' KHALIL-UR-REHMAN KHAN, J.-Murid Hussain Shah petitioner and Tufail Hussain Shah respondent contested election for membership to Local Council Madina, Ward No, 9, Jama'pur Syedan, Tehsil Gujrat held on 28-9-1983 and as the petitioner obtained 120 valid votes against 82 valid votes polled by the respondent he was declared elected. The respondent challenged the election by filing an election petition mainly on the contention that the petitioner at the relevant time was a Government employee in the local post office receiving a monthly remuneration of Rs, 85 and as such was inherently disqualified to contest the election. It was further alleged that irregularities were committed by the petitioner in the course of polling. The learned Election Tribunal framed the necessary issues afd the parties produced evidence in support of their respective pleas. Qa7i Abdur Rashid, Additional Superintendent of Post Office Gujrat appeared as D. W. 1 and deposed that the appointments of extra-departmental agents are made by him but these are not regular employees of the Postal Department; that the Government servants other than employees of the Postal Department as well as other persons can be appointed as extra-departmental agents. He added that even the employees of the other Departments can be so appointed and these appointees are not paid in any regular scale but are paid an allowance of Rs, 80 in lieu of the services rendered. He also produced a copy of rule 64 of the Rules for Branch Offices. This Rule reads as under :- "Persons who may be appointed branch postmasters.-Branch postmasters are of two classes, viz., departmental servants and extrodepartmental agents, school masters, shop Keepers, retired servants of Government, local residents and others unconnected with the Post Office may be appointed as extra-departmental agents. Subject to the condition that no person may be employed as an e tradepartmental agent who does not possess independent means of subsistence. Persons placed incharge of branch offices are required to obey the orders of the supervising officers of the division or first class head office, as the case ay be, and the postmaster or sub-postmaster of the account office in all matters relating to their postal duties."
' The respondent produced certificate Exh. P. C. Issued by the Postal Department whereby it was certified that the petitioner was appointed as extra-departmental agent of branch-post office Jamalpur with effect from 16-5-1979. A copy of the memorandum bearing No, H-477 dated 4-6- 1979 placed on the record of writ petition at page 29 reads as under :- "Consequent upon opening of an Extra-Departmental Branch Office at village Jamalpur in account with Gujrat Head Office. Mr. Mudd Hussain having a private income of Rs, 300 per month is hereby appointed as Extra-Departmental Branch Postmaster Jamalpur Branch Office with effect from 16- 5-1979."
' The other evidence need not be noticed as the same was neither referred to nor relied upon by the parties nor seems to be relevant for the point in issue. The learned Tribunal wide its judgment dated 8-4-1985 held that from the certificate Exh. P. C. And the deposition of Qazi Abdur Rashid D.
W. I it was clear that the petitioner was an extra-departmental agent in the post office and was paid from the Government Treasury and that in its opinion the petitioner was a Government employee at the time of the election and so was disqualified from contesting the came. After recording this finding the respondent was declared as an elected for the seat in question observing that the petitioner and the respondent were the contesting candidates in the election and now when the petitioner was disqualified under the law from contesting the election only the respondent was left in the field and hence the respondent was entitled be declared elected unopposed. This led to the filing of the present constitution petition.
2. Learned counsel for the petitioner submitted that the petitioner was neither holding any office nor was being paid any pay prescribed for the Government servants. He was appointed as an extra-departmental agent and the allowance which was being paid to him was in lieu of the services rendered and on account of the premises which he provided for use of the Postal Department and thus the services were being rendered by the petitioner as a social worker. It was added that the learned Tribunal has erred in law in applying section 21 of the Pakistan Penal Code and drawing the analogy therefrom for treating the petitioner as a public servant. Lastly. It was contended that in any case tile respondent could not be declared elected as that will result in disfranchising the majority of the voters With regard to the last submission learned counsel for the respondent conceded that the disqualification being not notorious, the votes of the majority cannot be considered as throw away votes and that the Election Tribunal should have directed the holding of the fresh polls.
3. In view of the above concession the only point which requires determination is whether the petitioner was disqualified to contest the election on account of his appointment as extra- departmental agent. Section 21 of the Punjab Local Government Ordinance, 1979, lays down disqualifications of candidates and members, the relevant part of which reads as under :- "(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 anybody 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."
From the above provisions it is obvious that salaried officials of the Federal or Provincial Government or statutory body or the persons in service of Pakistan or of anybody controlled by Government or of a body in which Government has a controlling share or interest are debarred to participate in electoral process or to hold elected offices of local bodies, Parliament or Provincial Assemblies unless two years have elapsed since they ceased to be in such service. It is pertinent to note that the arguments in this case were restricted to the question whether the petitioner was a salaried official and as such disqualified to be a candidate or a member of a local council as is provided in section 21(1)(e) of the Punjab Local Government Ordinance. 'No argument was addressed with respect to clause ( f) of subsection (1) of section 21 of the 1979 Ordinance or to section 10 of 1977 Order.
4. The term "salaried official" has not been defined in the Ordinance. This term was however noticed in the cases of Noor Muhammad v. Muhammad ,4hdullah (1) and Muhammad Khan v. Election Tribunal, Kharian (2). In the first case Noor Muhammad petitioner was a Zilladar in the Irrigation Department of the Government of Punjab. He was dismissed from service on 19th October, 1983 with effect from 29-7-1981. The petitioner who was admittedly a salaried official was removed from service with retrospective effect. This removal from service retrospectively was held to be not competent and as two years period since removal had not elapsed the petitioner was held disqualified to contest the election. In the other case Muhammad Khan petitioner was held disqualified
(1) 1984 CLC 1328 (2) 1984 CLC 1445 being a salaried official of the Government as he was a member of the Armed Forces though at the time when he contested the election he was declared deserter by the Armed Forces. It was observed that though his name had been struck off from the Unit strength and he was not getting any pay at the time when he contested the election but that does not mean that he was dismissed or removed from service and that the mere striking off the name does not by itself prove that the service of the person had come to an end by removal or dismissal. He still was a deserter and was liable to be apprehended, brought back, tried and made to serve, if the authorities so desired.
These cases in view of their distinguishing features are of no assistance to the case in hand.
5. The term "whole-time salaried official used in Second Schedule Part II, clause 2(d) of the Basic Democracies Order, 1959, was considered in the case of Mukhlesur Rehman V. Sub-Divisional Officer (1). The allegation in this case was that Mr. Mukhlesur Rehman a suspended Government servant continued to be a Government servant and was, therefore, liable to removal from Chairmanship under the afore-quoted provisions of the Basic Democracies Order. It was observed that at the time when Mukhlesur Rehman was appointed a Member of the Union Council he was though not physically in receipt of "pay" or "leave salary" being under suspension and was receiving a mere "subsistence grant" nevertheless he was receiving a salary in the sense that he was receiving a recompense or payment on account of his continuance in a Provincial service although without any work. It was also observed that the word "whole-time" and "salaried are adjectives used as attributes to qualify the noun "official" and the phrase as quoted above must mean an official, the characteristic of whose office is, that it is "salaried", as opposed to the adjective "honorary". Furthermore, the other attribute of the official position must be that it is a "whole-time" as opposed to "part-time" appointment. The word "whole-time" has not been repeated in clause
(e) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979 as now the expression used is "salaried official" only. The term "whole-time" "salaried officials" also came to be noticed in the case of Mahmudul Haque v. The Controlling Authority (2). In this case Mahmudul Haque appellant was an official, of the post and-Telegraph Department and was dismissed from his post in 1951. He filed a suit against the Government challenging the validity of the order of dismissal and obtained a decree in 1958 declaring that the order was void and that he was still holding the office from which he had been removed. The Government appealed against the said decree but the same was dismissed. No further appeal or revision was filed nor did the Government take any step to comply with the decree. In the meantime Mahmudul Haque became a,Member of the Union Council and was later elected as Chairpan. It was thereafter that he received a letter from the Postmaster asking him to appear. He was then allowed re-appointment..
To his old office and thereafter-was at once suspended and was placed on suspension grant of Rs, 60 per month and charges were prepared and an enquiry in proper form was commenced which ended in his dismissal. He then submitted a resignation which was not accepted. In the meantime a fellow Councillor who was rival candidate for Chairmanship challenged the right of, Mahmudul Haque to be a Councillor on the ground that at the time of his election he was a "whole-time salaried officer" in the
(I) PLD 1962 Dacca 497 (2) PLD 1963 SC 233 service of Government. Mahmudul Haque was directed to vacate the office on the ground that his election was void ab initio. He then sought mandamus from the High Court to cancel, withdraw or rescind the resolution whereby he had been held to be disqualified. The High Court dismissed the petition holding that after the decree he was, in the eye of law, continuing in service and the mere fact that the decree could wit be enforced made no difference because as a result of the decree he became entitled to receive salary and that pursuant to that decree be bad actually been re- instated. The matter was taken to the Supreme Court and the appeal was dismissed for different reason. The question argued was : whether as a result of the decree or temporary re-instatement the appellant assumed a status of "whole time salaried officer" which status deprived him from being the holder of an elected office under the Basic Democracies Order. The learned Judges of the Supreme. Court after recording some observations with regard to this question proceeded to decide the case on another ground. The observation with respect to the expression "whole-time salaried official" recorded being pertinent may be quoted :- "It is arguable that such an expression as 'whole-time salaried official' should not be understood by giving a wholly attenuated meaning to each of the three aspects of a whole-time salaried official, namely, of whole-time duty, of being salaried, and of being an official, for the purpose of deprivation of so fundamental a right as that of electoral franchise. At the same time it is not without importance to maintain the authority of the Government over its officials, even when they are under suspension and only in receipt of a pittance by way of subsistence allowance, and although they are not required to give any of their time in the service of the Government."
' In the aforenoted case, the question in hand was not decided but the weighty observations quoted above do point out the guideline and the true context in which the said expression used in election law is to be seen and interpreted.
6. In order to find out the real import and meaning of the expression "salaried official" we have examined in the light of the afbresaid observations of the Supreme Court, the Scheme of the Ordinance and the purpose sought to, be achieved by excluding the salaried officers from the elected Bodies. In our view the purpose appears to be that if such persons were to participate in electioneering process, the Elected Bodies will loose their independence, objectivity, capacity to execute the duties and functions entrusted to them by law. In other words the idea is to keep the democratic process free from and independent of the Executive control and interference as otherwise the Executive through introduction, in the elected institutions of its officers over which it, can wield influence or control, will be able to check the freedom and independence of the elected bodies. At the same time, the inclusion of these officers in the Elected Bodies through a strained interpretation is likely to result in lessening the control and superintendence of the Executive so by any undue inclusion the Executive is not to be deprived of its authority which it must hold over its officers and servants in the public interest and for smooth running of the Government machinery.
But as pointed out by the learned Judges of the Supreme Court the expression "salaried official is not to be understood by giving any attenuated meaning to each of these terms which may have the effect of depriving a person of his fundamental right of electoral franchise.
7. In the aforesaid context, we proceed to examine the definitions of the expression "salaried official- as given in the celebrated compilations. The term "salary" has been discussed in 77 Corpus Juris Secundum, page 555 as under "The term 'salary' is usually applied to the reward paid to a public officer for the performance of his official duties. Salary is not the repayment of money expended in the discharge of the duties of an office and is to be distinguished from profits realized in commercial dealings and from the returns from investments; capital, or the laoour of others. It depends on the time, not the amount of services rendered, and the time element, both as to the service and the payment, is vital. Usually a salary is paid at stated intervals and the word implies the receipt of a axed stipend, whether by the year, the month or the week. The word 'salary is defined as meaning fixed compensation regularly paid, as by the year, quarter, month, or week, fixed compensation for regular worth, or for continuous services over a period of periodical compensation for services reordered. The word 'salary' is usually distinguished from allowance, bonus and honorarium in some cases."
' The other term "official" has been dealt with at page 468 of Corpus Juris Secundum Volume 67 as under "As an adjective, the word 'official' is defined as meaning of or pertaining to an office, position, or trust ; connected with the holding of office. Derived from proper office or officer or from the proper authority."
' The word "office" in the same volume at page 96 is defined : "As a term having various meaning: as a duty or charge, a place of trust, or a right to exercise public or private employment and to take the fees and emolume its thereof. An office may exist though there is no incumbent thereof or emoluments attaching ereto. It has been said that when used in any proper sense, the term implies a duty or duties to be performed, and that it is generally agreed that a position is an office when the elements of trust, honour, and compensation combine with definfte duties and responsibilities. An office has been defined as a duty, charge. o trust, or a place of trust . a position to which certain duties on the possessor, and confers authority for their performance."
' In Becons Abridgment at Volume VI page 2 in the Article headed "of the nature of an officer and the several kinds of officers", it as been stated : "The word `officium' principally implies a duty and in the next place, the charge of such duty ; and that it is a rule that where one man hath to do with another's affairs against his will and without his leave, that this is an office and he who is in it is office."
' The next paragraph thereafter may also be referred to in this context "There is a difference between an office and an employment, every office being an employment ; but there are employments which do not come under the denomination of officer ; such as an agreement to make hay, a flock, etc. Which differ widely from that of stew try- of a manor (vide 12 Boni. H C R 1 at page 5)."
Reference ;I be made to the case of Ex parte Croft (I) reported in 25 Aust.
Dig. 678 kik J Edn.) wherein it is stated that an auditor of a municipality
(1) (1894) 15 L R (N S W) 186 receiving, a remuneration for his services is not a person holding a place of profit under tne Council within the meaning of section 33 of the Municipalities Act, 1867 so as to disqualify him from being elected an alder man. The example of an auditor will be in point to emphasize the distinction between "the employment- and "office". Similar will be the position of an Advocate engaged, retained or employed on payment of fee. Retainer ship or emoluments to represent or to look after legal aspects of the affairs of any persons, bort:, organization, institution or establishment unless the advocate holds some place, position or post in the set up or in the hierarchy of the organization, body or establishment. The mere employment, or rendering of services against payment on certain terms has to be distinguished from holding of an "office '. An office may exist though there is no incumbent thereof but employment of a person ordinarily refers to the person employed. The discharge of duties and responsibilities directly or in assistance with others under the authority given has to be distinguished from the discharge of or carrying out of the employment. In this context the type of control which has been retained over the person employed or the officer charged with .The duties and functions will also be relevant. From this point of view, the question whether a person is holding an "office" or mere "employment" has to be determined on the basis of the facts established in each case.
8. The plea of the petitioner was that the allowance being paid to him was not in lien of reservice rendered but was a compensation paid for use of the room of the house for the purpose of carrying out the functions of extra-departmental agent. It us urged that the appointment as extra- departmental anent was not an appointment against an office but the position of the petitioner was in reality that of an agent authorised to perform certain functions and as such he cannot be held to be holding any salaried office.
9. Rule 64 of the Branch Office Rules has been quoted above. Note 1 added to rule 64-A dealing with the appointment of extra-departmental Delivery agents being relevant may also be reproduced :- `'Persons employed as extra-departmental agents have no claim whatever to any permanent appointment or promotion in the department and, in order to prevent a possible misunderstanding, this should be made dear to them at the time they are engaged."
' Appendix 'A' to the said Rule is also reproduced for the facility of reference which is to the following effect "REVISION OF ALLOWANCE OF EXTRA-DEPARTMENTAL AGENTS ' Point system for determining the scale of remuneration payable to extra-departmental agents :- {{TABLE}}
1. EXTRA-DEPARTMENTAL SUB-POSTMASTER "A" When the extra-departmental rule office is to remain open for a period of 3 hours. Monthly remuneration would he regulated as follows :-
(I) If the work-hours of the office in all depart- ) ments other than account, suh-account and ) treasury do not exceed 1 hours.
(ii) If the work hours of the office in all de- ) mrtrnent. Other than account. ,,uh-account Rs, 75 p m. If no tc:egraph work is involved and Rs, 80 p. m. If telegraph work is involved. Rs, 90 p. m. If nn telegraph work and treasury exceed 1 hours.
"B" When the extra-departmental sub-office is a period exceeding 3 hours, monthly remuneration follows :-
(i) If the work hours of the office in all depart- ) ments other than account, sub-account, and ) treasury do not exceed 1 hours. )
(ii) If the work hours of the office in all depart, ) ments other than account, sub-account and ) treasury exceed 1 4 hours. ) ) is involved, and Rs, 100 p. m. If telegraph work is involved. To remain open for would be regulated as Rs, 110 p, m. If no telegraph work is involved, and Rs, 120 p. m. If telegraph work is involved. Rs, 130 p. m. If no telegraph work is involved, and Rs, 140 p. m. If telegraph work is involved.
II. EXTRA-DEPARTMENTAL BRANCH POSTMASTERS "A" Quantum of work to be judged in terms of points as follows :--
(a) for every 30 unregistered articles handled in a day. One point
(b) for every 30 registered article handled in a month. ? One point
(c) for every 15 money orders handled in a month . ? One point
(d) for every 10 S. B. Transactions in a month. One point
(e) for 'every Rs, 1,000 of cash handled in a month (i. e. Total of M. Os. Issued and paid and S. B.
Deposits and withdrawals in the B. O. Account).
(f) One point . .. Two points for every Rs, 15 worth of stamps sold in a month.
(g) (1) for every postman or village postman attached to the office.
(2) for every E. D. D. A. Attached to the office. One point
(h) for receipt and despatch of mails and account work. .
N. B.-In items (a) to (f) where the number of articles is not actually divisible by the given factor, the points should he calculated upto two decimal places. In the total if there is a decimal fraction, it should be rounded off to the next higher number if 5 or more, otherwise ignored.
"B" Allowance admissible should be caiculated as follows :- 14 points
(a) for 20 points or less . Rs, 25.00
(h) for every additional point above 20 add. .. Re.
0.50
(c) for every hour in excess of 3 the office is required to remain open add. Re.
1.00 {{TABLE}} A cursory glance over rule 64, Note No, 1 and Appendix 'A' added to rule 64-A shows that the petitioner was invested with the authority of a Blanch Post Master, he held a position of trust, honour and compensation combined with definite duties and responsibilities. He thus held the office and was admittedly receiving allowance also for holding the said, office and in lieu of rendering the service. The plea that the sum of Rs, 85 being received by the petitioner was on account of use and occupation of the room remains unsubstantiated and cannot be accepted.
The position of trust charged with duties held by the petitioner is not a mere employment of a person for rendering contracted services. He is a functionary of the Postal Department though does not belong to a regular cadre of the Department and is not entitled to claim promotion or other privileges enjoyed by the regular members of postal service. In our considered view the petitioner was and is holder of "officium" or "office". It is inconsequential whether the office is one of dignity or importance, it may equally be humble. But whatever its nature the person holding the office should have in some degree delegated to him certain functions of Government. The position held and authority conferred on the petitioner qualifies the aforesaid test also. The petitioner for discharge of his functions maintained an office a place of work which was a Branch Post Office and thus represented the Postal Department and carried out the functions of the Department under the authority vested in him. Thus, having examined the nature of employment in the light of the criteria and the tests discussed above we hold that the case of the petitioner squarely falls within the mischief of the term "salaried official", used in section 21 (1) (e) of the Ordinance. The petitioner was, therefore, disqualified to be a candidate for the election of the Local Council Membership. The Election Tribunal, however, as conceded by the learned counsel for the respondent, could not legally declare the respondent to have been elected unopposed. The majority of voters was clearly in favour of the petitioner, the disqualification being not notorious, the votes cannot be treated as thrown away votes. In these circumstances .The legal order which could be passed by the Election Tribunal was to direct the holding of fresh election. The order of the Election Tribunal to the extent that it declares the respondent as elected unopposed is, quashed with the result that the election to the Local Council Medina, Ward No, 9, Jamalpur Sayedan, Tehsil Gujrat, shall be held afresh. The petition thus partly succeeds. The parties are left to bear their own costs.