ALI BAQAR NAJAFI, J. Through this appeal under section 63 of Elections Act, 2017 the appellant has challenged the decision of Returning Officer PP-141, Sheikhupura-(VII) dated 7-4-2023 whereby nomination papers submitted by respondent No.1 for the General Elections in the Provincial Assembly in Constituency PP-141 was approved.
2. Briefly, the case of the appellant is that the appellant being an enrolled voter of the said Constituency filed objections to the nomination papers submitted by respondent No.1 in the said constituency to contest the elections to be held on 13-5-2023, notwithstanding the fact that he remained Chairperson of Technical Education and Vocational Training Authority (TEVTA) from 06.08.2019 to 22.04.2022 when he resigned from his office.
3.(sic) According to the learned counsel, he is directly hit by Article 63(1)(k) of the Constitution which mandates that such person should contest the elections after the expiry of two years.
3. Learned counsel for the appellant refers to Technical Education and Vocational Training Authority Act, 2010 to argue that the Chairperson is appointed under Section 6(4)(a) of the Act ibid as Chief Executive of the Authority and runs the administrative affairs and that respondent No.1 has passed relevant orders in his capacity as Chief Executive in respect of transfer and postings. Adds that under Section 21 of the Pakistan Penal Code, a Chairman is a public servant who rendered the services of more than 3 months as the Pattern in Chief of TEVTA, therefore, places reliance upon Mirza Muhammad Tufail v. District Returning Officer and others (PLD 2007 Supreme Court 16), Shahid Nabi Malik v. Muhammad Ishaq Dar and 5 others (1996 MLD 295) and Ghulam Mustafa v.
A.S.J. Chunian and others (PLD 2016 Lahore 251).
4. Conversely, learned counsel for respondent No.1 submits that respondent No.1 was appointed as Chairman TEVTA but on pro bono basis without any perks and privileges and, therefore, he was not holding any office for profit in the said organization and as such he is not hit by Article 63(1)(k) of the Constitution but is entitled to the benefit of Article 63(1)(m) of the Constitution. Places reliance also upon Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 Supreme Court 32), Ghazanfar Ali v. Appellate Authority/Additional District Judge, Sahiwal and others (PLD 2016 Supreme Court 151) and an unreported judgment of this Court passed in W.P. No. 26257 of 2017 decided on 08.02.2017 to argue that impugned order is legal and does not require any interference in. the appellate jurisdiction of this Tribunal.
5. Arguments heard. File perused.
6. Admittedly, the respondent No.1 was appointed on 06.08.2019 as Chairman under Section 6(1)(2) of the Punjab Technical Education and Vocational Training Authority Act, 2016 by the competent authority against a vacant post as probono who continued to work as such until 03.06.2022 when he resigned from his office. As per the certificate, issued by the D.G. TEVTA dated 15.03.2023 he had not drawn any salary or allowances. Under Punjab Technical Education and Vocational Training Authority Act, 2010 the Authority defined under Section 4 is consisted of a Chairman and 7 to 15 members. The other members are nominated from the government who serve during the pleasure of the government. Under Section 6 the Chairman is appointed for 5 years, and could resign before the expiry of that period. He is the Chief Executive of the Authority and is responsible for the management, administration and day-to-day affairs. Under Section 14 the fund of this authority consists of the budgetary release from the Government, a Federal Government, grants, donation from the government or from any person, local, national or international organization or agency, a fee, cheques, gifts etc. Under Section 21 the Chairperson is a public servant within the meaning of Section 21 of Pakistan Penal Code. Under Section 24, it could frame regulations for efficient performance of its functions.
7. It is also not denied that respondent No.1 submitted the nomination forms to contest the elections in Constituency PP-141, Sheikhupura-VII for Provincial Assembly Punjab, 2023 after resigning from the office of Chairman addressed to Secretary Industries, Commerce, Industrial and Skill Development Department, which means that on the date of scrutiny he was no more working as Chairman.
7 (sic) Much emphasis has been laid down by the appellant to Article 63(i)(k) of the Constitution of Islamic Republic of Pakistan, 1973 to argue that since the respondent No.1 remained in the service of Statutory body, a body owned and controlled by the government having controlling share or interest, therefore, he can contest elections only after expiry of 2 years period of his resignation.
Article 63(i)(k) is reproduced as under
63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-- (a)..................................................................
(b) ..................................................................
(c) ..................................................................
(d) ..................................................................
(e) ..................................................................
(f ) ..................................................................
(g) ..................................................................
(h) ..................................................................
(i) .................................................................. j) ..................................................................
(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"
8. Here learned counsel for respondent No.1 argues that "Service" means employment for remuneration and, therefore, does not include a probono appointee. He gives reference to Article 63(1)(d) to argue that he did not hold the office of profit in the service of Pakistan, therefore, is not disqualified from being elected as a member of Parliament. Article 63(1)(d)(e) reproduced as under:- "63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if--
(a) ..................................................................
(b) ..................................................................
(c) ..................................................................
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service 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; or He further argues that respondent No.2 was not in service, in stricto sensu of a statutory body.
Here reference is given to case titled Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 Supreme Court 32) to argue that not holding an office of profit in the service of Pakistan is distinguished from merely in service of Pakistan, hence the former is not a disqualification from being elected as a member of Parliament. Relevant extract from para 6 is reproduced as under:- ".............However, if the Legislature intended that a person who is in the service of Pakistan but does not hold any office of profit also stands disqualified in the like manner as a person holding office of profit, it could have provided so. The fact that the Legislature while reenacting with amendments sub-clause (e) of clause (1) of Article 63 ibid, only provided for disqualification of persons in the service of a statutory body or any body which is owned or controlled by Government or in which the Government has a controlling share or interest at the time of election, from being elected or becoming a member of the Parliament, is indicative of the fact that the Legislature did not intend to enlarge the categories of persons mentioned in sub-clause (d) ibid any further. The Legislature, therefore, while providing in sub-clause (k) of clause (1) of H Article 63 ibid, that the person who ceases to hold office in the service of Pakistan, or a statutory body or any body owned or controlled by the Government or in which the Government has controlling share or interest, will not be eligible for election or being a member of Parliament for a period of two years from the date he ceases to hold such office, had in its contemplation the two categories of disqualified persons mentioned in sub-clauses (d) and (e) ibid. The Legislature having chosen not to disqualify a person in the service of Pakistan who does not hold any office of profit, it would be absurd to attribute to the Legislature that it intended to disqualify a person, who was in the service of Pakistan and did not hold any office of profit, from being elected to the Parliament or from becoming its member for a period of 2 years since he ceased to hold such office. We are, therefore, of the view that sub-clause
(k) of clause (1) of Article 63 ibid, disqualified only those persons for a period of 2 years from the date they ceased to hold their office who were either holding an office of profit in the service of Pakistans.........
However, what is the office of profit. The same judgment clarifies that if there is no evidence to show that office was office of profit reimbursement of pocket expenses would not bring such person within the ambit of office of profit.
What is service of Pakistan is defined in Article 20 of the Constitution which is reproduced as under:
260. (1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say,-- "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 Senice, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of 1[Majlis-e-Shoora (Parliament)] or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, 2[Attomey-General, 3[Advocate Genera Parliamentary Secretary) or 4[Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister] or member of a House or a Provincial Assembly:"
Chairman TEVTA does not appear to be covered in the definition of the service of Pakistan.
9. A reference is also given to Muhammad Naseem Turyali and others v. Ghulam Sarwar Khan and others reported as (PLD 2005 Supreme Court 570) to argue that service of a statutory body or a body which is controlled, owned by government or having controlling share or interest is not a civil service and this concept is not circumscribed by any salary or fee. However, this observation was given in respect of management Trainee, an employee in the Sui Gas Company. Para 9 is reproduced as under:- "9. 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. It connotes any service, post or office in the statutory body regulated by the Rules or Regulations framed by the competent authority. The only rider is that the said statutory body should neither be owned or controlled by the Government. It is nobody's case that the Company is not owned and controlled by the Federal Government. Appellant Muhammad Naseem Turyali was appointed as Management Trainee and he was in the service of the Company which was owned by the Federal Government and thus he was squarely hit by Article 63(1)(e) and (k) of the Constitution of Islamic Republic of Pakistan."
10. However, Article 63(1)(m) is most relevant which qualifies a person, not in the service of Pakistan, if he holds an office which is not whole time office remunerated either by salary or by fee which means that if Chairman TEVTA was not drawing any salary or fee, he could contest elections.Article 63(1)(m) is reproduced as under: "63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if-- (a)..................................................................
(b)..................................................................
(c) ..................................................................
(d) ..................................................................
(e) ..................................................................
(o) ..................................................................
(g) ..................................................................
(h) ..................................................................
(i) ...................................................................
(k) ..................................................................
(l) ...................................................................
(m) he holds any office of profit in the service of Pakistan other than the following offices, namely : --
(i) an office which is not whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or
11. The meaning of probno as held in Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482), adopted from. Black Law Dictionary, Chamber Dictionary and Oxford Dictionary generally means for public good or for welfare of the whole being or involved un- compensated legal services performed especially for public good. It involves a general welfare of the public or a whole, and has a stake especially an interest that justifies government regulations.
11. Here reference can also be given to Tariq Hussain v. Sarfraz Ahmed and 4 others (2013 CLC 1620) as in similar situation permission was granted to contest elections 10 years ago. Likewise in Muhammad Nadeem v. Muhammad Mumtaz Akhter Kahloon and others (2013 CLC 1796) the Chairman was in service when the scrutiny was conducted, hence disqualified under Section 63(1)
(k) of the Constitution.
12. In view of the above discussion, it can be safely concluded that the Chairman TEVTA appointed as probono was not holding the office of profit not a whole time office remunerated either by salary or kind as mentioned under Article 63(1)(m) and was not disqualified under Article 63(1)(d)(e)(k), thus can contest elections of PP-141, Sheikhupura-(VII) in the forthcoming elections.