P L D 1997 Peshawar 137 (PLP)

(a) Representation of the People Act (LXXXV of 1976)‑‑‑ ‑‑‑‑Ss. 14(5) & 68‑‑‑Constitution of Pakistan (1973), Arts.225 & 199‑‑ Rejection of petitioner's nomination papers by Appellate Tribunal‑‑‑Petitioner's nomination papers to contest National Assembly seat were rejected by Election Tribunal on the ground that he having served as Assistant Advocate‑General was deemed to be Government servant and his services having been terminated on the eve of election, he was not competent to contest election‑‑‑Such rejection challenged in Constitutional petition‑‑‑Maintainability‑‑‑On account of rejection of petitioner's nomination paper and grounds highlighted in S.68, Representation of the People Act, 1976 for declaring election of returned candidate to be void, legal remedy of invoking jurisdiction of Election Tribunal, to be appointed at appropriate stage, through election petition would not be available to petitioner, therefore, Constitutional petition would be maintainable in circumstances. Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, N.A.158, Naushero Feroze and others 1994 SCMR 1299 and Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 rel. (b) Representation of the People Act (LXXXV of 1976)‑‑‑ ‑‑‑‑S. 14(5) & 68‑‑‑Constitution of Pakistan (1973), Arts. 260, 140, 111 & 199‑‑‑Criminal Procedure Code (V of 1898), S.495‑‑‑Rejection of petitioner's nomination papers to National Assembly seat on the ground that he having served as Assistant Advocate‑General till 6‑2‑1997, was not competent to file nomination papers or to contest said election‑‑‑Terms and conditions of petitioner's service and service rendered by him in office attached to Government Department would lead to inescapable conclusion that he had been in service of Pakistan, therefore, not competent to contest elections ‑‑‑Reasons disabling petitioner to file nomination papers and to contest election highlighted and illustrated. Petitioner was appointed in BPS‑20 against a regular post in connection with the affairs of the Province to which salary and allowances were attached and he was debarred from private practice. The terms and conditions of his service and the service rendered by him in an office attached to the Law and Parliamentary Affairs Department lead to the inescapable conclusion that he has been in the service of Pakistan which according to Article 260 of the Constitution would mean any service, post or office in connection with the affairs of the Federation or of a Province. On the plain language of the definition of the expression "service of Pakistan" contained in Article 260 there would be no difficulty in holding that the exemption envisaged by it was available only to the Advocate‑General and not to an Assistant Advocate -General. The rationale was that the Advocate‑General was appointed by the Governor under Article 140 of the Constitution and holds an office under the Constitution during the pleasure of the Governor while an Assistant Advocate General was appointed by the Governor/Provincial Government against an available post in BPS‑

20. Besides, under Article 111 of the Constitution the Advocate‑General has the right to speak and take part in the proceedings of the Provincial Assembly or any committee thereof of which he may be named a member. The post of an Assistant Advocate‑General thus could not be equated with the office of the Advocate‑General. In view of the well‑settled principles of interpretation of Statutes the expression 'Assistant Advocate‑General' having not been used in the definition of the expression "service of Pakistan" could not be read into it. Besides, had the intention of the Legislature been that the expression 'Advocate‑General' would include 'Assistant Advocate‑General' it would have been spelled out in the definition of the expression "service of Pakistan" itself as has been mentioned in explicit words against‑ the expression 'Speaker' that it includes person acting as the Speaker of the Assembly. The definition of the expression 'Advocate‑General' given in the Code of Criminal Procedure was restricted to the scope of that Code and could not explain or modify any provision of the Constitution or add to it that which was not there. PLD 1994 SC 60; 1995 CLC 158 and Maxwell on Interpretation of Statutes ref. (c) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑ ‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Arts.260 & 199‑‑‑Constitutional petition‑‑‑Eligibility of petitioner to become Member of Bar Council‑‑‑Such eligibility would not give new dimension to definition of expression "Service of Pakistan". (d) Representation of the People Act (LXXXV of 1976)‑‑‑ ‑‑‑‑S, 14(5)‑‑‑Constitution of Pakistan (1973), Arts.63(1)(k) & 199‑‑ Constitutional petition‑‑‑Petitioner's appointment as Assistant Advocate‑General on basis of contract‑‑‑Petitioner could not draw any premium from such technicality for nature of his appointment could neither stand in the way of application of Art.63(1)(k) of the Constitution nor could off‑set its effect, which would be applicable to regular, temporary as well as contractual employees‑‑ Petitioner was, thus, disqualified from being elected as Member of National Assembly under Art.63(1)(k) of the Constitution‑‑‑Judgment rendered by Election Tribunal rejecting petitioner's nomination papers was unexceptionable in circumstances. Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang‑IV and 2 others PLD 1994 SC 60 ref. Saadat Hussain, Dy. A.‑G. (on Pre‑admission Notice). ORDER This writ petition calls in question the Constitutional validity of the judgment dated 7‑3‑1997 of the learned Appellate Tribunal, constituted under the Representation of the People Act, 1976 for hearing and disposal of appeals filed against the orders of the Returning Officer Constituency No.NA‑1, Peshawar‑1 rejecting/accepting nomination papers, whereby on acceptance of the appeal preferred by the respondent Haji Ghulam Ahmad Bilour the nomination paper of the petitioner Muhammad Khurshid Khan was rejected.

2. The petitioner was appointed as Assistant Advocate‑General on 23‑10‑1994 and his services were terminated on 6‑2‑1997. Sometime thereafter he filed nomination papers for election to the National Assembly Constituency No.NA‑1, Peshawar‑1 which was terminated during the General Elections 1997 owing to the death of a contesting candidate. At the time of scrutiny of his nomination paper one of the candidates Haji Ghulam Ahmad Bilour raised an objection to the effect that he was disqualified from being elected as a Member of the National Assembly of Pakistan under Article 63(1)(k) of the Constitution as he had been in the service of Pakistan and a period of two years had not elapsed since he ceased to be in such service. The objections was overruled by the Returning Officer on the ground that the candidate having served as Assistant Advocate‑General on the basis of contract was not a civil servant within the contemplation of section 2(b)(ii) of the N.‑W.F.P. Civil Servants Act, 1973. However, the objection prevailed before the learned Appellate Tribunal and consequently the nomination paper of the petitioner was rejected.

3. Before adverting to the question of disqualification of the petitioner it will be pertinent to point out that in the face of rejection of his nomination paper and the grounds highlighted in section 68 of the Representation of the People Act, 1976 for declaring election of the returned candidate to be void the legal remedy of invoking the jurisdiction of the Election Tribunal to be appointed at the appropriate stage, through an election petition would not be available to the petitioner, therefore, this writ petition is maintainable in view of the A observations made in Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer, NA.158. Naushero .Feroze and others (1994 SCMR 1299) and is not hit by the ratio of the judgment reported as Election Commission of Pakistan through its Secretary v . Javaid Hashmi and others (PLD 1989 SC 396) that generally in an election process the High Court cannot interfere by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution.

4. Qazi Ehsanullah Qureshi, learned counsel for the petitioner assailed the impugned judgment from different angles and in the process raised the following contentions:‑‑ (i) According to Article 260 of the Constitution the expression "service of Pakistan" used in Article 63(1)(k), does not include service as Advocate‑General. The expression "Advocate‑General" has not been defined in the Constitution. However, an Assistant Advocate‑Genera performs the same functions which are performed by the Advocate General and according to the definition contained in section 4(1)(a) of the Code of Criminal Procedure the expression 'Advocate‑General includes a Government Advocate or, where there is no Advocate General or Government Advocate, such officer as the Provincial Government may, from time to time appoint in this behalf. The expression 'Advocate‑General mentioned in Article 260 of the Constitution thus includes an Assistant Advocate‑General and as such petitioner is entitled to the protection envisaged by Article 260 of the Constitution (ii) The post of an Assistant Advocate‑General does not fall, within the ambit of service of Pakistan as its holder continues to be an advocate and is eligible to contest election to the Bar Council and the office of the Advocate‑General functions independently. (iii) The provisions of Article 63 (1) (k) of the Constitution are not applicable to the petitioner as he was appointed as Assistant Advocate General on contract basis.

5. As against the above contentions Qazi Muhammad Anwar, learned counsel for Haji Ghulam Ahmad Bilour, argued that the provisions of Article 63(1)(k) of the Constitution were fully attracted as the petitioner having been appointed against a post carrying BPS‑20 had been in the service of Pakistan till 6‑2‑1997. He further argued that the exemption envisaged by Article 260 of the Constitution is available only to the Advocate‑General who is appointed by the Governor under Article 140 and not to an Assistant Advocate General who is appointed by the Provincial Government. It was also argued that. an Assistant Advocate‑General does not perform the same functions which are performed by the Advocate‑General as the latter has the right to speak and otherwise take part in the proceedings of the Provincial Assembly or any committee thereof which he may be named a member under Article 111 of the Constitution. It was next argued that the office of the Advocate‑General does not function independently as under the Government of N.‑W.F.P. Rules of Business, 1985 it is an attached department of the Law and Parliamentary Affairs Department. It was lastly argued that it was immaterial whether the appointment of the petitioner was on regular or contract basis. Reliance was placed on PLD 1994 SC 60 and 1995 CLC 158.

6. The petitioner was appointed as Assistant Advocate‑General on contract basis by the Provincial Government on 23‑10‑1994. The order of his appointment is worded thus:‑‑ "GOVERNMENT OF NORTH‑WEST FRONTIER LAW DEPARTMENT Dated Peshawar the 23rd October, 1994. No. (G&D)2‑13191/VOI.VII/B.‑‑The Provincial Government is pleased to appoint (Mr. Muhammad Khurshid Khan, Advocate, as Assistant Advocate‑General (Grade B‑20) North‑West Frontier Province, against the existing vacancy with effect from the date of his assuming charge of the post. The aforesaid appointment is on contract basis, liable to termination at any time without notice or without assigning reason. The incumbent shall be entitled to BPS‑20 plus usual allowances as admissible under the rules to an Assistant Advocate‑General. He shall not be allowed private practice/Legal Advisorship of any kind. He shall not be paid any fee for the opinion to the Provincial Government of the N.‑F.W.P. (Sd. ) (SALIM KHAN), SECRETARY TO GOVERNMENT OF N.‑W.F.P. LAW DEPARTMENT."

7. The above order makes it manifest that the petitioner was appointed in BPS‑20 against a regular post in connection with the affairs of the Province to which salary and allowances were attached and he was debarred from private practice. The terms and conditions of his service and the service rendered by him in an office attached to the Law and Parliamentary Affairs Department led to the inescapable conclusion that he has been in the "service of Pakistan" which according to Article 260 of the Constitution means any service, post or office in connection with the affairs of the Federation or of a Province. On the plain language of the definition of the expression service of Pakistan contained in Article 260 there is no difficulty in holding that the exemption envisaged by it is available only to the Advocate‑General and not to an Assistant Advocate General. The rationale is that the Advocate‑General is appointed by the Governor under Article 140 of the Constitution and holds an office under the Constitution during the pleasure of the Governor while an Assistant Advocate General is appointed by the Governor Provincial Government against an available post in BPS‑

20. Besides, under Article 111 of the Constitution the Advocate‑General has the right to speak and take part in the proceedings of the Provincial Assembly or any committee thereof of which he may be named a member. The post of an Assistant Advocate‑General thus cannot be quoted with the Office of the Advocate‑General. In any event in view of the well‑settled principles of interpretation of statutes the expression 'Assistant Advocate General' having not been used in the definition of the expression 'service of Pakistan' cannot be read into it. Besides, had the intention of the Legislature been that the expression 'Advocate‑General' shall include 'Assistant Advocate General' it would have been spelled out in the definition of the expression "service of Pakistan" itself as has been mentioned in explicit words against the' expression 'Speaker' that it include person acting as the Speaker of the Assembly. The definition of the expression 'Advocate‑General' given in the Code of Criminal Procedure is restricted to the scope of that Code and cannot explain or modify any provision of the Constitution or add to it that which is not there. In this context the following excerpt from Maxwell on the Interpretation of Statute may be reproduced advantageously:‑‑ "It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. Lord Mersey said: 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do'. We are not entitled said Lord Loreburn L.C., to read words into an Act of Parliament unless reason for it is to be found within the four corners of the Act itself."

8. As regards the eligibility of the petitioner to become a Member of the Bar Council it would suffice to say that it cannot give a new dimension to the definition of the expression 'service of Pakistan'.

9. It is true that the petitioner was appointed as Assistant Advocate -General on the basis of contract but he cannot draw any premium from this technicality as the nature of an appointment can neither stand in the way of the application of Article 63(1)(k) of the Constitution nor can off‑set its effect. It is nowhere mentioned in the said provision of the Constitution that it shall not apply to a contractual employee, therefore, it goes without saying that it applies to regular, temporary as well as contractual employees. Similarly the benefit of the protection envisaged by the definition of the expression 'service of Pakistan' has not been extended to contractual employees. It was observed in Syeda Abida Hussain v. Tribunal for N.A.69, Jhang‑IV and 2 others (PLD 1994 SC 60) that the definition 'service of Pakistan' does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus, so far as the inclusion of a post in the service of Pakistan is concerned it is immaterial whether the holder therefore has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act.

10. The eventual outcome of the above discussion is that the petitioner is disqualified from being elected a member of the National Assembly tinder Article 63 (1) (k) of the Constitution and the impugned judgment is unexceptionable. This writ petition is, therefore, dismissed in limine alongwith C.M No.588/97 A.A./2120/P Petition dismissed.