P L D 1988 Supreme Court 687 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑During the general elections held in March, 1985, the appellant was elected .on one of the seats from the province of Punjab reserved for "Ulema, technocrats and other professionals" in the Senate as provided for in Article 59(1)(d) of the Constitution. In the events that happened, however, an election petition was filed against him by one of the contesting candidates and in the proceedings thereof, the Election Tribunal, by an interim order, the formal declaration of the result of the election and the notification of the appellant as a Member of the Senate was suspended. Ultimately the Election Tribunal held him not qualified to be elected. Being aggrieved the appellant filed an appeal and this Court held that he was qualified as a technocrat and duly elected as a Members of the Senate. As a result he was notified as the elected Member of the Senate on 15th January, 1986. Subsequently he took oath of office as a Member on 23rd January, 1986. A's Article 59(3) clause (d) required that the two Members of the category to which the appellant belongs "shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years", the appellant moved the Chief Election Commissioner of Pakistan claiming that he could not be included in the draw of lots for the purpose of elimination or continuance, mainly on the ground that he had not completed the required three years of membership. His case was that he had taken the oath of office on 23rd January, 1986 which furnished the terminus a qua and accordingly three years period provided by Constitution had not yet expired in his case for being subjected to lots in March, 1988. This application was dismissed by the Chief Election Commissioner, on 30th January, 1988, holding that section 82 of the Senate (Election) Act, 1975 (hereinafter referred to as the Act) clearly lays down that the term of office of the Members of Senate shall commence on the date of first meeting of the Senate. Since the first meeting of the Senate, after the election of 1985 was held on 21st March, 1985, the appellant's period of membership had to be reckoned from that date. After making an unsuccessful attempt to invoke the jurisdiction of this Court directly under Article 184 of the Constitution, the appellant filed a constitutional petition in the Lahore High Court, challenging his inclusion in the draw of lots, the refusal of the Chief Election Commissioner to keep him out of it and the draw by which he was to retire on 20th March, 1988. This constitutional petition was dismissed in limine by the High Court on the basis of section 82 of the Act. Being aggrieved the appellant approached this Court and leave was granted in 'order to examine the contention, in the light of the facts narrated above, whether the period of membership of the Senate in the case of the appellant should be reckoned from the date he took oath and he could be included in the lot only on completion of three years from that date. In the alternative the question for examination was whether section 82 of the Act is ultra vires the constitutional provisions which it professed to give effect to. It is the contention of Raja Muhammad Anwar learned counsel for the. appellant, that under the Constitution a person elected as a Member of the Senate is entitled to enjoy his office for a period of three years in the first‑instance, to be reckoned from the date he takes the oath of the office before being subjected to draw for determining as to which of the initially elected Members would stand retired on the expiry of the stipulated first period. In this connection he first referred to Article 59 of the Constitution, material provisions of which read as under: "59(1) The Senate shall consist of eighty‑seven members of whom‑‑ (a) . . . . . .' . . . . . ; (b) . . . . . . : . . . ; (c) . . .. . . . . . . ; (d) five shall be elected by the members of each Provincial Assembly to represent ulema, technocrats and other professionals." The next provision referred was Article 255(3) which is in the following terms: "(3) Where, . under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath." The crucial. point in this case, according to the argument of the learned counsel, turned on the interpretation of the aforesaid provisions, as the submission was ,that the period of three years as provided for by Article 59 commences from the date a person elected as a Member by virtue of the oath of office enters upon office and becomes a Member of the Senate. In this connection learned counsel referred to Article 65 of the Constitution which provides: "a person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the third Schedule." Finally reference was made to Article 272(c) which .provides that the term of office of members of the first , group and of the second group shall respectively be two years and four years. According. to the learned counsel the number of years ,has been amended. to three. years and six years respectively. It will be noticed that the main basis of the argument advanced by the learned counsel for the appellant is that the three years period of office stipulated by the Constitution commences with the time the incumbent enters upon his office which in turn depends upon when he makes an oath of office as required by Article 255(3). In other words the position taken by the appellant is that Article 254(3) controls Article 59(3)(d). However, as pointed out by the High Court the scheme of the Constitution appears to be that out of the two Houses of Parliament, the National Assembly has a fixed term as provided by Article 52 and except for one contingency the term expires by efflux of time on the expiry of five years from the day of its first meeting. On expiry of the term, in either case, the National Assembly stands dissolved. Article 52 of the Constitution provides as under: "The National Assembly shall, unless sooner dissolved, continue for a term of five years from the day of its first meeting and shall stand dissolved at the expiration of its term." On the other hand as laid down by clause (3) of Article 59, the Senate is not liable to dissolution and is a continuous body. The scheme envisaged by the Constitution is that every three years about 50$ of the Members of the Senate shall retire and in their place new Members will be elected for a similar period. In this manner every three years a general election for the vacated seats will be held to induct new Members to the extent of about 50$ of the total strength of the seats in various categories. If the argument of the appellant is accepted then a general election for the group of Members who retired periodically cannot be held, but for each seat the election would be held on the expiration of the period of three years with effect from the date when he takes the oath of office whether deliberately or compelled by reasons beyond his control. This does not appear to us to be the scheme envisaged by the provisions of the Constitution and would work counter to the principle upon which Senate has been established. In this behalf reference may be made to Article 224(3) which reads as under:‑‑ "An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur." This Provision clearly contemplates a fixed common date on which vacancies of the requisite number of seats as provided by Article 59 occur due to retirement of the stipulated number of Members. In the case of National Assembly Article 52 fixes the time from which the period prescribed therein for the life of the National Assembly is to commence, namely, the date of its first meeting. Although no parallel provision has been made in the Constitution in respect of the Senate, section 82 of the Senate (Election) Act, 1975, provides for the commencement of the term of a member with reference to the first meeting of the Senate held after the names of the persons elected to the Senate are notified by the Election Commission. Article 65(3) on which reliance has been placed, in our opinion, does not regulate the term of office of a member of Senate, but is a general provision applicable to all offices under the Constitution in respect of which provision has been made for making an oath before entering upon the office. The only effect of this provision is that the person will be entitled to perform the functions of the office only upon making an oath and not otherwise. The word "deem" is very significant and although he may be appointed or elected to the office from a prior date, he shall be deemed to have entered upon office on the day on which he makes the oath. Therefore, until contrary provision is made by the Constitution or in accordance with it, the term of office which is regulated by law, cannot be suspended merely because the person concerned has not taken the oath to enter upon his office. Learned counsel for the appellant referred to the provisions of the .Constitution whereby the term of office of a person elected to fill a casual vacancy is to be the unexpired term of the member whose vacancy he has filled. This provision fortifies our view rather than the argument advanced. So far as Article 272 is concerned it does not appear to be attracted in the present case as the same was applicable to the first Constitution of the Senate. The appellant was elected in the election to the Senate held under the Houses of Parliament and Provincial Assemblies (Election) Order 1977 (hereinafter called the P.O.No.5 of 1977) because the Constitution was in abeyance at the time. However, since there is no material difference between the relevant provisions of P.0.5 of 1977 and the Constitution it is not necessary to refer to the provisions thereof. In any case Article 272, as discussed above does not alter the position as regards the commencement of the term of office of the members of the group which has to retire after the expiry of three years. It remains to consider the alternative argument that section 82 of the Senate (Election) Act is ultra vires the constitution, in so far as it fixes the commencement of term of office of a member with reference to the first meeting of the Senate as against the constitutional provision that a person enters upon office as a member when he takes the oath of office. As it has already been held that the oath of office does not in any manner affect the term of office, the argument is without substance. Even otherwise, as pointed out the scheme underlying the Constitution provided for the retirement of certain number of members at fixed periods. It was, therefore, necessary to provide for the commencement of this period. Under Article 222(f) the Parliament was empowered to provide for ail matters necessary for the due constitution of the two Houses and the Provinciall Assemblies. The Senate (Election) Act was accordingly enacted and it has made provision for the duration of the term of office of the members of the Senate and there is no repugnancy with any constitutional provision. Accordingly section 82 is not ultra vires the Constitution. For the foregoing reasons we find no substance in this appeal which is accordingly dismissed with costs. M.B.,A./I‑39/8 Appeal dismissed.