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Writ Petition No. 814 of 1982, decided on 11th May; 1:9824

‑‑S. 21 (f)‑Election‑Civil servant‑Continuity of service‑Civil servant entitled to resign his service and deemed to be out of his job either on completion of period of resignation or when requisite amount in lieu of notice paid.‑[Civil service].

Ghulam Muhammad v. State 1981 C L C 234 ref.

‑‑S. 21 (f) [as amended]‑Election‑Civil servant‑Resignation‑Petitioner resigning his service by depositing one month's pay in lieu of one month's notice under rules‑Not a civil servant on date of his nomination particularly when his resignation formally accept ed‑Amendment of S. 21 (f) of Ordinance‑Retrospective and enforced during pendency of election petition and before Tribunal disqualified petitioner‑Order of disqualification, held, not lawful. [Civil service]

‑‑S. 21 (f)‑‑Election‑Election Tribunal not acting lawfully nor advancing intention and purpose of law in setting aside election of petitioner‑Order of Tribunal set aside.‑[Civil service)].

Malik Abdus Sattar Chughtai for Petitioner.

Malik Noor Muhammad for Respondent No. 2.

Date of hearing : 11th May, 1982.

‑The petitioner challenges the order dated 1fi‑2‑1982 passed by the Election Tribunal by which he set aside his election on the grounds that he being a Government employee was disqua lified on the date of his nomination and his nomination, papers were also not in order.

2. Briefly, the facts of this case are that the petitioner submitted his nomination papers on 9‑9‑1979 for a minority‑seat of Municipal Commi ttee, Bhakkar. The nomination papers were scrutinized on 15‑9‑1979. The election was held on 2‑10‑1979. The petitioner secured 84 votes as against 47 of respondent No. 2.

3. Feeling aggrieved respondent No. 2 filed an election petition on 6‑10‑1979 mainly on two grounds referred to in the impugned order. The case of the petitioner was that he had already designed on 5th May, 1979, from his Government post, held under the Assistant Commissioner, Bhakkar. The resignation is said to have been accepted, in fact, by the Assistant Commissioner on 9‑9‑1979. He, however, sent it up to the Deputy Commissioner for formal orders which were passed on 15‑9‑1979. The learned counsel relies on an amendment brought about in section 21 (f) of the Punjab Local Government Ordinance, 1979, whereby the previous disqualification was set at naught and the member allowed to continue in office.

4. It is contended by the learned counsel for the petitioner, that as a matter of fact the petitioner had submitted his resignation on 5‑9‑1979 from his Government post, the was fully qualified to contest he election for which he submitted his nomination paper on 9‑9‑1979. He also relies on the case of Ghulam Muhammad v. State (1981 C L C 234) to say that the date of resignation is the date, of being out of the concerned service.

5. It is to be noticed firstly, that a civil servant is entitled to resign his service, and he would be deemed to be out of his job either on the completion of the period of resignation or if he has paid the requisite amount in lieu of the notice. In the case in hand, the petitioner had tend ered his resignation and also deposited one month's pay in lieu of notice, under the rules. Consequently, he was no longer a civil servant, on the date of his nomination and particularly, when the resignation was in fact formally accepted on 9‑9‑1979 by the Assistant Commissioner. An excep tion may, however, be made only in cases where the service is governed by the Pakistan Essential Services (Maintenance) Act, 1952 but the same does. not apply to the case in hand.

6. Even otherwise, the amendment of section 21 (f) of the Local Government Ordinance, 1979 was with retrospective effect and as the same was even enforced during the pendency of the election petition and before the Tribunal disqualified the petitioner, the impugned order is no lawful.

7. As for the alleged defect in the nomination papers, it has been pointed out that the seconded did admit before the Returning Officer that it was his thumb impression. Not only that he also axed another thumb impression before him. Further, the petitioner had secured 84 votes as against 47 of the respondent. Keeping all the circumstances in view, therefore. we do not think that the election tribunal had either acted law fully or advanced the intention and purpose of law in setting aside the election.

8. In view of the above the impugned order is declared to have been passed without lawful authority and of no legal effect, with the result that E the petitioner shall be deemed to be still holding his seat.

9. That parties are left to bear their own costs.

M. Y. H. Petition accepted.

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