This appeal has been directed against the order dated 05.04.2013 of the Returning Officer, whereby the nomination papers of the Respondent No, 4 have been accepted. Despite the fact that the appellant had raised the objection regarding the dis-qualification suffered by the candidature of Respondent No, 4, it is not denied by the respondent that before filing the nomination papers, he was performing his duties as elected Vice Chairman of Multan Development Authority and he resigned from his Vice Chairmanship before filing his nomination papers. The objection filed by the appellant was repelled by the Returning Officer on the ground that the Vice Chairman, Multan Development Authority is an elected office, therefore, Respondent No, 4 does not fall in the purview of Government Servant.
2. Appellant submits that Respondent No, 4 suffered dis-qualification under Article 63 Clauses D, E & K being a Government Servant as he filed the nomination papers one day after filing the resignation, therefore, the order impugned passed by the R.O. suffered from legal infirmity. To elaborate his arguments, he submits that Respondent No, 4 received a heavy amount in consideration of his services rendered as a legal advisor, therefore, he was holding a post which falls within the definition of the employees of Multan Development Authority. In this view of the matter, unless two years lapsed to cease to be in service, the Respondent No, 4 could not contest election. He has placed reliance on (NLR 2006 Civil 39), (PLD 1996 S.C. 717), (PLD 1997 Peshawar 137) and (1997 M LD 3079).
3. On the other hand Respondent No, 4 has entered appearance and in response to the objection raised by the appellant regarding the validity of the candidature of Respondent No, 4, submits that Respondent No, 4 had been elected as Vice Chairman by the Town Nazim of the Multan as an advisor which does not fall within the ambit of the dis-qualification as envisaged under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973.
4. We have considered the arguments of the parties and have gone through the record of the case.
5. The record available on the file does not reflect that Respondent No, 4 was appointed against any post which falls within the ambit of the Clauses D, E & K of Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. Further reflects that the appellant was elected as advisor to the Town Nazim by their elected Nazims, therefore, without reaching to this conclusion -that under what lawful authority against which particular post the Respondent No, 4 was elected to perform his duties, the Respondent No, 4 could not be considered to have fallen within the ambit of the dis- qualification as envisaged under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973.
The induction of the appellant through election conducted by the then Nazims of Towns does not reflect any recognized/confirm post of the department, which otherwise require detailed inquiry but at this stage, Respondent No, 4 could not be deprived of contesting the election here as, if at any stage it is proved on record that the post held by Respondent No, 4 fell within the ambit of the disqualification, the matter can be re-agitated before the appropriate forum as enunciated by the Hon'ble Supreme Court. Therefore, at this juncture the denial to respondent. No, 4 to contest the election amounts to divest him of his legitimate rights on an uncertain ground which is not permissible under vein circumstances, rather could only be established by recording the evidence in accordance with law.
6. For what has been discussed above, this appeal has no merits and is dismissed.