JAWAD HASSAN, J:- Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution" ), the Petitioner has called in question the order dated 20.06.2018 passed by the learned Election Appellate Tribunal (the "Tribunal ") whereby the Election Appeal filed by the Respondent No.4 was accepted and the order dated 13.06.2018 passed by the Returning Officer accepting the nomination papers of the Petitioner , was set aside.
2. The learned counsel for the Petitioner inter alia contended that the impugned order is illegal and against the law and facts; that the learned Tribunal has not properly taken into consideration the fact that the Petitioner was not a Government servant and there is a difference between a consultant engaged by an authority on adhoc basis and a contract employee; that in the impugned order it has not been appreciated that there is no relationship of employer and employee existed between the Petitioner and the Government, hence her term of engagement did not fall under the category of "Service of Pakistan"; that the impugned order also infringed her fundamental right of contesting elections as the same was not passed in accordance with law; that the Petitioner was appointed as Consultant Gynecologist and even has tendered her resignation on 30.09.2017 to the CEO/Medical Superintendent DHQ Hospital Bhakkar .
3. On the contrary , learned counsel for the Respondent No.4 vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the ground that the decision of the learned Tribunal is apt as the case of the Petitioner specifically falls within the definition of disqualification under Article 63(1)(k) of the Constitution.
4. Learned Counsel for the Election Commission of Pakistan also assisted the Court in the matter on their turn.
5. We have heard the arguments of the learned counsel for the parties and have perused the record.
6. From the perusal of record, it transpired that the Petitioner was appointed as Consultant Gynecologist in BPS-18 on adhoc basis at DHQ, Bhakkar for initial period of one year w.e.f. 22.07.2014 and lastly her adhoc period was extended from 20.07.2017 for one year i.e. till 19.07.2018. The record further reveals that the Petitioner tendered her resignation from service on 30.09.2017. The appointment letter of the Petitioner explicitly reflects that the Petitioner shall be governed by Civil Servants Act, 1974 (the "Act") and any other such rules and orders relating to leave, travelling allowances, medical attendance, pay etc. as may be issued by the Government from time to time.
The Petitioner was disqualified as her case falls within the domain of Article 63 (1)(k) of the Constitution. The language of said Article is very much clear which reads as follows: "(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if -- (k). he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service ; or"
7. Furthermore, the "Service of Pakistan" has been defined in Article 240 of the Constitution which is reproduced below and is as follows: "Article: 240 Appointments to service of Pakistan and conditions of service"
240. Appointments to service of Pakistan and conditions of service.- Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of [Majlis-e -Shoora (Parliament)]; and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly .
From the above, it is crystal clear that "All-Pakistan Service" means a service common to the Federation and the Provinces. The appointment letter of the Petitioner was issued by the Government of the Punjab, Health Department, so obviously the Petitioner was serving in the Provincial Government. In Article 260 of the Constitution the "Service of Pakistan: is clearly defined that "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of [Majlis-e-Shoora (Parliament)] or of a Provincial Assembly.". In view of the same, as in the appointment letter of the Petitioner it has specifically been mentioned that her services shall be governed by the Act, and that too was issued by the Provincial Government, therefore, we feel no hesitation to hold that the Petitioner was in "Service of Pakistan".
8. We agree with the findings of the learned Tribunal which in the impugned judgment has observed that the post which was held by the Petitioner was although held by her on adhoc basis and for a specified period of time, yet the said post was a permanent post and the perks and privileges attached therewith were enjoyed by the Petitioner. Since the service of the Petitioner was of Province of Punjab and as she worked there for gain hence, it will be construed that she has been enjoying office of profit, therefore, in spite of her status of an adhoc or time bound employee, disqualification as contemplated in Article 63(1)(k) of the Constitution squarely applied on her and she was clearly disqualified from contesting elections prior to lapse of period of two years since she ceases to be in that service.
9. Secondly , it is further noted here that under Article 63(1)(k) of the Constitution, if a person has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service. The Petitioner admittedly , submitted her resignation from service on 30.09.2017 and the General Elections 2018 are going to be held on 25.07.2018, therefore, it can safely be held that she categorically falls within the definition of disqualification under Article 63(1)(k) of the Constitution as the period of two years has not been elapsed since she ceased to be in such service. As such, the learned Tribunal has rightly held in paragraph-9 of the judgment that disqualification as contemplated in Article 63(1)(k) of the Constitution squarely applied on the Petitioner and she was clearly disqualified from contesting the elections prior to lapse of period of two years since she ceases to be in that service. Guidance in this regard can be sought from the case titled Muhammad Khursheed Khan v. Returning Officer and 4 others (1998 SCMr 425), Syeda Abida Hussain v. Trinunal for N.A. 69 Jhang-IV and 2 others (PLD 1994 SC 60) and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others (PLD 1987 SC 32).
10. We, therefore, agree with the findings of the learned Tribunal which rightly acce pted the Election Appeal filed by the Respondent No.4 and do not see any illegality or perversity in the impugned judgment which has been passed strictly in consonance with the spirit of law, as such does not warrant any interfe rence by us. Consequently , the petition in hand, being devoid of any merit, is hereby dismissed .