1993 PLP 2489 (MLD)

SH. IJAZ NISAR, J.‑‑‑Syeda Abida Hussain filed nomination papers for contesting election to the National Assembly from NA‑69 Jhang‑IV. On an objection raised by Makhdoom Syed Faisal Saleh Hayat, a rival candidate, the learned Returning Officer vide order, dated 1‑9‑1993 rejected her nomination papers on the grounds:‑‑ (a) that she was disqualified to contest election within the meaning of Article 63(k) of the Constitution of Islamic Republic of Pakistan 1973 and section 99‑i(k~ of the Representation of the People Act, 1976 as she had been in the service of Pakistan as Ambassador of Pakistan to Washington, U.S.A. and a period of two years had not elapsed since she ceased to be in that service; and (b) that her husband Syed Fakhar Imam had obtained a loan from I.D.B.P. for Kabirwala Dairy Limited as its Director and had not repaid the same within the stipulated period.

2. Feeling aggrieved, Syeda Abida Hussain has filed this appeal under section 14(5) of the Representation of the. People Act, 1976 before this Tribunal.

3. It is contended that since the appellant had been employed on contract basis, she was not a civil servant within the meaning of Civil Servants Act, 1973 and was thus not disqualified to contest the election, that the Returning Officer at the time of scrutiny under section 14 of the Representation of the People Act, 1976 was required to see only whether the candidate was qualified to be elected as a member and could not go into the question of disqualifications. According to him, disqualification as provided by Article 63(i)(k) referred to above applied to regular civil servants and not to the persons employed on contract basis He has produced a certificate issued by the Ministry of Foreign Affairs stating that the appellant was not a member of the foreign service of Pakistan and had been employed on contract.

4. On the question of the appellant's husband being a loan defaulter, it is contended that he owned 8.33 per cent shares only in Messrs Kabirwala Dairy. Limited, which had been sold to Milk Pack Limited on 20‑9‑1989 with the approval of the I.D.B.P. In consequence, the latter had released the person guaranty of the appellant's spouse and had faxed a message on 1‑9‑1993 to the Chief Election Commissioner and the Returning Officer categorically declaring that he was not personally laible for the loan obtained by Messrs Kabirwala Dairy Ltd.

5. The appellant has not denied her appointment as Ambassador of Pakistan to Washington, U.S.A. vide letter No.Estt.(1B)‑1/59/91, dated 28th October, 1991 in BPS‑

22. It is also an admitted fact that she served as such from 26‑i1‑1991 to 20‑4‑1993. As per terms and conditions of the contract, her services were liable to termination by the Government in the case of breach of provisions as laid down in the Government Servants (E&D) Rules, 1973. The letter for her appointment contained the following general condition:‑‑ "In respect of any matter for which no provision had been made in this letter, the provisions of the Government Servants, (Conduct) Rules, Official Secrets Act, Civil Services (Classification, Control and Appeal) Rules or any other rules made thereunder, the Fundamental and Supplementary, Rules and the Civil Service Regulations or any other Rules or orders issued from time to time shall apply to the extent are applicable to the service hereby provided for and the decision of the Government as to their applicability shall be final."

6. Article 63(i)(k) of the Constitution provides that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis‑e‑Shoora (Parliament), if he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service. Similarly under section 99(1‑i)(k) of the Representation of the People Act, 1976, a person is disqualified from being elected as and from being member of an Assembly if he has been in the service of Pakistan unless a period of two years has elapsed since he ceased to be in the service. The word "Service of Pakistan" has been defend in the Constitution of Pakistan in Article 260 as under:‑‑ "Service of Pakistan means any service, post or office in connection with the affairs of the Federation or of a Province and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Parliament or of a Provincial Assembly but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Chairman or Member of Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly." Having regard to the definition of expression "service of Pakistan" as given in the Constitution, it is undeniable that the post held by the appellant in view of the nature of her duties fell squarely within the meaning of Articles 240 and 260 of the Constitution, for, it was a whole time job and she performed such functions as were assigned to her by the Federation of Pakistan. The assertion, made on behalf of the appellant that she was not a civil r servant being a contract employee, is without any significance. Civil Servants Act, 1973 excludes persons employed on contract from the definition of "Civil A Servant" because their terms and conditions are not regulated by the said Act but by the contract executed between them and the Government. Employment on contract basis is one of the methods of appointment and does not exclude persons employed as such from the purview of service of Pakistan. The definition of civil servant as given in the Civil Servants Act, 1973 cannot be applied to the case in hand because obviously the said definition must be restricted to the scope of the Statute in which it occurs. Furthermore the connotation of a Civil Servant as used in the said Statute and the phrase "person in the service of Pakistan" is not synonymous.

7. The certificate, produced by the appellant from the Ministry of Foreign Affairs that she was not a member of the foreign service of Pakistan, does not help her in any manner. Foreign Service of Pakistan is one of the 8 occupational groups of service and a separate method of appointment to it, is provided by the Establishment Division. To be an Ambassador, it is not necessary that one should be a member of the Foreign Service. Since the post of Ambassador is not visualized in the Constitution, it would be referable to the provisions of Article 240 of the Constitution dealing with the service of Pakistan. It is manifest that the post of Ambassador is a post in connection with the affairs of the Federation and the holders of such posts would be treated to be in the service of Pakistan. 7‑A. Holders of the Constitutional and elective posts, created by the Constitution, do not fall in the category of persons in the service of Pakistan but since the appellant was not holding an office created by the Constitution C and dealt with by it, she would be deemed to be in the service of Pakistan falling within the mischief of Article 63(k) of the Constitution of Pakistan.

8. We have considered the contention of the learned counsel for the appellant that the Returning Officer was required to look into the qualifications of the candidates only and not the disqualifications but do not find any force in it. The qualifications and disqualifications for contesting the election to the Parliament are interlinked and are to be read conjunctively and not in isolation. The candidate, who intends to contest the election is to satisfy the Returning Officer that he is qualified to be elected as a member of the Assembly and does not suffer from any disqualification. He is also required to make a declaration to this effect while submitting the Nomination Form. The appellant too had made the said declaration.

9. It would not be out of place to refer here to the case of Mr. Ghulam Muhammad Mustafa Khar reported in P L D 1877 Journal, 299 wherein he was held to be disqualified to contest the election as he had been in the service of Pakistan as Special Assistant to the Prime Minister and two years had not elapsed since he ceased to be in that service. The said order was passed by the Election Commission of Pakistan on an appeal filed by Nawabzada Nasrullah Khan against the acceptance of the Nomination papers of Mr. Ghulam Muhammad Mustafa Khar by the Returning Officer.

10. Since the appellant being an Ambassador was on the pay‑roll of the Government and was a whole time employee serving in connection with the' affairs of Federation, she was in the service of Pakistan and disqualified to contest the election. Her nomination papers were, therefore, rightly rejected by the Returning Office. We uphold his order to this extent and dismiss her appeal.

11. As regards the other ground for the rejection of the nomination papers of the appellant viz. non‑payment of the outstanding loan by her spouse to the I.D.B.P., we do not accept the same to be a valid ground because of the message sent to the Returning Officer by the I.D.B.P. that Syed Fakhar Imam was no longer a Director of Messrs Kabirwala Dairy Limited and not personally liable for the repayment of its loan. It is stated at gar on behalf of the appellant that an objection to this effect was also raised before the Returning Officer at the time of scrutiny of nomination papers of the appellant's spouse which was rejected and he has been allowed to contest the election.

12. In view of the above discussion, we hold that the appellant having been in the service of Pakistan and a period of two years having not elapsed' since she left the said office stands disqualified to contest the forthcoming election. The appeal is disposed of in the above terms. A.A./84/E Order accordingly.