1. ' GHULAM RABBANI, J.---By consent of learned counsels appearing for the respective parties this petition is heard and decided finally.
1. In view of the dictum laid down in cases of Wahid Bux v. Election Authority, Province of Sindh through Deputy Commissioner Sukkur and others 1984 CLC 1294, the case Emanul Masih v. Punjab Local Election Authority 1985 SCM R 729, the case of Election Commission of Pakistan v. Javed ' Hashmi and others PLD 1989 SC 396 and the case of Ghulam Mustafa Jatoi v. Returning Officer Naushera Feroz 1994 SCM R 1299 the office objection is overruled. This petition is maintainable.
2. ' Respondents Syed Faiz Muhammad Shah and Mir Muhammad filled in form for the Offices of Nazim and Naib-Nazim of Union Council Moorho Jabal Taluka Kotri. The petitioner who is said to be an elector of the relevant Ward raised objection as to the candidature of respondent No,3 on the ground that he is in service on Lakhra Coal Development Company, therefore, not qualified for the office of Naib-Nazim. On the day of scrutiny after hearing the objections of the petitioner learned Returning Officer/Civil Judge and F.C.M. Kotri rejected the nomination paper. The said order was challenged by way of an Appeal bearing No, 195 of 2001 before the District Returning Officer/Appellate Authority Dadu who has been pleased to allow this appeal. It is against this order that the present Constitutional petition has been filed. It will be significant to note that the said order indicates that it is a common order on the appeal of respondent No,3 as well as on appeals of Aijaz Ali and Mumtaz Ali which according to learned counsel appearing for the parties is a distinct case than the one which is subject-matter of this Constitutional petition. It may further be noted that learned counsel have informed that no matter with regard to any appeal of Aijaz Ali and Mumtaz Ali is subject-matter of any Constitutional petition before this Court till this day.
3. ' We have heard learned counsel for the respective parties. The only contention of the learned counsel for the petitioner is that the respondent No,3 was an employee as daily wager by Lakhra Coal Development Company Limited a public company under the Administrative Control of Federal Ministry of Petroleum and Natural Resources of Pakistan 100% shares of the company are held by the Government. Subsequently, from 1994 till 22-4-2001 he was taken up by the said company in their employment as Junior Clerk on yearly contract basis on fixed monthly emoluments extendable regularly. He submits that the case of respondent No,3 is covered by section 14(g) of Sindh Local Government Elections Rules, 2000, therefore, he becomes disqualified to till in the form for the Office of Naib-Nazim. As against this learned counsel for respondent No,3 has submitted that the said respondents in view of definition of proviso under section 2(b)(ii) of Civil Service Act is not to be construed as a Civil servant, therefore, the case of the said respondent shall not be hit by section 14(g) of the Ordinance (ibid). He submits that the appeal of respondent No,3 has been rightly allowed by the learned District Returning Officer and District Judge.
4. ' We have given our anxious consideration to the arguments of learned counsel appearing for the parties. Question for consideration before us is only whether the case of respondent No,3 is governed by section 14(g) (ibid) or the respondent No,3, keeping in view of provisions of Civil Servants Act, 1973 referred to by his learned counsel is excluded from the operation of the first mentioned provision of law. In order to appreciate the law referred by both the learned counsel, the relevant sections are reproduced as below:- "Sindh Local Government Elections Rules, 2000.
5. ' Section 14. Qualification for candidates and elected members.---A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he---is not in the service of Federal, a Provincial or a Local Government or any statutory body or a body which is controlled by any such Government or, in which any of such Government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement."
6. "Civil Servants Act, 1973.
7. ' Section .2. Definitions (1).---In this Act, unless there is anything repugnant in the subject or context:---
(b) 'civil servant' means a person who is a member of an All Pakistan Service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include-- ' a person who is employed on contract, or on work charged basis, or he is paid from contingencies; or" ' a person who is 'worker' or 'workmen' is defined in the Factories Act, 1934 (XIX of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
8. ' Sindh Local Government Elections Rules, 2000 is a special law enacted for holding of elections for the establishment of Local Government in Sindh Province whereas the Civil Servants Act is a general law dealing with the terms and conditions of Civil Servants. In our view the provisions of law in Sindh Local Government Elections Rules, 2000 will govern the case of respondent No,3, which , is subject-matter of this petition. Learned counsel for respondent No,3 has not denied that the said respondent remained in service as mentioned above and that he resigned on 22-4-1991. It may be noted that perusal of order of learned Returning Officer shows that the said respondent was present at the time of hearing and had admitted that he was employee of Lakhra Development Company and resigned from service on 21-4-2001. In our humble view respondent No,3 being in employment as stated above becomes disqualified to become Naib-Nazim. Consequently, we allow this petition, set aside the order of the learned District Returning Officer and District Judge Dadu, with the result that order of the Returning Officer shall hold field and be operative..
9. Petition dimissed.