' MIRZA VIQAS RAUF, J. --- The instant petition is directed against the order dated 10th of October, 2015 passed by the learned Appellate Authority, Sahiwal, whereby in appeal filed by respondents No. 3 and 4 against the order dated 2nd of October, 2015 passed by the Returning Officer, Sahiwal accepting the nomination papers of petitioners, the same was set aside.
2. Precisely the facts necessary for adjudication of instant petition are that the petitioners and respondents No. 3 & 4 filed their respective nomination papers for contesting the local government elections, 2015 for the seat of Chairman and Vice-Chairman of Union Council No. 1 (Urban)
Municipal Corporation, Sahiwal. The respondents No. 3 and 4 filed objections which were declined by the Returning Officer vide order dated 2nd of October, 2015. The respondents No. 3 and 4 feeling aggrieved from the said order, filed an appeal before the Appellate Authority which was allowed vide order dated 10th of October, 2015, hence this petition.
3. Learned counsel for the petitioner submitted that petitioner No. 1 being member of District Zakat and Ushr Committee suffers no disqualification as enumerated in Section 27(2)(e) of the Punjab Local Government Act, 2013. He added that the Returning Officer by way of its order dated 2nd of October, 2015 rightly rejected the objections filed by respondents No. 3 and 4. Learned counsel contended that the Appellate Authority has erred in law while allowing the appeal by way of impugned order dated 10th of October, 2015. In support of his contentions, learned counsel relied upon "Ch. Liaqat Ali and another v. Election Appellate Authority/District Returning Officer, Lahore and 3 others" (2001 YLR 953) and "Saqib Naseeb v. Returning Officer, PP-226, Sahiwal VII and another" (2013 CLC 1024).
4. Conversely, learned counsel for the respondents No. 3 and 4 submitted that the petitioners were debarred from contesting the local government election as petitioner No. 1 is Member of Zakat and Ushr Committee. He maintained that the candidature of petitioners clearly attracted disqualification mentioned in Section 27(2)(e) of the Punjab Local Government Act, 2013. Learned counsel contended that the Appellate Authority has rightly rejected the nomination papers of the petitioners and the impugned order suffers no illegality. In support of his contentions, learned counsel placed reliance on "Zulkha Bibi v. Election Commission of Pakistan through Secretary and another" (2015 YLR 1584).
5. On the other hand, learned Standing Counsel adopted the arguments advanced by the learned counsel for the respondents No. 3 and 4.
6. I have heard the learned counsels for both the sides as well as learned Law Officer and also perused the record with their assistance.
7. ' The petitioner No. 1 was selected as member of Zakat and Ushr Committee, Sahiwal and to this effect a notification dated 24th of June, 2014 was issued by the Government of Punjab, Department of Zakat and Ushr District Sahiwal. It is also evident from the record that petitioner No. 1 tendered his resignation on 11th of October, 2015. The point for determination involved in the instant petition is that whether petitioner No. 1 being the member of Zakat and Ushr Committee, Sahiwal is eligible to contest the local government elections, 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)
(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 officialsremunerated 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. The President of Pakistan was pleased to make and promulgate the Zakat and Ushr Ordinance (XVIII of 1980) in order to make provisions relating to the assessment, collection and disbursement of Zakat and Ushr. The petitioner No. 1 is the member of local Zukat and Ushr Committee. Section 2(xiii) of the Zakat and Ushr Ordinance (XVIII of 1980) (hereinafter referred as "The Ordinance, 1980") defines the "Local Committee" a Committee constituted under Section 18. Section 18 of "The Ordinance, 1980" provides the colosition of Local Zakat and Ushr Committee. For the case in hand sub-section (4) of Section 18 of "The Ordinance, 1980" is of much relevance which is reproduced below:--- "18. Local Zakat and Ushr Committee.-- (1)
(a)................................
(b).......................................
(c)............................................
(a)........................
(b)...............................
(2)............................
(3)................................
(4) The District Committee shall constitute a team of three or more persons including at least one gazetted officer, one aalim-e-deen and one member of the District Committee to organize a public gathering of the adult Muslims, teachers and ulema residents of a locality and call upon them to select, in the prescribed manner, seven adult Muslims residing in that locality who possess Secondary School Certificate and are known to be pious and who offer five times prayer daily, and have sound moral and financial integrity and not engaged in political activity: ' Provided that a person who is member of a team constituted for the selection of members of a Local Committee shall not be eligible to be a member of such Local Committee, and except in the case of such Local Committees in the Islamabad Capital Territory as may be notified by the Administrator-General, a person who is a salaried employee of government or of a local authority otherwise than as Pesh Imam of a local mosque or a teacher of a local school, or of a corporation set up, owned or controlled by Government, shall not be eligible to be member of local committee: ' Provided further that, where in a district the number of local Committees is so large that the members of the District Committees cannot be put on all the .teams constituted for the selection of members of Local Committees in the district, the District Committee, may, at its discretion, nominate any there non- official person of the district to represent it on the said team: ' Provided further that the team constituted by the District Committees shall organize a separate gathering of the adult Muslim female residents of the locality and call upon them to select, in the prescribed manner, two Muslim women residing in that locality who are known to be pious and who enjoy their trust to be members of the Local Committee.
(5)...........................................
(6)...............................................
(7)....................................................
(8)........................................................
(9)..............................................................
(10)...................................................................
(11).......................................................................
(12).............................................................................
(13)..................................................................................
(14)........................................................................................
' Chapter V of "The Ordinance, 1980" deals with the organization and administration and to this effect preference is given to Central Zakat Council which is to be established by the Federal Government through a notification in the official Gazette who shall provide policy guidelines for, and to exercise general superintendence and control over matters relating to Za!'sat and Ushr, particularly the Zakat Funds and maintenance of their accounts. Similarly in the respective Provinces, a Provincial Zakat Council is established by notification in the official Gazette by the Provincial Government of the respective Province with the same mandate. Section 16 of "The Ordinance, 1980" provides that in each district, a District Zakat and Ushr Committee, in the Islamabad Capital Territory, the Islamabad Zakat and Ushr Committee and in Karachi, Karachi Capital District Government Zakat and Ushr Committee shall be constituted by the Provincial Council concerned. Section 22 of "The Ordinance, 1980" deals with the administration organization which provides as under:-- "22. Administrative Organization.-- (1) The administrative organization under this Ordinance shall be .through a Division to be known as the Religious Affairs, Zakat and Ushr Division and may include such organizations as are performing social security and other complementay functions and that of a Chief Administrator, a Department or a part of a Department of the Provincial Government.
(2) The Secretary of Religious Affairs, Zakat and Ushr Division shall be the ex-officio Administrator- General Zakat."
' After going through the above-referred provisions of law no cavil left that the Zakat and Ushr Committee will always be supervised and controlled by the Government. The petitioner No. 1 being the member of the Local Zakat and Ushr Committee is also deemed to be a public servant within the meaning of Section 21 of The Pakistan Penal Code, 1860 in terms of Section 23 of "The Ordinance, 1980".
10. For the attraction of disqualification enumerated in Section 27(2)(e) of "The Act, 2013", the meaning of expression "in the service" is of significance importance which is though nowhere defined in "The Act, 2013", however in a similar circumstances, the Honourable Supreme Court of Pakistan in the case of "Mirza Muhammad Tufail v. District Returning Officer, and others" (PLD 2007 Supreme Court 16) has pondered upon the term "in the service" and held as under:--- "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 Servants 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" co 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 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 subordination to that body. There are five tests for such sub-ordination, namely, the power of the authority of the appointment to the office (if) the power of removal or dismissal of the holder from the office (iii) the payment of remuneration 64 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 accumulated 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."
' In view of above discussion and the principles enunciated in the judgment supra, no cavil left that petitioner No. 1 is in the service of statutory body which is controlled by the Provincial Government.
This inference also finds support from the judgment of Baluchistan High Court in the case of "Zulkha Bibi v. Election Commission of Pakistan through Secretary and another" (2015 YLR 1584) wherein while dealing with the similar proposition, it is held that:-- "7. Adverting to the merit of the case, the question involved in the instant case is as to whether the respondent No. 2 while holding the office of the Chairman Zakat and Ushr Committee was debarred to contest the election of Municipal Committee in view of the provisions of section 24(1)(f) of the Act, 2010, which is reproduced herein below: "Qualifications for candidates and elected members.-- (1) A person shall qualify, to be elected or to hold an elective office or membership of a local council, if he:--- ' ( is not in the service of the Federal Government, a Provincial Government or a local council or any statutory body or a body which is controlled by any such government or council or, in which any of such government or council has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee: ' Sub-section (4) of sections 14 and section 23 of the Balochis tan Zakat and Ushr Act, 2012 (hereinafter the "Act, 2012") provides status of the Chairman and Member of the Zakat Committee as under:--- "(4) The Chairman shall be nominated by the Government in consultation with the Provincial Council and the members shall be nominated by the Provincial Council in consultation with the Chairman.
"23. Certain Persons to be Public Servants.-- Every person engaged in, or employed for, the administration of this Act, shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code."
8. From the above, it is obvious that the Chairman of the District Zakat Committee is being nominated by the Government in consultation with the Provincial Council and he is deemed to be a public servant. The Chairman had been abstained from political activities, therefore, the Chairman Zakat and Ushr Committee is deemed to be in service of statutory body controlled by the Provincial Government in consultation with the Provincial Council. Section 24(f)(g) of the Act, 2010 debars the Chairman District Zakat and Ushr Committee from contesting the local bodies election.
' In the case titled Muhammad Khan v. Amanullah, PLD 2014 Balochistan 128, it is held that "Chairman District Zakat and Ushr Committee including any person engaged in administration of Zakat is also termed as "public servant". All public servants are disqualified to be elected or hold an e;ective office of Local Council unless a period of six months elapsed, since his/her retirement or resignation from the office."
' In the case of Mirza Muhammad Tufail v. District Returning Officer, PLD 2007 SC 16, it had determined the decisive test as to whether a person is in the service of Pakistan or in the service of a wholly or owned or controlled by the Government and observed as under:--- "In section 152(g) the expression "i11 the service" is of significance. Herein the service would not be taken in the strict, restricted and narrow technical sense as defined in the Civil Servants 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 others" (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."
9. In the instant case, admittedly, the respondent No. 2 was declared as returned candidate of Municipal Committee, Gadding vide notification dated 26th December, 2013, he sent his resignation being Chairman Local Zakat Committee Chichai on 6th May, 2014 and the said resignation was accepted on 13th May, 2014, we, therefore, find that as at the relevant date i.e. 26th December, 2013, the respondent No. 2 was still Chairman of the Local Zakat Committee Chichai and, we have also held that being a Chairman of Zakat and Ushr Committee, amounts to be in "service" as defined in section 24(f) of the Act, 2010, therefore, the respondent No. 2, is disqualified from being elected or chosen as a member of Municipal Committee, Gaddani.
' In view of the above, the Writ Petition No. 353 of 2014 is allowed, the Notification dated 26th December, 2013 issued by the respondent No. 1 to the extent of respondent No. 2 is set aside and the name of the respondent No. 2, is ordered to be deleted accordingly from the list of validly returned candidates for Municipal Committee, Gaddani (Chechai-I Ward)."
11. Even while examining the matter in issue by another angle, it appears that while framing "The Ordinance, 1980" the intent of legislature was to keep the member of the Zakat and Ushr Committee aloof from the political activity as is evident from sub-section (4) of Section 18 of the Ordinance ibid. Since member of Zakat and Ushr Committee is not permitted to participate in any political adivity then vice versa can easily be inferred from the mandate of subsection (4) of Section 18 of "The Ordinance, 1980". Reliance in this respect can also be placed on "Muhammad Khan v. Amanullah and 2 others" (PLD 2014 Baluchistan 128).
12. In view of principles laid down in the judgment referred above, the contentions raised by the learned counsel for the petitioners in view of law laid down in "Ch. Liaqat Ali and another v. Election Appellate Authority/District Returning Officer, Lahore and 3 others" (2001 YLR 953) cannot hold the field whereas the judgment in the case of "Saqib Naseeb v. Returning Officer, PP-226, Sahiwal VII and another" (2013 CLC 1024) is based on entirely different facts which is even not applicable to the present case.
13. There is yet another important aspect which emerges from the record that petitioner No. 1, being conscious of the fact that being the Member of Zakat and Ushr Committee, Sahiwal suffers disqualification to be elected as member of local government, submitted his resignation as Member of Zakat and Ushr Committee, Sahiwal on 11th of September, 2015 knowing well that being the Member of Zakat and Ushr Committee, he is not qualified to be elected as Chairman of the Union Council. The petitioner tendered his resignation in terms of Section 18(10) of "The Ordinance, 1980". As per Section 18(11) of "The Ordinance, 1980" the Chairman or, as the case may be, a Member shall continue to hold office until his resignation is accepted by the District Committee. There is no evidence that the resignation of petitioner No. 1 has been accepted in terms of sub-section (11) of Section 18 of "The Ordinance, 1980". Even otherwise when once, it is established that he is in the service of the Zakat and Ushr Committee being the Member 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 Member Market Committee and a period of not less than of two years has elapsed since his resignation.
14. In view of above discussion, I am of the considered view that petitioner No. 1 being member of Zakat and Ushr 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 order dated 2nd of October, 2015 passed by the Returning Officer is illegal and unlawful which was rightly set aside by the Appellate Authority while allowing the appeal of respondents No. 3 and 4, consequently the instant petition is dismissed having no merits with no order as to costs.