advocate, therefore, on the date of filing of the nomination paper, his standing was less than 5 years and was ineligible on this count too.
8. In the other case, the respondent seeks the declaration that as the election of the petitioner has been declared void, therefore, she is entitled to be declared as the returned candidate, reference has been made to Rule 66 of Rules, 1973 and it is submitted that if a vacancy to an office of the Bar Association occurs, the next in line has the right to take over the office. It is also argued that the doctrine of throwaway votes shall not be applicable, because it was notoriously known to all the eligible voters of The concerned Bar that the petitioner is disqualified to contest the election.
9.. Mr. Muhammad Shafique Piya, other counsel for the respondent has argued that the order dated 31.3.2009 (i.e. The order passed at the limine stage) passed by this Court has been procured by fraud and misrepresentation as the impression was given that the respondent had not filed any objection petition, whereas it is a glaring mis-statement, as the entire proceedings and the orders involved in these matters emanates from the objection to the nomination papers filed by her, therefore, the petitioner having approached this Court with unclean hands, his petition is liable to be dismissed on this score alone. It is also stated that technicality should not come in the way for the dispensation of the justice, now, when it has become clear that the petitioner was not qualified to contest the election, the discretionary Constitutional relief should be declined to him and a direction be issued to the Pakistan Bar Council for initiating proceedings against the petitioner.
10. In rebuttal Mr. Shehram Sarwar Chaudhry, learned counsel for the petitioner has argued that Bar Councils (First Elections) Rules, 1973 was one time legislation and only meant for the purpose of election of the four Provincial Bar Councils, this law has nothing to do with the election of the Bar Associations. In this regard, reference has been made to Rule 66 of the said Rules. Further while distinguishing the judgment reported as PLJ 2001 Tr.C. (E.C) 461, it is stated that in the case, the persons were in the perpetual employment, while in the instant matter, the job is contractual, terminable on the option of the employer of the legal advisor; SZMC is an autonomous body and the petitioner is only a legal advisor, who has been so appointed, however, it is only for the purpose of his "retainer ship" that reference has been made to BS-18; he has full permission of practicing in Court, as is clear from the two certificates issued by the respective principals.
11. Heard. For the purpose of regulating the business of Bar Associations (except of the High Courts) and in order to ensure the efficient performance thereof, Punjab Rules of Business of Association Memorandum of Association Rules, 1981 have been framed by the Punjab Bar Council as per the powers conferred upon it by Section 56 of the Legal Practitioners & Bar Councils Rules, 1973. In Rule 5(a) of Rules, 1981 "Advocate" means an Advocate whose name if borne on the Rolls of Advocates maintained by the Punjab Bar Council." According to rule 5(d) "Eligible Voter" means an Advocate whose name for the time being appears on the Roll of the Bar Association and has fulfilled the conditions laid down under rule 7.10 of the punjab Legal Practitioners and Bar Councils Rules, 1974 and, not debarred, from use of library books or declared as a defaulter." As per Rule 5(i) "Eligible Candidate" means a practicing member of the Association having practiced for a period of not less than two years at the time of making nomination papers for any officer other than that of the President who has been a practicing member at least for five years." All the Bar Associations at the District levels are registered with the Punjab Bar Council and are required to hold election to the respective offices, as has been defined in the law. The election of the Bar Associations are bound to be conducted under Rule 45 the candidates must possess the qualification of being, "eligible voter" and "eligible candidate". In case of any "Election Dispute" rule 64 requires that on an any "Election Dispute" Rule 64 requires that on an application of the eligible voter, Punjab Bar Council, shall inquire into the question of the election dispute and under Rule 65 the election to an office shall be declared void in certain situations and in this case rule 65(c) is relevant which provides that "The candidate or his proposer or seconder were not eligible voters on the relevant date" (i.e. The date of the nomination). Anyhow, if the nomination papers of a candidate are accepted, though there is no Specific provision in the law for raising of the objection, but from the spirit of the Rules 55 and 56 (of Rules, 1981); which permits that the scrutiny of the papers shall be conducted in the presence of .Contesting candidate, his proposer or seconder, etc. (obviously if they choose to attend), and the Board shall thereafter accept the nomination paper, if found to be in order meaning thereby that the raising of objections is permissible, however, against the acceptance or the rejection of the nomination papers, no appeal has been provided to a contesting candidate, etc. To any other forum. And as mentioned earlier, it is only an application under Rule 64, which can be resorted to by an eligible voter (on account of the caption of the rule such application may be termed as an election petition), no challenge, however, was made by the respondent under this provision (rule 64) after losing the election and learned counsel for the respondent has failed to satisfy the Court if her appeal under the provisions of Section 61 of Rules, 1973 was competent before the Punjab Bar Council and thereafter she could validly challenge that order under Section 47 of the Act, 1973, because Section 47 of the Act was repealed vide Ordinance IX of 2007; while Rule 61 of Rules, 1973 were absolutely inapplicable, as it pertains to an election of the respective Provincial Bar Councils and/or has no relevance to the election of the Bar Association.
12. On account of the legal position stated above, it is only after the election that the respondent could challenge it (the election of the petitioner) within the parameters of Rules 64 and 65 of the Rules, 1981; but as even before the election, the respondent had already filed an appeal challenging the eligibility of the petitioner, therefore, in the interest of justice, the Executive Committee of the Bar Council could always treat this appeal of her as an election petition under the said rule and disposed it of accordingly. Be that as it may, it can also be validly deemed by this Court to have been disposed of as such through the order dated 23.1.2009. The respondent, if there was no other rider or impediment in her way, should have challenged this order of the Punjab Bar Council Executive Committee, through a Constitution petition, but this was not done, rather she without there being any remedy of appeal available to her, illegally, incompetently and invalidly approached Pakistan Bar Council in appeal, a jurisdiction which in the legal scenario elucidated above was not possessed by the forum at all; therefore, on account of that, the order impugned can be held as without jurisdiction .And simply by invoking the rule of ex-debito justitiac in favour of the petitioner, it should be set aside. But there are certain exceptions to the noted rule, e.g. The petitioner approaching the Court with soiled hands; none should be allowed to retain the ill-gotten gains and advantages; no one should be allowed to have the premium of its on wrong; the refusal to set aside the order (impugned in a case) shall foster justice and curb injustice; the ruies of equity, fair play and good conscious requires that the constitutional jurisdiction should not be invoked in favoUr of the petitioner, who does not qualify the test of the said rules. In this behalf, following judgments shall enunciate the law on the subject:-
(i) !n 1973 SC 236 (Nawab Raunaq Ali, etc. v. Chief Settlement Commissioner and others) it has been held:- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object it to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party; rather it cures a manifest illegality, then the extra-ordinary jurisdiction ought not to be allowed to be invoked."
"In the same manner, in the instant cases, if the High Court in its extra-ordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the Officer of Special Duty, even though the latter was clearly without jurisdiction."
"Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution is discretionary.
Even when an order impugned before the High Court is found to be lacking in some legal or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ much less that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully.
Challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal, then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in propel cases would decline to exercise the discretion and would thus not set aside and order even if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order ." ............................. "Since writ jurisdiction cannot be exercised in and of injustice, it was clearly held that the High Court in exercise of its discretionary writ jurisdiction not bound to interfere with the orders of the Chief Settlement Commissioner. It would have been an improper exercised of discretion in case in. Hand even though that order of Chief Settlement Commissioner was considered not to be strictly legal. Law was laid to the same effect in Raunaq Ali, etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236. It was held that an order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. Where, therefore, the High Court in its extraordinary Constitutional writ jurisdiction had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that it could legitimately refused to set aside the order of the Officer-on- special-duty (Central Record Office), even though the latter was clearly without jurisdiction."
"Writ jurisdiction -- Discretionary relief not to be granted to help petitioner retain ill-gotten gains."
PLC (C.S) 101.0 and (Dewan Ali and 7 others v. Barkat Ali and 10 others) PLD 1976 Lah. 147
13. As during the hearing of the case and in the course of its decision, certain blatant aspects (such as admitted facts and the legal position) have come to the notice of this Court, which have intrigued it, to consider this case falling within the exception and to decide it on merits additionally for the reason that the option to file a writ petition is still open to the respondent and if she does so, the matter in that event too has to be decided by this Court.
14. Examining the case in the light of above, the key propositions, which requires resolution are, what is the nature of the petitioner's assignment with the SZMC/SZH; if it is in the nature of "service"; whether on account of that, he cease to be a practicing Advocate; and thus an "eligible voter" and "eligible candidate". In this regards, the contents of his letter (offer) of appointment are relevant which reads:-- SUBJECT:- OFFER OF CONTRACT APPOINTMENT AS LEGAL ADVISOR AT SZMC RAHIM YAR KHAN The above terms and conditions when read together with the contract appointment policy dated 29.12.2004 makes it quite clear that the appointment of the petitioner was not that of a simple legal-advisor, assignment perceived and understood in its ordinary parlance in context of the profession of law; the petitioner was not appointed on the basis of any retainship, rather he was inducted into the "service" of SZMC/SZH, which is defined by the Black's Law Dictionary sixth edition at page 1368 "This term has a variety of meanings, dependent upon the context or the sense in which used."
"Contracts. Duty or labor to be rendered by one person to another, the former being bound to submit his will to the direction and control of the latter. The act of serving the labor performed or the duties required. Occupation, condition, or . Status of a servant, etc. Performance of labor for benefit of another, or at another's command; 'attendance of an inferior, hired helper, etc. Claxton v.
Johnson County, 194 Ga.43,20 S.E.2d 606, 610. "Service" and "employment" generally imply that the employer, or person to whom the service is due, both selects and compensates the employee, or person rendering the service."In Corpus Juris Secundum (1952) Edition, Vol. LXXIX, the word has the meaning:--- "The word "service" has a multiplicity and a variety of meanings and different significations. It is not a simple word with a simple meaning, leaving no room for construction, but _ rather it is a 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 Court have found it impracticable to attempt a definition by which to test every case that may arise."
It is further stated:--- 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 an inferior, hired helper, slave."
The employment of the petitioner in the light of the terms and conditions of his service, the meaning of the expression/concept and also the pay-slip (which is reproduced below) carried full traits of the service. Therefore, it should be examined, if the petitioner still retains the status of a practicing lawyer, Mr. Shehram Sarwar, learned counsel for the petitioner, in order to argue in favour of the proposition has referred to the certificate dated 10.4.2004 issued by the Principle SZMC/SZHI that the petitioner is not drawing any Non-Practicing Allowance (NPA) and .In the other certificate dated 25.2.2009, it is mentioned "that though no sanctioned post of Legal Advisor BPS-18 was available in the SZMC/SZH, yet his remuneration was fixed equal to the salary (underline is mine for emphasis) of the post of BPS-18 as a Special Pay Package and in addition to that he was allowed to do his private practice as an Advocate"; thus he submits that according to the judgment reported as Muhammad Muazzam Butt, Advocate v. Qazi Muhammad Anwar, Advocate and 4 others (1998 CLC 1810), any person whose name existed on the roll .Of Advocates on the date of election was qualified to contest the election and as on the date this was the position; to hold the petitioner ineligible is absolutely legally wrong. He has also argued that there is no reason for going deep into the nature of the petitioner's job, when according to the certificate issued by the principal, he has permission of the "authority" to practice. I am not convinced that the above is the "legal advisorship" for which the petitioner is drawing retainership alone, rather his service is of full- fledged nature as mentioned above, because the salary is payable to him; he is entitled to certain allowances; he is bound by the duty roster; his duty hours are fixed; he has casual and earned leave; medical allowance/facilities; TA/DA as admissible to BS under he relevant rules. If this all is considered to be within the purview of legal advisorship, it shall be farcical and a fraud thereto. This all rather correspond to the performance of certain duties in connection with the internal legal work of SZMC and may be equated as an in-house law officer, but it cannot be held that the petitioner had not joined the service of SZMC, thus according to rule 180-0 read with Rule 175 of Rules, 1976, the petitioner was obliged to apply for the suspension of the certificate but having not done so, irrespective any liability under second proviso to the rule, his certificate enrolment as an Advocate shall be deemed to have been suspended automatically disentitling him to practice in the Courts, notwithstanding that two certificates have been issued to the petitioner that his non-practicing allowance is not deducted or that he has the permission to practice, as the permission by an organization to practice would not be relevant, for overriding the provision of law, which provides otherwise: it may not be out of place to mention here that pursuant to an order dated 12.5.2009 passed by this Court the petitioner has placed on record his pay slip which envisages as under:- Pay: Basic Pay Rs.16,630/- House Rent Rs. 3,873/- Special Relief Allowance (15%+15%)Rs. 2,440/- 15% Dearness AllowanceRs. 1,606/- 30% as Social Security BenefitRs. 3,873/- Total: Rs.28,422/- Deduction Income Tax Rs. 100/- Total Deduction Rs. 100/- Grand Total: Rs.28,322/- The above shows that he is also drawing certain allowance including the social security benefit, etc., if this emolument package is not the proof of exclusiveness of the service, what else it could be, therefore, I have no doubt in my mind that the petitioner was in service as contemplated by Rule 108-0 read with Rule 175 of Rules, 1976 and therefore, was not eligible voter or eligible candidate on the relevant date, thus his election is void.
15. As regards the other Writ Petition No. 1679 of 2009 is concerned, the petitioner claims that she was runner up in the election and the Pakistan Bar Council should have granted her the relief in view of Rule 66 of Rules, 1973.
16. I am afraid that such rule as has been held earlier is not applicable to the election of the Bar Association and no other law has been shown on account of which the relief can be granted to the petitioner, particularly in the light of rule 66 of the 1981 Rules, which provides "In case the election as a whole has been declared, void or the election of a particular office-bearer has been set aside, re- election shall be held within 21 days in accordance with the Rules" therefore, this petition too has no merits and is hereby dismissed."