Mushtaq Ahmad Tarar, J:- Through this writ petition the petitioner has assailed the order dated 12.10.2015 passed by the Appellate Authority-respondent No. 1, whereby respondent No. 1 dismissed the appeal of the petitioner filed against the order dated 30.09.2015 passed by respondent No. 2 for acceptance of nomination papers of respondents No. 3 and 4.
2. The facts leading to this writ petition in brief are that respondents No. 3 and 4 submitted their nomination papers before respondent No. 2 to contest the election of Chairman and Vice Chairman of U.C. No. 69, Tehsil Mianchannu District Khanewal. The petitioners filed objections before respondent No. 2, that respondent No. 4 being Legal Advisor of TMA, Mianchannu District Khanewal is disqualified to contest the election. The Returning Officer-respondent No. 2 accepted the nomination papers of respondents No. 3 and 4 while rejecting the objections. The petitioners filed appeal before respondent No. 1 which also dismissed vide order dated 12.10.2015.
3. Learned counsel for the petitioners argued that respondent No. 4 being Legal Advisor of TMA Mianchannu is receiving the monthly salary and other allowances TA/DA etc and he is disqualified to contest the election under the provisions of Section 27 (2) (e) of the Punjab Local Government Act, 2013 as he has been appointed Legal Advisor under the provisions of Punjab Local Government (Legal Advisor) Rules, 2003; that as respondents No. 3 and 4 are contesting the election for Chairman and Vice Chairman as joint candidature, the respondent No. 2 illegally accepted the nomination papers of respondents No. 3 and 4 and respondent No. 2 while dismissing the appeal of the petitioner has committed material irregularity and miscarriage of justice. He has placed reliance upon "Zafar Mehmood Mughal Vs. Sajjad Akbar Abbasi and others" (PLJ 2015 SC 814), "Sajjad Akber Abbasi Vs. Advocate-General Punjab and 3 others" (PLD 2014 Lahore 627), "Zafar Mahmood Mughal, Advocate Vs. Sajjad Akbar Abbasi and 3 others" (PLJ 2014 Lahore 112).
4. On the other side, learned Standing Counsel supported the orders of respondents No. 1 and 2.
Learned counsel for respondents No. 3 and 4 argued that respondent No. 4 is not civil servant and his case falls in the exceptions to the provisions of Section 27 (2) (e) of the Punjab Local Government Act, 2013; that respondent No. 4 is an Advocate and his license has not been suspended due to his job as a Legal Advisor which fact also establishes that he does not fall within the disqualification imposed by Section 27 of the Act; that the referred judgments are not applicable and respondent No. 4 has no concern with the business affairs of TMA.
5. Arguments heard. Record perused.
6. It is admitted fact that respondent No. 4 has been appointed as Legal Advisor of TMA Mianchannu and he is receiving the monthly salary/remuneration and other allowances, TA/DA etc from TMA Administration. The main issue to resolve the controversy between the parties is as to whether the respondent No. 4 being Legal Advisor of TMA is disqualified or not to contest the election of Local Government scheduled to be held in 2015 for the seat of Vice Chairman of U.C. No. 69, Tehsil Mianchannu District Khanewal.
7. Section 27 of the Punjab Local Government Act, 2013 hereinabove referred as "Act 2013" provides the qualification and disqualification of candidates to contest the election of Local Government.
For the instant case, clause (e) of sub-rule (2) of Section 27 of the Act supra is relevant which is as under:-
27. Qualifications and disqualifications for candidates and elected members:- (1) .......................
(a) ......................
(b) .......................
(c) .......................
(2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he-
(a) ......................
(b) .......................
(c) .......................
(d) .....................
(e) Is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement;"
8. It is clear from the bare reading of the provisions referred above that a person who is in the service of any statutory body or a body which is owned or controlled by the Federal Government, Provincial Government or a Local Government or, in which any of such Government or local government has a controlling share or interest, is debarred to be elected as member of any local government unless he has resigned or retired from any such service and period of not less than two years has elapsed since his resignation or retirement, whereas, the holders of elected public office and part-time officials remunerated either by salary or fee are exempted from such bar.
9. It is matter of record that respondent No. 4 is working as Legal Advisor of TMA. According to the provisions of Punjab Local Government (Legal Advisor) Rules, 2003, the Legal Advisor of Local Government is appointed under Rule 4 of said rules, which is as under:- "4. Procedure for appointment.-(1) A Local Government desirous of engaging a Legal Adviser on regular basis shall invite applications through advertisement at least in two National daily newspapers indicating the requisite qualifications, experience, standing of the advocate and the maximum remuneration offered: Provided that it would be clearly indicated in the advertisement that a Legal Adviser may be appointed at remuneration, which may be less than the remuneration offered: Provided further that where the remuneration to be paid does not exceed one thousand rupees, the advertisement may be dispensed with:
(2) The candidates shall be advised to address their applications to the Local Government concerned and also forward a copy of the application along with annexure to Government.
(3) The Local Government concerned shall forward to Government all applications of the candidates along with its recommendations.
(4) The recommendations received from the Local Government concerned shall be considered by a Selection Committee comprising the following:-
(i) Law Minister Chairman (ii) Secretary to Government of the Punjab Law member & Parliamentary Affaires Department Member (iii) Representative of the Local Government & Member Rural Development Department who shall be an officer not below the rank of BPS-18; and Member (iv)
Representative of the District Coordination Officer Member Provided that Government may at any time alter the constitution of the committed or increase or decrease the number of its members.
(5) The committee shall approve the name of the Advocate to be appointed as a Legal Adviser and the remuneration to be paid to him.
(6) The Advocate approved by the committee shall be appointed by the Local Government concerned on the terms and conditions fixed by Government.
10. The Rule 5 of said Rules provides about the duties of Legal Advisor according to which the Legal Advisor or an Advocate is engaged by a Local Government to tender legal advice to and to appear in legal proceedings on behalf of the Local Government and he shall not without seeking prior approval of the Local Government concerned, make a statement before any court, tribunal or authority amounting to admission, compromise, adjustment of claim or materially affect the case of the Local Government. Sub-Rules (3) (4) (5) of Rule 5 referred above provide that if Legal Advisor will make any statement in violation of Sub-Rule (2), he shall be personally responsible to the Local Government concerned for any loss to it by any such statement and on receipt of reference, the Secretary, Law & Parliamentary Affairs Department, Government of the Punjab, shall appoint an enquiry officer to conduct the enquiry as to the loss, if any, caused to the Local Government by such statement and proposing the action to be taken against the delinquent Legal Advisor and thereafter the Secretary, Law & Parliamentary Affairs Department, Government of the Punjab, shall decide the matter after providing opportunity of hearing to the Legal Advisor.
11. Rule-7 of the above Rules provides that the Legal Advisor shall be appointed for two years and the same person may again be appointed as Legal Advisor in accordance with these Rules. Rule 9 of Punjab Local Government (Legal Advisor) Rules, 2003 is also important Rule to decide the issue involved in this case which is regarding the vacation of office of Legal Advisor which provides that the office of a Legal Advisor shall stand vacated on the expiry of the term for which he had been appointed. Sub-Rule (2) of Rule 9 provides as under:- "(2) Notwithstanding anything contained in sub-rules (1) the services of a Legal Adviser may, at any time, be dispensed with by Government under intimation to the Local Government concerned on service of one month's notice or payment of remuneration for the said period and a Legal Adviser may give up his appointment likewise."
12. In the judgment of Hon'ble Supreme Court reported as " Mirza Muhammad Tufail Vs. District Returning Officer, and others" (PLD 2007 Supreme Court 16), in para No. 11, the Hon'ble Supreme Court has been pleased to observe as under:-
11. ...............
Now according to the definition described above, service means being employed to serve another, it implies the submission to the 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 sub- ordination to that body. There are five tests for such sub-ordination, 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 factors present in a case ad whether stress will be laid on one factor or the other will depend on each particular case."
13. In para No. 15 of the same judgment, the Hon'ble Supreme Court has observed as under:- "15. In view of what has been discussed above, it is the Government having the power to hire and fire an Administrator and to pay compensation to him for the services rendered by him, may be described as honorarium, and having over all control and supervision of the functions performed by him. Thus it can safely be held that for all intent and purposes, the petitioner is in the service of the statutory body under the control/ supervision and with power of appointment and removal with the payment of remuneration/compensation by the Government. "
14. In the present case admittedly respondent No. 4 is working as Legal Advisor of TMA, Mianchannu.
According to Rules he has been appointed by the Punjab Government, the Government has power to conduct the inquiry against him and to dispense with his service at any time during the period of his service meaning thereby that it is the government having power to hire and fire the Legal Advisor and to pay compensation/remuneration to him for the services rendered by him, may be described as honorarium and having over all control and supervision of the functions performed by him. Therefore, in these circumstances and in view of the principle laid down by the august Supreme Court in the judgment referred above, it can be observed safely that for intent and purposes, the petitioner is in the service of TMA Mianchannu under the control/supervision and with power of appointment and removal with the payment of remuneration/compensation by the Government of Punjab. Hence, the case of respondent No. 4 does not fall within the exception to clause (e) of Sub-Section (2) of Section 27 of the Punjab Local Government Act, 2013 and he is disqualified to contest the election of Local Government for the seat of Vice Chairman. As respondents No. 3 and 4 have submitted their nomination papers as joint candidature, therefore, disqualification of respondent No. 4 will also affect the candidature of respondent No. 3 and respondent No. 3 will also become disqualified to contest the election of Chairman in the panel with respondent No. 4.
15. For the foregoing reasons, I am of the considered view that the order of Returning Officer dated 30.09.2015 and the Appellate Authority dated 12.10.2015 are not sustainable under the law.
Resultantly, I accept this writ petition, set aside the orders dated 12.10.2015 and 30.09.2015 passed by respondents No. 1 and 2, respectively and as sequel the nomination papers of respondents No. 3 and 4 are rejected.