ASLAM RIAZ HUSSAIN, J. -This appeal is directed against the judgment and order of the Lahore High Court Rawalpindi Bench, dated 8-12-1981, whereby his writ petition was dismissed.
2. For the purpose of this appeal the only facts that are required to be mentioned here are that Munir Hussain Shah, appellant, was employed as Senior Clerk in the office of Director, Local Government, Rawalpindi. He resigned from the said post oh 15-6-1978 and. Contested the election to the membership of Dhama Union Council, Dhamayal, Tehsil and District Rawal--pindi, on 29-9- 1979, when two years had not yet passed. The appellant was elected, securing the highest number of. Votes. Muhammad Shafi respondent filed an election petition against him on the, ground that he was disqualified room contesting the election or remaining a member, in view of the dis-- qualification attached to him by virtue of clause (f) of section 21 of the Punjab Local Government Ordinance, 1979, read with section 99(d) of the Representation of Peoples Act, 1976.
3. The election petition was accepted by the Election Tribunal on 24-11-1980, and Munir Hussain Shah was removed from membership. Feeling aggrieved, Munir Hussain Shah appellant filed a writ petition in the High Court against the order of the Election Tribunal, which was dismissed on 8-12- 1980. The appellant then filed a petition for Leave to Appeal against the aforementioned judgment of the High Court to this Court. Leave was granted on 9-3-1982, to consider the effect of an amendment in the Punjab Local Government Ordinance. 1979, made by Ordinance VI of 1981, on 29- 3-1981. It may be mentioned that by this amendment a Proviso was added to clause (f) of section 21, and a new subsection was added to section 21 of the Punjab Local Government Ordinance, 1979.
In order to understand and appreciate the legal question involved in this appeal (as well as a number of other appeals, all of which are being heard together), it would be appro--priate to reproduce the relevant. Portion of section 21 of the said Ordinance which enumerates the disqualifications of candidates and members as it stood before the amendment :--- "Section 21. Disqualifications of candidates and members A person shall be disqualified to be a candidate or a member of a Local Council (a)
(b)
(c)
(d)
(e)
(f) if he for the .Time being is disqualified for membership of the Parliament or Provincial Assembly under any law for the time being."
(g)
(h)
4. The amendment made in it by Ordinance IV of 1981 added a Proviso to clause (f ) of section 21 and also added anew subsection numbered as subsection (2), the earlier section was renumbered as subsection (1). These read as follows :- "Proviso to Cl. (f)
Provided that this disqualification shall not be applicable to---
(1) A person who has, whether by himself or by any person in trust for him or for his benefit or on his account, any share or interest in--
(a) A contract for the supply of goods to, or the execution of any work of, the Federal Government or a Provincial Government or an autonomous body in which such a. Government has a controlling share or interest or a local authority other than the one in which that person is a candidate for election ;
(b) The performance of any service undertaken by any such Government, autonomous body or local authority.
(2) A person who has resigned or has been retired or removed other--wise than by way of punishment, from service of the Federal Government or a Provincial Government or a local authority or autonomous body ; "Subsection (2).-Any person who immediately before the commencement of the Punjab Local Government (Amendment) Ordinance, 1981, was suffering from a disqualification which has been removed by virtue of the proviso to clause (f) of subsection (1), or who has been removed from such membership by any authority or Tribunal constituted under any provision of the Ordinance or any decree, judgment or order of any Court on the grounds of the said disqualification shall, notwithstanding any other provision to the contrary in this Ordinance, be eligible to be a candidate or a member of a local council."
It is to be noticed that clause (f) of section 21(1) attaches, by reference, disqualifications prescribed for membership of the Parliament or a Provincial Assembly, under any law for the time being in force, to the members of, a local council as well. The relevant provision for the purpose of this case is in section 99(d) of the Representation of the Peoples Act, 1975 which prescribes the disqualifications for membership to the provincial assemblies. It reads as follows :- "Section 99. Disqualifications.-(1) A person shall be disqualified from being a member of an Assembly, if-
(a) he has been, on conviction for any offence which in the opinion of the Commissioner involves moral turpitude, sentenced to imprisonment for aterm of not less than two years, unless a period of five years has elapsed since his release ; or
(b) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dis--missal ; or
(c) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since removal or compulsory retirement ; or
(d) Be has been in the service of Pakistan, except service on contract for a fixed term, unless a period of two years has elapsed since he ceased to be in such service."
5. The ground on which Munir Hussain Shah appellant was removed from membership was that period of two years, prescribed by .Clause (d) of section 99(l), bad not yet passed since his resignation from service, when he contested the election to local council. Learned counsel for the appellant did not dispute the correctness of this view before us and only submitted that the disqualification in question attached to the appellant stood removed by the Proviso 1 added to clause (f) of section 21(1). This contention was not disputed by the learned counsel for the respondents but he (learned counsel for the respondents) submitted that since the amending Ordinance IV of 1981, which added the Proviso removing the disqualification, was enforced with "immediate effect", i.e. With effect from 29-3-1981, it was, therefore, effective only prospectively. As such it did not help the appellant who was removed from membership of the Local Council much earlier, on 24-11-1980, when the disqualification still attached to him. Learned counsel for the appellant on the other band adverted our attention to subsection (2) of section 21, added to the said section by the same amending Ordinance, and submitted that in view of provisions of the said subsection all the disqualifications mentioned in the Proviso stood removed retrospectively and, as such the disqualification from which the appellant suffered ' must be deemed to have been removed ab initio. We have considered the same question in the light of the pro--visions of subsection (2) of section 21 of the Punjab Local Government Ordinance at length in Civil Appeal No. 330/80, which was the case of a depot holder, whose disqualification was removed by clause 1(b) of the same proviso. The said appeal was accepted by holding that the disqualification mentioned in the Proviso stood removed retrospectively. For the same reason as recorded, in the said judgment, we hold that in view of clause (2) of the Proviso to section 21(f) of the Punjab Local Government Ordinance, 1979, read with subsection (2) of the aforementioned Ordinance, the disqualification incurred by virtue of section 99(1)(d) of Representation of Peoples Act, 1976, by persons who had resigned or had been retired or removed (otherwise than by way of punishment), from service of the Federal Government or a Pro--vincial Government or a local authority or an autonomous body, stood removed retrospectively. As a result, when such persons are candidates for elections to a Local Council, their nomination papers cannot be objected to on the basis of the said disqualification even though the same had been filed prior to the enforcement of amendment on 29-3-1981, and if in case of persons who have already been elected and are still members, their membership stands validated and cannot be questioned now and in the case of ex-Government Servants who were elected members as mentioned above, but were removed on the basis of the aforementioned disqualification, they shall be deemed to always have been members notwithstanding any order or judgment removing them.
The result is that we accept the appeal and hold that the appellant shall be restored to his membership notwithstanding the order of the Election Tribunal dated 24-11-1980, removing him.