P L D 1957 (W (PLP)

ABDUL AZIZ KHAN, J.‑

This order will dispose of Writ Petition No. 587 of 1957, which has arisen in the following circumstances. Nawab Sajjad Ali Khan (petitioner) was elected a Member of the Provincial Assembly of West Pakistan (to be hereinafter referred to as the Assembly) in 1955. During the proceedings of the Assembly, on the 5th of February 1951, a Member of the Assembly raised a point of order that the petitioner had incurred a disqualification within the meaning of Paragraph 4 (1) (c), Part 11 of the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan by reason of the petitioner's appointment as Lambardar of village Kot Sondha, District Sheikhupura, by the Commissioner, Lahore Division, vide his order dated the 19th of December 1956. The Speaker of the Assembly referred the matter to the Election Commission, as required by clause (2) of Article 78 of the Constitution. The Election Commission held that the office of Lambardar being an "office of profit in the service of Pakistan" the petitioner had incurred a disqualification under Paragraph 4 (1) (c) of Part 11 of the Fourth Schedule to the Constitution from the date of his appointment as Lambardar, i.e., 19th of December 1956. As a result of the above finding of the Election Commission, the Speaker of the Assembly, by Notification No. 17, dated the 8th of May 1957, which was published in a Gazette Extraordinary of West Pakistan, declared that the seat held by the petitioner had become vacant. Feeling aggrieved by the aforesaid Notification, the petitioner has come up to this Court under Article 170 of the Constitution praying that a direction be issued to the Speaker of the Assembly and the Election Commission to the effect that the petitioner has not incurred any dis qualification and, therefore, continues to be a Member of the Assembly. The petitioner was admittedly appointed Lambardar of village Kot Sondha on the 19th of December 1956, and the question for determination is whether the office of Lambardar held by the petitioner is "an office of profit in the service of Pakistan," within the meaning of Paragraph 4 (1) (c), Part 11 of the Fourth Schedule to the Constitution. Paragraph 4 which deals with disqualifications reads :‑ "(1) A person shall be disqualified for being elected or for being member of the National Assembly or a Provincial Assembly‑ (a) * * * * (b) * * * * * (c) if he holds any office of profit in the service of Pakistan ; (d) * * * * (e) * * * * In order to attract the disqualification contemplated by the Paragraph, it is necessary to show, firstly, that the petitioner held an office of profit and, secondly, that he held such office in the service of Pakistan. It cannot be denied that the office of a Lambardar is an office of profit, but, in our opinion, it cannot be held to be an office "in the service of Pakistan" for the following reasons:‑ The expression "office of profit in the service of Pakistan" has to be construed strictly in the light of the relevant provisions of the Constitution. The expression "office of profit" has not been defined in the Constitution. The expres sion "service of Pakistan" has, however, been defined in Article 218 of the Constitution as follows :‑ "'Service of Pakistan' means any service or post in connection with the affairs of the Federation or of a Province, and includes any defence service, and any other service declared as a service of Pakistan by or under an Act of Parliament or of a Provincial Legislature, but does not include service as Governor‑General, President, Governor, Speaker or Deputy Speaker, of the National or a Provincial Assembly, Minister of the Federal or a Provincial Government, Minister of a State or Deputy Minister of the Federal Government, Deputy Minister or Parliamentary Secretary of a Provincial Government, Judge of the Supreme Court or a High Court, or Comptroller and Auditor‑General ; and 'servant of Pakistan' shall be con strued accordingly." The office of Lambardar is not covered by the above) definition. It is significant that Articles 180, 181 and 1821 of the Constitution, which deal respectively with tenure of office," "dismissal and disciplinary matters" and "recruitment and conditions of service" cannot by any stretch of law or logic be held to apply to the office of a Lambardar. In order to appreciate the nature of the office of a Lambardar, it will be advantageous to refer to the following paras. of Sir James NT. C. Douie's Land Adminis tration Manual :‑ Paragraph 204. "The unit of revenue administration in the Punjab is the estate or mahal, which is usually identical with the village or Mauza. Of these estates, large and small, a Tahsil, as a rule, contains from two to four hundred. Each of them is separately assessed to land revenue which it is the business of the Deputy Commissioner to collect, and has a separate record of rights and register of fiscal and agricultural statistics, which it is his duty to maintain. All its proprietors are by law jointly responsible for the payment of its land revenue, and in their dealings with Government they are represented by one or more headmen or Lambardars." Paragraph 305. "In the last two chapters the strong body of Government servants, of which the Deputy Com missioner is the head, has been described. It is a powerful piece of administrative machinery, but, as links between the higher officers and the communities for whose welfare they are responsible, its inferior members have the defects which belong to purely official agency. They have there fore been supplemented by representatives of the landowners in the shape of village headmen, inamdars and Zaildars. Paragraph 306. "It is obviously convenient for the State to deal with bodies like village communities through headmen. The internal affairs of such communities used to be, and in some places still in a measure are, managed by informal councils or panchayats. But these have fallen into decay, and in any case their constitution was too loose for them to serve as intermediaries between the rulers and the landowners. The Sikh Government, like our own, found it useful to have such intermediaries. The chaudris and mukaddims through whom it dealt with the people corresponded roughly with our Zaildars and Lambardars," Paragraph 307. "The headmen of a village act on behalf of the landowners, tenants and other residents in their relations with the State. The above paragraphs shows clearly that a Lambardar is merely an unofficial link between the landowners and the officers of the State, and that he represents the landowners and not the State. Lambardars are appointed under section 28 of the Land Revenue Act. Under Land Revenue Rule 15, the following matters have to be considered, among others, in the appoint ment of. a Lambardar :‑‑ (1) his hereditary claim ; (2) extent of property in the estate possessed by the candidate ; (3) services rendered to the State by himself or his family ; (4) his personal influence, character, ability and freedom from indebtedness ; and (5) the strength and importance of the community from which a selection of a headman is to be made. It does not require any comment that the above con siderations do not prevail in appointment to any of the offices in the services of Pakistan. Land Revenue Rule 16 provides that a Lambardar is liable to be dismissed for the following grounds :‑ (1) Loss of the status of landowner in the estate ; (2) poverty ; (3) neglect of duty ; and (4) crime. It is important to note that the grounds (1) and (2) given above do not hold good in the case of the dismissal of a servant of the State. Rule 3.13 (b) of the Civil Services Rules (Punjab) Volume I, Part I, provides :‑ "A Government servant cannot be appointed substantively except as a temporary measure, to two or more permanent posts at the same time." If a Lambardar were held to be an officer in the service of Pakistan, he would be disqualified from holding any other substantive post under the Government and vice versa We are not aware of any legal bar to a Government servant being appointed a Lambardar or a Lambardar being appointee to a substantive post under the State. The learned Additional Advocate‑General was also unable to draw our attention to any such legal bar. A child or an infant cannot be appointed to a post it the service of Pakistan. But an infant can be appointed as a Lambardar on the claim of heredity even though he has to act through a Sarbarah. A person in the service of Pakistan cannot act by a substitute. The Land Revenue Rules, however, allow the appointment of a "Sarbarah Lambardar" in certain circum stances. Yet another argument in favour of the view that a Lambardar is not in the service of Pakistan is that a Lam bardar is not remunerated from the public exchequer. Hi; emolument, "pachotra," is a surcharge of 5 per cent of the land revenue collected from the landowners from time to time Such surcharge is not deposited into the treasury; Lambardar, retain it after collection. In the Jhelum Muhammadan Constituency case, 1937, Major Malik Nawab Talib Mehdi Khan v. Khan Bahadur Raja Muhammad Akram Khan (Ind. Election Cases 1935‑51, by S. B. Sen and M. G: Podder, page 424.) the respondent's election was impugned by the petitioner on the ground that the respondent was disqualified from being chosen as and for being a member of the Assembly under section 69 of the Government of India Act, 1935, because he having been appointed by the Financial Commissioner as the manager of an estate under the management of the Court of Wards, was the holder of an "office of profit under the Crown in India." The respondent contended that he did not hold an "office of profit under the Crown in India" because his salary was paid out of the funds of a private estate and not out of the general revenues of India. It was held that the words "office of profit under the Crown" indicated that the profit must come from the Crown. In view of this finding, the Comm ission dismissed the petition. In the Calcutta South Case (Hammand page 259), it was held that the Chairman of the Calcutta Corpora tion was not an "official" within the meaning of the Government of India Act, 1919, as his salary was paid out of Municipal funds, even though the was appointed by the Government at its discretion. The Rule which was inter preted in that case was as follows :‑ "The holder of any office in the Civil or Military service of the Crown if the office is one which does not involve both the following incidents, namely, that the incumbent‑ (a) is a whole‑time servant of Government, and (b) is remunerated either by salary or fees, shall not be treated as an official for any purposes of the Government of India Act." In Mangal Sain v. The State of Punjab and another (A I R 1952 Pb. 58.) the Punjab Government appointed the petitioner as Executive Officer of the Municipal Committee. Ambala, under sub section (9) of section 3 of the Punjab Municipal (Executive Officer) Act, 1931. Some time later the Government ordered the removal of the petitioner under subsection (7) of sec tion 3 of the Act. The petitioner went up to the High Court for the issue of a writ under Article 226 of the Constitution of India alleging that the order passed by the Government, removing him from the office of Executive Officer, Municipal Committee, Ambala, contravened the mandatory provisions of Article 301 of the Constitution of India, inasmuch as he had not been given reasonable oppor tunity to show cause against his removal from that office, In view, inter alia, of the fact that the remuneration of the petitioner was payable from the Municipal funds under sub section (6) of section 3 of the Punjab Municipal (Executive Officer) Act, it was held that the petitioner who was appointed and removed by the State Government did not hold a civil post under the State. The following observations, at page 61 may be usefully reproduced :‑ "A person may be the servant of another although a third party has the power of appointing or dismissing him or of requiring his dismissal, or has powers of direction and control in regard to his work, or pays him his wages." The ratio decidendi of the above cases also applies to the present case. Relying on Rule 20 of the Land Revenue Act, the learned Additional Advocate‑General argued that a Lambardar performs important duties auxiliary to the regular officers of the State and that a Lambardar falls within the definition of a public servant in section 21 of the Penal Code. The argument lacks force. Whereas a Lambardar may exercise important functions and is a public servant within the meaning of section 21 of the Penal Code, it does not mean that he is an officer "in the service of Pakistan". The learned Additional Advocate‑General further argued that the office of Lambardar had been specifically mentioned in the West Pakistan interim Legislative Assembly (Removal of Disqualifications) Ordinance (I of 1956) and the West Pakistan Provincial Assembly (Removal of Disqualifications) Ordinance (VIII of 1956), as an "office of profit in the service of Pakistan".' The mere fact that the office of Lambardars was included in the above Ordinances does not, in our opinion support the proposition that the office of Lambardar is in fact an "office of profit in the service of Pakistan." Id appears that the office of Lambardar was included in the above Ordinances either as a matter of abundant caution, to F remove all doubts or possibly through a misinterpretation off the relevant constitutional provision. In any case this fact is not binding on us so as to influence the view we have taken of the interpretation of the expression "office of profit in the service of Pakistan". From what has been stated above, it, will be readily appreciated that the method of appointment of the officers referred to in the Constitution and the method of appoint ment of Lambardars, which is made under section 28 of the Land Revenue Act, are wholly different. Similarly the rules regarding the dismissal and retirement of officers in the service of the State are totally different. Moreover, a Lambardar's source of remuneration is different from that of a person "in the service of Pakistan. For the reasons given above, we; hold that a Lambardar is not the holder of an "office of profit in the service of Pakistan" within the meaning of Paragraph 4 (1) (c), Part II of the Fourth Schedule to the Constitution, and that the petitioner consequently continues to be a Member of the Provincial. Assembly of West Pakistan. We accordingly direct that he shall be treated as a Member of the aforesaid Assembly. The petition is accepted. No order as to costs. KAYANI J.‑

The idea of a Lambardar being "in the service of Pakistan" is so novel that its advocates deserve all the credit due to novelty. But I have a suspicion that they have been so attracted by the words "office of profit" in the disqualification clause that the subsequent words "in the service of Pakistan"' have escaped their attention. In a broad sense, a person may be said to be serving the country if lie collects land revenue‑to say nothing of entertaining revenue officials‑bur then we do not say that he is in the service of the country. Apart from the generally accepted meaning of the term service, the expression "service of Pakistan" has been used in the Constitution to "meal:" (see Article 218) "any service or post in connection with the affairs of the Federation ear of a Province, and includes any defence service . . . .The word "means" denotes that the definition is exhaustive. But lest it be argued that a lambardar is a "post" in connection with the affairs of a Province, I propose referring to the exact provisions of the Constitution where the expressions "service", "post" and affairs of the Federation or of a Province" have been used in the same context, It will be noticed that the definition covers five categories: (1) any service in connection with the affairs of the Federation, (2) any service in connection with the affairs of a Province, (3) any post in connection with the affairs of the Federation, (4) any post in connection with the affairs of a Province, and (5) any defence service. Now Part X of the Constitution deals with "The Services of Pakistan", and Article 179 of this Part uses the expression "service of Pakistan" in the following contexts "

179. No person who is not a citizen of Pakistan shall be eligible to hold any office in the service of Pakistan: (2) Except as expressly provided by the Constitution, the appointment and conditions of service of persons in the service of Pakistan may be regulated by Act of the appropriate legislature." After reading this Article, we should have no doubt that it applies to the civil or defence services as we commonly understand them, for example, the Provincial Civil Service the Income‑tax Service, the Agriculture Service, the Civil Medical Service, the Army. The Lambardari of a village has never been understood as a service in that sense, or in any sense. Then we come to Article 180. "180.

Except as expressly provided by the Constitu tion‑ (a) Every person who is a member of a defence service, or of a Civil service of the Federation, or of an All‑Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President; and (b) every person who is a member of a civil service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in paragraph (a) of this Article, shall hold office during the pleasure of the Governor." It will be noticed that the expression "service of Pakistan" does not occur here, and Mr. Mahmud has consequently argued for the State that while Article 180 caters for the ordinary civil or defence services and posts, Article 179 is general in character and enjoys the amplitude of all benevolent activities, whose benevolence is rewarded by an office of profit being attached to it. One does begin to wonder why the general title of Part X‑"Services of Pakistan"‑spoken of thrice in Article 179, is suddenly replaced in Article 180 by other expressions, and it was for this reason that 1 pointed out earlier that the definition consists of five specific categories. It will be noticed that Article 180 makes the offices of the Federation dependent on the pleasure of the President and those of the Provinces dependent on the pleasure of the Governor. These two kinds of offices or posts have, therefore, to be described separately, and Article 180 puts three of these categories in one class and two in the other. The three categories which depend on the President's pleasure are (1) civil services of the Federation including All Pakistan Services, (2) defence services including posts connect ed therewith, and (:) civil post "'s connected with the affairs o' the Federation. The two categories which depend on the Governor's pleasure are (1) the civil services of a Province and (2) civil posts in connection with the affairs of a Province. It is thus manifest that Article 180 had of necessity to specify the services and posts which were included in the service of Pakistan", an expression with which the first Article of Part X, Article 179, opens. Next comes Article 181, which is as follows:‑-- "181.‑(1) No person who is a member of a civil service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a. Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." It is unnecessary to reproduce the Proviso. Here again, it was necessary to specify the services and posts separately because it was intended to exclude the defence services from the benefits of this Article, and if the general expression "service of Pakistan" had been used, it would have included the defence services also. It is inconceivable that Article 179 should have started with providing conditions for service in abroad sense, inclu ding the post of a Lambardar, but that in the rest of the chapter that broad meaning should have been totally forgotten and provision as to appointment, dismissal and conditions of service should have been made only in respect of persons holding posts in ordinary civil and defence services of the country. If that were so, the only object of Article 179 would have been to ensure that persons in the general service" of the State, like Lambardars, should be citizens of Pakistan, and as regards other conditions of service, it did not matter if they were dismissed without a reasonable opportunity being given to them to defend themselves. I have, therefore, no doubt that the Constitution did) not intend to include a Lambardar in the service of Pakistan. A. H. Petition accepted.