MIRZA VIQAS RAUF, J. The instant petition is directed against the order dated 23rd of September, 2015 passed by the learned Appellate Authority, Mailsi, whereby the appeal filed by the petitioner against the order dated 14th of September, 2015 passed by the Returning Officer, Mailsi accepting the nomination papers of respondents No.5 and 6, was dismissed.
2. The facts in precision necessary for adjudication of instant petition are that the respondents No.5 and 6 submitted their nomination papers for contesting the Local Government Elections, 2015 for the seat of Chairman and Vice Chairman Union Council No.103 Lal Saggu, Tehsil Mailsi District Vehari. The petitioner being the registered voter of the said constituency preferred objections on the nomination papers of respondents No.5 and 6 before the Returning Officer at the time of scrutiny. The Returning Officer dismissed the objections vide order dated 14th of September, 2015.
The petitioner, feeling aggrieved from the said order filed an appeal before the Appellate Authority, however the same was also dismissed by way of order dated 23rd of September, 2015, hence this petition.
3. Learned counsel for the petitioner submitted that respondent No.5 being the Chairman of the Market Committee, Mailsi was not eligible to offer his candidature to be elected as Chairman of the Union Council No.103 Lal Saggu, Tehsil Mailsi, District Vehari in the Local Government Elections, 2015.
He added that respondent No.5 though suffers disqualification mentioned in Section 27 of The Punjab Local Government Act, 2013 but his nomination papers were accepted by the Returning Officer in an illegal and unlawful manner. Learned counsel contended that the petitioner filed an appeal before the Appellate Authority against the order of Returning Officer but the same was dismissed by way of impugned order in a per-functionary manner. In order to supplement his arguments, learned counsel placed reliance on "Mirza MUHAMMAD TUFAIL versus DISTRICT RETURNING OFFICER, and others" (PLD 2007 Supreme Court 16) and "Sahibzada TARIQULLAH versus Haji AMANULLAH KHAN and others" (PLD 1996 Supreme Court 717).
4. Conversely, learned Standing Counsel submitted that the nomination papers of respondent No.5 was rightly accepted by the Returning Officer and the Appellate Authority has committed no illegality while rejecting the appeal filed by the petitioner.
5. On the other hand, Mr. Khalid Ibn-e-Aziz, Advocate for the respondents No.5 and 6 seriously opposed this petition. He contended that the case of respondent No.5 comes within the exception enumerated in Section 27(2)(e) of The Punjab Local Government Act, 2013. Learned counsel submitted that respondent No.5 being Chairman of the Market Committee cannot be termed as in the service of any statutory body, attributing disqualification to him in terms of Section 27 of The Punjab Local Government Act, 2013. Learned counsel in support of his contentions relied upon "SAQIB NASEEB versus RETURNING OFFICER, PP-226, SAHIWAL VII and another" (2013 CLC 1024).
6. After having heard the learned counsels for both the sides as well as learned Law Officer, it is observed that the instant petition was admitted for regular hearing vide order dated 29th of September, 2015 and with the consent of both the parties while treating the same as such, the same is to be decided by way of this order on the basis of available record.
7. There is no denial that respondent No.5 was initially appointed as member of Market Committee, Mailsi vide notification No.DIR.(FB)XV-31/80 dated 23rd of August, 2011 and he also tendered resignation as Chairman Market Committee, Mailsi on 10th of September, 2015. The moot question involved in the instant petition is whether the respondent No.5, being the Chairman of Market Committee, Mailsi is not eligible to contest election of Local Government scheduled to be held in 2015?
8. Section 27 of The Punjab Local Government Act, 2013 (hereinafter referred as "The Act, 2013") prescribes the qualifications and disqualifications for candidates and elected members. For the case in hand, clause (e) of sub-section 2 of Section 27 of the Act ibid is of great import which is reproduced below for the purpose of convenience :- "27. Qualifications and disqualifications for candidates and elected members.-(1) (2)A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he-
(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;"
It is obvious from the bare reading of the above referred provision of law that a person who 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 is debarred to be elected as member of any Local Government, unless he has resigned or retired from any such service and a 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. In order to properly appreciate the matter in issue, it is expedient to go through the relevant provisions of The Punjab Agricultural Produce Markets Ordinance, 1978 (hereinafter referred as "The Ordinance, 1978"). Section 2(j) of "The Ordinance, 1978" provides the definition of a market committee and the establishment of market committee is highlighted in Section 7 of "The Ordinance, 1978" which reads as under :- "7. Establishment of Market Committees. (1) The Government shall, by notification establish a Market Committees for every notified market area.
(2) The Market Committee constituted and established under the Agricultural Produce Markets Act, 1939 (Act V of 1939) and the Punjab Local Government Act, 1979 (VI of 1979) shall be deemed to have been constituted under this Ordinance."
The composition of Market Committee is further elaborated in Section 8 of the Ordinance ibid and as per said section, a Market Committee comprises of ten or seventeen members as Government may in each case determine. It is also incumbent for a member, Chairman, Vice Chairman of the Market Committee to make and subscribe an oath in the prescribed form before taking charge of his seat in terms of Section 8-A of "The Ordinance, 1978". Section 9 of "The Ordinance, 1978" prescribes the duties of the Market Committee. Section 12 of "The Ordinance, 1978" prescribes a mode for election of Chairman and Vice Chairman. In view of the duties cast upon the Market Committee in terms of Section 9 of "The Ordinance, 1978", no cavil left that the Market Committee will always be controlled by the Government.
10. The respondent No.5, being the member of Market Committee was elected as Chairman. By virtue of office, every member and employees of the Market Committee are deemed to be public servants within the meaning of Section 21 of The Pakistan Penal Code, 1860 in terms of Section 17 of "The Ordinance, 1978". The Market Committee is also authorized to levy fee as per mandate of Section 19 of "The Ordinance, 1978". Section 35 of "The Ordinance, 1978" bestows power upon the Government to make rules consistent with the Ordinance for carrying out all or any of the purposes thereof. The Governor of the Punjab in terms of Section 35 of "The Ordinance, 1978" in exercise of powers conferred on him by said section made The Punjab Agricultural Produce Markets (General)
Rules, 1979 (hereinafter referred as "The Rules, 1979"). By virtue of Rule 61 of the said Rules, the affairs of the Market Committee have categorically been given under the control of Provincial Government. The word "service" is though nowhere defined in "The Act, 2013", however for the purpose of Section 27(2)(e), the meaning of expression "in the service" can easily be gathered from the judgment of the Honourable Supreme Court of Pakistan in the case of "Mirza MUHAMMAD TUFAIL versus DISTRICT RETURNING OFFICER, and others" (PLD 2007 Supreme Court 16). The relevant extract is reproduced below :- "10. In section 152(g) the expression "in the service" is of significance. Herein the service would not be take in the strict, restricted and narrow technical sense as defined in the Civil Servant Act or in other service laws or in the Constitution but would be construed in the general, plain, and liberal sense. This Court in the case of "Muhammad Naseem Turyali v. Ghulam Sarwar Khan and other"
(unreported Civil Appeal No.1374 of 2003 and other connected appeals) held that the service of a statutory body etc. Should not be confused with the civil service or civil servant. In the cited case the appellant was in the service of Sui-Southern Gas Company Management Trainee at the time of filing nomination papers and also at the time of poll, whose election, after he being declared as returned candidate, was challenged by the other contesting candidates on the ground that he being in the service of a Company which was owned and controlled by the Federal Government was disqualified to contest the election in view of Article 63(1) clauses (e) and (k) of the Constitution. The petitions filed by the respondents were allowed and the petitioner was held being an employee of the company controlled by the Government, was disqualified to contest the election. His writ petition before the High Court failed who then filed an appeal before this Court and while dismissing his appeal, it was observed in para.9 which reads: "The expressions service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest; should not be confused with "Civil Service" or a "Civil Servant". It is not circumscribed by any concept of salary or fee."
11. In this context, i.e., the expression "in the service" to be taken and construed in general sense and not in the restricted sense, it would be advantageous to refer to the meaning given in 79 CJS. P. 1139 which is reproduced herein below:-- "Service or services.---The word `service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with the simple meaning, leaving no room for construction, but rather it is broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the contest. Thus, the Courts have found it impracticable to attempt a definition by which to test very case that may arise.
As a noun.---As lexically defined, the word `service' means the act of serving, the act or instance of helping or benefiting; the act of helping another; the deed of one who serves.
The word `service' is further defined as meaning aid or assistance rendered; a benefit, advantage, or obligations conferred; that which promotes interest or happiness; useful office; avail.
Service? Indicates a master-servant relationship, or it implies a submission to the will of another HYPERLINK http://as-.To as-.To direction and control, and when employed to indicate these concepts it is defined as meaning the performance of labour for the benefit of another or at another's command; labour performed in the interest under the direction of others; any work done for the benefit of another; employment in the interest of a person or of a cause.
The word `service' is also defined as meaning the being employed to serve another; the position of a servant; the state of being a servant; the occupation, condition, or status of a servant; the work of a servant; the work of a slave, hired man, or employee; the attendance of any inferior, hired helper, slave, etc. 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 c 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."
11. Rule 58 of "The Rules, 1979" makes entitle to a Chairman of the Market Committee for the travelling allowance equivalent to grade 18 Officer in case of Market Committee falling in Class `A' and `B' and if Market Committee is classified as Class C' then the Chairman is entitled to receive travelling allowance equivalent to Officer grade 17 if he undertakes any journey under the order of Market Committee. The said allowance is in addition to the honorarium determined by the Government to be paid to the Chairman Market Committee. Though the salary or remuneration is not a condition precedent, to be in service of the Government or of the statutory body as laid down in Section 27 of "The Act, 2013". The provisions of Section 27 of "The Act, 2013" are akin to the provisions of Section 152 of The Punjab Local Government Ordinance, 2001 which was available in the said Ordinance for determining the qualification of a candidate and an elected member. The judgment in the case of Mirza Muhammad Tuafail's supra covers all the eventualities as occurred in the instant case. It is quite advantageous to reproduce the relevant extract from the said judgment which was made basis for holding the administrator of a Market Committee disqualified to be elected as member of a local government. For ready reference and convenience the same is reproduced below :- "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.
16. 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 third factor has been added by the Ordinance, 1978 vide section 28- A, that when the general election to the National or the Provincial Assembly or both is announced and the Government is, satisfied that it is in the public interest to prevent the Market Committee from using their funds and influence for political purpose, the Government may dissolve the market committee, and this testify the fact that the market committee, at present represented by the administrator who is petitioner, that it (the Committee) or he (the Administrator) can influence even the general elections, so necessarily he tray influence the local bodies election and particularly when he is a candidate himself.
17. Resultantly, what has been discussed above, we are of the view that the petitioner is disqualified to be elected on account of he being appointed as Administrator of the Market Committee with the resultant consequence that this petition is dismissed."
In view of principles laid down in the judgment supra, the arguments raised by the learned counsel for the respondents as well as learned Standing Counsel on the strength of judgment reported as "SAQIB NASEEB versus RETURNING OFFICER, PP-226, SAHIWAL VII and another" (2013 CLC 1024) and judgment passed by this Court in Election Appeal No.28 of 2013 lose their efficacy. Even otherwise the judgments in the said case was delivered on the basis of different facts and parametera.
12. There is yet another important aspect which emerges from the record that respondent No.5, being conscious of the fact that being the Chairman Market Committee, Mailsi suffers disqualification to be elected as member of local government, submitted his resignation as Chairman Market Committee, Mailsi in the first instance when he intended to contest the Local Government Elections which were scheduled to be held in 2013. Since the elections in the year 2013 were not held, so he continued within his office and now in the upcoming elections which are scheduled in near future, he again submitted his resignation on 20th of September, 2015 knowing well that being the Chairman Market Committee, he is not qualified to be elected as Chairman of the Union Council. The sole reason assigned by the respondent No.5 for tendering his resignation is the contest of upcoming Local Government Elections as Chairman Union Council. The respondent No.5 tendered his resignation to the District Co-ordination Officer, Vehari on 10th of September, 2015 in terms of Rule 11 of "The Rules, 1979" . As per said rule so long as a resignation tendered by the Chairman Market Committee is not accepted by the Government, the Chairman shall continue to be member. There is no evidence that the resignation of respondent No.5 has been accepted in terms of Rule 11 of "The Rules, 1979". Even otherwise when once, it is established that he is in the service of the Market Committee being the Chairman and his candidature is hit by clause (e) of sub-section 2 of Section 27 of "The Act, 2013", he can only qualify to contest the Local Government Election, if he resigned from being Chairman Market Committee and a period of not less than of two years has elapsed since his resignation.
13. In view of above discussion, I am of the considered view that respondent No.5 being Chairman Market Committee is debarred to contest the Local Government Election and his candidature is clearly hit by the disqualification enumerated in Section 27(2)(e) of "The Act, 2013". The acceptance of his nomination papers by the Returning Officer and the dismissal of appeal filed by the petitioner are not warranted by law, consequently the instant petition is allowed and the order dated 14th of September, 2015 passed by the Returning Officer, Mailsi as well as order dated 23rd of September, 2015 passed by the learned Appellate Authority, Mailsi are set aside being illegal and unlawful with no order as to costs.