P L D 2006 Lahore 13 (PLP)

MUHAMMAD MUZAMMAL KHAN, J.

Petitioners filed nomination papers. as a panel to contest the local bodies elections for the office of Nazim and Naib Nazim of Union Council 29 Mallana Duggar, Tehsil Kalurkot, District Bhakkar, which were objected by respondent No.2 on the ground that petitioner No.1 (Muhammad Iqbal) was an employee of LDA/WASA. The Returning Officer overruled the objection and accepted nomination papers after scrutiny on 31-7-2005. Respondents No.2 filed an appeal before the learned District Returning Officer re-emphasizing his objection, where he succeeded as his appeal was accepted and nomination papers of the petitioners were rejected vide appellate order dated 3-8-2005. Petitioner thereafter filed instant Constitutional petition praying that appellate order rejecting their nomination papers may be annulled and they may be permitted to participate in the local bodies elections. This Court after notice to the respondents vide interim order dated 10-8-2005 permitted the petitioners to contest/participate in the last held elections subject to the result of the present petition.

2. We have heard the learned counsel for the parties and have examined the record, appended herewith. Disqualification of petitioner No.1 (Muhammad Iqbal) in terms of section 152(1)(g) of the Punjab Local Government Ordinance, 2001 would have ousted him had he been in service of any statutory body or a body controlled by any Government Federal/Provincial or in which any of such Governments has a controlling share or interest except the holders of elected public office and. part time officials remunerated either by salary or fee and disqualification would not apply to the person who had resigned or retired from such service six months earlier to the election. Petitioners' nomination papers were rejected on the basis of office order dated 17-1-2005 issued by WASA/LDA to the effect that Muhammad Iqbal petitioner was appointed as F.O. on work charge basis at the rate of Rs.3000 per month for 89 days. Petitioner No.1 joined service and on his request, he was appointed as A.F.I again on work charge basis for another 89 days till 3-7-2005 and this time he was employed at the rate of Rs.2900 per month.

3. Petitioner also produced before us a certificate issued by the Deputy Director Revenue (N.T.) WASA/LDA, Lahore, certifying that he was appointed as work charge field operator on contract basis and he was not allowed allowances of conveyance, house rent etc. admissible to regular employees. Since nature of service of petitioner No.1 was undeniably on work charge basis on contract without entitlement to any kind of allowance or other vested rights/benefits of service, he was not a regular employee. There is nothing on the file to show that the work charge employment of the petitioner was ever confirmed. He remained with WASA/LDA on two occasions, once as F.O. on salary of Rs.3000 per month, for 89 days i.e. 10-1-2005 to 3-7-2005 and for the second time as A.F.I again for 89 days, vide office order No.DDR(NT)-708-13 B dated 17-6-2005.. Prima facie, petitioner No.1 was not a regular employee of WASA/LDA and his tenure as work charge employee each time remained short of 90 days and he was not confirmed in service. Tentatively, he was not disqualified to contest the election. Since determination of his disqualification requires holding of detailed trial and recording of evidence which exercise is not permissible within Constitutional jurisdiction of this Court, as per judgments The Province of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636) up-to date, including the case of Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, C Peshawar and others (1993 SCMR 618) and since the petitioners have succeeded in the elections and their result has already been notified, we dispose of this petition allowing the petitioners to continue in office and permitting the respondents to challenge their election, if they so wish, on the basis of pre-election disqualification through a petition under Rule 76 of the Punjab Local Government Election Rules, 2005, where-under such a petition is maintainable before the Election Tribunal concerned.

4. For the reasons noted above, this petition is disposed of with no order as to costs. M.A.W./M-1359/L Order accordingly.