NOOR MUHAMMAD vs MUHAMMAD ABDULLAH AND 7 OTHERS

ORDER

' ASLAM RIAZ HUSSAIN, J.-The petitioner seeks leave to appeal against the judgment of the Lahore High Court, dated 18-3-1984, dismissing his writ petition against the order of the Election Tribunal, Faisalabad.

2. The facts giving rise to the petition, briefly, are that the petitioner, who was a candidate in the election for a seat in Zilla Council (Electoral Unit No, 28) in Faisalabad, filed his nomination papers before the Returning Officer. Respondent No. 1 objected to the same, on the ground that the petitioner was a Government servant. The objection was, however, rejected. As such the petitioner as well as respondent No. 1, alongwith some others contested the election on 28-9-1983. The petitioner secured the highest number of votes (i. e. 3,643), while respondent No. 1 got 3,013 votes.

The petitioner was consequently declared as elected.

3. Respondent No. 1, feeling aggrieved, filed an election petition, inter alia, on the ground that being a Government servant, on the day of the election, the petitioner was disqualified to contest the election.

4. The facts on which the election petition was based were that the petitioner was a Zilladar in the Provincial Department of Irrigation. He remained absent from duty since 29-7-1981. He was dismissed from service on 19-10-1983 with effect from 29-7-1981, but on appeal the Chief Engineer, Irrigation, Faisalabad, by his order dated 23-1-1984, in exercise of his powers under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, altered the order of dismissal to that of removal from Government Service with effect from the actual date of absence (i. e. 29-7-1981).

5. The petitioner challenged the order of Election Tribunal before the High Court through a writ petition. Before the High Court it was urged on his behalf that the Government had the power to terminate the service of its employees with retrospective effect and as such he stood removed from service w. e. f. 27-7-1981. This contention was, however, repelled on the basis of the contrary view taken by the Lahore High Court in Province of Punjab v. Khaliq Dad Khan , and the writ petition was dismissed.

' Hence the present petition.

6. Before us the main contention urged on petitioner's behalf was that since according to his service record the petitioner had been removed from service w. e. f. 29-7-1981 (i. e. From a date prior to the election-day) his disqualification therefore stood removed retrospectively and as such his election was valid. This contention is wholly misconceived and overlooks the fact that on the day of election, .i. e. On 28-9-1983, no order of his dismissal or removal had yet been passed by the Government. Obviously, therefore, on that date he was in Government service. The result is that irrespective of the fact as to whether or not the Government was legally empowered to remove him from service with retrospective effect, he was disqualified from contesting election on the date when it is actually held. As such his election was rightly held by the Election Tribunal to be void. In this view of the matter we find no merit in the petition, which is consequently dismissed. PLD 1953 Lah. 295