ADNAN-UL-KARIM MEMON, J.----Through this petition, basically the Petitioner is seeking declaration to the effect that he has not tendered resignation from the Chairmanship of Union Council Bhawalpur, Taluka Johi, and District Dadu, (Chairman UC Bahawalpur).
2. Brief facts of the case in nutshell are that the Petitioner was elected as Chairman Union Council Bahawalpur Taluka Johi District Dadu as provided under section 21 of the Sindh Local Government Act, 2013 (`SLGA- 2013'). Further he intended to tender resignation from the aforesaid post and he prepared a resignation letter, but the said letter was not delivered to the Council as required under the law and the original letter of resignation was kept by the Petitioner in his custody and a photocopy of the same was kept in his office; that he was shocked to know that said photocopy of his alleged resignation letter from the post of Chairman UC Bahawalpur was delivered to the office of the Provincial Election Commissioner, Sindh, Karachi. According to him his aforesaid alleged resignation letter was not posted and / or delivered by him to the Respondent No.3 or to anyone else as he did not resign from the post of Chairman in stricto sensu; but some staff members of the office of the Chairman Union Council, in due course of duty posted the said letter to the Respondent No.3 without his consent and permission. The petitioner has further submitted that till today, he has been performing his duties, including holding of meetings on day to day basis as Chairman, Union Council Bahawalpur; that the Respondent No.2 vide his letter dated 16th February 2018 directed the Sindh Bank Limited Dadu for seizure of account of Union Council Bahawalpur Taluka Johi District Dadu and stopped all the payments except payment of salary and pension. The petitioner has emphasized that he has not resigned from the post of the Chairman Union Council and even if the petitioner's alleged resignation letter is accepted as a resignation letter, the same was not handed over to the Council of which he is Chairman; hence the petitioner is deemed not to have resigned from the aforesaid post as provided under Section 26 of the Sindh local Government Act, 2013, which makes it mandatory to submit the resignation to the Council; that from the above proposition of law, it is quite clear that the alleged resignation of the petitioner cannot be accepted; that seizure of accounts of Union Council, Bahawalpur is illegal, arbitrary and of no legal effect as the petitioner has not resigned; therefore, the seizure /freezing of the accounts by Respondent No.2 is of no legal effect and the act of freezing the account has not only hampered the working of Union Council, but made the Union Council powerless to undertake any welfare work; that the petitioner vide his letter dated 28.6.2018 has informed the Respondent No.2 that he has resumed his duties and continue as Chairman of the Union Council and requested for de-freezing the accounts of the Council; that the petitioner being the Chairman of the Union Council convened its meeting on 2nd July, 2018, to discuss the following agenda:
(1) The propaganda done against Chairman;
(2) Stopping of salaries of employees of Union Council Bahawalpur Taluka Johi District Dadu and other issues.
Petitioner has further added that in pursuance of the aforesaid notice, 11 members of the Council including Vice-Chairman attended the meeting, wherein the petitioner refuted the allegations of tendering of resignation from the Chairmanship and all the members expressed their confidence in him as the Chairman and passed a resolution with regard to propaganda against the petitioner and strongly condemned the act of seizure of accounts of Union Council Bahawalpur. In view of this, the petitioner concluded that the respondents have no right to interfere in his working as Chairman Union Council Bahawalpur and their attempts to remove him as Chairman Union Council Bahawalpur are not only illegal, but without jurisdiction and tantamount to interference in the functions of the newly elected Chairman of Union Council. The petitioner being aggrieved by and dissatisfied with the aforesaid acts of the respondents has filed the instant petition on 7.11.2018.
3. Upon query by this Court as to how the instant petition is maintainable against tendering of his resignation from the post of Chairman of the Union Council, which has been acted upon by the Election Commission of Pakistan.
4. Mr. Mustafa Lakhani, learned counsel for the petitioner, in reply to the query argued that the respondents are illegally preventing the petitioner from acting as Chairman of Union Council inspite of the fact that the petitioner has not tendered the alleged resignation to the Respondent No.3 as provided under Section 26 of the SLGA, 2013; that the Respondent No.2 cannot seize the accounts of Union Council Bahawalpur Taluka Johi District Dadu, which act is illegal and of no legal effect; that the members, including Vice-Chairman of Union Council have expressed confidence in the petitioner, who is still acting as legally elected Chairman and the respondents cannot create hurdle in the way of duties and functions as Chairman; that the alleged resignation was not sent by the petitioner himself, hence, is of no legal effect; that since the alleged resignation of the petitioner was submitted to the Provincial Election Commission, Sindh Karachi, therefore, this Court has jurisdiction to entertain this petition, which contains prayer for declaration that the alleged resignation was not tendered by the petitioner as Chairman and seizure of account of Union Council Bahawalpur Taluka Johi District Dadu by the Local Government Department is illegal, having no legal effect and that the petitioner be allowed to operate the account of Union Council Bahawalpur Taluka Johi district Dadu.
5. Upon service of notice, the respondents have filed comments.
6. Mr. Allah Bachayo Soomro, Additional Advocate General contended that after tendering resignation, performance of the functions, including operation of account of Union Council in the capacity of Chairman is violative of relevant provision of law. Subsection (2) of Section 26 of SLGA, 2013 makes it clear that on tendering resignation, it is deemed to. be accepted and effective forthwith and the petitioner is no more Chairman; therefore, he cannot perform any function and as per law the petitioner is not authorized to convene meetings of the Council as Chairman. He further stated that according to Section 5 of the SLGA, 2013, the councils are required to function within provincial framework and act of the petitioner deviated from the procedure prescribed in the relevant law and further stated in the comments that it is admitted by the petitioner in para-2 that resignation has been tendered, hence he is ceased to be Chairman of Union Council and the operation of account was seized to control, illegal transactions by the Chairman, who has resigned from the said post. The resignation has been accepted automatically and the petitioner has been seized to be Chairman and notification in this regard was issued by the Election Commission as required under Section 28 of the SLGA, 2013 and further action for by-election of the seat of Chairman was initiated as required under the relevant law.
Respondent No.3 has also filed parawise comments, wherein he attached a copy of resignation tendered by the petitioner as Chairman Union Council Bahawalpur along with prescribed statement for vacant seats of Local Councils forwarded to the District Election Commissioner (DEC), Dadu by the Deputy Director, Local Government Department and the same was sent to his office by the respective DEC through REC Hyderabad.
He also pointed out that the said information was verified and endorsed by the concerned officer of Local Government Department and sent to him vide letter dated 23.10.2018. It has been further stated in the comments that the resignation tendered by any elected member of Local Council moves from Local Council to ECP through Government in accordance with Section 26 of Local Government Act, 2013. He lastly prayed that as per practice, the Local Government Department intimated him about the casual vacancies due to resignation, death, etc., thereafter the respondents notified such vacancies as vacant seats and issued schedule to fill the casual vacancies as per prescribed law. He concluded that, it is for the petitioner and the Respondents Nos.2 and 4 to prove before this Court, whether the petitioner submitted his resignation to the Council or not and he would comply with order of this Court in its letter and spirit. He lastly prayed for dismissal of instant petition against him.
7. We have gone through the case file and heard the parties on the issue involved in the matter.
8. The primordial question in the subject Petition is:- i) Whether the resignation once tendered by the Petitioner voluntarily from the post of Chairman Union Council Bahawalpur Taluka Johi District Dadu and accepted by the competent authority i.e. Council and communicated to him could be considered to be valid resignation and cannot be revoked afterwards?
9. Let us first take the legal issue of resignation tendered by the petitioner from the post of Chairman of Union Council. It has been agitated by learned counsel for the petitioner that the petitioner never tendered the alleged resignation from the aforesaid post, which has wrongly been accepted by the competent authority and it cannot be termed as a proper acceptance of resignation under the law.
10. To rebut the aforesaid contention of the petitioner, learned AAG has stated that Section 26 of the SLGA, 2013 makes it clear that once resignation is tendered and submitted to the Council, it is final and cannot be taken back. In support of his contention, he has relied upon the resignation letter dated 15.2.2018 tendered by the petitioner and communicated to all concerned. For sake of convenience an excerpt of the same is reproduced as under:- "OFFICE OF THE UNION COUNCIL BAHAWALPUR TALUKA JOHI To The Chief Election Commissioner, Province of Sindh, Karachi.
Subject: RESIGNATION.
Dear Sir, Due to my personal problems and engrossment, I am unable to get time for taking the responsibilities of Chairman of Union council of Bahawalpur, anymore, hence I have decided to resign from the said responsibility.
You are requested to accept my resignation from the position of Chairman Union Council Bahawalpur Taluka Johi District Dada.
Sincerely Yours Date: 15-02-2018 Sd/- SHEERAZ JAMALI UNION COUNCIL BAHAWALPURThis resignation letter has been written by me and it bears my signature Sd/- 23-2-2018 TALUKA JOHI DISTRICT DADU Copy to:-
1. The Secretary Local Government Department Karachi.
2. The Regional Director Local Government Department Hyderabad Region.
3. The Deputy Director Local Government Dadu.
4. The Election Commissioner Dadu"
He further added that the resignation tendered by the petitioner was accepted by the Council and communicated to the ECP. He relied upon the resolution of Council conducted on 27.2.2018. The learned AAG emphasized that upon receiving the resignation, the ECP issued the election schedules vide Notification dated 20th November, 2018. An excerpt of the same is as under:- ELECTION COMMISSION OF PAKISTAN NOTIFICATION Subject: ANNOUNCEMENT OF SCHEDULE FOR LOCAL GOVERNMENT BY- ELECTIONS (DIRECT) TO FILL UP THE VACANT SEATS OF VARIOUS LOCAL COUNCILS IN SINDH PROVINCE.
No.F.6(1)/2016-LGE (S)(1):--, In exercise of powers conferred upon it under Article 140A of the constitution of Islamic Republic of Pakistan, subsection (2) of Section 34, subsection (2) of Section 24 of the Sindh Local Government Act, 2013 read with sub-rule (1) of Rule 12 and Rule 72 of the Sindh Local Councils (Election)
Rules, 2015 and all other powers enabling it in that behalf, the Election Commission of hereby issues the schedule for Bye-Elections to fill the category of seats of member District Council from the Union Councils, Chairmen/Vice-Chairmen and members in each Union council/Union Committee and members from the Wards of each Municipal Committee and Town Committee in various local council (List attached) of Sindh Province and call upon the electors concerned to elect their representative to respective Local Councils, as per following dates:- Sr.No. Activity Date
1. Public Notice to be issued by the 22-11-2018 Returning Officer on
2. Filing of Nomination Papers with the 24-11-2018 Returning Officers by the candidates To 27-11-2018
3. Scrutiny of Nomination papers by 28-11-2018 the Returning Officers and 27-11-2018
4. Last date for filing of appeals against30-11-2018 the decisions of the Returning and Officer (accepting / rejecting the nomination papers)1-12-2018
5. Last date of deciding appeals by the 5-12-2018 Appellate Authority
6. Last date of withdrawal of candidate 6-12-2018
7. Publication of revised list of candidates along with symbols7-12-2018
8. Poll Date 23-12-2018
9. Consolidation and Declaration of result by the Returning Officer by24-12-2018 Dadu Union Council No.58 Bahawalpur Chairman Emphasis Added Learned AAG further pointed out that nomination has already been made, as such tendering of resignation voluntarily by the petitioner, could be verified from the record and cannot be declared a nullity, if the petitioner has subsequently changed his mind.
11. To appreciate the contention of the parties, it is beneficial to shade light on Section 26 of Sindh Local Government Act, 2013, which explicitly provides as under:- "resignation:-(1) " A Mayor, Deputy Mayor, Chairman, Vice-Chairman or a Member of Council may resign his or her office by tendering resignation in writing under his or her hand to the Council of which he or she is the Mayor, Deputy Mayor, Chairman, Vice Chairman or Member".
(2) "The Resignation tendered under subsection (1) shall be deemed to have been accepted and effective forthwith and the Council shall forward the copies of resignation to the Government which shall be sent to the Election Commission for notification".
12. In our view under that law, an offer of resignation from the public office can be withdrawn at any time before it is accepted. That is because the proposer, who gives the offer has an absolute right either to give the offer or not to do so and until the offer is accepted, he has an absolute right to withdraw the same. The holding of a public office entails duties and obligations and it is clearly in consonance with public policy of limiting the right to decline to hold the office' or to resign after the office has already been held for some time.
13. We have noted from the pleading of the petitioner that he tendered resignation from the aforesaid post/public office and signed resignation letter accordingly. In the present proceedings, the Petitioner has taken the plea that the said letter was not delivered to the Council and the original letter of resignation was kept by the Petitioner in his custody and photocopy of the same was kept in his office, this assertion of the petitioner is not tenable for the reason that the basic intention of the petitioner was to resign from the public office, who had certain reservations with his working in the office, which he had disclosed in his letter dated nil of June 2018 (available at page 25), which prima-facie show that he voluntarily signed the resignation letter on 15.2.2018 from the post of Chairmanship of Union Council Bhawalpur, Taluka Johi, District Dadu with the assertion that due to personal problems and obsession, he is unable to take the responsibilities of Chairman of Union council, Bahawalpur, thus requested the competent authority to accept his resignation from the aforesaid post. Record further reflects that on 23.2.2018, he verified the contents of letter by putting his note on the resignation letter in Sindhi language. An excerpt of its translation is as under: "This resignation letter has been written by me and it bears my signature"
14. We have also noted that nothing has been said with regard to factum that whether the resignation letter was managed one, rather the contents of letter has been admitted, which clarifies the position of present case. In the given circumstances, we do not agree with the plea of petitioner that the office of. Chairman of Union council Bahawalpur in due course of duty forwarded the letter to the competent authority for its acknowledgment without his consent as he has not alleged malfeasance and misfeasance on the part of any member of the council or staff.
15. In the light of admission of the petitioner, we are of the considered view that the petitioner is precluded from asking for its withdrawal or taking the plea that he has not tendered his resignation from the aforesaid position, which was accepted by the Council on 27.2.2018 and notified by the Election Commission of Pakistan and issued Election Schedule as discussed supra. The Election Commission of Pakistan has filed comments along with copy of resignation tendered by the Petitioner, list of vacant seats and letter dated 23.10.2018, with the following assertion:-- "As per practice the local Government Department intimate the answering Respondent about the causal vacancies due to resignation, death etc., thereafter the answering, Respondent notifies such vacancies as vacant seat and issue schedule to fill the casual vacancies as per prescribed law. Therefore, it is upto the Petitioner and the Respondents Nos.2 and 4 to prove before this Hon'ble Court, whether the petitioner submitted his resignation to the council or otherwise. The answering Respondent will comply decision of this Hon'ble Court in letter and spirit.
That in view of the above stated position the subject petition may please be dismissed against the answering Respondent."
16. Perusal of Section 26 of SLGA-2013 as discussed supra, leaves no room for any doubt or ambiguity as to the fact that once resignation has been accepted, it cannot be withdrawn subsequently and "shall" be deemed to have been accepted and the Election Commission of Pakistan is required to issue notification under section 28 of SLGA-2013 and conduct election under section 36 of the SLGA-2013 on the vacant seat.
17. We, have already held in the preceding paras that the Petitioner voluntarily tendered his resignation and remained mum, and after lapse of 4 months of its acceptance by the Council on 27.2.2018, he took somersault which is against the scheme of law, hence he cannot ask for its withdrawal, which was duly accepted and acted upon. Section 26 of the Sindh Local Government Act, 2013 in our view is quite clear in its terms and requires no interpretation.
18. In view of the above legal position, in our view the Petitioner was rightly stopped from performing as Chairman of Union Council Bhawalpur Taluka Johi, District Dadu by the Respondent No.3, which does not require any interference.
19. In the light of above discussion, the instant constitutional petition, along with pending application(s), is dismissed being meritless.