' SARDAR MUHAMMAD DOGAR, J.-The petitioner contested election from Ward No, 11 of Union Council Kirpa, Tehsil and District Islamabad against the respondent, held on 28-9-1983. The respondent by securing 360 votes as against 312 votes by the petitioner, won the election and so was declared elected on 6-10-1983. The petitioner after having lost the election, filed election petition, inter aim on the ground that the respondent was disqualified to contest election or be a member of the Union Council, by virtue of clause (e) of section 22 of the Capital Territory Local Government Ordinance, 1979 (hereinafter to be called Local Government Ordinance, 1979), 'as being a reservist' of the Pakistan Army, he was 'in the service of Pakistan'. The Deputy Commissioner/Election Authority, Islamabad exercising the powers of Election Tribunal, dismissed the election petition vide order dated 15-11-1983. The petitioner has filed constitutional petition, seeking setting aside of the order of the Election Tribunal.
2. The relevant facts are that the respondent was retired from the Pakistan Army on 5-10-1980, and 'termination of service' certificate was issued to him. His name was, however, placed on the list of the reservists from the same date, at his own request. He has to remain on the list as a reservist of the Pakistan Army till 21-9-1994. After retirement he has entered the legal profession as an Advocate and took part in the Local Bodies Elections held on 28-9-1983. Till the announcement of results of election there was no change in his position as a reservist. The petitioner who belongs to the same village and is also an Advocate, had not objected to the acceptance of nomination papers of the respondent for contesting election. These are the admitted facts, and the parties had neither challenged these facts before the Election Tribunal nor anyone of them has challenged these facts before us.
3. The petitioner, at the time of filing petition had filed a copy of the certificate dated 23-10-1983 said to have been signed by Major (R)-for 0. I. C. Records (K. H. Beg), which reads as under :- "CERTIFICATE ' Certified that No, 2448344 Havildar/Clerk Muhammad Shujaat son of Muhammad Ajaib of village Pind Malkan, Tehsil and District Islamabad, is a regular reservist of Baluch Regiment. His reserve liability is up to 21 September, 1994."
4. The respondent after appearance, during proceedings before the Tribunal had produced a certificate signed by a Sub.-Maj.
0. I. C. Baluch Records (A. S. Naz), dated 6-11-1983. In fact two certificates typed on the same page issued by a Sub.-Maj. Were produced. For ready reference the contents of certificates are noted down : "CERT IF I CATE ' It is certified that the services in Pakistan Army (Baluch Regiment) of Exh. 2448344 Havildar/Clerk (Non-Commissioned Officer) Muhammad Shujaat son of Muhammad Ajaib resident of village Pind Malkan, District Islamabad, have been terminated with effect from 05 October, 1980, therefore, he is no longer in service of Pakistan Army.
(Sd.) Sub.-Maj. OIC Baluch Records, (A. S. Naz)"
"CERTIFICATE ' It is certified that Exh. 2448344 Havildar Clerk Muhammad Shujaat son of Muhammad Ajaib resident of village Pind Malkan, Tehsil and District Islamabad, has been transferred to reserve type 'A' with pension with effect fro,-n 05 October, 1980. It is clarified that the period of his reserve liability does not count as service in Pakistan Army.
(Sd.) Sub.-Maj. OIC Baluch Records (A. S. Naz)."
' He had produced another certificate dated 15-11-1983 signed by a Major (Muhammad Ashfaq), which reads as follows :- "It is certified that Ex-2448344 Havildar Clerk (Non-Commissioned Officer) Muhammad Shujaat son of Muhammad Ajaib resident of Village Pind Malkan, District Islamabad, is presently not in Pakistan Army service. However, according to Pakistan Army Reserve Rules, 1974, he is liable to join the Army whenever called."
' The respondent had also produced photo stat copies of the pension papers. None of the parties challenged the correctness of the certificates produced by each of them.
5. Learned counsel for the petitioner advanced two-fold arguments for setting aside the order of the Election Tribunal. Firstly, he contended that the Deputy Commissioner/Election Authority, Islamabad did not exercise the powers of Election Tribunal on 25-10-1983 when the election petition was presented to him. Learned counsel in this regard referred to sub-rules (1) and (2) of rule 61 of the Capital Territory Union Councils (Election) Rules, 1979 (hereinafter to be called Union Councils (Election) Rules, 1979). Sub-rules (1) and (2) read as under :- "(1) On receipt of an election petition, the Election Authority shall return it to the petitioner if the Election Authority finds that the petition has not been presented within the prescribed time or is not accompanied by a receipt of the requisite security deposit."
(2) If an election petition is not returned under sub-rule (1), the Election Authority shall refer it for trial to a Tribunal, appointed under rule 62."
' Learned counsel conceded that sub-rule (2) had been amended by Notification No, S. R. O.
1002(1)/83. In that it was added that if the election petition is not referred under sub-rule (1) the Election Authority may ;
(a) itself proceed to dispose of the petition after giving the parties due opportunity of being heard.
' This notification was published in the Gazette of Pakistan, Extra ordinary on 27-10-1983.
' It was argued by learned counsel that although the impugned order was passed on a date after the amendment but learned Deputy Commissioner/Election Authority had not been conferred the powers to act as Tribunal, when he had pissed order on stay application by assuming jurisdiction on 25-10-1983, i,e, the day, the petition was presented, It was contended that since on 25-10-1983 learned Deputy Commissioner/ Election Authority was not invested with powers to act as Election Tribunal, the conferment of powers vide notification dated 27-10-1983 did not improve the position and illegal assumption of jurisdiction to act as Election Tribunal without lawful authority in spite of amendment dated 27-10-1983 and the orders passed subsequently including the impugned order were illegal and without lawful authority. Learned counsel in this regard cited Yusaf Ali v.
Muhammad Aslam Zia and 2 others (1) to contend that the subsequent orders passed on the basis Of a void order have no force of law and whole series of such orders together with the superstructure of the rights and obligations built upon that must fall, as such orders have a little legal foundation on the strength of void orders, which being void have no legal foundations.
' The second contention raised by him pertained to the alleged disqualification of the respondent for contesting election to Union Council or holding the elected office. It was argued by him that being reservist belonging to 'other ranks' of the Army the respondent was subject to the Army Act, 1911, as provided in sub-rule (2) of rule 42 of the Pakistan Army Reserves Rules, 1953 (hereinafter to be called Reserves Rules, 1953) and so he was in service of Pakistan, and as such was disqualified in terms
(1) P L I) 1976 SC 208 of clause (e) of section 22 of Local Government Ordinance, 1979, which pertains to disqualification of candidates and members, ' Sub-rule (2) of rule 42 of Reserves Rules, 1953 reads as under :- "Members of the Regular Reserve of Other Ranks shall remain subject to the Army Act, 1911 (VIII of 1911), or to any enactment which replaces that Act and the Rules and Regulations thereunder until their services are terminated."
' Clause (e) of section 22 of Capital Territory Local Government Ordinance, 1979, reads as under :- "Is in the service of Pakistan or a public statutory corporation, a Union Council or other local authority."
' Learned counsel in order to further press his point referred to clause (e) of section 21 of the Punjab Local Government Ordinance, 1979, and contended that the words 'salaried official' have not been enacted in the Capital Territory Local Government Ordinance, 1979, and so a person even without being a salaried official can be deemed to he in service of Pakistan for the purposes of Capital Territory Local Government Ordinance, 1979.
6. Learned counsel for the respondent contended that admittedly the impugned order was passed on a date when the Deputy Commissioner/ Election Authority had been invested with the powers to hear and decide the election petition by way of amendment in the rules which were notified in the official Gazette on 27-10-1983 i,e, 2 days after petition was filed. It was contended by him that the Deputy Commissioner/Election Authority had not assumed the jurisdiction on 25 10-1983. In fact, arguments on the stay application submitted by the petitioner along with the election petition were heard by the Deputy Commissioner/Election Authority, at the request of the petitioner. Learned counsel argued that even if for the sake of argument it is granted that the Deputy Commissioner/Election Authority had assumed jurisdiction on 25-10-1983, the undisputable fact is that the petitioner had not objected to the assumption of jurisdiction, rather order dated 25-10- 1983 was passed at his request on his stay application. Order passed including the impugned order and the proceedings conducted thereafter were after conferment of powers on 27-10-1983 to act as Tribunal. The learned counsel contended that in view of this the petitioner cannot be allowed to turn back and contend that the Tribunal had acted without jurisdiction. In this connection he referred to Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore etc. (1) wherein it has been observed that if a person submits to the jurisdiction of a Tribunal and participates in the proceedings without raising objection, he cannot be allowed later on, to turn back and object to the orders passed by the Tribunal.
' With regard to the alleged disqualification of the respondent to contest election or to hold the elected offs .e in the Local Council of Capital Territory, learned counsel contended that the respondent was not in service of Pakistan as he had retired from the Army. He referred to the three certificates produced by the respondent before the Tribunal and argued that it is clearly stated therein that his services have been terminated from 5-10-1980, that he is no longer in service of Pakistan, that the period of his reserve liability will not be counted as service in Pakistan Army and
(1) PLD 1964 SC 829 that he is presently not in Pakistan Army service though according to the Pakistan Army Rules, 1974 he is liable to join Pakistan Army service whenever called upon. Learned counsel pointed out that termination of service certificate was issued in accordance with the provisions of section 19 of Pakistan Army Act, which does not ' impose any condition. Learned counsel referred to rule 38 of Reserves Rules, 1953 and contended that only on re-call to Army service under rule 36 or for training under rule 37, a person belonging to "the regular reservists of Other Ranks" is entitled to pay and allowances which he drew while being in service at the time of his retirement, otherwise he is not entitled to any benefits or remunerations except the sanctioned pension. It was vehemently argued by him that subjection of the 'other ranks' to Army Act as provided in sub-rule (2) of rule 42 of Reserves Rules, 1953 cannot be meant that the -reservists from Other Ranks remain in regular service of Pakistan Army.
7. The election petition was presented on 25-10-1983 to the Election Authority/Deputy Commissioner, Islamabad. According to the provisions of rule 61 of Capital Territory Local Government Ordinance, 1979, on presentation the Election Authority was required to examine if the petition had been filed within the prescribed time and whether the same was accompanied by the receipt of requisite security deposit. In case of default on any count the Election Authority was required to return the petition. In case it was found in order on both counts it was to be referred for trial to a Tribunal.
' The amendment dated 27-10-1983 provides that if election petition is not referred under sub-rule
(1) (of rule 61) the Election Authority may itself proceed to dispose of the petition after giving the parties opportunity, of being heard.
' We have gone through the authorities cited by learned counsel for the petitioner and we find that they are not helpful to the petitioner as in both the cases subsequent orders were passed on the basis of void orders passed without jurisdiction which is not the position in the case in hand. In this case the interim order dated 25-10-1983 passed on the stay application, cannot be considered by any means as basis of the subsequent order which has been impugned through this petition.
Reference to the observations in Yusaf Ali's case (1) which was referred to and relied upon in Khuda Bakhsh's case. "that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities the whole, series of such orders together with the superstructure of rights and obligations built upon them must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because which orders have as little legal foundation as the void order on such they are founded." does not advance the case of the petitioner particularly so, when in the case in hand, there war change in the rules, which changed the position of both the parties, while this was not the position in both the cited cases.
8. The observation made in Ghulam Mohi-ud-Dih's case that 'failure to raise objection as to the jurisdiction at the earliest opportunity disentitles the parties to seek relief', lends support to the argument of learned counsel for the respondent that since the petitioner himself had submitted
(1) PLD 1958 SC 104 application for stay and sought order from the Election Authority, he cannot be allowed to turn back and say that the Election Authority shouldIA not have assumed jurisdiction.
9. The other thing, we would like to note is, that apart from the fact that the impugned order or for that matter, any subsequent order to the order dated 25-i0-1983, cannot be termed to have been based on the order dated 25-10-1983. The impugned order can clearly be bifurcated to have been passed with jurisdiction by the Tribunal from the one passed on 25-10-1983 on the stay application.
The latter related to an interim matter, while the former pertains to the main petition. We are of the view that unless a Tribunal is shown to have acted wholly without jurisdiction, its all actions passed in accordance with law cannot be declared as a nullity. Reference in this connection may usefully be made to the observations by Hon'ble Hamoodur Rahman, C. J. (as he then was) in Brig. (Rtd.) F.
B. Ali's case (1). It was observed at page 538 that :- "There can be no doubt that if a Tribunal or a Court acts wholly without jurisdiction, its action would be a nullity but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction without any prejudice to anyone then what is done with jurisdiction cannot be invalidated or declared null and void, at least, in the writ jurisdiction as held in the case of Khizar Hayat."
10. Ws.; have examined the order dated 25-10-1983. There is no note or observation by the Election Authority that the petition was in order in so far as it related to be within time and of the petitioner having deposited the security. There is neither any rule nor any provision in the Act prescribing time limit for the Election Authority to either return the petition or forward it to the Tribunal after examining the aspect of the petition being in order. The proceedings noted other than the interim order passed on the stay application and its adjournment to 1-11-1983, are 'the petition has been presented today'. This is in fact opening to the order passed on the stay application. By the time, the petition had come up before the Election Authority on the next date of hearing i,e, 1-11-1983, the Election Authority had been invested with the powers of acting as a Tribunal. We, therefore, wonder, if it can be argued with any amount of certainty that the Election Authority had assumed jurisdiction to adjudicate upon the petition. Be that as it may, even apart from this, we have not been able to find any weight in the contention of counsel for the petitioner C otherwise also, that the Tribunal had passed the order without jurisdiction and so was liable to be set aside on that ground alone.
11. We have examined' the contentions of learned counsel for the petitioner about disability of the respondent to contest election or to hold elected office. There is no denying the fact that the respondent was a reservist in the Pakistan Army. His name had been placed on the list at the time of his retirement on 5-10-1980. However, the other point, which needs adjudication is whether, for being subject to Army Act, the respondent was in the service of Pakistan Army and so in the service of Pakistan, as provided in clause (e) of section 22 of Capital Territory Local Government Ordinance, 1979. Of course, it has not been provided while enumerating disqualification in section 22 of the Capital Territory Local Government
(1) p L D 1975 SC 506 Ordinance, that a salaried official of the Central or Provincial Government is disqualified as laid down in the Punjab Local Government Ordinance, 1979. That, however, does not mean that any person who is not in service of Pakistan, is also disqualified from contesting election.
' Leave alone the consideration that for being in service of Pakistan one needs have to be remunerated by way of salary etc. The other important thing is that when a person is in the service of Pakistan Army, he cannot have the freedom of choosing any other pursuit of life for him, e.g. By entering into some profession or by entering into a private service etc. Etc. A person while being in service of Pakistan, particularly being in active service of Pakistan, cannot have that freedom, in fact he cannot be allowed to have that freedom. We have not been able to find out any provision in the Pakistan Army Act, or in the rules, making such allowance.
12. The respondent in the present case is admittedly a practising Advocate. He has been enrolled in spite of being a reservist and subject to Army Act.. Had he been in regular service of Pakistan Army, he could not have been enrolled as an Advocate, and definitely someone interested would have taken objection. On having been made subject to Army Act, the only liability placed on a reservist other than an officer is that according to sub-rule (2) of rule 44 of Reserves Rules, 1953 he is to inform the Commanding Officer of his reserve centre, of any change in the address and the only restriction placed on reservists of all classes as provided in rule 45 of Reserves Rules, 1953, is 'not to leave Pakistan except with permission of the concerned authorities.
13, These are not only reservists who have been subject to Army Act. Persons other than reservists are also subject to Army Act. Reference in this connection may be made to section 2 of Pakistan Army Act, 1952, wherein civilians who are accused of certain offences (enumerated therein), persons who are with the Army while in active service in camp or on march or on frontier posts, are also subject to Army Act. By no stretch of imagination it can be granted or even considered that since they are subject to Army Act, they will be deemed to be in service of Pakistan or in the Army service. Provisions for civilians for being subject to Army Act in certain situations have rather been made for their acts of disservice. It may be of interest to note here that while provisions have been made for persons other than the ones, in regular service of Pakistan Army, to be subject to Army Act, in given situations, but no such provisions have been made in section 2 of the Army Act, for reservists. It is only by virtue of Reserves Rules, 1953 that the reservists are subject to Army Act.
In fact the provisions for the reservists to be subject to Army Act cannot be taken to mean more than the fact of their being subject to special discipline of the Army. It is a provision of administrative nature and the provision cannot be read in narrow and pedantic manner. It has to be read in liberal sense, i,e, that the reservists shall be subject to Army Act in so far it relates to their conduct and in so far as it relates to their responsibility on being called to active service at any time. Here, 'subject to Army Act' cannot be stretched to mean to be in service of Pakistan Army.
' As noted earlier, the authorities which had given certificates to the respondent, have also clearly mentioned therein that the respondent was not in service of Pakistan Army.
For the foregoing reasons, we hold that the respondent cannot be treated to be in service of Pakistan Army, for merely being a reservist. The judgment of the Tribunal does not suffer from any illegality nor has been passed without jurisdiction. It has been observed in Muhammad Hussain Munir v. Sikandar (1) at page 142, that :- "It is well-settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."
' No case for interference by way of exercise of constitutional jurisdiction has been made out. There is no merit in this petition. The same stands dismissed, with no order as to costs.
(1) PLD 1974 SC 139