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Writ Petition No. 93 of 1961, decided on 19th October, 1961.

‑'Instructions' issued instead of rules'‑‑ Instructions' invalid only if they run counter to provisions of Order‑ Instructions' issued on 14th December 1959 that defeated candidate should riot be appointed' member of Union Council‑Petitioner appointed member on 26dh September, 1960‑Subsequently removed from membership in compliance with Instructions'‑Removal, held, in order‑Could not be questioned on ground that provisions of Art. 25 (2) had not been satisfied.

D. M. Awan for Petitioner.

Nemo for Respondent.

Dates of hearing : 18th and 19th October, 1961.

This petition by Nazir Hussain Shah, a resident of village Ghaus Bakhsh, Tehsil Khanewal, District Multan, has been presented to get an order from this Court which would render inoperative the order of the Collector, Multan dated the 27th of December 1960, whereby the petitioner was removed from his membership of Union Council No. 108 (Nori Sohag), Tehsil Khanewal, District Multan.

2. Briefly the relevant facts are these. The petitioner contested election to Union Council No. 108 but remained un successful. However, on the 26th of September 1960, long after the result of the election had been declared, the District Magistrate, Multan, appointed him as a member of that Union Council. On the 1st of December 1960, a notice was served on the petitioner by the Collector, Multan to show cause why his name should not be removed from the membership because having been unsuccess ful in the election he could not have been appointed as a member of the same Union Council. The petitioner sent in his explanation which was not accepted by the Collector. It may be mentioned here that the Collector who served on the petitioner the notice and passed the order removing him from membership was the success of the Collector who had appointed the petitioner as a member.

3. Learned counsel for the petitioner urged that having been appointed a member by the Collector of Multan, who was the Controlling Authority for the purposes of that appointment, under Article 21 of the Basic Democracies Order. 1959, (President's Order No. 18 of 1959) the petitioner could not have been removed from his membership unless his case fell within the ambit of clause (2) of Article 25 of the Basic Democracies Order, 1959, and as that clause was not satisfied, the removal of the petitioner was without jurisdiction.

4. If clause (2) of Article 25 of the Basic Democracies Order, 1959, were the only provision that could have been invoked for removing the petitioner from his membership the contention of learned counsel for the petitioner would have been unassailable. We find, however, that on the 14th of December 1959, instructions were issued by the Provincial Government which said amongst other things that persons who bad been defeated at elections should not be appointed as members. These instructions were conveyed to all the Deputy Commissioners in the Province through letter No. XIX 1/1‑59‑1 (E) dated the 14th of December 1959, which issued from the Secretary to Government, West Pakistan, Health, Welfare and Local Government Department. With regard to these instructions, the contention of learned counsel for the petitioner was that they could not be acted upon in the relevant regard because they mentioned a ground for disqualification from becoming a member and therefore, added to Part 11 of the Second Schedule of the Basic Democracies Order which mentions the grounds which would disqualify a person from becoming a candidate or member of a Basic Democracy. We are not prepared to accept this contention because it appears to us that the instruc tions could be issued as a rule under Article 89 of the Basic Democracies Order, 1959, and would be invalid only if they ran counter to any of the provisions of the Basic Democracies Order, 1959. Nothing has been mentioned in the Basic Demo cracies Order, 1959, with regard to the qualifications which persons who are appointed members of Basic Democracies should have. We are, therefore, not prepared to accept the contention of learned counsel for the petitioner that the instructions under consideration In the present case would amount to amending the Basic Democ racies Order, 1959. Article 89 of the Basic Democracies Order, 1959, is in the following terms: ‑

"(1) The Government may make rules to carry out the purposes of this Order.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in the Sixth Schedule, and all matters incidental, consequential and supplemental thereto."

The language employed in the Article is very comprehensive and unless a rule made by the Provincial Government goes counter to any provision of the Basic Democracies Order, 199, it could not be deemed to be ultra vires. We might mention that for the purposes of the rules to be framed for the Province of West Pakistan, excluding Karachi, the rule‑making authority was the Provincial Government and that it was that authority that had issued the instructions.

5. At the time when the petitioner was appointed a member after he had been defeated in the election to the same Union Council, the rule which prohibited the appointment as a member of a person defeated at an election existed and, therefore, the appointment was void from the beginning. If the Collector of the district, who was the controlling authority, had just called upon the petitioner to desist from attending meetings of the Union Council on the ground that he could not be considered a member the order would not have been open to any serious objection. In the present case, the controlling authority served a notice on the petitioner to show cause why he should not be removed from membership and after finding that the petitioner had failed to secure membership by means of an election directed that he could not continue to be an appointed member of the Union Council, the electors of which had not chosen to elect him as a member.

6. For the reasons given above, we find no force in the writ petition and dismiss it, but as no one appeared to oppose the petition we pass no order as to costs.

A. H.

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