' Through this order we propose to decide Election Appeal No,24 of 2013 and Election Appeal No,125 of 2013 as common questions of law and facts are involved therein.
2. Both appeals challenge the order dated 6-4-2013 whereby the nomination paper of respondent No,2 to contest the election of Constituency NA-50 Rawalpindi has been accepted by the learned Returning Officer.
3. At the outset the learned counsel for respondent No,2 questions the maintainability of the appeals by inter alia submitting that section 14(5) of the Representation of the People Act, 1976, does not admit of an appeal being filed by any person other than a contesting candidate. The appellant admittedly is not a contesting candidate, therefore, the appeal does not lie.
4. The learned counsel for the appellants in response to the preliminary objection submit that the appellants had objected to the candidature of respondent No,2 before the learned Returning Officer by filing objections. As such by virtue of the provisions of Rule 5 of the Representation of the People (Conduct of Election) Rules, 1977, an elector who has objected to the candidature of a candidate may present an appeal. Hence, the appeal by the appellants. Even otherwise by virtue of section 14(5A) of the Act, ibid, any person can place information before this Tribunal vis-a-vis the qualification/disqualification of a candidate and if this Tribunal finds that the candidate suffers from any disqualification from being elected or chosen as a Member of the Majlise-Shoora (Parliament) then this Tribunal can reject the nomination paper of the candidate.
5. Having gone through the record and the contentions of the learned counsel for the parties we find that the appellants are electors from NA-50 and had filed objections against the candidature of respondent No,2 before the learned Returning Officer. We, therefore, hold that this appeal is competent by virtue of section 14(5) of the Act, ibid, read with Rule 5 of the Rules, ibid. Even otherwise we find that the information placed before us by the appellants, under section 14(5A) of the Act, ibid, warrants examining the case of respondent No,2 on merits.
6. The learned counsel for the appellant in E.A.No,24 of 2013 submits that the candidature of respondent No,2 is hit by the provisions of Article 63(1)(d) and (e) read with Article 63(1)(k) of the Constitution of the Islamic Republic of Pakistan, 1973, inasmuch as respondent No,2 was an Advisor on the Public Private Partnerships in the 'Infrastructure Project Development Facility (IPDF) of the Finance Division, Government of Pakistan . IPDF is a company incorporated under section 42 of the Companies Ordinance, 1984 and is wholly owned and controlled by the Government of Pakistan.
Admittedly respondent No,2 was appointed as an Advisor on 12-7-2008. It is further admitted that respondent No,2 resigned from the post of Advisor and his resignation was accepted through Notification dated 29-3-2013. As per the provisions of Article 62(1)(d) of the Constitution a person is disqualified from being elected or chosen as a Member of Majlis-e-Shoora (Parliament) if he holds an office of profit in the service of Pakistan other than the one declared by law not to disqualify him.
Similarly Article 63(1)(e) of the Constitution provides for disqualification of a person if he is in the service of any statutory body or any 'body which is owned and controlled by the Government or in which the Government has a controlling share and interest. Article 63(1)(k) of the Constitution provides that if the person leaves the service of the Pakistan or the body as the case may be the disqualification continues unless a period of two years has elapsed since the person ceased to be in such service.
7. The learned counsel for the appellant further submits that respondent No,2 in the capacity of an Advisor to IPDF was receiving perquisites and privileges. IPDF paid his house rent in the value of Rs,150,000/- per month. He was provided with two official cars and petrol. His utility bills were also paid by the IPDF. Admittedly respondent No,2 went on several foreign trips which were funded by the, IPDF. He also attended a course at Harvard University at Government expense. Further submits that respondent No,2 was in fact receiving remuneration and perks equivalent to Grade MP-I.
Respondent No,2 was, therefore, receiving remuneration from the public exchequer for his services.
Respondent No,2 remained an Advisor of IPDF for around five (5) years.
8. Contends that the mere fact that respondent No,2 was receiving remuneration from the public exchequer brings him into ambit of being in the service of Pakistan or in the alternative in the service of a corporate body wholly owned and controlled by the Government. Respondent No,2 is, therefore, disqualified from being elected or chosen as a Member of the Parliament as his candidature comes within-the mischief of Article 63(1)(d) and/or (e) of the Constitution. The fact that respondent No,2 has resigned as Advisor does not come to his aid as the date of resignation of respondent No,2 is admittedly 29-3-2013 that is the date of the Notification issued by the Finance Division regarding his resignation. As is evident a period of two years has not elapsed since 29-3- 2013. As a consequence, the candidature of respondent No,2 is also hit by the provisions of Article 63(1)(k) of the Constitution. Relies on "Ghulam Sarwar Khan and another v. Muhammad Naseem and others" (2004 CLC 521) and "Mrs. Neelam Yasmin Abbasi v. Returning Officer and 2 others" (2010 M LD 527) in support of his contentions.
9. The learned counsel for the appellant in E.A.No,125 of 2013 whilst adopting the arguments of the learned counsel for the appellant in E.A.No,24 of 2013 submits that respondent No,2 has been in the service of Pakistan in his capacity as the Advisor to IPDF. Respondent No,2 has been receiving remuneration for the services rendered. The requisite two years period has not elapsed since respondent No,2 ceased to be in the service of Pakistan. Respondent No,2 is, therefore, disqualified from contesting the elections. Further submits that, assuming without conceding, respondent No,2 was not in the service of Pakistan then he was admittedly in the service of a corporate body wholly owned and controlled by the Government. In such circumstances also respondent No,2 stands disqualified. Contends that the house rent of respondent No,2 was being directly paid to the landlord by the IPDF. Respondent No,2 suppressed material facts whilst filing his nomination paper.
Admittedly respondent No,2 had not been appointed as an Advisor under the provisions of Article 93 of the Constitution. As such his office shall be deemed to be an office of profit. He, therefore, stands disqualified from contestinc the election. Relies on "Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others" (PLD 1994 SC 60) and "Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others" (PLD 1997 SC 32).
10. The learned counsel for respondent No,2 controverts the stance of the learned counsel for the appellants. Submits that respondent No,2 had been only appointed 'as an Advisor to the IPDF. The post did not admit of any salary or remuneration. Respondent No,2 was not in the service of Pakistan. His candidature is, therefore, .Not hit by the provisions of Article 63(1)(d) of the Constitution. Respondent No,2 did not have any managerial power or indeed the powers to hire or fire any 'employees of IPDF. Further submits that the post of respondent No,2 as an Advisor to IPDF does not come under the definition of service of Pakistan as given in Article 260 of the Constitution.
The post on which respondent No,2 was appointed is not an office of profit as it did not admit of any remuneration. Reimbursement of out of pocket expenses to respondent No,2 cannot make the office held as an office of profit in the service of Pakistan. Relies on "Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others" (PLD 1997 SC 32), "Umrao Singh v. Darbara Singh" AIR 1969 SC 262) and "K.B. Rohamare v. Shanker Rao" (AIR 1975 SC 575). Further relies on "Mirza Muhammad Tufail v. District Returning Officer and others" (PLD 2007 SC 16) to contend that there are five tests to determine whether a person is in the service of someone or not. The five tests are as follows:--- Now according to the definition described above, service means being employed to serve another, it implies the submission to the "11 ........................................................................................ will of another as to direction and control, to do work for another, 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 subordination, 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 facts present in a case and whether stress will be laid on one factor or the other will depend on each particular case."
11. Further submits that there is no material on the record to substantiate the contentions of the learned counsel for the appellant that respondent No,2 was receiving any remuneration.
Respondent No,2 was acting merely in his capacity as an Advisor. He was not drawing any salary or receiving any remuneration. As such the appointment of respondent No,2 as Advisor to the IPDF on the basis of the above tests cannot be deemed to be either service of Pakistan or indeed any corporate body wholly owned and controlled by the Government. Prays for dismissal of the appeal.
12. We have considered the arguments of the learned counsel for the parties and gone through the record.
13. We find that admittedly respondent No,2 was appointed as an Advisor to the IPDF which is a corporate body or a body wholly owned or controlled by the Government. Respondent No,2 was admittedly appointed as Advisor to the IPDF through the Finance Division's Notification dated 12-7- 2008. Respondent No,2's resignation was accepted through the Finance Division's Notification dated 29-3-2013.
14. The learned counsel for respondent No,2 has contended that respondent No,2 was only receiving out of pocket expenses. He has denied that respondent No,2 was receiving any perks and privileges. We, however, find that respondent No,2 in his capacity as Advisor to the IPDF not only went on foreign trips but also received training at Harvard University at public expense. In addition to the above he also received perks and privileges. All of this amounts to receiving more than just out of pocket expenses. We therefore, find that respondent No:2 was receiving remuneration as Advisor to the IPDF.
15. If we were to apply the five tests of Mirza Muhammad Tufail's case. (supra) to the instant case we find that respondent No,2 was subordinate to the Government of Pakistan inasmuch as the authority to appoint him lay with the Finance Division and his resignation was also accepted by the Finance Division. Reliance is placed on the Notifications in this respect. Moreover, respondent No,2 received remuneration from the Government and the nature of functions of his office were also determined by the Government.
16. The Hon'ble Supreme Court in Mirza Muhammad Tufail's case (supra) has further held that the decisive test is that of appointment and removal from service while the remuneration is a neutral factor and not decisive.
17. We have already held that the power of appointment and removal from service of respondent No,2 lay with the Government of Pakistan, therefore, respectfully following the law as laid down by the Hon'ble Supreme Court in Mirza Muhammad Tufail's case (supra) we hold that respondent No,2 was in the service of a corporate body wholly owned and controlled by the Government. We further hold that two years have not elapsed since the resignation of respondent No,2 as the Advisor to the IPDF. Respondent No,2's candidature is, therefore, hit by the provisions of Article 62(1)(e) read with Article 63(1)(k) of the Constitution. He is, therefore, not qualified to be elected or chosen as a Member of the Majlis-e-Shoora (Parliament).
18. Under the circumstances, the appeal is accepted and the impugned order is set aside. As a consequence, the nomination paper of respondent No,2 shall stand rejected. His name be deleted from the list of validly nominated candidates of NA-50.
19. Copies of this order be sent to the learned District Returning Officer and the Returning Officer concerned for information and necessary action.