GHAZANFAR ALI GONDAL, J. - The facts of the case are that respondent Zaroo Khan filed his nomination paper for membership of Union Council, Mianwala, Tehsil Pindigheb, District Attock, from village Thatha Noor Ahmad Shah. By his order dated 5th September, 1983, the Returning Officer rejected it on the ground that respondent had retired from Pakistan Army on 13th February, 1982 as a Naik and two years had not elapsed since then. On appeal by the said respondent, the order of Returning Officer was set aside and nomination paper of the respondent was accepted on the ground that respondent had actually retired on 13th February, 1981 as shown by letter, dated 13th February, 1981 of Engineer Central (Record Wing) Risalpur and Returning Officer had misunderstood his date of retirement as 13th February, 1982. The respondent accordingly fought the election and defeated the contesting candidate Ibne Hassan and won the election and was declared as a member.
2. New election to special interest seats of two ladies was to be held on 29th October, 1983.
Petitioner-lady filed on 24th October, 1983, this constitutional petition under Article 9 (1) (b) (ii) of the P. C.O. For grant of an order in the nature of quo warranto requiring the said respondent to show under what authority of law he claimed to hold the elected office of a member to the union council, inasmuch as he had retired from Pakistan Army as a Naik on 11th April, 1982 and two years had not elapsed since then and as such under section 21 (1) (e) of Punjab Local Government Ordinance, 1979, he was not qualified to be a member of the said union council. In proof of her assertion that respondent had retired on 11th April, 1982, petitioner-lady placed, on record a certificate from Sub-Postmaster Pindigheb to the effect that the respondent was drawing his pension from Pindigheb Sub-Post Office as an invalid from 11th April, 1982. Later she produced a photo copy of certificate, dated 24th October, 1983 from Officer Incharge Records of the office of Engineer Centre (Record Wing) Risalpur, inter alia, showing that date of retirement of said respondent was 11th April, 1982.
3. On 25th October, 1983, we had admitted this writ petition to regular hearing and on 26th October, 1983, stayed till 8th November, 1983, the holding of election to special interest seats of Union Council, Mianwala. Meanwhile, on 8th November, 1983, the election of the Vice-Chairman took place, as, under the provisions of subsection (3-A) of section 26 of Punjab Local Government Ordinance, 1979, the election of the Vice-Chairman could not be stayed, even if a Court had stayed the holding of election to the special interest seats and the said seats had remained vacant till then. In the said election, respondent was elected unopposed as Vice-Chairman of the Union Council on the said date.
4. Learned counsel for the respondent has raised objections to the maintainability of this writ petition. First of these preliminary objections is that Ibne Hassan, who was a rival candidate in the election to membership of union council in question and had been defeated by the respondent, A had not himself come to the High Court but had set up the petitioner-i lady to file this petition for grant of an order in the nature of quo warranto and that she had not come bona fide to this Court and had come in order t' fight the battle for said Ibne Hassan and for that reason this writ petition should be dismissed on account of mala fides on the part of petitioner, especially when in the meantime the respondent has been elected Vice Chairman of the Union Council on 8th November, 1983.
5. We have considered the point in question. The respondent has not given details of any mala fides on the part of petitioner in filing this writ petition. As a matter of fact, no written statement or even a counter-affidavit has been filed by the respondent and there are no details of allegations before us in respect of mala fides on the part of petitioner in filing this writ petition and thereby requiring respondent to show under what authority of law he was holding the elective office of a member of union council. The mere fact that Ibne Hassan, respondent's rival candidate, who had been defeated had not filed the writ petition would not show that he had set up the petitioner in his place to fight his battle. There is no evidence on record to that effect. It is not the case of learned counsel for the respondent that there are party factions in the electoral area and petitioner belongs to the party of Ibne Hassan and or has any other connection with him. It is not even alleged that she is related to him so as to impel her to carry his burden upon her shoulders. No mala fides on her part in approaching this Court can be inferred from the mere circumstance of Ibne Hassan having not filed the writ petition. Furthermore, the petitioner is a candidate for election to a lady seat in the union council in question. If she, therefore, thought that respondent was originally disqualified for being elected as a member and was as such not entitled to vote at the said election, she could validly file this writ petition to eliminate him from the list of her voters.
Furthermore, the petitioner-lady resides permanently in the area of the union council from which the respondent was elected as a member and has now been elected as a Vice-Chairman and many facets of her life are likely to be effected by existence of respondent as a member and Vice- Chairman of said union council and for that reason too if she felt that the respondent had no right to hold the said elective offices, she was entitled to challenge his eligibility to remain a member of union council and for that matter the Vice-Chairman of the same. It cannot, therefore, be said that she had no interest of her own in the matter and had filed this writ petition at the behest of some other person. There is, therefore, no merit in this point and the same is repelled.
6. The second preliminary objection raised by the learned counsel for the respondent is that under section 24 of the said Ordinance, election of respondent can be set aside by an election Tribunal in an election petition and adequate alternative remedy being available to petitioner, this writ petition for the same relief is not competent.
7. We have considered this plea too, but are afraid we cannot accept the same. Under rule 3 (2) of Punjab Local Council (Election Petitions) Rules, 1979, it is only a candidate in an election who can file an election petition and the petitioner who was not a candidate could not file any such B petition.
Accordingly filing a petition for grant of an order in the nature of a writ of quo warranto was the only remedy available to the petitioner. This point has also, therefore, no merit in it and the same is also rejected.
8. Having thus disposed of the preliminary objections raised by the learned counsel for the respondent, the way is now clear for consideration of this case on its merits.
9. To ascertain the 4rue facts, a representative from the office of Engineer Centre (Record Wing)
Risalpur was called. Lieutenant Muhammad Riaz appeared on 8th November, 1983 and informed us that according to the record, the respondent Naik by rank and special vehicle driven by trade had bend invalided out of/struck off the strength of the army on 11th April, 1982 under item No, III (iii) of the table annexed to sub-rule (2) of rule 12 of Pakistan Army Act Rules, 1954, on account of having been found medically uafit for further military service and was now drawing pension with effect from 11th April, 1982. He further told us that there was no age limit prescribed in the army law for retirement of a Naik but there was a service limit fixed for the said purpose and an ordinary Naik retired on completion of 18 years of service while Naik/Special Vehicle Driver (which post the respondent held) retired after 21 years of service, but service of respondent had been terminated on 11th April, 1982 on his completing service for a period of 15 years 1 month and 28 days only, on account of his becoming unfit for further service in army due to the reason given above. He further informed us that initial period of engagement of every enrolled person or normal period of his colour service was 15 years and on completion of the same such a person got a pension and since respondent who had been invalided out of army, had completed his service of 15 years already, he had been given invalid pension. He has also explained that if he had not been declared invalid by a Medical Board constituted for the purpose, he would have retired on completing the service of 21 years and would have then got full service pension, which would have been much more than his present pension.
10. We have seen the original certificate of termination of service of respondent produced before us by the learned counsel for the respondent. It shows the date of birth of respondent as 13th February, 1949, the date of his enrolment as 13th February, 1967 and further shows that on 11th April, 1982 he was invalided out/struck off the strength of the army under Pakistan Army Act Rule No, 12 (2) item III
(iii) having been found medically unfit for further military service after serving (about) 15 years with colours. His rank is mentioned therein as Naik and his trade is mentioned therein as DSV-Cl. II (Driver Special Vehicle Class II). We have also seen his pension certificate in original. It shows the class of pension granted to respondent on his being struck off the army strength to be invalid pension.
11. Learned counsel for the petitioner has relied upon section 21 (1) (e) of the Punjab Local Government Ordinance, 1979, relevant portion of which reads as below : - "Section 21 (1) (e). Disqualifications of candidates and members.-(1) A person shall be disqualified to be a candidate or a member of a local council-
(e) if he is a salaried official of Federal Government and in case such an official has retired, a period of two years has not elapsed since his-retirement."
He has submitted that respondent was a salaried official of Federal Government and had obviously retired on 11th April, 1982 as he had been drawing pension with effect from that day and since a period of two years has not elapsed since the date of his said retirement, he is disqualified under section 21 (1) (e) of Local Government Ordinance, 1979 to hold the office of member of the said Union Council.
12. Learned counsel for the respondent has, however, submitted that the word 'retired' in section 21 (1)(e) of Local Government Ordinance, 1979, means normal retirement either on completion by an official of retiring age fixed in the relevant law or on completion of prescribed number of years of service which qualify him for pension and other benefits. In this respect he has referred to section 13 of Civil Servants Act, 1973, and section 12 of Punjab Civil Servants Act, 1974, according to which a civil servant respectively under Federal and Punjab Government retires either on completion of 25 years of service qualifying him for pension and other retirement benefits or on attaining the age of sixty years. Continuing he has submitted that respondent who is Naik by rank and a special vehicle driver by trade was to retire on completion. Of 21 years of service and his having come out of the army after a service of 15 years I month and 28 days showed that he had not retired from army service. He has further submitted that army authorities had not described resident's exit from the army as retirement, but as having been invalided out of the army and even the certificate issued to him was a certificate of termination of his service and not retirement from army service and as such respondent had not retired from the army service in its normal sense. His next argument is that disqualification laid down in section 21 (1) (e) of Punjab Local Government Ordinance, 1979, did not apply to armed forces because the Constitution of 1973 as protected by P. C.O. Dealt with services separately. Chapter I of Part XII consisting of Articles 240 to 242 dealt with Services of Pakistan while Chapter II of said part consisting of Articles 243 to 245 dealt with Armed Forces and, therefore, service in armed forced stood excluded from Service of Pakistan. He further submitted that Article 240 read with Article 212 of the said Constitution also showed that military service was not included in the Service of Pakistan.
13. As against the above, the learned counsel for the petitioner has by way of rejoinder submitted that under section 4 of Punjab Local Government Ordinance, 1979, the provisions of section 21 (1) (e) of the said Ordinance were to take effect notwithstanding anything inconsistent therewith contained in any other law and seen in that light, other statutes cannot be taken into consideration to discover the meaning of the word 'retire' as used therein. He further submitted that the word 'retire' as used in section 21 (1) (e) of the said Statute must be given its commonsense and plain meaning and from the fact that the respondent was getting pension, it was clear that irrespective of the terminology used in the Pakistan Army Act or the rules made thereunder, he had retired from army service with effect from 11th April, 1982. In respect of the second point raised by the learned counsel for the respondent, he submits that the words used in the relevant provision are salaried official of the Federal Government and respondent without any semblance of doubt was at one time a salaried official of the Federal Government and, therefore, the prohibition provided in section 21 (l) (e) of the Ordinance against seeking election fully applied to him. It is further submitted that the words 'in service of Pakistan' in relation to an official of the Federal Government did not find mention in section 21 (1) (e) of the Ordinance, and, therefore, argument based upon said constitutional provision was wholly irrelevant and respondent Zaroo Khan having been a salaried official of Federal Government, which words had been used in relevant provision of the Provincial Statute, effect should be given to the plain meaning of the said words. In any way, it is submitted that Article 260 of the Constitution defines service of Pakistan as any service in connection with affairs of the Federation including service in Armed Forces and, therefore, service of a person like respondent enrolled as a Combatant in the army cannot be excluded from the ambit of the words "Service of Pakistan."
14. We have given our anxious consideration to the arguments of the learned counsel for the petitioner and the respondent. The first question that arises is whether the respondent has retired on the completion of the prescribed age or the period of service laid down, therefor, or has been retired, otherwise than by way of punishment. This is not a case of resignation or removal and we need not, therefore, labour on these points. It is admitted by both the learned counsel for the parties that there is no prescribed age limit for retirement for a Naik, but there is a period of engagement prescribed therefor and for a Naik possessing a selected trade, such as a Naik who is a driver of a special vehicle (which was what the respondent was), this period is 21 years. It is also admitted on both sides that the respondent's services were terminated after he had completed a little over fifteen years of service, because of his being invalidated out on medical ground. Rule 253 of the Army Regulations, Volume I, defines "retirement/ discharge" as follows :- "Retirement/discharge.-Is of two kinds, viz. :-
(i) Normal.-That is retirement/discharge on completion of any prescribed age/service limits in case of personnel on a regular engagement/ commission and in respect of non-regular personnel whenever their services are no longer required, for causes other than those calling for dismissal, removal or premature retirement. Grant of retiring benefits is regulated under normal rules.
(ii) Premature.-When the service of an individual is terminated other than by dismissal or removal, before completion of the prescribed age-service limits or for reasons demanding curtailment of his career earlier than a date by which he would have normally been retired. It includes termination of service when called upon to retire or resign."
From the definition, the words 'retirement' and 'discharge' appear to be interchangeable terms, loosely used to cover termination of service where a person has completed the prescribed age or period of service, in the case of personnel on regular engagement or commission, cr when his service is no longer required, in the case of non-regular personnel, and to termination of service when called upon to retire, before completion of the prescribe bed age or period of service, or to termination of service when called upon to resign, before such prescribed age or period of service.
It is, therefore, clear that the respondent had been prematurely retired by the competent authority other than by way of punishment, and that he did not retire on the completion of his normal full prescribed period of service. This position is also conceded by both the learned counsel.
15. We now turn to the law on the subject. Under section 21 (1) (e) of the Punjab Local Government Ordinance, 1979, a person stands disqualified to be a candidate or a member of a local council if he is a salaried official of the Federal or Provincial Government or of a public or statutory corporation, a local council or other local authority and in case such an official has retired, a period of two years has not elapsed since his retirement. Under section 21 (1) ( f ) of the same Ordinance, a person stands disqualified to be such candidate or member, if he for the time being is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force ; provided that this disqualification is not applicable to a person who has resigned or has been retired or removed, otherwise than by way of punishment, from service of the Federal Government or a Provincial Government or a local authority or an autonomous body. Under Article 10 (2) (b) (4) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, a person stands disqualified from being elected or chosen as, and from being, a member of Parliament, if 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. Applying the provisions of Article 10 (2) (b) (4) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, to the instant case, it is apparent that the respondent stands disqualified from being, elected or chosen as, and from being a member of Parliament. This disqualification being adopted by section 21 (1) (f) of the Punjab Local Government Ordinance, 1979, in respect of local councils, the respondents stands disqualified stands from being a candidate or a member of a local council. However, by the second proviso to this provision, the disability stands annulled if the person has been retired, otherwise than by way of punishment, from the service of the Federal Government or of a Provincial Government or local authority or an autonomous body. As already held earlier, the respondent was retired, otherwise than by way of punishment, from service of the Federal Government. The disqualification, therefore, cannot attach to the respondent.
16. The only question that now remains is whether the disability provided by section 21 (1) (e) of the Punjab Local Government Ordinance, 1979, attaches to the respondent's case. Everything turns here on the words "has retired". Initially, the disability provided by clause (e) was only confined to sitting officials of the Federal or Provincial Governments or of public or statutory corporations or local councils or other local authorities. It was only by the Punjab Local Government (Amendment Ordinance, XV of 1983, that the words "and in case such an official has retired a period of two years has not elapsed since his retirement" were added to the said clause. Obviously, the words "has retired" have different connotation than the words "has been retired", as appearing the second proviso to clause ( f ) of subsection (1) of section 21 of the Punjab Local Government Ordinance. The two sets of words are used in contradiction to each other. The former relate to the normal severance of service on completion of the prescribed age or period of service, whey such severance is not brought about by or at the instance of the employee and such severance does not curtail the employee's right to serve further, whereas the latter relate to the termination of service by or at the instant of the employer, before completion of the prescribed age or period of service, where, but for the termination, the employee would have been, able to serve upto the prescribed age or period of service, The words "has retired", therefore, cannot be treated as used in a general tense, so as to include termination of service by way of resignation. This is also obvious, when one examines the second proviso to clause ( f) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979, where the words "has resigned", "has been retired" and "(has been) removed" have been used separately to denote the differing forms of severance of the relationship of master and servant. Thus, the words "has retired" in section 21 (1) (c) of the Punjab Local Government Ordinance cannot be treated as used in any loose or general sense, so as to include termination of service by way of resignation. The Karachi High Court in Abdul Ghaffar v.
Mustafa Khan (1) has also interpreted the words "has retired" as including termination by way of resignation. But it should not be forgotten that the Karachi High Court was dealing with the disqualification provided in section 37 (2) (d) of the Sind Local Government Ordinance, 1979, which provision initially from the very first day of its enactment, disqualified persons from being elected as, and from being, members of local councils if they were in the service of any statutory body or two years had not elapsed since their retirement or removal from such service. In the Punjab, the addition to clause (e) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979, is of recent date and much after the two provisos were added to clause ( f ) of the same subsection sometime in 1981. The Karachi case, therefore, cannot be accepted as offering any guidance to the interpretation of the words "has retired", as appearing in the Punjab Local Government Ordinance. The Karachi case is legally distinguishable, as it relates to a different set of legal circumstances and its ratio cannot be applied whilst interpreting section 21 (1) (e) of the Punjab Local Government Ordinance. The upshot of this discussion, therefore, is that the respondent not having completed the full period of service fixed for normal retirement benefits due to his forced premature retirement at the instance of the competent authority, he did not retire from service within the meaning of section 21 (1) (e) of the Punjab Local Government Ordinance, 1979. This being the position, the respondent does not stand disqualified from continuing to remain a member of the local council concerned.
17. In the circumstances, we need not go into the other points raised by the learned counsel for the respondent.
18. For the foregoing reasons, there is no force in this writ petition and the same is dismissed with costs.
(1) P L'D 1981 Kar. 56