' ABDUL SHAKURUL SALAM, J. -The petitioner filed nomination papers to contest election to Zilla Council seat (Electoral Unit No, 28) Faisalabad. Respondent No, 1 objected on the ground that the petitioner was a Government servant. The objection was overruled. Petitioner as well as respondent No, 1 amongst others contested the election on 28th September, 1983. Petitioner got 3643 votes, respondent 3013. The petitioner was declared elected. Respondent No, I filed an election petition infer alia on the ground that the petitioner was disqualified to contest election being Government servant The plea has been accepted and election set aside. This is vide order of the Additional District Judge Election Tribunal, Faisalabad, dated 12th March, 1984. Petitioner challenges the order through this Constitutional petition.
2. Relevant facts are that the petitioner was a Zillaidar in the Irrigation Department of the Government of the Punjab. He was dismissed from service on 19th October, 1983 with effect from 29th July, 1981. On appeal the order of dismissal was altered to removal from Government service with effect from the actual date of absence from duty viz. 29th July, 1981. This was done in pursuance of powers under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 vide order of the appellate authority, the Chief Engineer, Irrigation, Faisalabad vide order, dated 23rd January, 1984.
3. The contention of the petitioner before the Election Tribunal was and has been reiterated in these proceedings that the petitioner had resigned from service, on 29th July, 1981. He did not work thereafter, nor received any salary. On the basis of the evidence on record to the effect that no resignation was submitted nor accepted, the learned Election Tribunal found that plea of resignation was untenable. The learned counsel for the petitioner rightly did not pursue the point.
But he submitted that the reliance of the learned Election Tribunal on the case The Province of Punjab v. Khaliq Dad Khan (1) that dismissal order cannot be passed with retrospective effect was inapt because in the reported case the competent authority did not have the power to pass "any order it deems fit" which it has under the relevant Rules above mentioned, in pursuance of which the petitioner has been removed from service on 23rd January, 1984 with effect from 29th July, 1981.
The argument is specious. But little scrutiny will show that it is not well-based. The reason is that even if the competent authority has the right to pass "any order it deems fit", it -cannot pass an order which is illegal. It was held in the aforesaid judgment that "a power to dismiss does not imply a power to say" a dismissal shall be deemed to have taken place on such and such a date i. e.
Form back date. We entirely agree with the learned Division Bench. We acknowledge our gratitude.
We may only add that if it were possible to dismiss a Government servant from back date many complications can arise. Like that all his acts done during the interim will be without lawful authority. Rights conferred on citizens will get annulled with back date without any fault being attached to them. In case of elections to representative bodies, devastating consequences can follow subverting the whole process. For example, if the Government of the day is so inclined and it can easily be conceived that it may that it should have its own employees fill the Parliament, it may ask its servants to seek election and if they succeed and any were to object that they could not seek or be elected to the Parliament, the Government may pass formal orders of removal from service with back date prior to election and contend that its ex-employees were rightly elected. It can thus pack the Parliament with its own people. Such a construction will be preposterous. The purpose of the statutory provision in section 21
(1) PLD 1983 Lah. 295 of the Punjab Local Government Ordinance, 1979 as applicable in this case I will be defeated. The provision reads a follows :- S. 21. 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 or Provincial Government--
(f) 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.
' Section 10 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 provides under subsection (2) that A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament-
(b) if-
(4) "he has been in service of Pakistan or of any statutory body or any body which is owned or controlled by 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."
4. From the above provisions, it is clear like crystal that salaried officials of the Federal or Provincial Government or persons in service of Pakistan or any body controlled by Government are debarred to participate in electoral process or to hold elected offices of local bodies, Parliament or Provincial Assemblies. The provisions are salutary. Government servants or servants under its control, if were to participate in electioneering. They B will lose their independence, objectivity and capacity to carry out the functions entrusted to them by law for the time being. A feeble attempt was made that the petitioner was not a "salaried official" when he contested the election on 28th September, 1983 because since 29th July, 1981 he did not draw the salary until he was removed from service on 23rd. January, 1984. Actual drawing of salary was not necessary. The bar was being a "salaried official". There is no denying the fact that the petitioner was a "salaried official" when he contested the election on 28th September, 1983 and his removal from service on 23rd January, 1984 with effect from 29th July, 1981 could not be retrospective for the reasons given above. Consequently, the decision of the learned Additional District Judge/Election Tribunal holding the petitioner to be disqualified to contest the election cannot be said to be without lawful authority and of no legal effect in exercise of the Constitutional Jurisdiction.
' For the foregoing reasons, this petition is dismissed in limine.