' Through instant petition, the petitioner has impugned the order of Returning Officer accepting the nomination form of respondent No,4 Sikandar Ali S/o Haji Muhammad Hashim Chandio on the ground that since, the respondent No,4 is a government employee, therefore, was not qualified to contest the forthcoming election of Local bodies (2015), in view of provision of Section 36(d) and
(e) of Sindh Local Government Act, 2013.
2. Notices were issued to respondents, pursuant to which Mr. Ghulam Shabbir Dayo Advocate has shown appearance and filed comments on behalf of respondent No,4 and has placed on record copy of Notification dated 22.09.2015, according to which resignation of Sikandar Ali Chandio, Assistant Director (F) (BPS-17) NPIW contract employee Field Team K.N. Shah District Dadu has been accepted w.e.f, 01.08.2015. Learned counsel for respondent No,4 submits that since, respondent No,4 was a contract employee, who has resigned from his service, therefore, provisions of Section 36(d) and (e) of Sindh Local Government Act, 2013 are not attracted to his case, therefore, according to learned counsel, the respondent No,4 is not disqualified to contest the election. It has been further contended that even otherwise, a contract employee is not a civil servant in terms of Civil Servants, 1973.
3. Learned counsel for the petitioner has vehemently controverted the arguments of respondent's counsel and submits that for the purpose of qualification of a candidate to contest election and the disqualification, the term civil servant has no relevance, whereas in terms of the provision of Section 36(d) and (e) of Sindh Local Government Act, 2013 any person holds office of profit in the service of Pakistan, or Province of. Sindh or a council, or he is in the service of any statutory body or a body which is owned or controlled by the Government or the Federal Government or a council in which any of such Government or Council has controlling share of interest, and that in case of a person who has resigned or retired from any such service, a period of not less than six months has, elapsed since his resignation or retirement, is not qualified to contest election. It has been further Contended by the learned counsel that even notification placed by respondent No,4 dated 22.9.2015 has been managed as it was not attached with the nomination form or at the time of scrutiny of nomination form, and the same has been filed in the instant proceedings subsequently, whereas, effect to his resignation has been given w.e.f, 01.08.2013 to justify his eligiblity. Learned counsel has contended that from perusal of the provision of Section 36(d) & (e) of Sindh Local Government Act, 2013, it is clear that respondent No,4 is not qualified to contest the forthcoming local bodies election (2015). In support of his contentions, learned counsel has placed on record a copy of order dated 22.10.2015 passed in C.P No,D-6492/2015 Re: Irshad Ali and others v. Chief Election Commissioner and others wherein a Division Bench of this Court comprising by honourable Chief Justice, while examining the disqualification of a candidate pursuant to provision of section 2(b) Sindh Civil Service Act, 1973, and Section 36(e) of Sindh Local Government Act, 2013, the nomination form of a candidate in the aforesaid matter, who was holding the post of .Coordinator to the Chief Minister Sindh, has been cancelled, therefore, it has been prayed that nomination form of respondent No,4 may also be cancelled as he has concealed the material facts from the.
Returning Officer.
4. Learned AAG and DAG in view of above facts and circumstances of instant petition have supported the contention of learned counsel for the petitioner and submit that, since the respondent No,4 did not attach the Notification of his resignation with his nomination form. Or on the cutoff date fixed for the scrutiny of the nomination form, therefore, he was disqualified from contesting the election, in terms of Section 36(d)(e) of Sindh Local Government Act, 2013. It has been further contended that even the Notification dated 22.09.2015 of his resignation w.e.f 01.08.2015 has been managed after filing of instant petition by the petitioner and that too after the date of scrutiny of nomination forms, hence of no assistance to respondent.
5. We have heard the learned counsel for the parties, perused the record and the relevant provision of law, and have also examined the order dated 22.10.2015 passed by Division Bench of this Court at Principal Seat in the aforesaid petition, wherein, it has been held that a person holding public office, or an office of profit comes within the meaning of Section 36 (e) of Sindh Local Government Act, 2013. In the cited case, nomination form of Coordinator to Chief Minister has been cancelled which interpreting the provisions of Section 2(b) of Sindh Services Act, 1973 and the provisions of Section 36(d) & (e) of Sindh Local Government Act, 2013. In the instant case admittedly, respondent No,4 was holding a public office, an office of profit i.e, Assistant Director (F)(BPS-17 NIPW), which fact was concealed by him, and was not disclosed either in the nomination form, or till the date of scrutiny, therefore, respondent No,4 was disqualified in terms of Section 36(d)(e) of Sindh Local Government Act, 2013. Whereas, the notification dated 22.09.2015 filed by respondent No,4 for the first time in the instant petition, reflects that his resignation has been accepted retrospectively w.e.f, 01.08.2015, which otherwise does not support the case of respondent No,4 as in term of Section 36(e) of Sindh Local Government, 2013 a period of 6 months from his resignation has not been completed.
6. We are of the considered opinion that respondent No,4, namely, Sikandar Ali Chandio is not qualified to contest local bodies election (2015) in term of Section 36(d) & (e) of Sindh Local Government Act, 2013.
7. Accordingly, instant petition is allowed, and the nomination form of respondent No,4 is hereby cancelled. The Returning Officer is directed to do needful and to immediately communicate the effect of such cancellation to Election Commission of Pakistan in accordance with law.
8. Petition is allowed in the above terms along with listed applications.