' KHALILUR REHMAN KHAN, J.-The petitioners who are stated to have been enrolled as voters in the relevant electoral rolls have filed this Constitution Petition seeking amongst other the relief that no proper election was held in the constituency in which they stand enrolled as voters and that the respondent Deputy Commissioner, Faisalabad be restrained from notifying the name of Muhammad Zafar, respondent No, 3 as the returned candidate from the constituency in question.
The reliefs have been claimed on the basis of the pleas contained in the petition including the one that Muhammad Zafar respondent being a Government servant was disqualified to contest the election. Learned counsel, however, at the time of final arguments requested that the petition be treated as quo warranto petition. He accordingly argued that Muhammad Zafar respondent was disqualified under section 20 of the Punjab Local Government Ordinance 1979, to contest the election for the membership of the Union Council.
2. Muhammad Zafar respondent contested the election for the Councillorship of Halqa No, 1, Union Council No, 10, Tehsil Jaranwala. District Faisalabad by filing nomination paper as required by law.
According to election schedule the date fixed for filing nomination papers were 30th, 31st August and lst September, 1983. The date for filing objections to the nomination papers and scrutiny of the nomination papers was 6th September, 1983. It is asserted that an objection that Muhammad Zafar respondent being Tubewell Operator and a Government servant was disqualified to contest the election was raised but the same was not heeded to and the nomination paper of Muhammad Zafar respondent was accepted. The actual polling took place on 28th of September, 1983 and as Muhammad Zafar respondent obtained highest number of votes was declared elected. In order to show that the petitioner was employee of Tubewell Operator Sub-Division, Nankana, Scrap-I, Irrigation and Power Department report made by the Sub-Divisional Officer of the aforesaid Sub- Division on the application submitted to the Returning Officer Jaranwala was relied upon. The application alongwith the report is at Annexure "A" with the petition. The Sub-Engineer vide his endorsement dated 24th September, 1983 reported that Muhammad Zafar respondent has submitted his resignation and the same was forwarded to the Sub-Divisional Officer on 30th August, 1983 for disposal. The Sub-Divisional Officer returned the application with the abovesaid report to the Returning Officer, Jaranwala. From the record produced before us by the departmental representative, who had attended the Court under our direction, it appears that Muhammad Zafar respondent submitted on 30th August, 1983 his resignation addressed to the Executive Engineer, Tubewell Operation Division (South) Sheik hupura, i. e. Through his Sub- Engineer. There is some overwriting on the date mentioned under the signature of respondent No, 3 but that is of no consequence as in any case the Sub-Engineer forwarded the resignation to Sub- Divisional Officer on 31st August, 1983. On the back of the resignation application one endorsement No, 1209/U0 dated 8th September, 1983 appears to have been made by someone in the office of the S. D.O. But this endorsement does not bear signature of the Sub-Divisional Officer and a line has also been drawn over it showing that the same was scored out. There is another endorsement of the Sub-Divisional Officer forwarding the resignation to the Executive Engineer (S) with the remarks that the same was submitted to him on 26th September, 1983. The Executive Engineer on 27th September, 1983 accepted the resignation with the direction that pay for the month of August, 1983 be forfeited and refunded to the Government. An office order was then issued by the Executive Engineer which bears No, 8292-95, dated 27th September, 1983. According to this office order the resignation tendered by Muhammad Zafar was accepted w,e,f, 31st August, 1983. Muhammad Zafar respondent delivered the charge of his post on 30th August, 1983 and the charge report, dated 30th August, 1983 verified by the Sub-Engineer was also produced for our perusal.
3. Learned counsel for Muhammad Zafar, respondent No, 3 also produced the order of his appointment as Tubewell Operator. According to this order of appointment, in case the appointee desires to leave the service, he is required to give either one month's notice in advance or to deposit one month's pay in case of resignation tendered for 24 hours. Learned counsel for the respondent contended that the petitioner invoking this condition of appointment tendered resignation by giving 24 hours notice and surrendered the pay for the month of August, 1983 and as such no valid objection can be raised to the acceptance of the resignation w,e,f, 31st August, 1983, as the competent authority acted in accordance with the terms of appointment. He argued that the respondent cannot be blamed for the time taken by the competent authority in accepting the resignation and that the Executive Engineer, i. e. The competent authority was justified in accepting the resignation w,e,f, August, 1983 as 24 hours notice of resignation was given. He contended that as there existed no reason whatsoever for not accepting the resignation within 24 hours the resignation was accepted W. e. f. 31st August, 1983 in order to save the Government from the consequences which might have arisen on account of delayed acceptance.
4. Learned counsel for the petitioners on the other hand relied on the statement made by Muhammad Latif, Revenue Clerk, Office of the Sub-Divisional Officer, Tubewell Operation Division
(S) which is to the effect that the resignation was submitted to him on 8th September, 1983 but the same was taken by the Secretary of Labour Union saying that he will produce it before the Sub- Divisional Officer and that the said resignation was put up before the Sub-Divisional Officer on 26th September, 1983. He, however, conceded that he was not present when the application was put up before the Sub-Divisional Officer. It will be appropriate to re-call here that on the application submitted to the Returning Officer which was forwarded to the department it was reported by the Sub-Engineer on 24th September, 1983 to the Sub-Divisional Officer that Muhammad Zafar has submitted his resignation which was forwarded to him on 30th August, 1983. The Sub-Divisional Officer with this report returned the application in original to the Assistant Commissioner, Jaranwala. At that time it was not stated by the S. D.
0. That he had not received the resignation said to have been forwarded to him on 30th August, 1983. Again no credence can be given to the statement of Muhammad Latif, clerk as he had no business' to return the resignation application to the Secretary, Labour Union as stated by him. The fact remains that the resignation was accepted by the Executive Engineer on 27th of September, 1983 1. e. Before the date of polling. The fact that the resignation was initially tendered on 30th August, 1983 is not seriously disputed. It is also not disputed that the resignation can be submitted by giving 24 hours notice according to the terms and conditions contained in the appointment order. The disqualification being relied upon is contained in section 2(1) of the Punjab Local Government Ordinance, 1979. The relevant part of this subsection read as under :- "21(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 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 and period of two years has not elapsed since his retirement."
Provided that this disqualification shall not be applicable to :-
(I) ...
(2) 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.
' Reference may also be made to rule 13 of the Punjab Local Councils Elections (Rules) 1979 as it has important bearing on the question raised in this petition. The relevant provisions of rule 13 are quoted :- "13. Nomination of election.-(1) Any voter of an electoral unit may propose or second the name of any person duly qualified to be a member for that electoral unit.
(2) Every proposal shall be made by a separate nomination paper, in Form III, which shall be signed by ;he proposer and the seconder and shall contain :- (a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member ; and
(b) a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder.
5. A perusal of section 21(1) read with rule 13 of the Rules shows that a person shall be disqualified to be a candidate if he is subject to any disqualification for being elected as a member at the time when the nomination papers are to be filed. It will be recalled that three days were fixed, i. e. 30th of August to 1st of September, 1983 (both days inclusive) for filing of nomination papers. The last date being 1st of September, 1983.
6. The question that arises for consideration is whether the respondent was disqualified to be a candidate for the election of Local Council on the last day of filing of nomination papers. The factual position emerging from the record as noted above is that the resignation was submitted on A 30th of August, 1983 and the same was accepted w,e,f, 31st of August, 1983 by the competent authority vide office order, dated 27th September, 1983. The respondent was submitted the resignation in time so as to shed the disqualification from he was otherwise suffering. It is also true that tendering of resignation by itself is not sufficient as it is not effective unless it is accepted by the competent authority. We are also of the view that ordinarily resignation cannot be accepted with retrospective effect but in' the instant case it cannot be said that the resignation was accepted with retrospective effect as the resignation was tendered on 30th of August or 31st of August, 1983 and as per conditions of the appointment 24 hours notice could be given. The competent authority as such by receiving the resignation accepted the same w,e,f, 31st of August, 1983 so as to act I terms of the conditions of appointment. The competent authority b accepting resignation from 31st of August, 1983 in terms accepted that the resignation was tendered on the said date if not a day earlier i. e. 30th o August, 1983. The confusion sought to be created by asserting the resignation was taken back and then was presented on 26th September, 1983 as such is of no consequence. The resignation having been accepted w,e,f, 31st of August, 1983 Muhammad Zafar respondent effectively shed the disqualification and as such was not subject to the disqualification on the last day fixed for the filing of nomination papers. As the case of the respondent squarely falls within the proviso quoted above as such the respondent was qualified to be candidate for the said election and ha right to hold the membership of the Union Council as he obtained the highest number of votes in the election.
7. The net result of the above discussion is that this petition is without merit and the same is dismissed with cost.