S. ALI ASLAM JAFRI, J.--- The facts giving rise to filing of this petition are short and simple. During the last elections of Local Government in Sindh, held 'under Sindh Local Government Elections Ordinance (X of 2000) and the rules framed under Section 39 of the~ said Ordinance (hereinafter referred as "the Ordinance and the rules"), the petitioners filed their joint nomination form as per rules for the Office of Nazim and Naib Nazim respectively of Union Council No. 10, Daur, District Nawabshah. Respondents Nos. 6 and 7 also filed, their nomination form for the same seats. It appears that nomination forms of the petitioners as well as respondents Nos. 6 and 7 were accepted by the Returning Officer after. Rejecting the objections raised by respondent No.8 Syed Mulazim Hussain Shah a voter from the said constituency, calling in question the eligibility of petitioner No. 1 to contest the said election, hue; cilia, on the ground that in the year 1987 the petitioner No. 1 was removed from the office of the Chairman of Town Committee Daur by the Government of Sindh vide notification dated 30.8.1987 issued by the Secretary Local Government in exercise of the powers under Section 26(2)(d) of the Sindh Local Government Ordinance, 1979 for having committed major irregularities amounting to abuse of powers and misconduct. Thus, it was urged that the petitioner No. 1 while holding the said office had committed the acts of corrupt practices, misuse of powers and authority, as such, he was not qualified to contest the election for the post of Nazim of the said Union Council in view of the bar contained in Section 14 of Ordinance X of 2000.
2. It also appears that respondent No. 8 thereafter filed an appeal before the District Returning Officer/District and Sessions Judge, Nawabshah, which was allowed on 10.3.2001 and the joint nomination form of the petitioners was rejected as the petitioner No. 1 was found to be disqualified to contest the said election under Section 14(d), (h) and (o) of Ordinance X of 2000. The said order was called in question through C.P. No. D-150/2001 and a Division Bench of this Court by way of an interim order allowed the petitioners to contest the election, however, subject to a condition that the result of the election will not be declared till the decision of the said petition.
3. It is the case of the petitioners that they contested the election and secured 4499 votes as against 2377 of the respondents Nos. 6 and 7, as such, they were declared successful unofficially but the official result was not announced in view of the above referred order of the Court. It also appears that the said petition was dismissed for non-prosecution on 22.5.2001 and before it could be restored or iecided finally on merits the result was announced declaring respondents Nos. 6 and 7 as successful candidates. An application for restoration of the petition was dismissed on 31.8.2002 with an observation that the relief sought had become infructuous by that time and the proper course for the petitioner was to file election petition before the Election Tribunal. The petitioner No. 1 thereafter approached the Hon'ble Supreme Court but his petition was dismissed upholding the observations of the High Court that the petitioner may approach the Election Tribunal, which were set-up in the meantime. The petitioners thereafter filed Election. Petition No. 13/2001 which was heard and dismissed by the learned Election Tribunal for Nawabshah at Sanghar while holding that the petitioner No. 1 stands disqualified to contest the election and the nomination form was rightly rejected by the Appellate Authority/District Judge, Nawabshah. Now, the petitioners have invoked the Constitutional jurisdiction of this Court to assail the orders of the Appellate Authority and the Election Tribunal.
4. We have heard Mr. M.L. Shahbani, learned counsel for the petitioners, and Mr. Naraindas C.
Motiani, learned counsel for respondent No. 6 who have mainly argued on the legal points involved in this petition, as the factual aspect of the matter so far removal of the petitioner No. 1 from the Chairmanship of Town Committee Daur in the year 1987 by the Government on the charges of misconduct and misuse of powers as mentioned in the removal order do not appear to be disputed.
5. Indeed Mr. Shahani is correct to the extent that the removal of the petitioner under Section 26(2) of the 1979 Ordinance could only disqualify the petitioner form seeking election for a limited duration, i.e. And residue of the term of the council under Section 27(2) and could not operate as a permanent disqualification. The matter however, does not and here evidently Section 14 of the Sindh Local Government Election Ordinance, 2000 envisaged an elaborate list of qualification for seeking elective offices which is substantively wider than the list of disqualifications contemplated by Section 37 of the Sindh Local Government Ordinance, 1979. Obviously a person failing to attain qualification criterion under Section 14 of Ordinance X of 2000 would not be entitled to seek elections irrespective of the position that he enjoyed under an earlier law.
6. Mr. Narain Das Motiani, learned counsel for. Respondents Nos. 6 and 7 argued that the petitioner was not qualified to seek elections in terms of clauses (d), (h) and (o) of Section 14 of the Sindh Local Government Election Ordinance, 2000. We may straightaway repeal the contention so far as clauses (d) and (o) are concerned. Clause (d) requires that a candidate should be a good character and not commonly known as one who violates knowledge of Islamic teaching and abstain from major sins. It is no body's case that the petitioners nomination paper was rejected on this ground. Clause (o) requires that a candidate does not engage in any transaction invariably pecuniary interest with the Local Government of which he is a member. Prima facie it refers to a transaction in presence and could not relate to transactions made more than a decade ago. The moot point to be considered however, is whether the nomination paper of the petitioners could be rejected in view of clause (h) of Section 14 which reads as follows:- "has not been dismissed, removed or compulsory retired from public service M on grounds of moral turpitude. (underlining ours)."
7. The expression "public service" has not been defined in the Ordinance or the Statutory Rules framed thereunder. Mr. Shahani however, invited us to construe this expression narrowly and argued that it must be confined to offices where the disciplinary action by way of dismissal, removal or compulsory retirement can be taken i.e. The civil services of the Federation and the provinces or certain other statutory bodies were similar rules for efficiency and discipline exist. In no case, however, according to learned counsel this clause could be extended to elective offices in local bodies. We are afraid we are not impressed by this contention. In the first place it is not quite correct to say that the law only permits removal of civil servants or salaried employees on grounds of moral turpitude. Section 26(2) of the Sindh Local Government Ordinance, 1979 itself stipulated removal of elected office-bearers of local council guilty of abuse of power-of misconduct after being given an opportunity of being heard and even Section 128 and 129 of Ordinance XXVII of 2001 stipulate removal from office of a Zila Nazim for failure to comply with the directions of the Provincial Government. Under the N.A.B. Ordinance, wherein persons holding elective offices have expressly been described as "holders of public offices", a person convicted of an offence of corruption or corrupt practice is to forthwith cease to hold public offices. Article 47 of the Constitution itself provides for removal of the President of Pakistan on grounds of physical or mental incapacity or impeachment on charge of gross misconduct.
8. To appreciate the connotation of the expression "public service" in terms of Section 14(h) a comparison of its provisions with Section 14(g) may be in order. The latter section reads as follows:- "is not in the service of the 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".
9. Evidently persons in the service of Federal, Provincial or Local Governments or statutory bodies controlled by such. Government are not qualified to seek elections under clause (g) till the expiry of 06 months from their retirement. An exception, however, is made in respect of holders of elected public offices. The mere existence of an exception, according to well-settled principles of interpretation, indicates that but for the same such persons would fall within the ambit of the main clause. In other words holder of elected officers were to be treated in the service of Local Governments and therefore, an exception had to be carved out in their favour. Therefore, it is extremely difficult to assume that while holders of elected public offices were deemed to be in the service of Local Government under clause (g) but not so under clause (h). Looking at the matter from different angle it could be urged that if the legislature intended only to disqualify salaried employees and not those holding elective offices there was no reason for employing a different terminology in clause (h) as compared to the one in clause (g). The mere fact that the broader expression "public service" has been used in clause (h) itself indicates that the intention of the legislature was to disqualify all persons required to vacate their respective offices on grounds of moral turpitude. It would indeed be anomalous to hold that only a salaried employees indulging in corruption ought to be disqualified from seeking an elective office while one doing so in the capacity of an elected representative would continue to remain eligible. Indeed we are conscious of the fact that at the time of his removal the petitioner did not seriously attempt to assail the decision on the ground that the disqualification incurred was for a short period. Perhaps he may still be entitled to seek removal of the stigma created by the new law in appropriate proceedings.
Nevertheless as long as the order of removal is not wiped out we have no option but to hold him to be disqualified under Section 14(h) and would therefore, dismiss this petition.
10. The above are the reasons for short order announced by us on 1 3.5.2003.