' MUHAMMAD GHAZANFAR KHAN, J.---Petitioner, being District President of Jamat-e-Islami, Dera Ismail Khan (D.I.Khan), has challenged the process of fresh nomination papers, for election of reserved seat of worker/peasant, women, non-Muslim women, etc, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, before this Court with the following prayer:- "(A) That to declare the whole process of receiving of nomination papers and resubmitting of priority list of candidates on reserved seats as against the law, norms of justice and ineffective upon the rights of petitioner party candidates.
(B) That to declare that whole process as unconstitutional.
(C) That the respondents be restrain from applying and interpreting Rule 10 with retrospective effect.
(D) That the Notification No,PDA(LGE&RDD)5-11/Elec. Rules/ 2013 dated 01.6.2013 issued by the respondent No,2 may please be declared as illegal ultra vires and unconstitutional.
(E) Any order this honourable court thinks proper and just in the circumstances.
2. Learned counsel for petitioner, in support of writ petition, contended and argued that the amended sub-rule (10-A) of Rule 42 of Khyber Pakhtunkhwa Local Council (Conduct of Election Rules), 2014, hereinafter called "Local Government Rules, 2014" is against the Constitution, law, void ab initio, discriminatory, not framed by competent authority, ineffective and of no legal effect; that the rules ibid, could not be given retrospective effect, hence, no political party can be allowed to submit fresh list of candidates for the seats reserved for workers/peasants, women, non-Muslims men and women etc after 19.4.2015.
3. On the other hand, learned A.A.G. And learned counsel for private respondents argued that, the new sub-rule (10-A) of Rule 42 ibid, has been inserted in Local Government Rules, 2014 by appropriate and competent authority, could not be challenged through constitutional petition; that the petitioner has got no locus standi to challenge the validity and legality of sub-rule (10-A) or any process of election for reserved seat, being not an aggrieved person in term of Constitution, 1973, while the writ petition in the present form is not maintainable, as all disputes, in regard to acceptance or otherwise of nomination papers can only be challenged, before, the Appellate Authority constituted for the purpose, in view of Notification dated 04.6.2015 issued by the Election Commission of Pakistan.
4. We have anxiously heard learned counsel and carefully gone through, the available documents on record and rules, referred by learned counsel for the parties and Provincial Government.
5. In essence, on request of Government of Khyber Pakhtunkhwa and pursuant to the judgment of the Apex Court rendered in Constitutional Petitions Nos.65/2009 and 77/2010, in order to conduct local bodies election, in Province of Pakhtunkhwa, issued Notification dated 04.4.2015, for various seat/category, for village, Tehsil and District Councils in term of Rule 13 of Local Government Rules, 2014, which was scheduled to be held on 30.5.2015, which had already been held on the scheduled date ibid. Likewise, in order to conduct elections for the reserved seat for women, peasant and worker, non-Muslim and Youth in Tehsil Town and District Council, also issued Notification/ directives dated 07.4.2015, in term of Rule 42(2) of the Local Government Election Rules, 2014. Sub- rule (2) of Rule 42 of the Local Government Election Rules, 2014 if reproduced would be as:-- "For the purpose of election to seats reserved for women, peasants and workers, non-Muslims and youth in the tehsil, town and district councils, the political parties contesting election for such seats shall, within the period fixed by the Commission for submission of nomination papers, file separate lists of their candidates in order of priority for seats reserved for women, peasants and workers, non-Muslims and youth with the Returning Officer, who shall forthwith publish the lists for information of the public at large".
6. Sub-Rule (10) of Rule 42, ibid, be read as:-- "The list submitted by a political party shall not be subject to change or alteration either in the order of priority or through addition or subtraction of new names after expiry of the date of the date of submission of nomination papers".
7. Those political parties, who were inter-related, in the above-mentioned Local Government Election, 2015, in pursuance of the directives of the Election Commission of Pakistan, submitted their respective parties' list to the respective Returning Offices of nominated candidate in order of priority for reserved seat of various categories as mentioned herein above, however, some of the political parties, particularly in two Tehsil of D.I. Khan, i,e, Parova and Daraban, either submitted insufficient list or failed to submit the required list for separate, different category of seat, thereafter, the General election of local bodies, the Government of Pakhtunkhwa, in view of the above-mentioned situation, introduced sub-rule (10-A) in Rule 42 of the Local Government Election Rules, 2014, in order to facilitate those political parties, who had either not submitted their parties list for nomination of their candidates, for reserved seat or had submitted insufficient, incomplete party list, in view of Section 42 of the Local Government Election Rules, 2014, which reads as:-- "If at any time the party list is insufficient or exhausted, the concerned political party may submit additional names for any vacancy which may occur thereafter in the Tehsil Council, Town Council or District Council, as the case may be".
8. The Election Commission of Pakistan, in exercise of its power, conferred upon it under Article 219(d) of the Constitution, subsection (1) of Section 75 of the Khyber Pakhtunkhwa Local Government Act, 2013, and in view of Local Government Election Rules, 2014, issued Notification No,F.16(I)/2015 dated 15.7.2015, in order to fill the reserved seat in Tehsil/Town and District Council of Khyber Pakhtunkhwa which remained vacant due to either non-filing of nomination papers by any candidate of the respective political parties or exhaustion of priority list of candidates of those political parties who has secured more seats than the priority lists of candidates earlier provided to Returning Officers.
9. The contention of the learned counsel for the petitioner, that the amendment in Rule 42 by insertion of sub-rule (10-A) having no legal effect, and could not be given effect to, in order to facilitate those political parties, who had not submitted the required party list of nominated candidates, for various category of reserved seat, in tehsil council, could not be ruled out of consideration. The whole scheme for conducting election to reserved seat in tehsil/town and district council is prescribed in Rule 42 of the Local Council Rules, 2014, which reads as: "42. Election to reserved seats.---(1) Elections to the reserved seats for women, peasants and workers, non-Muslims and youth in the tehsil, town and district councils, shall be held on the basis of proportional representation system of political parties lists of candidates in accordance with the provisions of these rules and the Act.
(2) For the purpose of election to seats reserved for women, peasants and workers, non-Muslims and youth in the tehsil, town and district councils, the political parties contesting election for such seats shall, within the period fixed by the Commission for submission of nomination papers, file separate lists of the candidates in order of priority for seats reserved for women, peasants and workers, non-Muslims and youth with the District Returning Officer, who shall forthwith send such lists to the respective Returning Officer with direction to publish the lists for information of the public-at-large.
(3) The political parties lists referred to in sub-rule (2) may contain as many names of additional candidates as a political party may deem necessary for contesting seats reserved for women, peasants and workers, non-Muslims and youth to provide for any disqualification of candidates during scrutiny of nomination papers or for filling of any vacant seat during the term of the respective local council.
(4) Where a seat reserved for women, peasants and workers, non-Muslims and youth in a district, tehsil or town council falls vacant for death, resignation or disqualification of a member, it shall be filled in by the next person in order of precedence from the political party's list of the candidates submitted to the Returning Officer under sub-rule (2).
(5) Every candidate contesting election on a seat reserved for women, peasants and workers, non- Muslims and youth shall, along with nomination papers and other relevant documents, submit to the Returning Officer appointed by the Commission in this behalf
(a) a copy of the party list of the candidate's political party for such seats:
(b) declarations and statements as required by the Act or these rules in support of the nomination; and
(c) The fee required under these rules for filing nominations papers.
(6) The Commission shall, by notification in the official Gazette declare the total number of reserved seats won by each political party in the tehsil, town and district councils respectively.
(7) The per centum share of each political party shall be worked out with reference to total number of general seats in the tehsil councils, town councils or as the case may be the respective district councils.
(8) In calculating the number of seats, the highest fraction shall be taken as one seat till the allocation for total reserved seats in the concerned Council is completed.
(9) The seats reserved for women, peasants and workers, non-Muslims and youth shall be divided among the political parties on the basis of their per centum share as worked out in sub-rule (7) and in order of priority of the names of candidates mentioned in the party list.
(10) The list submitted by a political party shall not be subject to change or alteration either in the order of priority or through addition or subtraction of new names after expiry of the date of submission of nomination papers.
(10-A) If at any time the party list is insufficient or exhausted, the concerned political party may additional names for any vacancy which may occur thereaftsubmiter in the Tehsil Council, Town Council or District Council, as the case may be.
(11) The Returning Officer shall calculate the total number of seats won by each political party separately in the tehsil, town and district councils in the manner specified in sub-rule (9) and shall then ascertain the proportion of each political party of the seats reserved for women, peasants and workers, non-Muslims and youth.
(12) On the basis of the calculations done under sub-rule (11) the Returning Officer shall ascertain the number of seats to which each political party is entitled.
(13) The Returning Officer shall then declare elected to the respective tehsil councils; town councils or, as the case may be, district councils such number of candidates belonging to each political party, in order of priority in which their names appear in the lists provided by a political party as is equal to the number of seats to which that party is entitled under sub-rule (12)".
10. As clear from the above Rule 42, every political party, was required to submit its separate party list of nominated candidates, within the period fixed by the Commission, in order of priority and Rule 42(10) has placed an embargo over change or amendment of the said list, therefore, the Provincial Government, in exercise of its power being conferred by Section 112 of the Khyber Pakhtunkhwa Local Government Act, 2013 made amendment in Rule 42 by insertion of sub-rule (10-A) to overcome, and negate the effect of Rule 10 ibid, and thereby to facilitate political parties, which had filed either insufficient party list of nominated candidates, or if their party list had exhausted due to securing mere number of seats than the number of nominated candidates, for each category of reserved seat.
11. But sub-rule (10-A) ibid, has not at all been interpreted or construed to allow any political party who has contested election of Local Government, held on 30.5.2015, but had not submitted any party list of nominated candidates in term of sub-rule (2) of Rule 42 ibid.
12. The Commission itself, in very unequivocal term, has interpreted sub-rule (10-A) in its Notification issued on 15.7.2015, which reads as: "The Commission notifies schedule to fill the reserved seat in tehsil/town council and District Council of the Province of Khyber Pakhtunkhwa, which remained vacant due to non-filing of nomination papers by the candidates of respective political parties or exhaustion of the priority lists of candidates of those political parties who secured more seat than the priority lists of candidates earlier provided to the Returning Officers.
13. It is also clear, from bare perusal of sub-rule (5) of Rule 42 ibid, that a person, who was nominated by a political party, in the required list, shall not be declared elected, under provision contained in Rule 42(3) until and unless the contesting candidate has not filed his nomination papers in term of sub-rule (5) of Rule 42 ibid, which reads as:--
(5) Every candidate contesting election on a seat reserved for women, peasants and workers, non- Muslims and youth shall, along with nomination papers and other relevant documents, submit to the Returning Officer appointed by the Commission in this behalf-
(a) a copy of the party list of the candidate's political party for such seats:
(b) declarations and statements as required by the Act or these rules in support of the nomination; and
(c) The fee required under these rules for filing nominations papers. So, there may be occasions, that though a person name was nominated but by any reason, he fails to submit his nomination papers in term of Rule 42(5) ibid, and sub-rule (4) of 42 ibid, may also not attracted, on account of omission of more nominated candidates in the party list, and to fill these post remained vacant, due to insufficient list or if the list is already exhausted, new schedule for these vacant seats were announced/issued by the Commission by issuance of Notification dated 15.7.2015, which is in order, being issued by a competent Authority, in pursuance of the insertion of sub-rule (10-A) of Rule 42, ibid.
14. To sum up and to conclude, we partly accept the writ petition to the extent, that those political parties, who had not submitted their party list in view of sub-rule (2) of Rule 42 of Local Government Election Rules, 2014, within the prescribed period, fixed by the Commission cannot tender fresh list of its candidates as it would be totally violate of provisions of sub-rule (2) of Local Government Election Rules, 2014. However, if required, list for reserved seats already submitted by a political party, can be revised/altered according to the results of the Elections candidate of respective political parties or exhaustion of the priority lists of candidates of those political parties who have secured more seat than the priority list of candidates earlier provided to concern Returning Officer.