2013 PLP 1796 (CLC)

MAMOON RASHID SHEIKH, J.

Through this single judgment we propose to decide E.A. No.104 of 2013 and E.A. No.105 of 2013 as common questions of facts and law arise therein.

2. Both appellants challenged the order dated 5-4-2013 whereby the nomination paper of respondent No.1 was accepted by the learned Returning Officer NA-66 Sargodha-III. The learned counsel for the appellant submits that the candidature of respondent No.1 is hit by the provisions of Articles 62(1)(f), 63(1)(d) and (e) read with Article 63(1)(k) of the Constitution of the Islamic Republic of Pakistan, 1973.

3. It is contended that respondent No.1 has concealed his assets whilst filing his nomination paper. Respondent No.1, therefore, cannot be considered to be sagacious, righteous, honest and ameen as envisaged by Article 62(1)(f) of the Constitution.

4. It is further contended that admittedly respondent No.1 was appointed as the Chairman of the National Vocational and Technical Training Commission (NAVTTC), which is a statutory body formed under the National Vocational and Technical Training Commission Act, 2011 and wholly owned or controlled by the Government of Pakistan. Respondent No.1 continues to function as the Chairman NAVTTC, therefore, since he is still in the service of Government of Pakistan and/or a body wholly owned or controlled by the Government of Pakistan he is disqualified to be elected or chosen as a member of the Majlis-e-Shoora (Parliament) by virtue of the provisions of Article 63(1)(d) and (e) read with Article 63(1)(k) of the Constitution.

5. The learned counsel for respondent No.1 submits that respondent No.1 has made full disclosure of his assets and liabilities and other particulars in the nomination paper, however, nomination of respondent No.1 has been withheld. As to the contention that respondent No.1 is the Chairman of NAVTTC submits that respondent No.1 tendered his resignation on 21-3-2013. The said resignation was accepted w.e.f. 21-3-2013 through Notification dated 12-4-2013 issued by the Government of Pakistan Ministry of Education & Training Islamabad. Submits that the factum of respondent No.1 being the Chairman of NAVTTC is not an impediment to the candidature of respondent No.1 firstly for the reason that the post of Chairman NAVTTC does not admit of remuneration and the post in any event was purely honourary in nature. Respondent No.1 had resigned from the post of Chairman of NAVTTC and at the time of filing of his nomination paper respondent No.1 was no longer the Chairman of NAVTTC. Further contends that since respondent No.1 was not receiving any remuneration from NAVTTC, he cannot be held to be in service of Pakistan and / or any body wholly owned or controlled by any Government. Respondent No.1 is, therefore, not disqualified by virtue of any of the provisions of Article 62 and/or 63 of the Constitution.

6. The learned counsel for the appellants submits that the date of resignation of a person is to be reckoned from the date of its acceptance. In the instant case the date is to be reckoned from 12-4-2013 i.e. the date of the Notification regarding acceptance of respondent No.1's resignation was issued. Resignations are not accepted retrospectively. Relies on the judgment reported as "Mrs. Neelam Yasmin Abbasi v. Returning Officer and 2 others (2010 MLD 527). Further contends that respondent No.1 was receiving remuneration from the Government of Pakistan and was also enjoying perks and other benefits of the department. Refers to sections 3, 4, 6, 7, 11 and 12 of the NAVTTC, Act. It, therefore, cannot be said that respondent No.1 was not in. the service of Pakistan and / or a body wholly owned and controlled by the Government.

7. We have considered the arguments of the learned counsel for the parties and have also gone through the record. In a similar appeal E.A. No.24 of 2013, titled "Mubashir Kamal Abbasi v. The R.O. NA-50 District Rawalpindi and another", through our judgment of even date we have held on the strength of the judgment of the Hon'ble Supreme Court of Pakistan reported as "Mirza Muhammad Tufail v. District Returning Officer and others" (PLD 2007 SC 16) that the decisive test to determine whether a person is in the service of Pakistan and/or in the service of a body wholly owned or controlled by the Government is his subordination to that body. The power of authority of appointment to the office and the power of removal and dismissal of the holder of the office and not remuneration is the decisive factor. In the instant case respondent No.1 was appointed to the post in question by the Government of Pakistan and his resignation was also accepted by the Government of Pakistan, therefore, on the basis of the above test it can safely be held that he was in the service of Pakistan and / or a body wholly owned or controlled by the Government. If a person is so adjudged then under the provisions of Article 63(1) (k) of the Constitution a period of two (2) years has to elapse since the person's service has ceased for him to become eligible to contest elections. In the instant case admittedly, on the basis of "Mrs. Neelam Yasmin Abbasi's case (supra) the relevant date would be 12-4-2013 when the resignation of respondent No.1 was accepted by the Government of Pakistan. We, therefore, find that as at the relevant date respondent No.1 was still the Chairman of NAVTTC and as we have also held that being the Chairman of NAVTTC amounts to be in service of Pakistan and/or a body wholly owned or controlled by the Government, therefore, respondent No.1 is disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament). In other words the candidature of respondent No.1 is hit by the provisions of Article 63(1)(d) and (e) read with Article 63(1)(k) of the Constitution.

8. In view of the above we do not deem it necessary to dilate upon the other contentions raised by the learned counsel for the appellants.

9. Under the circumstances, these appeals succeed and the impugned order dated 5-4-2013 is set aside. The name of respondent No.1 be accordingly deleted from the list of validly nominated candidates for NA-66 Sargodha-III.

10. Copies of this order be sent to the learned District Returning Officer and the Returning Officer concerned for information and necessary action. KMZ/M-181/L Appeal allowed.