1998 PLP 425 (SCMR)

Laws Cited

Representation

• Qazi Muhammad Jameel, Advocate Supreme Court, Qazi Ehsanullah, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.
• Nemo for Respondents.
• Date of hearing: 31st March, 1997.
• ----Arts. 185(3), 63, 140, 260 & 199---Petitioner's services as Assistant Advocate-General having been terminated, he filed nomination papers for contesting election to National Assembly---Returning Officer overruled objections against eligibility of petitioner---Election Tribunal, however, rejected nomination papers of petitioner---Petitioner's Constitutional petition against rejection of his nomination papers was also dismissed---Validity---Appointment of petitioner was against existing vacancy, of permanent post having monetary benefits in the shape of salary and privileges of B.P.S. 20---Office of Assistant Advocate-General was office of profit connected with affairs of Province---Post of Assistant Advocate-General could not be equated with Advocate-General which was Constitutional appointment under Art. 140 of the Constitution---Article 260 of the Constitution specifically granted protection by excluding said Office from service of Pakistan---Election Tribunal and High Court through impugned judgment had arrived at sound and proper findings---No infirmity in the judgment of High Court in rejecting petitioner's nomination paper having been pointed out, leave to appeal was refused.
• Qazi Muhammad Jameel, Advocate Supreme Court, Qazi Ehsanullah, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
• 2. Petitioner was appointed Assistant Advocate-General on 24th October, 1994. His services were terminated on 6th of February, 1997. Sometime thereafter, the petitioner for contesting elections to National Assembly from Constituency NA-I, Peshawar, filed nomination papers. During scrutiny, a rival contestant namely Haji Ghulam Muhammad Bilour objected to eligibility of petitioner for contesting said election on account of disqualifications contained in Article 63(1)(k) of the Constitution. The objection was over-ruled by Returning Officer, holding that petitioner had performed functions as Assistant Advocate-General on the basis of contract, therefore, his employment did not fall within the purview of section 2(b)(ii) of the N.-W.F.P., Civil Servant Act, 1973. The decision of Returning Officer was challenged before Election Tribunal by way of appeal which was accepted, thereby rejecting nomination papers filed by the petitioner. Aggrieved from said order, petitioner had preferred CPSLA No.180/1997 which was not entertained for want of jurisdiction. The petitioner then filed Writ Petition No.496/1997 before Peshawar High Court which after hearing arguments was eventually dismissed on 17th March, 1997. The abovereferred judgment of High Court has been assailed through present petition.
• 3. Qazi Muhammad Jameel, ASC, greatly stressed the petitioner was neither civil servant nor held office of profit in the service of Pakistan, therefore, was not affected by disqualifications contained in Article 63 of The Constitution. Learned counsel urged that Assistant Advocate-General performs, professional duties for defending the State against payment of retainership without suspension of his practising licence. Besides, his functions are similar to that of Advocate General or Additional Advocate General, therefore, he could not be disqualified from contesting election. It was vehemently contended that service of petitioner could not be construed as an office of profit in service of Pakistan. However, the protection irrespective of such connotations available to Advocate-General under Chapter-V, Article 260 of the Constitution must be equally extended to Assistant Advocate-General. To supplement his arguments, for elucidating "performance of functions in connection with affairs of Federation of Province" and 'service of Pakistan' and justifying petitioner's eligibility to contest election of National Assembly, reliance was placed on the judgments reported in (i) PLD 1975 SC 244 (Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others) (ii) PLD 1994 SC 60 (Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang-IV and 2 others) and (iii) PLD 1997 SC 32 (Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others).
• 4. We have carefully considered the arguments advanced by learned counsel for petitioner in the light of precedents relied upon by him and relevant law. It is an admitted feature of the case that, petitioner 'Was appointed against existing vacancy, on permanent post of Assistant Advocate-General with effect from 23rd October, 1994 on contractual basis, terminable without notice or assigning any reason. Petitioner by virtue of said appointment obviously became entitled to salary and benefits admissible to an officer placed in BPS 20. Consequently, petitioner has been drawing his salary, house rent and other benefits from Provincial Government during 24-10-1994 till 6th February 1997 for performing his duties. There is no doubt that this Court while deciding case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32) has ruled that only such persons were disqualified from being members of the Parliament who while performing duties in the service of Pakistan, held office of profit. Distinction has been drawn amongst those who though performed service of Pakistan, yet were not holding any office of profit. Similarly, consequences with regard to disqualification for election regarding person connected with the affairs of Federation or Province and holding office of profit, has also been elaborately dealt with in case of Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang-IV and 2 others (PLD 1994 SC 60). The Court has opined that irrespective of contractual appointment of Syeda Abida Hussain as Amassador she could not be excluded from the category of person covered by service of Pakistan or holding office of profit, therefore, was disqualified to contest election for a period of two years from relinquishing charge of said post.
• 5. Thus, pivotal question requiring consideration would be, whether or not the petitioner during his appointment as Assistant Advocate-General was holding office of profit connecting with the affairs of State. Undisputedly, petitioner throughout his tenure of office had received salary and other benefits attached to the post of Assistant Advocate-General, Peshawar. Learned counsel attempted to argue that payment of salary etc., was comparable to retainership from performing professional obligation, therefore, would not debar petitioner from contesting election. We do not find any force in this contention. Appointment of petitioner was against existing vacancy, of a permanent post having monetary benefits in the shape of salary and privileges of BPS-20. This is clearly an office of profit connected with affairs of Province. The post of Assistant Advocate General cannot be equated with Advocate-General which is a Constitutional appointment under Article 140 of the Constitution. Besides, Article 260 of the Constitution specifically grants protection by excluding said office from service of Pakistan. It is pertinent to mention that omission in the Constitution provisions cannot be supplied by drawing analogies as rightly held in the impugned judgment. With respect, it is observed that actually precedent cases relied upon by the petitioner do not help his cause, rather the ratio decidendi in both these reported judgments lead to the conclusion that a person holding office of profit attached to the affairs of Federation or Province even on contractual basis unless expressly exempted by the specific provisions of the Constitution stands disqualified from election under the provisions of Article 63 of the Constitution. Election Tribunal and Peshawar High Court through the impugned judgment have arrived at sound and proper findings. We find no infirmity in the judgment of the learned High Court. Leave to appeal is, therefore, refused and petition dismissed.

Headnotes / Summary

Judgment & Decree