NOOR MUHAMMAD vs THE MEMBER ELECTION COMMISSION, PUNJAB And Other

ORDER

1. NASIM HASAN SHAH, J.-- The petitioner's nomination papers for election to the Provincial Assembly PP-85 District Faisalabad were rejected, on appeal, by the learned Member Election Commission vide order, dated 27-1-1985. This order was challenged by a writ petition (W.P. No. 367 of 1985) which was dismissed in limine by the order, dated 29-1-1985, impugned before us.

2. The facts, which form the background, are that the petitioner was serving as a Zilledar in the Irrigation Department. He was dismissed from service by the order of the Superintending Engineer, dated 19-10-1983 but it was directed in the said order that it will take effect from 29-7-1981. On appeal, the said order was modified by the Chief Engineer vide order, dated 23-1-1984 to the extent that the order of dismissal from service was converted to that of removal from service. However, the direction contained in the order of the Superintending Engineer that the removal from service would take effect from 29-7-1981 was maintained. In these circumstances, the question has arisen whether the petitioner stands disqualified from being elected or chosen as a Member of the Provincial Assembly.

3. The provision governing the situation is section 10(2)(b)(3) of the House of Parliament and Provincial 4ssemblies (Elections) Order, 1977, which reads as under:- "S.10(2)-- A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament.---

(a) ...........................................................

(b) if (1)...........................................................

(2) ............................................................

(3) he has been removed or compulsorily retired from service of Pakistan on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or

(4) ...........................................................

(5) ...........................................................

4. (6)------------------------------------------..--- It may be mentioned that the petitioner had earlier on filed nomination papers for elections to the Local Council, which were held on 28-9-1983. Here to he was found to be disqualified and the order of the election authorities was maintained right up to the Supreme Court of Pakistan vide judgment reported in Noor Muhammad v. Muhammad Abdullah and others 1984 SCMR 1578. The relevant portion of the said judgment may be reproduced below:- "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.

5. 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."

6. Both the learned Member of the Election Commission and the learned Judges of the High Court, have in the present case, relied upon the above judgment to hold the petitioner to be disqualified.

7. The learned counsel for the petitioner contended before us that in the aforesaid judgment no final opinion was expressed by this Court on the question whether the Government was empowered to remove him with retrospective effect and whether the order, dated 19-10-1983 which purported to take effect from 29-7-1981 was not a valid order.

8. Be that as it may, the law is quite clear that an order of a departmental authority cannot be made to operate retrospectively because no executive authority is vested with such powers unless expressly empowered in this behalf by the rules, which is not the case here. Hence the order of dismissal/ removal could take effect only from that date when it was passed. See Province of Punjab v. Khan Khaliq Day Khan PLD 1953 Lah. 295 and Dr. Muhammad Abdul Latif v. The Province of East Pakistan and others PLD 1964 Dacca 647. Consequently, the petitioner must be deemed to be in service until 19-10-1983 and simply because the order passed on that date stated that it would take B effect from 29-7-1981 would not have the effect of making the order to take effect from the said date but it would be deemed to take effect from the date on which it was actually passed, namely, from 19-10-1983.

9. The learned counsel for the petitioner, however, submitted that the vires of the order, dated 19-10- 1983 passed by the departmental authorities in a service matter could not be questioned in collateral proceedings like an appeal before the election authorities.

10. This contention to has no force. This Court in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 clearly observed:- "It is now well-established that where an inferior tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognises a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an at is a nullity; that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case, it is well- established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."

11. The order of the Superintending Engineer, dated 19-10-1983 purporting to give retrospective effect to his order with effect from 29-7-1981 was patently unlawful and, in fact, void in the relevant regard. Hence it could not be given effect and the Election Commission could refuse tot accept and perpetuate it.

12. There is, thus, no force in this petition which fails and is, accordingly, dismissed hereby.

13. M . Z . M.