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Constitutional Petition No. 152 of 1981, decided on 14th March, 1983.

‑‑ S. 37 (2)‑‑Sind Civil Servants Act (XIV of 1973), S. 2 (b)‑Elec tion‑Local Council ‑Words "salaried person in the service of Pakistan" in S. 37 (2) of Ordinance‑Intended to extend scope of person who would be disqualified from being a Member of a Local Council‑Definition of civil servant' given in S. 2 (b), Civil Servants Act, 1973 cannot be referred in order to interpret S, 37 (2) (b) of Sind Local Council Ordinance, 1979.

‑‑‑ S. 37 (2)‑Provisional Constitution Order (1 of 1981), Art. 9 Election‑Local Council‑Operator in S C A R P an ad hoc department of Government contesting election within two years of leaving service‑Election as Member of Local Council challenged on account of his being a salaried person‑ Election Tribunal dismissing election petition holding him not disqualified within purview of section 37 (2)‑Held, person in service of S C A R P a Government department of Province although an ad hoc depart ment, held, not qualified to contest election or to become Member of Council‑Fresh election ordered in circumstances.

Mukhlesur Rehman v. Sub‑Divisional Officer, Narayanganj P L D 1962 Dacca 497, Province of East Pakistan v. Golam Jahandar Sharif P L D 1967 Dacca 14 and Lai Mohammad v. Mohammad Usman and others 1975 S C M R 409 rel.

S. Ali Aslam Jaferi for Petitioner.

M. Mohammad Hanif Mangi for Respondents.

Date of hearing : 14th March, 1983.

The Petitioner has impugned the order dated 13th October, 1981 passed by the learned IInd Additional District Judge, Khairpur and the Election .Tribunal Khairpur in Election Petition No. 839/1980 dismissing the present Petitioner's Election Petition.

The relevant facts leading to the filing of the above petition are that the petitioners and respondent No. 1 contested Local Council Election from Unit No. 8 of Town Committee Therhi of Taluka Khairpur on 28th November; 1980. It seems that respondent No. 1 secured 275 votes against the petitioner who obtained only 254 votes. Consequently, the respondent No. 1‑ was declared as elected. The petitioner being aggrieved by the above declaration filed the afore said Election Petition in which it was inter alia contended that respon dent No. 1 being a salaried person in the service of Pakistan was disqualified ‑in terms of section 37 (2) of the Sind Local Government ordinance, 1979 (hereinafter referred to as the Ordinance). The above petition was resisted by respondent No. 1 and inter alia it was averred that‑he was not in service of the Government of Pakistan nor in the service of any statutory body but was employed as a tube‑well operator in "SCARP on work charged basis. The learned Election Tribunal dismissed the above election petition holdi0g that respondent No. 1 was not disqualified within the purview of the above section of the Ordinance.

The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the above petition Mr. Ali Aslam Jaferi learned counsel for the petitioner has contended that the learned Election Tribunal has misconstrued section 37 (2) (d) inasmuch as admittedly respondent No. 1 was a salaried person in the service of Pakistan whereas Mr. Mangi learned Counsel for respondent No. 1 has urged that the interpretation placed by the learned Election Tribunal is in consonance with the pro vision and that with no stretch of imagination the respondent No. 1 could be held to be in service of Pakistan within the purview of the above section Mr. Mangi has relied upon clause (b) of section 2 of Sind Civil Servants Act, 1973 (hereinafter referred to as the Act) in support of his above contention. On the other hand Mr. Ali Aslam Jaferi has referred to the case of Mukhlesur Rehman v. Sub‑Divisional Officer, Narayanganj (P L D 1962 Dacca 497) and the case of Province of East Pakistan v. Golarn Jahandar Sharif (P L D 1967 Dacca 14). He also referred to the definition of phrase salary' given in the law Terms and Phrases by Sardar Mohammad Iqbal Mokal, First Edition.

3. In order to appreciate the above contention it may be advanta geous to reproduce hereinbelow section 37 (2) (d) of the Ordinance and section 2 (b) of the Act, Section 37.‑(2) A person shall be disqualified from being elected as and from being a member if.

(d) he is a salaried person in the service of Pakistan or in the service of a statutory body or two years have not elapsed since his retirement or removal from such service.

Section 2, clause (b) "civil servant" means a person who is member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include :

(i) a person who is on deputation to the Province from the Federation or any other Province or Authority or

(ii) a person who is employed on contract, or on work charged basis or who is paid from contingencies or

(iii) a person who is "worker" or "workman" as defined in the Fac tories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act (VIII of 1923).

It may be noticed that under section 37 (2) (d) a person is disqualified from being elected as and from being a member of ( ) the is a salaried person in the service of Pakistan which includes the Provincial service or in the service of a statutory body or two years have not, elapsed since his retirement or removal from such service, whereas it may further be noticed that under section 2 (b) of the Act, a civil servant has been defined a person who is a member of civil service of the province or holds a civil post in connection with the affairs of the province but excludes inter alia a person who is employed on contract or on work‑charged basis. It has been vehmently urged by Mr. Mangi that in view of the exclusion of a person employed on work‑charged basis from the definition of civil servant given in section 2 (b) of the Act, the respondent No. I cannot be held to be a. civil servant in order to attract section 37 (2) (d) of the Ordinance. In our view we cannot refer to the definition of Civil Servant given in section 2 (b) of the Act in order t interpret section 37 (2) (d) of the Ordinance as under the later provision the words used are "salaried person in the service of Pakistan" and no a civil servant. It is apparent that by using the words "salaried person" the Legislature intended to extend .the scope of the person who would be disqualified from becoming a Member of Local Council otherwise it was simple to put the word civil servant' in clause (d). The rulings relied upon by Mr. Ali Aslam Jaferi may be referred in this regard. In the first case a Division Bench of the Dacca High Court while construing the word salary' with reference to Article 3 (28) of the Basic Democracies Order had made following observation.

"We do not think that the word "salary" in the said Article has been used in such a technical, narrow and restricted sense as Mr. Pal wants us to hold. The plain meaning of the word is "any recompense for work done". Can it be said that during the months when a Government servant was on leave without pay he could not be described as an official within the meaning of the said Article and was therefore, eligible for an appointment as a member during the period when he was on such leave To hold so would, according to us, lead to an absurd result. Therefore the expression ‑who is in receipt of salary" must, of necessity mean and include a person who, being still in service (although doing no work at a particular moment) in relation either to the Federation or to Province or to a Local Body normally receives a payment or is in the habit of receiving such payment. All such persons will come within the category of person who "is in receipt of salary", although for some limited interval he may not be physically in receipt of such salary, which is a continuing process with some casual and limited interruptions. The expression "salary ' is co‑related to the term "service" or being to service" and postulates habit or a recurring procedure".

3. This view was reiterated by the Dacca High Court in the second case cited. We are in respectful agreement with the view found favour with the learned Judges of the Dacca High Court in the above cases. We are, therefore, inclined to hold that the view found favour with the learned Election Tribunal cannot be sustained in law. Admittedly respondent No. 1 was in service of SCARP, which is a Government Department of the Province of Sind though it may be an ad hoc department. It is also an admitted position that respondent No. 1 contested the election within .two years from the date of leaving the above service. In this vie of the matter the respondent No. 1 was not qualified to contest the election or to become the Member of the Council because of the embargo imposed by section 37 (2) (d) of the Ordinance. It was next contended by Mr.. Mangi that in any case the petitioner cannot be declared as an elected member and' a fresh election is to be ordered. In support of the above contention he has referred to the case of Lal Muhammad v. Muhammad Usman and others (1975 S C M R 409), in which it was held that in a case in which the successful candidate was declared as disqualified the proper course would be to order fresh election and not to declare as elected the candidate who obtained the next highest number of votes. We are inclined to agree wit C Mr. Mangi to this contention. We would therefore, quash the order of Election Tribunal and would declare that respondent No. 1 was disqualified of being a Member of the Council on the day when he was elected and we would order fresh election. However, we may observe that in case the period mentioned in section 37 (2) (d) of the Ordinance has expired, respondent No. 1 shall be at liberty to participate in the fresh election. In the circumstances of the case there will be no order as to costs.

Petition accepted.

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