2001 PLP 1992 (YLR)

AHMED KHAN LASHARI, J.‑‑ Since common law points are involved in Constitutional Petitions bearing Nos.284 and 285 of 2001, therefore, we intend to dispose off them with this common judgment. These petitions have been filed against the orders, dated 9‑6‑2001 passed by District Returning Officer/District and Sessions Judge, Sibi Division Sibi (respondent No.2) whereby the petitioners were restrained not to contest the forth‑coming Election as they were found not eligible as per section 14(g) of Balochistan Local Government Elections Ordinance, 2000 hereinafter referred to as the Ordinance, 2000).

2. Briefly stated facts are that petitioners filed their Nomination Papers against the 4 Reserved Seats of peasants from Union Council Mal Tehsil Sibi. Returning Officer/Additional District and Sessions Judge, Sibi on 3‑6‑2000. The respondent No. 1 in both petitions was also candidate against the Reserved Seat of Peasants filed Appeals bearing Nos.5 and 8 of 2001, before the respondent No. 2 as provided under rule 18(4) of Balochistan Local Government Elections Rules, 2000 (hereinafter referred to as the Rules 2000), by agitating the law point as section 14(g) of the Ordinance, 2000, the petitioners are not eligible to participate and contest Local Bodies Election 2000‑2001 as they are Levies Employees of Federal Levies. The respondent No.2 after hearing the parties on 9‑6‑2001, accepted the appeals filed by respondent No. 1 and set aside the orders of Returning Officer, dated 3‑6‑2001 whereby the Nomination Papers of the petitioners were accepted. Being aggrieved and dissatisfied of the order of respondent No.2 petitioners filed these petitions.

3. Mr. Muhammad Aslam Chishti Advocate appeared on behalf of petitioners and argued that the appeals filed by respondent No. 1 before respondent No.2 were at ‑all not competent in view of rule 18(4) of the Rules, 2000 as right of appeal has been given to a person who was present at the time of scrutiny. He next contended that the grounds mentioned therein the memos of appeals were not available to the respondent No. 1 as he was not in attendance at the time of scrutiny of the Nomination Papers of petitioners. He further argued that the petitioners are holding hereditary post of Levies and are not in acting service of Levies Force, they have appointed Saddullah and Abdul Aziz as Bazgeer in their place to this extent certificates were issued by the Assistant Commissioner, that Saddullah and Abdul Aziz are working as Bazgeers for the last three years so petitioners are not obtaining any kind of salary as provided under section 14(g) of the Ordinance, 2000. The hereditary post does not amount to be that. of controlled by Federal Government.

4. Mr. Muhammad Mohsin Javed, Advocate appeared on behalf of respondent No.1 contended that at the time of scrutiny the respondent No.1 was very much present before the Returning Officer, as he himself was candidate for the Peasants Reserved Seats, therefore, the respondent No.1 being aggrieved from the order presented the appeals before the respondent No.2. He next contended that Deputy Commissioner Sibi issued certificates, dated 7‑6‑2001 stating therein that petitioners are in original service of Levies of Sibi District and accordingly rule 18(4) of the Rules, 2000 disqualify them from contesting and participating in the forth coming Elections. He finally contended the respondent No.2 has rightly observed and declared that the petitioners are not eligible to participate in the election proceedings.

5. Mr. K.N. Kohli learned Deputy Attorney General argued that appeals were competently filed by respondent No. 1 before respondent No.2. He next contended that person who can object shall have a right to file appeal as provided under rule 18(4) of the Rules, 2000 there is no bar under the rules for filing of appeal by a person who was not present at the time of scrutiny. He placed Federal Levies Rules, 1999 whereby Levies has been converted into the Force. He was of the opinion that even before Levies Rules, 1999 the persons having Posts of Levies were declared Government Servants. He relied on 1986 CLC 939 = PLD 1979 Quetta 113 = PLD 1970 Quetta 76.

6. Learned Advocate‑General con tended that petitions are' based on factual controversies which could not be dissolved in exercise of writ jurisdiction as evidence is needed for dissolving the disputed facts. He next contended that non‑presence of person at the time of scrutiny does not entitle him from filing of appeal, if he found himself aggrieved and affected from the order. He lastly argued that the petitioner is admittedly an employee of Federal Levies Force is not entitled to participate and contest Local Bodies Election of 2001.

7. We have heard the arguments of the parties and perused the available record carefully as regards to contention of learned counsel for the petitioners in respect of maintainability of appeal we feel necessary to reproduce rule 18(4) of the Rules, 2000:‑‑‑ "

18. Scrutiny.‑‑‑(1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made representations or objections against the nomination papers, and any voters of the local area concerned who obtains permission from the Returning Officer, before the commencement of the scrutiny. The Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 16. (2) ....................................... (3) ....................................... (4) An appeal against the decision of the Returning Officer under sub‑rule (3) may be preferred by any person present at the time of scrutiny under sub‑rule (1) of the Appellate Authority appointed for the purpose by the Chief Election Commissioner, and the decision of such Authority shall be final." After perusal of the above referred rules we are of the opinion that it has not been written anywhere in section 18 of the Rules, that person who was not present at the time of scrutiny may not file appeal before the Authority if he found himself aggrieved from acceptance of Nomination papers. It has not been made necessary that every candidate shall make his presence before the Returning Officer at the time of filing of nomination papers or during scrutiny process, it is evident from rule 16(5) of the Rules, 2000 speaks that every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt". Subsection (10) also speaks that objections or suggestions, if any, received sub‑rule (9) shall be taken into consideration at the time of scrutiny of nomination papers. Rule 27 also speaks about the non‑presence of candidate at the time and place appointed for the purpose, we like to produce the relevant rule for ready reference‑‑ "

27. Absence of Candidates etc. not to invalidate Act etc.‑‑‑Where any act or thing is authorized by these rules to be done in the presence of the candidate, an election agent or a potting agent, the failure of such person to attend at the time and place appointed for the purpose shall not invalidate any act or thing otherwise validly done." A bare perusal of the above reproduced rules we are, of the opinion that presence of candidate is not necessary before the Returning Officer at the time of scrutiny to raise objections on the nomination papers of another candidate. The Returning Officer himself is empowered under rule 18(3) of the Rules, 2000, either sue motu or upon any objection to reject the nomination papers if he is satisfied that candidate is not qualified to be elected as a member. Admittedly the respondent No. 1 had also filed his nomination papers against the four reserved peasant seats alongwith the petitioners from the same constituency and his nomination papers were found valid and he was allowed to participate in the forthcoming election, alongwith the petitioners, he may have a right of appeal being aggrieved party to challenge the nomination papers accepted by the Returning Officer before respondent No.2, the Appellate Authority. The second contention of learned counsel for petitioners that petitioners are Levies Employee of Federal Government and are not in active service of the Levies, they are holding hereditary posts is not acceptable to us. Though certain papers i.e. extract of salary register has been filed alongwith these petitions showing that Abdul Aziz and Bismillah are getting salaries as Levies Sawar from Levies Department but it has ‑ not mentioned that they are working for the petitioners in their place. It is very strange that Deputy Commissioner is the Controlling Authority of the entire Levies Force issued Service Certificate bearing No.3/79/Levies, dated 7‑6‑2001, contents of Certificate are as under:‑‑ According to the Office Record, the following persons are original service holders of Federal Levies in Sibi District:‑‑‑ (1) Mr. Ghous Bakhsh son of Haji Mangay Khan Corgage Levies Sawar, Levies Thana Sibi. (2) Haju Khan son ‑of Bahar Khan Gishokori, Levies Sawar, Levies Thana Sibi. (Sd.) Deputy Commissioner, Sibi." While on the very next day Assistant Commissioner Sibi also issued certificates that Ghous Bakhsh is employee of hereditary Levies service and Abdul Aziz son of Sohbat Khan is working as Bazgeer in his place in the Levies, Force, while Saddullah son of Sanwal Khan is working as Bazgeer in place of Hyjoo in Levies Force. We are not inclined to enter into these disputed facts which indeed need evidence, thorough probe and deeper appreciation, in exercise of discretionary relief in writ jurisdiction. However, it has been admitted that petitioners are Levies Employees of the Federal Government after Notification of Levies Rules, 1999 all the appointments are being made in accordance with the said rule on the basis of merits‑cum‑fitness through competent authority while nothing has been filed by the counsel for petitioners to rebut the same. In the circumstances mentioned above we are, not inclined in exercise Constitutional jurisdiction to grant the discretionary relief in favour of petitioner as prayed for, accordingly petition is dismissed in limine. Q.M.H./M.A.K./83/Q Petition dismissed.