Following are the undisputed facts:- Rana Aamer Nazir-respondent No.4 was appointed as Member (Technical/Technocrat) in Provincial Local Government Commission w.e.f. 23.05.2012, and his such appointment was notified by the Secretary, Local Government & Community Development Department, Government of Punjab, my means of Notification No.SO(PLGC)LG/3-7/11.
At the time of his appointment, he was held entitled to get honorarium and other allowances as admissible under the rules.
Rs.25,000/- i.e. a fixed amount was the honorarium, which was being regularly received by the said respondent on monthly basis.
Respondent No.4 tendered his resignation from his office of Member (Technocrat), to which he was appointed, as noted herein-above, which fact was notified vide Notification No.SO (PLGC) LG/3-7/11, dated 29.09.2015; however, the resignation was accepted w.e.f. 15.09.2015.
Just after two days of acceptance of his resignation, respondent No.4 has filed his nomination papers for the office of Chairman of U.C.No.62, Machrala, District Gujranwala, alongwith Mohammad Imran, a joint candidate in such candidature for the office of Vice Chairman.
2. Filing of such nomination papers prompted the petitioner to raise objections as to the qualification of respondent No.4 to be elected as a member or to hold an elected office of a Local Government within the meaning of Section 27(2)(e) of The Punjab Local Government Act, 2013 (hereinafter to be referred as "the Act").
3. The Returning Officer, after scrutiny, has overruled the objections of the petitioner by holding that, it was a part time job of respondent No.4 and that since said respondent has not been receiving any salary as against his office of Member (Technocrat), rather he was only getting the honorarium; therefore, in view of the Returning Officer, such disqualification clause was not attracted as against the respondent and, therefore his nomination papers were accepted on 30.09.2015.
4. Almost, after taking similar view, the Appellate Authority proceeded to dismiss the appeal filed by the petitioner against acceptance of nomination papers of respondent No.4 vide order dated 07.10.2015.
5. Both the orders of authorities below have been impugned before this Court by means of present Constitutional petition.
6. After hearing the learned counsel for the parties and going through the record, I am of the view that both the authorities below have not appreciated the legal position on the point involved and have reached to a wrong conclusion while permitting respondent No.4 to contest the election for an office in the local government, notwithstanding the fact that, he being in service of a statutory body and resigned only two days before the day of nomination in the elections, was disqualified.
7. Reasons for such conclusion are herein-below:-
(a) Punjab Local Government Commission is creation of Section 122 of the Act, which provides that, the Government shall appoint a Punjab Local Government Commission and Secretary, Local Government and Community Development Department would be the Secretary of the Commission.
(b) It is the Government, which is competent to appoint or to remove any of the member of such Commission.
(c) The term of the members of the Commission shall be five years.
(d) It will be the duty of the Local Government and Community Development Department in the Government of Punjab to provide secretarial support to the Commission by establishing a separate Secretariat of the Commission.
(e) To provide a separate budget for the Commission in the annual budget will be the duty of the Government.
(f) The Secretary of the Commission shall be the Principal Accounting Officer and the Commission shall have its own drawing and disbursing officer. While elaborating the functions of the Commission in Section 123 of the Act, it is, inter-alia, provided that the Commission under the direction of the Government shall conduct any inquiry about any matter concerning the Local Government.
8. Section 27(2)(e) of the Act provides that a person shall be disqualified from being elected or chosen as, and from being, an elected member of a Local Government, if he:---
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(e) is in the service of any statutory body or a body which is owned and 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, the period of not less than two years has elapsed since his resignation or retirement.
9. There should be no cavil to the proposition that the Local Government Commission is creation of a Statute and, thus, cannot be excluded from the definition or term of a statutory body, and in view of the wording used by the Legislature in above-quoted clause (e) of Section 27(2) of the Act, a person in the service of a statutory body, unless a period of two years has elapsed, after his resignation from such service, would be disqualified from being elected or chosen as an elected member of local government.
10. The concept as to whether against a service, a salary must a consideration and if there is no salary provided against a service and only an honorarium is fixed, then such job cannot be termed as a service, was answered in an authoritative manner by the Hon'ble Supreme Court of Pakistan in case of Mirza Muhammad Tufailvs. District Returning Officer, and others (PLD 2007 Supreme Court 16). The findings, relevant for the purpose of present case, are reproduced herein-below:- "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 and whether stress will be laid on one factor or the other will depend on each particular case.
The honorarium has been defined in Corpus Juris Secundem Vol. 44 at page 325 as under:-- "In common understanding, the word means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment for a service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money. While it has been said to denote a compensatory payment, it may, be context, be construed as a gift."
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.
The consequence of what has been stated above, it would neither be in the interest of elected body and the public at large to have an elected representative, who would be under the influence of the Government, and at the same time, nor it would be in the interest of the Government as it would be having no effective control in superintendence over the employees in its department, so elected for an elected body."
A learned Division Bench of this Court in case of Muhammad Nadeem vs. Muhammad Mumtaz Akhter Kahloon and others (2013 CLC 1796), which was also a case of Commission i.e. National Vocational and Technical Training Commission, held that the Chairman of such Commission was disqualified to be elected or chosen as a member of Parliament.
11. The learned counsel for respondent No.4, while placing reliance on Dictionary meanings of "honorarium" as given in Black's Law Dictionary Ninth Edition, in the following manner:- "(1). A payment of money or anything else of value made to a person for services rendered for which fees cannot legally be or are not traditionally paid.
(2). A voluntary reward for that for which no remuneration could be collected by law; a voluntary donation in consideration of services that admit of no compensation in money." has submitted that, since it was not a salary; therefore, the job, which was being held by respondent No.4, could not have been considered as a service; however, he has frankly conceded that the fixed amount of Rs.25,000/-of honorarium was regularly being received by respondent No.4. Had this been an amount against the services rendered by the said respondent, it would have been varied on month to month basis, as it is not possible that on each and every month, the level of services rendered by the said respondent was the same as that of each succeeding and preceding month. Since a fixed amount was being received by respondent No.4 on monthly basis; therefore, it cannot be termed as an honorarium only against the services rendered by the said respondent.
12 .Undoubtedly, it is a salary or remuneration fixed irrespective of what services have been rendered by respondent No.4 or even no services are rendered during the relevant month.
13. The learned counsel for respondent No.4 was further asked as to what required the respondent to tender resignation, when holding of such post of Member (Technocrat) in the Commission, according to him, was not a disqualification for the respondent to be a candidate in the elections of local government, he was having no satisfactory explanation, except that the respondent was not keen to keep two posts at a time and simply for that reason, he resigned from such office.
This explanation is also beyond understanding. By tendering resignation prior to any result of his election of local government under the above impression, would create an impression that the respondent has taken his success in the forthcoming local government elections, as granted, and he has not waited for such result before tendering his resignation from the post, which he was holding prior to start of election activities of the elections of Local Government.
14. The fact that before taking part in local government election, respondent No.4 has tendered his resignation, is a clear indication to the effect that the respondent was considering his job in the Commission as a bar to his qualification. Since the post, which was being held by the respondent in the Commission was statutory one, which was held against a fixed monthly remuneration; therefore, the disqualification clause as contained in Section 27(2)(e) of the Act is fully attracted against the respondent.
15. The forums below have failed to appreciate the actual position in this matter and have wrongly proceeded while accepting the nomination of respondent No.4 for the office of Chairman, U.C.No.62, Machrala, District Gujranwala, and have ignored the disqualification attached under the law with such respondent.
16. Result of above discussion is that, this petition is allowed; order of the Returning Officer, whereby, nomination papers of respondent No.4 were accepted on 30.09.2015, and the order, whereby the appeal filed against such acceptance, was dismissed by the Appellate Authority on 07.10.2015, are set-aside and consequently nomination papers, filed by respondent No.4, for the office of Chairman, U.C.No.62, Machrala, District Gujranwala, stand rejected.