1. ' MS. RUKHSANA AHMAD, J.---Through this Election Appeal filed under section 14(5) of the Representation of the Peoples Act, 1976, the appellant MRs, Neelam Yasmin Abbasi has challenged the order passed by the respondent No,1, whereby he accepted the form/papers of the respondent No,2 in respect of the Bye-Election in Constituency PS-84, Thatta-1.
2. ' The facts of the present case are that appellant is the candidate in respect or bye-elections for the Constituency PS-84 Thatta-I. However, the respondent No,2 also filed his nomination papers for the same constituency. The respondent No,1 who is the Returning Officer of such constituency called for scrutiny of the nomination papers on 3rd February, 2010 and on the same day scrutiny, objection as well as hearing on objection was conducted. Upon scrutiny the respondent No,1 accepted the papers of the appellant.
3. ' However, the appellant filed objections calling in question the qualification of respondent No,2 for being candidate for the said constituency on the ground that the respondent No,2 being in the service of Pakistan by virtue of Article 240 of the Constitution is not eligible to contest the Election in view of the bar contained under section 99(1)(a) sub-clauses (d), (j) and (k) of the Representation of the Peoples Act, 1976 as well as under Article 63(b), (j) and (k) of the Constitution. The appellant placed on record documentary proof before the respondent No,1, according to which the respondent No,2 was an Assistant Engineer (BS-17) in Rural Development Department, Government of Sindh. The respondent No,2 in reply placed before the respondent No,1 two documents i.e, one resignation letter, dated 23rd October, 2006 and a Notification 26-1-2010.
4. ' On the same day i.e, 3rd February, 2010, the hearing was conducted by the respondent No,1 upon such objection filed by the appellant and orally announced his verdict whereby the objection raised by the appellant was rejected and the nomination papers of the respondent No,2 were accepted. Respondent No,1 also issued a list of valid nominated candidates in Form-VI whereby the name of the respondent No,2 was also mentioned.
5. ' Appellant feeling aggrieved and dissatisfied with the order, dated 3rd February, 2010 passed by the respondent No,1, has assailed the same by filing a present Election Appeal.
6. ' We have heard the arguments of the respective counsel appearing on behalf of the appellant as well as respondents and have gone through material placed before us.
7. ' At the very outset learned counsel for the appellant argued that respondent No,2 was serving as Assistant Engineer (BS-17) in Rural Development Department, Government of Sindh. However, the respondent No,2 was on Ex-Pakistan leave for two years w.e.f, 1-5-2003 to visit U.S.A/Canada and he was required to report his duty on 1-5-2003, but he failed to join his duty after expiration of leave period. However, a show-cause notice, dated 22-2-2007 was issued to him by the Minister for Local Government being competent Authority, but no reply was tendered by the respondent No,2. Again another show-cause notice was issued to him on 17-6-2008 which was replied by the respondent No,2 on 2-4-2009. After receipt of such reply, the office processed the summary to the Competent Authority i.e, the Chief Minister of Sindh, for exonerating him from misconduct and by treating his absence as extraordinary leave without pay. However, learned counsel for the appellant emphasized that on 7-2-2009 the respondent No,2 joined his duty, which fact is apparent from a note for Minister RDD. He further argued that on 19-1-2010 after announcement of Election on the seat of Constituency No,PS-84 Thatta-1 of Provincial Assembly of Sindh, which became vacant due to the death of Mr. Abdul Jaleel Memon. Exhs.MPA Sindh, the so-called Notification, dated 26th January, 2010 was issued by the Secretary to Government of Sindh notifying 'therein that with approval of competent authority the resignation submitted by the respondent No,2 on 23-10-2006 has been accepted with effect from the date of submission of resignation i.e, from 23-10-2006, just in order to make eligible the respondent No,2 for contesting the Election, otherwise the Authority before announcement of the Election has dropped the proceedings against the respondent No,2 through Order, dated, 14-12-2009 passed by Minister RDD (Annexure A/6). He further argued. That the respondent No, 2 is not eligible to contest the said election as he till 25th January, 2010 was in service and the Authority has no power to allow the resignation of the respondent No,2 retrospectively from 23-10-2006 with a motive to allow chance to said respondent to contest the Election. He lastly argued that in view of the submissions, two years period as contemplated under the law has not been elapsed, therefore, he is not eligible to be allowed to contest the said Election.
8. ' On the other hand Mr. Rasheed A. Rizvi learned counsel appearing on behalf of respondent No,2 has argued that the Notification in respect of the acceptance of the resignation tendered by the appellant is valid in view of the fact that from the date of submission of the registration the respondent No,2 has not even received a single penny for the Department and/or availed any benefit, hence the allegations made by the appellant are baseless, untrue and ill-founded. He further argued that the respondent No,2 had never joined his duty in any Government service/Statutory body owned/controlled by the Government after 23-10-2006. He lastly argued that the respondent No,2 is fully qualified in accordance with Article 62 of the Constitution as well as section 99 of the Representation of the Peoples Act, 1976.
9. ' Mr. Adnan Karim learned A.A.-G appearing on behalf of the Government of Sindh adopted the arguments of the learned counsel appearing on behalf of the respondent No,2. However, additionally he further argued that this Court is functioning as Appellate forum and thus this Court has no authority to see legality or otherwise of the said notification, whereby the resignation of the respondent No,2 was accepted. However, when the learned A.A.-G was confronted with case of Hafiz Hamadullah v. Saifullah Khan reported in (PLD 2007 SC 52), he conceded that the effective date for the purpose of acceptance of registration will be 26-1-2010 and according to him since at the time of filing of nomination papers, the respondent No,2 was not in service, therefore, he prayed for dismissal of the present appeal.
10. ' Mr. Mohammad Ashraf Mughal learned DAG has adopted the arguments of the learned counsel for the respondents Nos.1 and 2 but conceded to the position that there is negligence on part of the Government in accepting the resignation but in any way once the authority has accepted the resignation of the respondent No,2 from the date of its submissions, the same cannot be called in question in the present proceedings.
11. ' We have meticulously gone through the record as well as the arguments of the respective counsel. However, it would be worthwhile to quote here the relevant provision i.e, subsection (k) of section 99(1A) of the Representation of the Peoples Act, 1976, which explicitly provides the conditions of disqualifications of a person from being elected as and from being a member of an Assembly, if he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the government or in which the government has a controlling shares or interest, unless a period of two years has elapsed since he ceased to be in such service. However, in the present case the appellant has claimed that the respondent No,2 is disqualified because the Notification of acceptance of his resignation has been issued only on 26th January, 2010, hence before the said date he would be deemed to be in service and thus the period of two years as contained under section 99 of the Act, 1976 would be reckoned from the date of issuance of the said Notification. Now the points to be decided is whether the resignation submitted by a government/civil servant could be presumed to have effected immediately from the date of its submission or from the date/period mentioned in the resignation. In regard to this aspect of the matter it is observed that mere tendering/submitting of resignation the services of government/civil servants would not come to an end and the same has to be accepted for its effectiveness by the competent authority. Nevertheless, till such time as the resignation is accepted by the competent authority, the civil/government servant would continue to be in government service and would be under an obligation to perform his duties. In case he fails or omits to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under the appropriate law and rules.
12. It is further observed that applications of government/civil servants are made and governed by the provisions of Civil Servants Act, the Rules made thereunder the terms and conditions agreed by the parties incorporated in the appointment letter/notification, therefore, there is no cavil with the proposition that the service of a government/civil servant is a result of mutual agreement between him and the government. The employment/service being the result of bilateral agreement between him and the government, a unilateral action of the civil/government servant to relinquish his right in relation to the an office/post would not be operative or, effective unless accepted by the competent authority. Therefore, we have no hesitatiori to hold that resignation tendered by a civil servant and its acceptance by the competent authority is an essential requirement for its effectiveness and till such time as it is accepted or approved the civil servant would continue to be in service.
13. ' Now another aspect of the matter appears which is that whether the resignation would be effective from the date of its acceptance or from the date when it is tendered by the civil servant.
14. However, on this aspect of the matter Mr.' Rizvi made reference to section 24 of the Sindh Civil Servants Act, whereby it is provided that "nothing in this Act or in any rule shall be construed to limit or abridge the power of government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable. Provided that, where this Act or any rule in applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." However, he has failed to show us any provision of law or rule whereby executive/departmental authority has been authorized or empowered to pass orders with retrospective effect in view of the settled principle that the executive/departmental authority has no powers to pass C order with retrospective effect. We are fortified with above quoted decision of the Honourable Supreme Court reported as PLD 2007 SC 52, wherein said question was come up before this Lordships and the Honourable Supreme Court after discussing it at length held that "Executive/Department authority has no power to pass orders with retrospective effect."
15. For the foregoing reasons, we have come to the conclusion that the resignation of the respondent No, 2 was accepted on 26th January 2010 and not earlier as stated in the Notification, dated 26th January, 2010, therefore, the period of two years as stipulated under section 99(1A)(k) of the Representation of the Peoples Act would be reckoned from the date of Notification and thus he would become eligible after two years from the date of Notification.
16. ' In view of the above circumstances, we are constrained to allow this petition and resultantly the order passed by learned Returning Officer/respondent No,1 is set aside. Consequently, the Nomination papers of respondent No,2 for contesting Election of PS-84 Thatta-I are rejected.