IFTIKHAR MUHAMMAD CHAUDHRY, J. Instant petitions have been filed to seek leave to appeal against impugned judgment dated 20th June, 2001 passed by High Court of Balochistan, whereby C.P. Nos.
284 and 285 of 2001 preferred by the petitioners respectively have been dismissed.
2. Precisely stating facts of the case are the admittedly petitioners are original post holders in the Federal Levies Force but despite that they filed nomination papers in recent past local bodies elections against the reserved seats of Peasants from Union Council Mull Tehsil Sibi. The Returning Officer accepted their nomination papers but in appeal filed by the rival candidates they were found disqualified to contest election under section 14(g) of Balochistan Local, Government Election Ordinance, 2000 (hereinafter referred to as the "Ordinance") vide order dated 3rd June, 2001.
Against this order petitioners preferred Constitutional Petitions before the High Court of Balochistan but their petitions were*dismissed vide impugned order.
3. Mr. Muhammad Aslam Chishti, learned Sr. ASC contended that in the Province of Balochistan Holder of original post of Federal Levies are not deemed to be in the service of Federal Government because such employment is of a hereditary nature and actual duty is performed by other persons on behalf of original holder of post which is known as Badli or Bazgir and the person performing such duty receives salary from the Government, therefore, merely for the reason that in the Government record the name of the original post holder of Federal Levies Force is entered would not debar him from participating in election under such circumstances and he would not be deemed to be in the service of Pakistan.
4. On the other had Mehta K.N. Kohli, learned Deputy Attorney General pointed out that the Federal Levies has been declared as a regular "Force" like a Police contingent by the Government of Pakistan by promulgating Federal Levy Force Rules, 1999 (hereinafter called as "Rules") which are applicable only on the original post holders of the Federal Levies working in Balochistan. Therefore,' as such original holder of the post would be deemed to be member of the law-enforcing Force for all intent and purposes, as such they are debarred under section 14(g) of the. Ordinance to contest election.
5. We have heard learned counsel for parties and have also gone through the impugned judgment carefully. As it has been pointed out above that there is no dispute that both the petitioners are original service holders of Federal Levies in Sibi District, therefore, notwithstanding the fact whether they are drawing salaries themselves or it is being paid on their behalf to the Bazgirs or Badlis performing duties for them, but fact remains that original Service Holders in Levies would be deemed to be in the Service of Federal Government because in Government record employment is on their names as per Rules. It may further be noted that under the Rules there is no concept of performing duties on behalf of original service holder or receiving salaries by the Bazgirs or Badilis, therefore, for all practical purposes it would legally be considered that original post holders are in the service of Pakistan. At this juncture it may not be out of context to note that the original holder of Levies post cannot claim immunity of not being in the service of Pakistan because then they have to relinquish the job and as a result whereof vacancy will be deemed to be vacant liable to be filled under Rules strictly and not on any other condition whatsoever it may be. It is also noteworthy that according to system/practice which was prevailing prior to promulgation of the Rules the Bazgirs used to perform duty and salaries were also drawn by, them and their status was of a substitute of original post holder but they also were deemed to be civil servant for all purposes including for disciplinary action under the Efficiency and Disciplinary Rules, as it has been held in the case of Qalandar Khan v. Haji Zareef Khan and others (1 986 CLC 939) Relevant para therefrom is reproduced hereinbelow:-- "It may also be pertinent to observe that the status of a "Bazgir" has been dealt with in an unreported judgment given by a Division Bench of his Court on 21st April, 1980 in Constitutional Petition No. 109 of 1978 (Ishaq zai son of Sher Muhammad V. The Deputy Commissioner and the 'Controlling Authority Pi shin and another). In this regard, it will be advantageous to reproduce paras 4 and 5 of the same, which read as follows:- "4. The contract, if any, between the Bazgir and original service holder is not available with us. The instructions governing service matters of levies . Personnel properly take notice of a Bazgir. Chapter 5 of these instructions, which consists of paras 12 to 18, relates to nomination i.e. Appointment of Bazgirs by original service holders. These paras recognize the practice of nomination. Para 12 clearly declares that the practice has obvious disadvantages from administrative point of view but observes that it is not politic in view of the constitution of Balochistan, . To do away with such practice. Para 13 says that nomination should not ordinarily be changed at intervals. Para 14 reserves should not a veto with the Political Agent (now Deputy Commissioner) to reject such nomination on the grounds of bad character, physique and the like. This para, however, goes on to declare that once a levies man has been appointed (on nomination), 'his removal from service will entirely be a matter of Political Agent's decision'.
5. These provisions clearly indicate that the appointment of a Bazgir, once made brings him at par with the ordinary levies men. Although he is a temporary employee but he is subject to all disciplinary provisions relating to his service. There being no contract between him and the Government the benefit of exception to (ii) cannot be claimed in this case.
In this view of the matter that a Bazgir is as much civil servant as a levies man is, this Court has no jurisdiction In view of the bar contained in Article 212 of the Constitution read with section 3(2) of Balochistan Service Tribunals ' Act, 1974. The petition is, therefore, dismissed with no order as to costs. The petitioner, if so advised, approach the Services Tribunal for the redress of his grievances."
It may also be stated that Levies Service is an irregular service and their duties are alike Police but the personnel of the same have been held by the High Court repeatedly as being 'Civil Servant' for all the purposes including for disciplinary action under the Efficiency and Discipline Rules. In this regard, reference may be made to the cases of (i) Wali Muhammad v. The Commissioner, Quetta Division, Quetta, reported in PLD 1970 Quetta 76 and (ii) Baz Muhammad v. The Commissioner, Quetta Division, Quetta and another, reported in PLD 1979 Quetta 113. In the former case, a D.B. Of the erstwhile High Court of West Pakistan at Quetta held that a Risaldar in Levies is an employee of the Provincial Government and was entitled to the protection under Articles 177 and 178 of the late Constitution of Pakistan, 1962. In the latter case, another Division Bench of the West Pakistan High Court at Quetta took the view that the Levies Sowars in Province of Balochistan fall within the definition of services of Pakistan."
6. As such even if viewed keeping in consideration above discussion and it is deemed that office of Bazgir still exists then no difficulty is felt in concluding that if a Bazgir can be subjected to disciplinary action under. Relevant Efficiency and Discipline Rules then as to why such action cannot be taken against original service holder and if so then for all purposes he would be considered as members of law enforcing agency of Federal Levies Force which will debar him/them from contesting elections.
7. Thus for the foregoing reasons were are inclined to hold that petitioners are in the service of Pakistan for all intents and purposes in terms of section 14(g) of the Ordinance, therefore, they were disqualified to contest elections against reserved seats of Peasants from Union Council Mull, Tehsil Sibi and learned Division Bench of Balochistan High Court has rightly declined to grant relief to the petitioners. As a consequence of above observations leave to appeal is declined and .