IHSAN-UL-HAQ CHAUDHRY, J.- The relevant factions for the decision of this Constitutional petition are that the petitioner and respondents Nos. 1 to 3 contested the Local Council Elections, 1998 from Ward No. 17, Municipal Committee Samundri. The petitioner having polled maximum votes was declared elected and the necessary notification declaring him Member of the Committee was issued on 23.5.1998. Respondent No. 1 challenged the election of the petitioner through election petition. The same was resisted by the petitioner. The respondent No. 5 accordingly framed issues.
The learned counsel for the parties agreed that issue No. 5 be treated as preliminary. The same reads as under:- "Whether respondent No. 1 was not eligible to contest election in view of paragraph No. 3 of the election petition? If so its effect? O.P.A."
2. Respondent No. 1 examined Mian Muhammad Rafiq as AW-1, Nasir Hafiz-respondent No. 1 appeared as AW-2. The petitioner appeared himself as RW-1. The respondent No. 5 after hearing the arguments accepted the election petition vide judgment dated 14.11.1998. The result that the petitioner was non- seated and instead respondent No. 1 was declared as returned candidate from Ward No. 17, Municipal Committee, Samundri. The decision has been assailed through this Constitutional petition. The same came up for limine hearing on 18.11.1998. It was admitted to regular hearing and notices were issued to the respondents. Rana Muhammad Arif, learned Addl.
A.G. Has appeared for respondents Nos. 4 and 5 while Mr. S.M. Masud, Advocate has appeared for respondent No. 1. Nobody is present on behalf of respondents Nos. 2 and 3 in spite of service, therefore, they are proceeded ex parte.
3. The learned counsel for the petitioner argued that the petitioner retired as Manager, Habib Bank Limited on 31.10.1997, therefore, he was not disqualified to contest the Local Council Elections, 1998. It is added that respondent No. 5 failed to take into consideration proviso (2) to Section 21(f) of the Punjab Local Government Ordinance, 1979 (hereinafter to be referred as Ordinance of 1979). It is argued that the disqualification as far as the election to the Local Council, was not applicable if one has resigned or retired or even removed other than by way of punishment. The learned counsel in this behalf placed reliance on the judgments in the cases of Inayatullah v. Mian Ghulam Ahmad and others (PLD 1984 SC 369), Mst. Barkat Jan v. Zaroo Khan (PU 1984 Lahore 359) and Noor Muhammad v. Deputy Commissioner/Controlling Authority, Jhang and 3 others (PLD 1984 Lahore 15).
4. On the other hand, learned counsel for respondent No. 1 argued that the case of the petitioner was fairly and squarely covered under Section 21(e) and not under Clause (f) of the Ordinance of 1979 as argued by the learned counsel for the petitioner. It is added that the later provision pertained to other dis-qualifications while Clause (f) was particularly about the retirement from service. The learned counsel in this behalf relied on Sabiruddin v. Mushtaq Hussain Bhatti and 2 others (PLD 1993 SC 412) and unreported judgment dated 24.9.1998 of Rawalpindi Bench in W.P. No. 1142/98.
5. Rana Muhammad Arif, learned Addl. A.G. Argued that respondent No. 1 should not have been declared returned candidate instead of the petitioner but the Tribunal after adjudging the election void should have proceeded to order re- election. In this behalf, learned Addl. A.G. Referred to Rule 12 of the Punjab Local Councils (Election Petitions) Rules, 1979 (hereinafter to be referred as Election Petition Rules). It is argued that the judgment of respondent No. 5 as far disqualification of the petitioner is concerned is correct.
6. The learned counsel for the petitioner while summing up the arguments submitted that if the election petition was to be accepted then the election should have been declared void as a whole.
The learned counsel in this behalf referred to Murid Hussain Shah v. Tufail Hussain Shah (PLD 1986 Lahore 70).
7. I have given my anxious consideration to the arguments and gone through the record as well as precedent cases. It is relevant to refer to Clauses (e) and (f) of Section 21 of Ordinance, 1979 relied on behalf of the respondent No. 1 and the petitioner. The same read as under: - "21. Disqualifications of candidates and members.- (1) A persons shall be disqualified to be a candidate or a member of a Local Council-
(a) ..............
(b) , ............
(c) ..............
(d) ..............
(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 a period of two years has not elapsed since his retirement.
(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: Provided that this dis-qualification shall not be applicable to:-
(1) a person who has, whether by himself of by any person in trust for him or for his benefit or on his account any share or interest in--
(a) a contract for the supply of goods to, of the execution of any work of the Federal Government or a Provincial Government or an autonomous body in which such a Government has a controlling share or interest or a local authority other than the one in which that person is a candidate for election;
(b) the performance of any service undertaken by any such Government, autonomous body or local authority.
(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."
It is clear from the reading of both the clauses together that Clause (e) deals with retirement of an official. This 'means the retirement on attaining the age of superannuation while Clause (f) is general in nature and deals with the cases not covered by Clause (e). This is evident from proviso (2), reproduced above. This proviso in short deals with cases other than of normal retirement. The learned counsel for respondent No. 1 to clear this distinction rightly referred to Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 particularly Clauses (h),
(i) and (j). Therefore, there is no merit in the argument on behalf of the petitioner.
8. The matter can be looked from another angle namely that if the argument on behalf of the petitioner is to prevail then both the provisions are contradictory. It is cardinal rule of interpretation of statues that different provisions of statute are to be read in a harmony as far as possible. The judgments in the cases of Mst. Barkat Jan and Noor Muhammad (supra) clearly supports the view that Clause (e) of Section 21 deals with normal retirement while Clause (f) covers other modes of end of service/career before attaining age of superannuation including resignation, removal etc. The judgments in the case of Sabiruddin (supra) relied on behalf of respondent No. 1 supports my view. The learned Division Bench in the unreported case of the Rawalpindi Bench held as under:- "21. The learned counsel for respondent No. 6 has finally argued that the respondent has not retired from service of PRTC on attaining the age of superannuation on completion of period of his service, rather he has been retired under compulsion of the Golden Hand Shake Scheme. He has relied upon Mst. Barkat Jan v. Zaroo Khan (1984 C.L.C. 1300) to contend that the words "has retired" appearing in Section 21(e) of the Punjab Local Government Ordinance, 1979 are in contradistinction to the expression "has been retired". "Has retired" definitely denotes termination of service honourably on* either attaining the age of superannuation or completing the tenure of service. But, where the service of an employee comes to an end before the happening of above two eventualities, it would be a case where such persons "has been retired" which situation would be beyond the mischief of Section 21(e).
It would be a case of either remand or resignation and should be outside the preview of disqualification envisaged above."
9. Now coming to the relief part. A petitioner in an election petition could make following prayers as per Rule 5(2) of the Election Petition Rules:- "5. Contents of petition.-(1) Every Election Petition shall contain- (a)
(b)
(2) A petitioner may claim as relief any of the following declaration, namely:-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the t petitioner or some other person has been duly elected; or
(c) that the election as a whole is void. "
While the main prayer in the Election Petition was as per Clause (b) above. The Tribunal is competent to make following order as per Rule 12:- "12. Decision of the Tribunal.--The Tribunal may upon the conclusion of the trial of an election petition make an order-
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected;
(a) declaring the election as a whole to be void."
The powers of the Tribunal in respect of the final order to be made in tum are controlled by Rules 13, 14 and 15. The argument of the learned Addl. A.G. Is that election should be held void as a whole but Rule 15 dealing with the ground for declaring election as a whole void, does not cover the present case, therefore, not relevant. Similarly, Rule 14 deals with the ground for declaring a person other than a returned candidate elected is not allocated in the present case. This in tum is to be read with Rule 13. The relevant portion of which reads as under:- "13. Ground for declaring election of returned candidate void.-(l) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Chairman or Vice-Chairman, as the case may be; or
(c) .............
(d) .............
It is clear from Clauses (a) and (b) of Rule 13 read with Rule 5(2)(b) that in case the returned candidate or any other contesting candidate was not on the day of nomination qualified being elected as a member then his election is to be declared void and petitioner or other declared elected. The case of Murid Hussain Shah (supra) is not followed for the reason that the findings were not recorded with reference to Rule 13 of the Election Petition Rules but merely on the concession of the learned counsel for the respondent.
2. The upshot of the above discussion is that this writ petition is without merit, therefore, the same is dismissed.