FAQIR MUHAMMAD KHOKHAR, J.--- The appellant and respondents Nos. l to 3 were the contesting candidates for membership from Electoral Unit No. 17, Municipal Committee, Samundari, District Faisalabad.
2. The elections of the said local council were held in May, 1998. The appellant polled 161 votes whereas respondents Nos. l and 2 bagged 120 and 76 votes respectively. The appellant was declared to be a returned candidate.
3. Respondent No. l filed an election petition against the appellant, inter alia, on the ground that he had been a Branch Manager of the Habib Bank Limited and he left the service w.e.f. 31-10-1997 under the Golden Hand Shake Scheme. The appellant was, therefore, disqualified to be a candidate and a member of the said local council as two years had yet not elapsed since he ceased to be in service. The learned Additional District and Sessions Judge, Samundari, exercising the powers of an Election Tribunal accepted the election petition of respondent No. l vide judgment dated 14-11-1998.
The appellant was held to be disqualified from being a candidate/member of the local council. The respondent No :l was declared to have been duly elected as a member of the local council. The appellant filed Writ Petition No.23777 of 1998 which was dismissed by a learned Single Judge of this Court by the impugned judgment, dated 7-12-1998.
4. The learned counsel for the appellant argued that the appellant had been retired from service of the Bank under the voluntary Golden Hand Shake Scheme w.e.f. 31-10-1997 which was not by way of any punishment, The appellant was not disqualified to be a candidate and a member of the local Council by virtue of 2nd proviso to clause (f) of subsection (1) of section 21 of the Punjab Local Government Ordinance, 1979. The provisions of clause (3) thereof were not attracted in such a case. The learned counsel relied on the case of Inayatullah v. Mian Ghulam Ahmad and others PLD 1984 SC 369. The learned counsel further argued that the learned Election Tribunal as well as the learned Single Judge of this Court did not follow the correct law in declaring respondent No.1 to be a returned candidate while disqualifying the appellant
3. On the other hand, the learned counsel for the contesting respondent No. l argued that the appellant was disqualified to be a candidate by clause (e) of subsection (1) of section 21 of the Ordinance inasmuch as a period of two years had not elapsed since his retirement. The learned counsel relied on the case Sabiruddin v. Mushtaq Hussain Bhatti and 2 others PLD 1993 SC 412 where an employee of the United Bank Limited was held to be disqualified to content the election of a local council. The learned counsel also referred to the cases of Subedar (Retd.) Syed Alain v.
Assistant Commissioner/R.C. And others PLD 1984 Jour. 103 and unreported judgment, dated 15-11- 1998 in the case of Ansar Ishaq v. Returning Officer/A.D.(G) District Rawalpindi and 5 others in Writ Petition No. 1142 of 1998/RWP decided by a Division Bench of this Court holding that the employees of Corporations Controlled by the Government were disqualified.
4. We have heard the learned counsel for the parties at length, clause (e) of subsection (1) of section 21 of the Ordinance ibid provides that a person shall be disqualified to be a candidate or a member of a local council if he is a salaried official of Federal or Provincial Government or of a Public 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. Clause (f) of the aforesaid section also disqualifies a person if he is for the time being disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force. However, by virtue of a proviso added therein by Punjab Ordinance No.IV of 1981 w.e.f. 29-3-1981, the disqualification enumerated in clause (f) is not applicable to a person who has retired 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. Under clause (b) of section 78, of the Senate (Election) Act, 1975, a person is disqualified from being a candidate or a member of the Senate if he has been dismissed, removed or compulsorily retired from service of Pakistan unless a period of five years has elapsed since his dismissal or removal or compulsory retirement.
Similarly, by clause (d) of section 99 of the Representation of the People Act, 1976, a person is disqualified from being elected as, and from being a member of an Assembly, if he has been dismissed from the service of Pakistan, except service on contract for a fixed term, unless a period of two years has elapsed since he ceased to be in such service. A similar disqualification has also been provided by clauses (j) and (k) of Article 63 of the Constitution of Islamic Republic of Pakistan.
Under clause (j) (ibid), a person shall be disqualified from being elected and from being a member of the Parliament or a Provincial Assembly for three years of his removal or compulsorily retirement.
By clause (k) (ibid), a further disqualification is provided where a person has been in the Service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share on interest, unless a period of two years has elapsed since he ceased to be in such service.
5. It is clear that the service connected disqualifications provided by the Constitution and the other statutes were intended to be removed where a person had resigned or had been retired or removed otherwise than by way of punishment, from service of the Federal Government or a Provincial Government or a local or an autonomous body which were otherwise attracted by virtue of clause (f) of section 21 of the Ordinance. However, a disqualification provided by a special provisions of clause (e) of section 21 of the Ordinance continues to remain in tact.
6. The Habib Bank Limited is a Public Corporation which is controlled by the Government with its majority shares as held by the Honourable Supreme Court in the case of Ghulam Mustafa Khairati v. Federation of Pakistan and another 1998 SCMR 1603. Its employees have also been declared to be civil servants for the purposes of filing an appeal before the Service Tribunal by virtue of section 2-A of the Service Tribunal Act, 1973. In the case of Sabiruddin (supra) the employees of the United Bank Limited were held to be disqualified from being members of a local council. The letter, dated 23-10-1997 (Annexure "E") but the Habib Bank Limited, Head Office, Karachi, addressed to the appellant clearly showed that the appellant had himself exercised the option for retirement from service under the voluntary Golden Hand Shake Scheme which was accepted by the Bank and the appellant was relieved from duty w.e.f. 31-10-1997. A period of two years had not elapsed when the appellant filed his nomination papers and was elected as a member of the Municipal Committee, Samundari. The appellant had, therefore, retired from service by the exercise of the option by him. It was not a case where the appellant could be said to have been retired from service whether by way of punishment or otherwise.
7. A similar question was examined by this Court in the case of Inayatullah v. Mian Ghul am Ahmad and 2 others 1984 CLC 3120, where a Head Constable of Police having retired from service was held to be disqualified under clause (e) of section 21 of the Ordinance. It was further held that once a disqualification provided in clause (e) of section 21 of the Ordinance was attracted, there was no need to switch over to any other provisions. Whereby disqualifications provided in other laws had been removed including the proviso of clause (f) (ibid). The judgment in the case of Inayatullah (supra) was affirmed by the Honourable Supreme Court in PLD 1984 SC 369.
8. In our opinion, the appellant was disqualified from being a candidate and a member of the Municipal Committee, Samundari, District Faisalabad, under clause (e) of section 21 of the Punjab Local Government Ordinance. 1979. No exception can be taken to the impugned judgments passed by the learned Election Tribunal as well as the learned Single Judge of this Court so far the, disqualification of the appellant is concerned.
9. The next question as to the declaration of respondent No. l being a returned candidates remains to be dealt with. Admittedly, there were four contesting candidates in the election. The nomination papers Admittedly, the appellant had been accepted without any objection from any side including the respondents. None of the candidates had during election campaign made any mention to the electorate that the appellant was disqualified from being a candidate. The disqualification of the appellant was not notorious. It cannot be said by any, stretch of imagination that all votes in favour of the appellant would have been cast in favour of the respondent No. l had the appellant been not in the field. For all legal consequences and practical purposes, the votes cast in favour of the appellant were valid votes which could not be thrown away. There was no legal or moral justification to declare respondent No. l as a returned candidate in the circumstances of the case and in view of the legal position.
10. The superior Courts of the sub-continent have examined this matter in a number of cases. In Mir Atta Muhammad v. Sh. Ashiq Hussain and 2 others PLD M7 Lah. 733, late Mr. Justice M.R. Kayani speaking for a Division Bench took the view that a defeated candidate could not be declared elected. In Thellakhula Jalayya v. Namuna Venkateswara Rao and others AIR 1957 Andh. Pra. 658 (D.B.), it has been held that a nomination if accepted by the Returning Officer as valid forms the basis of the election. Though it is liable to be held invalid in an election petition, there is real election on the basisof the said nomination paper and the voters are entitled to vote for one or other of the contesting parties. If an election had been held, the defeated candidate cannot be declared as elected unless it is held that the electors with the knowledge of the disqualification of one of the candidates had thrown away their votes. For the application of this principle, it is immaterial whether there are two candidates including the disqualified one or if there are more than two candidates, for, when there is an election, the question really becomes one between the successful candidate and the electorate. In Rashid Ahmad Rahmani v. Mirza Barkat Ali and 2 others PLU 1968 SC 301, the Election Tribunal had found the successful candidate to be disqualified for the reason that his name had been added to the Electoral Roll after the Electorate had been called to elect. It was observed by the Honourable Supreme Court that fact of such disqualification was not notorious at time of polling so that voters could have no notice thereof. The votes secured by such, candidate could not be simply thrown away and the candidate securing the next highest number of votes could not be declared to be elected. The election was set aside as a whole as the result had been materially affected. In the case of Muhammad Zafarullah Khan v. Sh. Muhammad Shafi, Chairman, Election Tribunal, Punjab and 7 others PLD 1976 Lah. 302 (D.B.), it was held that where Returning Officer had accepted the nomination papers of a successful candidate and the electors had considered such a candidate and the electors had considered such a candidate to be a validly nominated candidate to contest the election. No evidence was produced in support of the contention that the voters had the knowledge of the disqualification of the successful candidate being notorious one. It was held that the electors could not be said to have thrown away their votes nor such electors could be disfranchised. The next candidate who was the election petitioner could not be declared to be a returned candidate. In Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409, an elected Member of the Provincial Assembly was disqualified on account of his age. It was held that the electorate had no reason to think about his disqualification once his nomination paper had been accepted. It was further observed that there was no evidence before the Election Tribunal that any candidate sought to campaign on the basis that the successful candidate was not qualified. It was impossible in the circumstances to hold that his disqualification was notorious. The Honourable Supreme Court reiterated the principle in the case of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 by making the following observations:------ "The well-known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even through the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
Similar view was taken by this Court in Muhammad Ashraf Muhammad Ajaib PLD 1980 Lah. 311 and Sakhi Muhammad v. Deputy Commissioner/Election Tribunal, Jhelum and 5 others 1980 CLC 1857 (Lah.). In a recent case of Tariqullah v. Amanullah Khan PLD 1996 SC 717, a member suffering from service disqualification being an employee of an organisation controlled by the Government was deseated but the other candidate securing the next highest votes was not declared as a returned candidate. It was further observed that in a case involving the service disqualification, the whole election was void as the votes cast in favour of the disqualified elected candidate would not be deemed to have been thrown away nor the disqualification was considered to be notorious.
11. The upshot of the above discussion is that the view taken by the learned Election Tribunal as well as the learned Single Judge for declaring respondent No. l as a returned candidate is not in conformity with the law laid down by the Honourable Supreme Court of Pakistan in such like cases.
12. For the foregoing reasons, we partly accept the Intra-Court Appeal and set aside the impugned judgment, dated 14-11-1998 passed by the learned Election Tribunal as well as the impugned judgment, dated 7-12-1998 passed by a learned Single Judge of this Court in Writ Petition No.23777 of 1998 to the extent of declaring respondent No. l as a returned candidate. Resultantly, the whole election of Electoral Unit No.'17 of the Municipal Committee, Samundari, District Faisalabad, is declared to be void which shall be held afresh in accordance with law. There shall be no order as to costs.