' As Election Appeal No,5 of 2012 "SAQIB NASEEB v. RETURNING OFFICER etc." and Election Appeal No,6 of 2012 "SAQIB NASEEB v. RETURNING OFFICER, etc.", both arise out of almost similar facts and carry same questions of law, therefore, are being decided by means of this single judgment.
2. Briefly the facts are that the Election Tribunal constituted under section 14(5) of the Representation of the People Act, 1976 for PP-226 Sahiwal-VII while dealing with an Election Petition No,142 of 2008 vide its judgment dated 8-8-2012 declared one Malik Iqbal Ahmad Langrial (MPA- respondent No,1 therein) ineligible to contest election for the seat of PP-226 Sahiwal-VII in the year 2008, held his election as MPA illegal and void, his notification as returned candidate for the said constituency was set aside and Election Commission of Pakistan was directed to arrange for holding of by-election for PP-226 Sahiwal-VII. The judgment of the Election Tribunal was upheld by the Hon'ble Supreme Court of Pakistan and consequently schedule of by-election was announced; the appellant along with others filed Nomination Papers. The Nomination Papers of Muhammad Iqbal (respondent No,2 in Election Appeal No,5 of 2012) and that of Muhammad Hanif (respondent No,2 in Election Appeal No,6 of 2012) were challenged by the appellant on the ground that former (Muhammad Iqbal) is Member of Area Water Board constituted under the Punjab Irrigation and Drainage Authority (Pilot Water Board) Rules, 2005 and latter Muhammad Hanif was elected Chairman of the "Khal Panchayat" of Chak No,50/12-L under the Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005, constituted under Punjab Irrigation, Drainage Authority Act, 1997 therefore, they both were disqualified to be elected as Member of Provincial Assembly (PP-226 Sahiwal-VII). The Returning Officer, however, accepted the Nomination Papers of Muhammad Iqbal as well as that of Muhammad Hanif through separate orders of same date i,e, 31-10-2012, hence, these Election Appeals.
3. The learned counsel for the appellant argued that respondent No,2 in both the Election Appeals being Member of Area Water Board and Chairman of "Khal Panchayat" respectively, are holding the office of profit and performing services under Punjab Irrigation and Drainage Authority Act, 1997 and thus being public officers are "civil servants", and disqualified to be elected as Members of Provincial Assembly in terms of Article 63(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for the appellant further referred sections 4 and 14 of the Punjab Irrigation and Drainage Authority Act, 1997, Rules 3, 5 and 14 of the Punjab Irrigation and Drainage Authority (Pilot Area Water Board) Rules, 2005 and Rules 5, 17 of the Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005 and submitted that respondents are performing duties under the Punjab Irrigation and Drainage Authority Act, 1997 and they are fully covered by the definition, of "civil servant" and the orders dated 31-10-2012 passed by the Returning Officer without adopting the proper procedure under section 14(3) of the Peoples Representation Act, 1976 accepted the Nomination Papers of the respondents under section 14(4) of the Act, ibid, thus the impugned orders are not in accordance with law and the Constitution of Islamic Republic of Pakistan, 1973.
4. On the other hand, learned counsel for respondent No,2 contended that respondents are members of elected bodies and performing duties for the welfare of the Farmers within the limits prescribed by the statute without obtaining any remuneration, therefore, by no stretch of imagination the respondents can be termed as "civil servants", and they are fully qualified to be elected as Members of the Provincial Assembly, as disqualification clause referred by learned counsel for the appellant under Article 63(d)(e) of the Constitution of Islamic Republic of Pakistan, 1973 does not attract to the case of these respondents.
5. We have given anxious consideration to the arguments of learned counsel for the parties and perused the available record.
6. One of the important purposes for promulgation of the Punjab Irrigation and Drainage Authority Act, 1997 was to introduce participation of the beneficiaries in the operation and management of the canal system in the Province and for the same purpose the Punjab Irrigation and Drainage (Pilot Area Water Board) Rules, 2005 and the Punjab Irrigation and Drainage (Pilot Farmers Organizations) Rules, 2005 were formulated and different bodies from the Farmers (owner or co- owner of land holding (khata) using canal water and directly engaged in cultivation of land within the areas of the watercourse), were established. Both the respondents are Members of these bodies elected under relevant rules and regulations and they are performing function within the parameters settled by the Act, ibid and the rules framed thereunder. Neither the respondents are appointed by any authority nor obtain remuneration from the Government. Careful reading of Rules 14, 15(2), 18 and 20 of the Punjab Irrigation and Drainage Authority (Pilot Area Water Board)
Rules, 2005, and Rules 16 and 17 of the Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005, clearly establish that respondents are not employees of the authority, rather they are performing their functions being elected members of the Farmers (Owner or co- owner of land holding (khata) using canal water and directly engaged in cultivation of land within the areas of the watercourse).
7. Furthermore, there is nothing on the record to establish that respondent No,2 are being paid any remuneration to declare them as "civil servants". It is a fact borne out from the record itself that both the respondents are not appointed by any authority; rather they are the elected personnel. By the involvement of local farmers of the area in irrigation system through the Punjab Irrigation and Drainage Authority Pilot (Area Water Board) Rules, 2005, the sole purpose before the Legislators was to fetch better output; otherwise, the respondents are not holding whole time office. The Hon'ble Supreme Court of Pakistan in the case "Mirza MUHAMMAD TUFAIL versus DISTRICT RETURNING OFFICER, and others" (PLD 2007 SC 16) set down the guiding principles to determine the status of a "civil servant", by holding that service means being employed to serve another, it implies submission to the will of another as to direction and control, to do work for another. Determination factor to hold a 'person to be in service of a body or authority, implies subordination to that body.
Five tests for such subordination, namely (i) the power of authority of 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. Decisive test is that of appointment and removal from service while remuneration is neutral factor and not decisive. Further held that tests should 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 factors present in a case. The apex Court further settled that whether stress has to be laid on one factor or the other depends on each particular case.
In the instant case when status of the respondents is gauged by the above scale, as discussed above, these respondents have not been appointed by any authority rather they are elected persons under a specific process under the relevant rules; they do not hold whole time office; they are not paid any remuneration and their eligibility to become a member of said Organization or disqualification to retain such seat, is provided by these Rules. Although they may be public functionaries so far the nature of their functions is concerned, yet they cannot be termed to be in the service of Pakistan within the meaning of Article 260 of the Constitution of Islamic Republic of Pakistan, 1973.
7.(sic) In view of the above discussion, the orders passed by Returning Officer do not suffer from any illegality or infirmity. The appeals are without merits and same are hereby dismissed. The copy of this order be forwarded to the Returning Officer for information and necessary action.