RAJA FAYYAZ AHMAD, C J.---In this Constitutional Petition order dated 9-9-2002 passed by the Election Tribunal, Balochistan, Quetta in Election Appeal No,5 of 2002 has been assailed hereby the learned Tribunal accepted the appeals filed by the respondents Nos.3 and 6, and; thereby nomination paper filed by the petitioner for contesting election from PB-45 Lasbela-II of Balochistan Provincial Assembly was declared as invalid to contest the election. In this petition following reliefs have been claimed:--
(a) That the order dated 9-9-2002 passed by the Tribunal, is illegal, void, in excess of authority and of no legal effect.
(b) That the order passed by the Returning Officer accepting the nomination papers may kindly be restored and a further direction be - issued to the Returning Officer to include the name of the petitioner in the list of validly nominated candidates.
(c) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded alongwith cost of the petition."
2. The precise facts of the case are that the petitioner filed nomination paper for contesting the election from PB-45 Lasbela-Il in the forthcoming General Elections of Balochistan Provincial Assembly. On the date of scrutiny of nomination papers respondent No,3, being a voter of the same constituency filed objection with the Returning Officer contending therein that the petitioner is not legible to contest the elections under clause (k) of Sub-Article (2) of Article 8D of the Chief Executive's Order No,7 of 2002 i.e Conduct of General Elections Order, 2002, as very recently he has been relieved of the Government service and a period of two years has not elapsed since he ceased to be in such service, consequently; nomination papers of the petitioner is liable to be rejected on account of his being disqualified to contest the election. The petitioner as well as the objector were heard by the Returning Officer and the learned Returning Officer in view of the Notification dated 19-8-2002 issued by the Government of Balochistan turned down the objection by observing that the nomination papers of the petitioner does not fall within the mischief of section 99 subsection (1A) clause (k) of the Act and thus; the nomination papers of the petitioner for contesting the election from PB-45 Lasbela-II (of Balochistan Provincial Assembly) was accepted.
3. The respondents Nos.3 and 6 feeling aggrieved of the acceptance of the nomination papers of the petitioner, assailed the order of the Returning Officer by filing Election Appeals No,5/2002 and 48/2002 before the Election Tribunal, Balochistan, Quetta under section 14 (5) of the Representation of the People Act, 1976.
4. The learned Election Tribunal after hearing the parties vide order impugned herein accepted the appeal of the respondent No,3 by declaring the notification dated 19-8-2002 as ultra vires, without jurisdiction and of no legal effect. ,5. The relevant and operating part of the impugned appellate order is reproduced hereinbelow:-- "We have heard learned counsel for the parties and have perused the record. Under clause 8(2)(k) of the Conduct of General Elections Order, 2002, (hereinafter referred to as the Order 2002) read with section 99(IA)(k), a person who has been in Service of Pakistan or any statutory body cannot contest elections unless period of two years elapsed after he ceased to hold office. The provision in the Order 2002 and the Act are similar which reads as follows:-- Section 199 (IA).
(k) he has been in the service of Pakistan or any body which is owned or controlled by the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or" A plain reading of the above provision would indicate that a person cannot contest election unless two years have elapsed from the day he ceased to hold office. Since the respondent No, 2 was in service till issuance of first Notification dated 24-4-2002, which reads as under:-- "No,SO(H)I-29/2002/580.--Mr. Muhammad Aslam Bootani, Deputy Superintendent of Police (B-17) presently availing extraordinary leave (without pay) stands retired from service on his own request with immediate effect." As per contents of the above notification respondent was on extraordinary leave without pay.
Thereafter, the subsequent notification was issued on 19th August, 2002 indicating therein that respondent stood retired with effect from 7-12-1999. The same is reproduced hereinbelow:-- "No,SO(H) I-24/2002/1287.--In supersession of this Department's Notification No,SO(H)I- 29/2002/580, dated 24th April, 2002 the Government of Balochistan is pleased to accept resignation of Mr. Muhammad Aslam Bhootani, Deputy Superintendent of Balochistan Police (B-17) with effect from 7-12-1999 . " We are unable to agree with the contention of Mr. Ashraf Khan Tanoli counsel for the respondent No, 2 that since alternate remedy was available under section 68 of the Act to challenge the General Elections. It may be observed that under section 14(5) of the Act, an appeal can be filed against the acceptance of the nomination papers which is a statutory remedy, therefore, question of alternate remedy does not arise. The learned counsel further argued that since the vires of the subsequent notification have not been challenged, therefore, the appeal is liable to be dismissed. The contention so raised has no substance even this Tribunal has jurisdiction to look into the vires of the subsequent notification. Lastly the learned counsel argued with vehemence that the instant proceedings being collateral. Since factual controversy is involved, therefore, this Tribunal cannot decide the instant matter. The contention being devoid of merits is repelled.
It may be pointed out that the moot question required to be determined is that whether the case of the respondent falls within mischief or clause 8D(2)(k) of Order, 2002 read with section 91-A(k) of the Act. Mr.Asad Abbas Zaidi learned counsel for the appellant, contended that the appellant ceased to hold office from the date of first notification dated 24-4-2002 which clearly indicates that the appellant shall stand retired from service on his own request with immediate effect. The word 'ceased' has been defined by Black's Law Dictionary as follows:-- "To stop; to become extinct; to pass away; to suspend or forfeit. To leave off; bring to an end; to come to an end; break off or taper off to a stop to give over or bring to an end an activity or action." Thus in view of the above definition, the appellant was no more in service from 24-4-2002. The said notification was also not challenged when the election schedule was announced. The subsequent notification was issued which has been manuvoered by the respondent only to contest the election. Thus for the above reason, this Tribunal has jurisdiction to look into the vires of the notification dated 19-8-2002. After passing of the first notification dated 24-4-2002, the authority had no jurisdiction to issue the subsequent notification dated 19-8-2002; as it stood functus officio, as the respondent ceased to hold after the first notification. Thus the respondent No,3 had no jurisdiction to issue the subsequent notification by superseding the previous notification. Much less the respondent No,3 could not issue the second notification with retrospective effect as an administrative order cannot be implemented with retrospective effect. Thus the subsequent notification has been issued only to benefit the respondent No,2 to contest the elections. Therefore, the notification dated 19-8-2002 is declared ultra vires and to have been passed without any jurisdiction having no legal effect.
' Thus for the foregoing reasons, the appeal filed by the appellant is accepted and the nomination papers of respondent No,2 stands invalid to contest the election. Parties are left to bear their own costs.
6. Copy of notification dated 24-4-2002 and representation made to the competent authority i.e Governor of Balochistan and the subsequent notification dated 19-8-2002 in respect whereof reference has been made in the petition have been annexed with the memo. Of the Constitutional petition. Vide notification dated 24-4-2002 initially issued by the Government of Balochistan the petitioner being Deputy Superintendent of Police (B-17), and on extraordinary leave without pay was retired from service on his own request with immediate effect, whereas; vide subsequent notification dated 19-8-2002 issued by the Government of Balochistan in suppression of the above mentioned notification dated 24-4-2002 accepted the resignation of the petitioner (Mr. Muhammad Aslam Bhootani), Deputy Superintendent of Police (B-17) with effect from 7-12-1999.
These two notifications respectively read as under:-- "(i) No,SO(H)I-29/2002/580.--Mr. Muhammad Aslam Bootani Deputy Superintendent of Police (B- 17) presently availing extraordinary leave (without pay) stands retired from service on his own request with immediate effect.
(ii) No,SO (H)I-24/2002/1287.--In supersession of this Department's Notification No,SO(H)I- 29/2002/580, dated 24th April, 2002 the Government of Balochistan is pleased to accept resignation of Mr. Muhammad Aslam Bhootani, Deputy Superintendent of Balochistan Police (B-17) with effect from 7-12-1999." The copies of entire relevant documents were not filed with the memo. Of the petition in the light of the earlier notification whereby the petitioner was retired from service on his own request with immediate effect, therefore, after hearing the preliminary submissions of the petitioner's learned counsel, we deemed it proper to direct the Secretaries, Government of Balochistan, Home and Tribal Affairs Department and S&GAD to cause the production of entire relevant record in respect of the application initially submitted by the petitioner seeking for retirement from service/tender of resignation and the action taken in respect thereof and the subsequent applications, if any; and the representation made by the petitioner subsequent to the notification dated 24-4-2002 issued by the Government of Balochistan. Pursuant to this direction Mr. Aftab Ahmad Baloch, Section Officer, Home Department filed photostat copies of the documents vide covering letter addressed to the Registrar containing the following descriptions:-- "(1) Application dated 17-3-2002 submitted by Mr. Aslam Bhootani Ex-Deputy Superintendent of Balochistan Police (B-17) tendering resignation from service with effect from 7-12-1999 (Annex. 'A').
(2) This Department's Letter No,SO(HI)-36/20021552, dated the 9th April, 2002 addressed to Secretary, Services and General Administration Department conveying no objection to the acceptance of resignation of the petitioner with retrospective effect i,e, 7-12-1999 (Annex. ' B ' ).
(3) The advice of Services and General Administration Department regarding acceptance of resignation of the petitioner with immediate effect (Annex. 'C').
(4) This Department's Notification No,SO(H)I-29/2002/580 dated the 24th April, 2002 retiring the petitioner from Government service with immediate effect on his own request (Annex.'D').
(5) The subsequent instructions of Services and General Administration Department to accept the resignation of the petitioner with effect from 7-12-1999 (Annex. 'E').
(6) This Department's Notification No,SO(H)I-24/2002/1287, dated the 19th August, 2002 accepting resignation of the petitioner with effect from 7-12-1999 (Annex. 'F')." In addition, to the copies of the above-noted documents also copy of the order dated 15-8-2002 passed on the representation dated 17-3-2002 by the Governor of Balochistan was filed with the Registrar of this Court on 13-9-2002 by the Section Officer (Police) with the forwarding letter dated 12-9-2002. Operating part of the order passed by the competent authority (Governor Balochistan) is reproduced hereinbelow:-- "12. It has been pointed out that the appeal/representation of the officer is time-barred and perusal of record reveals that the officer remained on strict bed rest as per medical advice during the period he was to prefer appeal/representation as such he was unable to do the needful within the prescribed .Period. Thus keeping in view his disability to prefer apepal/representation within the stipulated period, I am inclined to condone the delay.
13. Adverting to the request of the officer, it is pertinent to note that the Home Department vide Letter No,SO(H)1-36/2002/552 dated 9th April, 2002 addressed to the Secretary, S&GAD had raised no objection to the acceptance of his resignation with retrospective effect i,e, 7-12-1999, but astonishingly vide impugned notification dated 24-4-2002 herein he was retired from service with immediate effect. It is an admitted position that the officer remains on extraordinary leave. During the initial period he remained absent from service and with .Effect from 10-1-2001 till the date when the impugned notification was issued. Such leave does not count towards pension or length of service of a Government service. Therefore, the officer did not receive any benefits from the Government during the above period. The officer in his earlier reply to the charge-sheet, while facing disciplinary proceedings had also indicated that in case his plea is not found sufficient, then his reply may be treated as his resignation and now again through his last request he requested for acceptance of his resignation. As the officer has not drawn any benefit during the period in question and as the Administrative Department i,e, Home Department has also raised no objection to the xceptance of his resignation with retrospective effect i,e, 7-12-1999 (F/J), therefore, keeping in view all the circumstances, I am inclined to accept resignation submitted by Mr. Muhammad Aslam Bhootani, former Deputy Superintendent of Police. Consequently his resignation be accepted with effect from 7-12-1999. This disposes of his representation."
7. It is pertinent to note that on 16-9-2002 when the matter was fixed for hearing Mr. Asad Abbas Zaidi, Advocate for the respondent No,3 pointed out that a common judgment was passed by the Election Tribunal in Election Appeals Nos.5 of 2002 and 48 of 2002 against the order passed by the Returning Officer, but specifically the grounds/contentions raised in the connected Appeal No,48 of 2002 filed by the Saleh Muhammad Rind were not disposed of nor such appeal was accepted/rejected in specific terms. According to the learned Advocate since the order passed by the Returning Officer was set aside by the Election Tribunal vide impugned order and the appeals filed by respondent No,3 and Saleh Muhammad Rind were accepted accordingly; the appellant in e latter appeal is a necessary party, who is required to be heard by this C urt. Accordingly; as the order passed by the Returning Officer was assailed in both the appeals and ultimately; vide impugned order the same was reversed, therefore, keeping in view the urgency of the matter, the appellant in Election. Appeal No, 48/2002 namely Saleh Muhammad Rind was joined as one of the respondents in this Constitutional Petition and notice was directed to be issued to him, accordingly; matter was adjourned to 17-9-2002. The added respondent was served and on his behalf Mr. Kamran Murtaza, Advocate appeared in the Court and undertook to file Vakalatnama.
8. The learned counsel for the parties as well as the learned D.A.-G. (on Court's Notice) have been heard. Mr. H. Shakil Ahmed, the learned counsel for the petitioner contended that:--
(i) The resignation of the petitioner vide subsequent Notification dated 19-8-2002 was accepted with effect from 7-12-1999 in view of the representation made by the petitioner to the Competent Authority (Governor Balochistan) under the Balochistan Civil Servants Act and the Rules made thereunder, hence; he was not disqualified to contest the election within the meaning of Article 8D(2)(k) of the Conduct of General Elections Order, 2002 read with section 99(1A)(k) of the Representation of the People Act, 1976, as by virtue of this Notification the petitioner stood retired with effect from 7-12-1999, hence; the petitioner is not disqualified to contest the election.
(ii) The learned Election Tribunal has no jurisdiction to question the vires, validity and legality of the subsequent Notification within the specified parameters, as envisaged in the above quoted provisions, consequently; the order passed by the learned Election Tribunal declaring the subsequent notification to be ultra vires and of no legal effect by exercising the jurisdiction not vesting in the Tribunal, renders the impugned order as void and without jurisdiction.
(iii) The bar as contained under Article 225 of the Constitution of Islamic Republic of Pakistan in the exercise of Constitutional powers vesting in this Court under Article 199 of the Constitution has no application in the instant case for the reason that the learned Election Tribunal acted and exercised the powers beyond its jurisdiction within the purview of Article 14(5) of the Representation of the People Act, 2002, hence; the same is amenable to the writ jurisdiction of this Court.
(iv) The Returning Officer as well as the Election Tribunal within the specified parameters, as envisaged by the relevant provisions of the Chief Executive's Order No, 7 of 2002 and Representation of the People Act, 1976 are supposed to adjudge summarily on the basis of available material produced by the parties to determine whether the nomination paper of a candidate to be accepted or rejected in view of the qualification and disqualification laid down by law for contesting the elections and none of such forums has been conferred any authority under the Statute to question an order or Notification issued/passed by a competent authority under the law in exercise of the powers vesting in such Authority.
(v) The Election Tribunal having the specified limited jurisdiction cannot exercise powers r )t vesting in it or travel beyond the jurisdiction vested in it within the purview of the relevant provisions of the Conduct of General Elections Order, 2002 and the Representation of the People Act, 1976 nor the Election Tribunal has been vested with the jurisdiction to exercise suo motu powers vesting in it by section 5-A of the said Act by entering into wisdom, validity, legality or justification of the issuance of subsequent notification issued by Competent Authority in exercise of the powers vesting it such authority under the Statute. He placed reliance on the judgments reported in 1991 CLC 1, 1986 SCMR 1736, 1990 MLD 2258, PLD 1973 SC 236 and PLD 1978 Quetta 17.
8-A. Mr. Asad Abbas Zaidi, Advocate for the respondent No,3 contended that jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked against the decision made by the Election Tribunal exercising powers under the Statutes i.e Conduct of General Elections Order, 2002 and the Representation of the People Act, 1976 and the jurisdiction of this Court in relation to such matters stands excluded by the provisions of Article 225 of the Constitution. To supplement his argument about the jurisdiction of this Court he has placed reliance on the reported judgment of the Hon'ble Supreme Court in the case of Election Commission of Pakistan v. Javed Hashmi and others (PLD 1989 SC 396). Further the learned counsel contended that this Constitutional petition has become infructuous, as the final list of the validly nominated candidates has been issued and notified by the Election Commission of Pakistan. He without prejudice to his plea with regard to the ouster of jurisdiction of this Court, contended that since the subsequent notification declared as ultra vires by the Election Tribunal was issued on 19- 8-2002, therefore, till such date the petitioner was in the service of Pakistan irrespective of the acceptance of his resignation by the Government of Balochistan with retrospective effect i,e, 7-12- 1999, therefore, the petitioner stood disqualified to contest the election.
9. The learned Deputy Attorney-General contended that jurisdiction of this Court as against the decision rendered by the Election Tribunal invalidating the nomination paper of the petitioner on account of disqualification suffered by the petitioner for being in the service of Pakistan till 19-8- 2002 i,e, the date on which his resignation was accepted, cannot be questioned in writ jurisdiction, which stands ousted by virtue of Article 225 of the Constitution. According to the learned D.A.-G., although; the Election Tribunal did not had the jurisdiction to set aside the subsequent Notification issued by the Government of Balochistan or to determine the vires of such Notification, yet; the Election Tribunal was competent to have determined the effect of the subsequent Notification as regards the disqualification of the petitioner to contest the election, hence to the extent of disqualification of the petitioner, determined by the Election Tribunal in the exercise of powers vesting in it, cannot be assailed by invoking Constitutional jurisdiction. However; the learned D.A.-G.
In view of the dictum laid down by the Hon'ble Supreme Court submitted that in appropriate cases the bar regarding ouster of Constitutional jurisdiction of this Court under Article 225 of Constitution will not be absolute in cases where an order passed by an Election Tribunal has been challenged under Article 199 of the Constitution on the ground of being without jurisdiction, coram non judice or based upon mala fides. The learned D.A.-G. Further argued that the Election Tribunal and the Returning Officer are competent to disqualify a candidate and invalidate the nomination paper within the specified parameters, if it finds a candidate by conducting summary proceedings to be disqualified to contest the election. To supplement his view-point; and the contentions reliance has been placed on the judgments reported in PLD 1994 SC 60, 1991 SCMR 1041, PLD 1996 SC 717 and PLD 1997 SC 32.
10. Mr. Kamran Murtaza, Advocate for the added respondent Saleh Muhammad Rind (the appellant in Election Appeal No,48 of 2002) adopted the arguments put forth by the learned D.A.-G. And only made reference to the provisions of the Conduct of General Elections Order, 2002 and the Representation of the People Act, 1976 relating to the disqualifications.
11. The learned Asstt. A.-G. Appeared for the official respondents i,e, Nos.4 and 5, and; adopted the arguments put forth by Mr.H. Shakil Ahmed and submitted that the subsequent Notification dated 19-8-2002 was issued by the competent authority i,e, Governor of Balochistan in exercise of powers vesting in him under Balochistan Civil Servants Act and Rules made thereunder on representation made by the petitioner. According to the learned Asstt. A.-G. The learned Election Tribunal has exercised the powers not vesting in it and travelled beyond its jurisdiction.
12. The contentions put forth by the parties learned counsel and the learned D.A.-G. Have been considered in the light of the documents available on the file, the counter-affidavit filed by the respondent No,1 and the impugned order which have been gone through carefully. Before dilating upon other contentions it will be appropriate to deal with the proposition as to whether the Constitutional jurisdiction of this Court under Article 199 stands completely and absolutely ousted by virtue of the provisions as contained under Article 225 of the Constitution in relation to the matters decided by the Election Tribunal. In such behalf, as hereinabove noted, reliance was placed on the judgement of the Hon'ble Supreme Court passed in the case of Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396) in which as per majority view, it was held by the Hon'ble Court that the exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and that while the power under Article 199 exercisable by the High Court is "subject to the Constitution" whereas; there is no such limitation provided under Article 225, which creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article and more particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for decision to the Election Tribunal and in appeal to the Supreme Court, whose decision is final both on question of law and fact. In view of this decision of the Hon'ble Apex Court, High Court is bound to follow the decisions and dictums of the Hon'ble Supreme Court and the rule laid down by the Hon'ble Supreme Court on a question of law, yet; in a latter decision of the Hon'ble Supreme Court passed in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer of NA-158, Naushero Feroz and others reported in 1994 SCMR 1299, it has been held by the Hon'ble Supreme Court that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution, however; this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary, which is patently illegal/without jurisdiction and the effect of which is to defrenchise a candidate, he can press into service Constitutional jurisdiction of the High Court. Also, in another judgement'passed by the Hon'ble Supreme Court in Pir Sabir Shah's case (PLD 1994 SC 738) it was held by the Hon'ble Court with reference to the view taken by the Hon'ble Court in the case of Saeed Ahmed Khan and Malik Ghulam Mustafa Khar that even if the important act or action has been protected by a Constitutional provision by ouster clause, the superior Courts still have the jurisdiction to interfere within the specified three categories of cases namely without jurisdiction, coram non judice and mala fide. The majority view of the Hon'ble Supreme Court in the Javed Hashmi's case (PLD 1989 SC 396) was considered by the Hon'ble Court in Ghulam Mustafa Jatoi's case and the Hon'ble Court having considered the entire facts of the case including the fact with regard to the candidate namely Ghulam Mustafa Jatoi having been defrenchised, by distinguishing its earlier decision made in the Javed Hashmi's case, as noted above held that the bar as contained under Article 225 of the Constitution will not. Be absolute in the exercise of powers by High Court under Article 199 of the Constitution in a case where an order of election functionary is patently illegal/without jurisdiction and the effect of which is to defrenchise a candidate, therefore, the Constitutional jurisdiction of the High Court can be pressed into service by a defrenchised candidate. In the instant case admittedly the petitioner has been defrenchised by the election functionary i.e Election Tribunal vide impugned order. The petitioner Deputy Superintendent of Police (B-17) was retired from service vide Notification dated 24-4-2002 issued by the Government of Balochistan on his own request with immediate effect subsequently; the Government of Balochistan vide Notification dated 19-8-2002 accepted the resignation of the petitioner with effect from 7-12-1999 and thus; by virtue of this Notification he-ceased to be in the service of Pakistan. The petitioner filed .Nomination paper for contesting election from PB-45 Lasbela-II of the Balochistan Provincial Assembly. On the date of scrutiny, objection was taken by the respondent No,3 by submitting. An application to the Returning Officer that the petitioner stands disqualified to contest the election within the meaning of Article 8D(2)(k) of the Conduct of General Elections. Order, 2002 (hereinafter referred to as the Order) read with the provisions of clause (k) of subsection (1A) of section 99 of the Representation of the People Act, 1976 (hereinafter referred to as the Act). The objection was overruled by the Returning Officer in view of the subsequent Notification whereby the resignation of the petitioner from service was accepted by the competent authority with effect from 7-12-1999. The respondent No,3 and the added respondent. No,6 (Saleh Muhammad Rind) challenged the order of the Returning Officer by filing separate appeals before the Election Tribunal, Balochistan Vide impugned order, the learned Election Tribunal by assuming the jurisdiction held that vires of the subsequent Notification dated 19-8-2002 can be gone into and examined by it and to the extent that Authority, issuing the subsequent Notification (Governor Balochistan) had no jurisdiction to issue such Notification in view of the earlier Notification issued by the Authority on 24-4-2002 whereby the petitioner was retired from service with immediate effect, as it after issuing the earlier Notification became functus officio and for such reason, the learned Election Tribunal came to the conclusion that the Government of Balochistan had no jurisdiction to issue the subsequent Notification by superseding the previous Notification and with retrospective effect. It was also held that an administrative order cannot be implemented with retrospective effect. Accordingly; for these reasons found favour with the worthy Election Tribunal the subsequent Notification was declared to be ultra vires withbut jurisdiction and of no legal effect. Without examining the reasons which found favour with the learned Election Tribunal for declaring the subsequent Notification as abovesaid, the admitted position in view of the order passed by the Election Tribunal stands that the petitioner being the candidate to contest' election from PB-45 Lasbela-II of the Balochistan Provincial Assembly has been defrenchised and it has been contended by the petitioner's learned counsel that the order passed by the learned Election Tribunal is without jurisdiction on the ground that it was not vested with any statutory powers including the powers vested in it by virtue of provisions of subsection (5- A) of section 14 of the Act to nullify subsequent Notification issued by the competent authority in exercise of the powers vesting in it in the light of representation made by the petitioner under the Balochistan Civil Servants Act, 1973 and the Rules made thereunder. hence; in view of the dictum laid down by the Hon'ble Supreme Court in the case of Ghulam Mustafa Jatoi referred to above, we; are of the considered view that Constitutional jurisdiction of this Court has been competently invoked by the petitioner. It is worthwhile to note that except the earlier and subsequent Notifications, no other document was appended with the appeals, filed by the respondents Nos.3 and 6 and thus; the Returning Officer as well as the Election Tribunal was to decide the appeals in the light of these two documents by summarily determining as to whether the petitioner being a candidate was disqualified to contest the election in view of these two Notifications or otherwise.
The objection raised at the time of scrutiny was rejected by the Returning Officer in view of the subsequent Notification, however; the learned Election Tribunal declared the same as ultra vires of the authority vesting in the Government of Balochistan exercised through the .Governor of Balochistan. In this context, we; may mention and observe that the Returning Officer as well as the learned Election Tribunal being the election functionaries have the jurisdiction, authority and competence to disqualify a candidate to contest the election and to invalidate his nomination papers provided he stands disqualified to contest the election and thus; it was for these 'functionaries, in the case of the petitioner, to see and determine summarily on the basis of undisputed documents and the aforesaid Notifications as to whether the petitioner ceased to be in service of Pakistan or any body which is owned or controlled by the Government and a period of two years has since elapsed when he ceased to be in such service as contemplated by provisions of sub-clause (k) of Clause (2) of Article 8D of the Order read with section 99(IA)(k) of the Act and such factum was to be considered and determined in the light of aforesaid Notification. Admittedly, earlier Notification has been superseded by the subsequent Notification whereby the resignation of the petitioner was accepted with effect from 7-12-1999, hence; by virtue of the latter Notification the disqualificatiOn provisions quoted above were not attracted in the case of the petitioner unless the subsequent Notification was set aside by a competent forum thus; it has to be seen whether the Election Tribunal had the jurisdiction to set aside the Notification, declare it to be of no legal effect and to examine its vires. The disqualification provisions noted above including the provisions empowering the Election Tribunal to decide the election disputes within the purview of the provisions as contained in subsections (5) and (5-A) of section 14 of the Act, have to be looked into and considered. Undisputedly; the Election Tribunal has the powers to decide the question as regards the qualification or disqualification of a candidate and his nomination paper to be valid or invalid, as the case may be, summarily in appeal filed by an aggrieved person or in the exercise of suo motu powers vesting in it under subsection (5-A) of section 14 of the Act in the light of the specified parameters as provided in the Statutes in relation to the qualification and disqualification to contest election. None of the provisions has conferred any jurisdiction to the Election Tribunal to examine the validity, legality, justification or vires of an order passed by a competent authority or a Notification issued by such authority in exercise of the powers vesting in it, hence; in our considered view the Election Tribunal has no jurisdiction to have examined the vires of the subsequent Notification nor could it determine that the same was issued without any lawful authority and of no legal effect. The learned Election Tribunal vested with the limited specified jurisdiction to decide the validity or invalidity of the nomination papers in the light of the subsequent Notification issued by the competent authority, as it could not go behind such Notification and to find out the justification, reasons or grounds for exercising the powers vesting in the competent authority under the Statute i,e, Balochistan Civil Servants Act and the Rules made thereunder and to substitute the same with its own reasons and grounds by examining the vires of the subsequent Notification. The case-law cited by the learned D.A.-G. On the point i,e, 1991 SCMR 1041 in our humble opinion can hardly be pressed in the instant case for the reason that the petitioner on 22-7-2002 made a representation to the competent authority (Governor Balochistan) praying therein that his resignation may in the interest of justice be accepted with retrospective effect from 7-12-1999 and representation appears to have been made by the petitioner under the Balochistan Civil Servants Act and the Rules made thereunder, with reference to the resignation earlier tendered by him through proper channel on 17-3-2002 wherein, for the reasons mentioned in such document, it was requested that the same may be accepted with effect from 7-12-1999, as during such period he did not receive any benefit or salary and the competent authority vide its order dated 15-8-2002 after taking into consideration all the relevant facts and circumstances of the case and for the reasons recorded by it accepted the resignation of the petitioner with effect from 7-12-1999. Moreover; since the statutory functionary on representation filed by the petitioner, in exercise of the powers vesting in him accepted the resignation of the petitioner with effect from 7-12-1999, therefore, in such view of the matter the Notification issued pursuant to the order of the competent authority referred to above was immune to be challenged in appeal before the Election Tribunal and secondly the Election Tribunal being divested of the jurisdiction to examine the vires of the subsequent Notification issued under the hierarchy of the Service Laws rendered the impugned order as nullity in the eye of law PLD 1973 SC. 236 ref. The other case-law cited by the parties' learned counsel renders no help to their contentions noted above. Reverting to the submission of the learned counsel for the respondent No,3 that since the final list of the validly nominated candidates has been issued by Election Commission o'f Pakistan, therefore, the instant Constitutional Petition has become infructuous, needs be disposed of accordingly. We, may mention here that prior to the issuance of the final list this Constitutional Petition was admitted for regular hearing, hence; the contention so made, in our view is devoid of any substance.
In view of the above discussion and reasons the impugned order has been set aside vide our short order dated 17-9-2002 and declared to be of no legal effect, accordingly; the petitioner is declared to be a validly nominated candidate by granting consequential relief that his nomination papers be processed by the Returning Officer to the Election Commission of Pakistan through the Provincial Election Commissioner enabling him to contest the election from the constituency i.e PB- 45 Lasbela-II for the Balochistan Provincial Assembly. These are reasons of our above mentioned short order.