2006 PLP 1029 (YLR)

SYED HAMID ALI SHAH, J.

Respondents Nos.3 and 4 are joint candidates of Nazim and Naib Nazim, who filed their nomination papers from Union Council No.48, T.T. Singh. The petitioner filed objection on the nomination papers on the ground that respondent No.4 is not a matric and has been shown, failed in the subjects of Physics and Chemistry in the certificate, on which the petitioner has himself relied upon. The second objection that respondent No.3 is the Administrative of Market Committee and in that capacity, is drawing salary and thus, disqualified under sections 152(d) of the Ordinance, 2001. Respondent No.1, refused to entertain the objection and accepted the nomination papers on 30-7-2005 while the appeal against the order met the same fate and was dismissed on 2-8-2005, hence this petition.

2. Learned counsel for the petitioner has argued that respondent No.3 vide notification dated 18-5-2005 is performing his duties as Administrative Market Committee, Pir Mehal District T.T. Singh, draws salary from public exchequer and performs functions in the affairs of the Provincial Government, thus, is not qualified. It was also argued that respondent No.4 has produced a certificate, the perusal whereof reveals that respondent No.4 has not passed the subjects of Physics and Chemistry and both the respondents arc not qualified to contest the elections.

3. On the other hand, learned counsel for respondents Nos.3 and 4 has fully supported the orders impugned in this writ petition. He has submitted that the certificate issued by the Board is itself sufficient to show that the petitioner is a matriculate in second grade. He has further submitted that the Administrative Market Committee do not fall within the parameters of a person qualified to be elected or to hold the elected office or membership of the Local Government.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. Notification No. 73/PBCC/LHR, dated 23-7-2005 issued by the Secretary PBCC/BISE, Lahore reveals that a candidate who has earned "E" grade and above in all subjects under the no pass, no fail scheme session 2002-2004 is equivalent to Secondary School Certificate. The respondent No.4 was required to obtain in all the subjects 33% or more of the total marks allocated to each subject under the scheme. Respondent No.4 has not secured "E" grade and above in the subjects of Physics and Chemistry, therefore, cannot be deemed as having passed the S.C.C. Examination, by virtue of the above notification. Further the office of respondent No.3 is an Administrator of the Market Committee, draws salary, does not fall within the exception of clause (g) of section 152(i) of the Ordinance, wherein a part time official and a person who has resigned or retired from service and period of six months has elapsed can contest elections.

6. Admittedly respondent No.3 is the Administrator of the Market Committee and as such is disqualified to be elected. Section 17 of the Punjab Agricultural Produce Market Ordinance, 1978 declares that every person employed by the Market Committee and every member shall be deemed to be public servant within the meaning of section 129, P.P.C. The petitioner was appointed Administrator under section 33 of the Ordinance, 1978. Furthermore in the case of Mirza Muhammad Tufail v. Returning Officer (W.P. No.14233 of 2005) the Chairman of Market Committee was held to be disqualified to contest the elections.

7. Both the respondents were not eligible candidates and their nomination papers were accepted. The R.O. and the D.R.O. without verifying from the record, relied upon the statement of respondent No.3. Respondents Nos.3 and 4 are not qualified to contest the elections. Resultantly, this petition is allowed, the orders impugned, are set aside and the nomination papers submitted by respondents Nos.3 and 4 are rejected. This petition stands disposed of. H.B.T./R-4/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.