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Petitioner: Haji AMANULLAH KHAN VS Respondent: Sahibzada TARIQULLAH and 2 others
Court Name: Election Tribunal Judge(s): Qazi Muhammad Farooq Title: Haji AMANULLAH KHAN vs Sahibzada TARIQULLAH and 2 others Case No.: Election Civil Appeal No,574 of 1992 Petition No, 24 of 1993 Date of Judgment:1994-10-02 Reported As: 1995 CLC 158 Result: Petition accepted
JUDGMENT
JUDGMENT ' Sahibzada Tariqullah, respondent No,1 herein, is a sitting member of the Provincial Assembly of the N.-W.F.P. He was elected as such from constituency No,PF-73 Dir-I in the General Elections held on 9-10-1993. His election has been questioned by one of the defeated candidates, Haji Amanullah Khan, on the ground that he was disqualified from being elected as a member as he had been in the service of Afghan Refugees Organization, a body controlled by the Government of N.-W.F.P., and had contested the election before the expiry of a period-of two years since he ceased to be in such service. 2. The election giving rise to this petition was contested by four candidates of whom the returned candidate had obtained 13617 votes, the petitioner had secured 11148 votes while the remaining two candidates Muhammad Rashid and Laiq Said had secured 2430 and 203 votes respectively. 3. The election petition filed by the petitioner not only highlights the disqualification from which the respondent suffered at the time of filing his Nomination Papers but also encompasses the history of service rendered by him in the Afghan Refugees Organisation N.-W.F.P. It discloses that the respondent was appointed as Village Administrator in Grade-16 in the Afghan Refugees Organisation pursuant to an order of the Governor, N.-W.F.P. Which was communicated to the Commissioner Afghan Refugees N.-W.F.P. By the Secretary, Home and Tribal Affairs Department. He was promoted to Grade-17 by the Governor, N.-W.F.P. On 5-9-1982 and was appointed as Area Administrator by the Commissioner Afghan Refugees, N.-W.F.P. Vide office order dated 27-9-1982. Thereafter, he started making efforts for earning further promotion and in that context his brother Sahibzada Fatahullah wrote a D.O., letter on 19-1-1988 to the then Chief Minister, N.-W.F.P. Who in turn directed the Secretary, Home and Tribal Affairs Department to put up a summary to him for
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the purpose but the then Commissioner Afghan Refugees, vide letter dated 4-3-1988, expressed his inability to recommend him for further promotion on the ground that many officers senior to him were still awaiting promotion. However, the Deputy Secretary, Chief Minister's Secretariat vide his letter dated 31-1-1990 requested the Secretary, Home and Tribal Affiars Department to implement the orders of the Chief Minister as a result of which he was promoted to Grade-18 vide a Notification dated 18-3-1990 issued by the Secretary, Home and Tribal Affairs Department and posted as District Administrator, Dir. Subsequently on the recommendation of the Commissioner, Afghan Refugees he was granted 45 days ex-Pakistan leave by the Government of N.-W.F.P. Home and Tribal Affairs Department on 3-6-1991 to enable him to accompany his parents to Saudi Arabia for the performance of Haj. He had submitted resignation which was accepted by the Government of N.-W.F.P. On 3-5-1993 and resultantly he had relinquished the charge of the post of District Administrator, 'Afghan Refugees, Dir on 31-5-1993. 4. The relief claimed by the petitioner is short and simple. He has prayed that an order may be made declaring the election of Sahibzada Tariqullah to be void and declaring him to have been duly elected. 5. Sahibzada Tariqullah filed his written statement on 27-1-1994 wherein he admitted having served in the Afghan Rtfugees Organisation as Village Administrator initially and as District Administrator later up to 31-5-1993 but strenuously resisted the petition by taking the stance that he was not disqualified from being elected as a member of the Provincial Assembly N.-W.F.P. As he was employed, appointed and promoted purely on temporary basis on contract terminable on one month's notice on either side or payment of one month's pay in lieu of the notice and that he had not resigned but his services were retrenched w,e,f, 31-5-1993 and that the Afghan Refugees Organisation was a purely humanitarian Organisation financed by International Aid-Giving Agencies and it was neither a body controlled by the Government of 'N.-W.F.P. Nor its employees were civil servants. He further contended that the petition was liable to be dismissed summarily as the copy of the petition received by him was not accompanied by any Annexure and this omission constituted a clear breach of the procedure for trial of election petitions laid down under section 62 of the Representation of the People Act, 1976. He also took exception to the "Annexures" to the election petition on the ground that the same had not been verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and as such the petition was liable to be dismissed under section 63 of The Representation of the People Act, 1976. He further contended that the petitioner was estopped by his conduct to file the petition because he had neither raised any objection at the time of the scrutiny of his nomination papers nor had filed an appeal against the acceptance of his nomination papers. 6. The averments of the parties were embodied in the following issues: (1) Whether the petitioner failed to comply in letter and spirit with the rules framed under section 62 of the Representation of the People Act, 1976, if so, its effect? (2) Whether none of the Annexures to the election petition has been verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and as such the petition is liable to dismissal under section 63 of The Representation of The People Act, 1976? (3) Whether the petitioner is estopped from filing this election petition? (4) Whether the Afghan Refugees Organisation N-.W.F.P. Is a body controlled by the Government of N.-W.F.P.? (5) Whether the respondent Sahibzada Tariqullah was, a District Administrator in the Afghan Refugees Organisation, N.-W.F.P. Until 31-5-1993 and before the lapse of the requisite period of two years since he ceased to be in such service had contested election to the N.-W.F.P. Provincial Assembly from Constituency No,PF-73 Dir-I and as such was disqualified from being elected as a member under Article 63 (k) of the Constitution of the Islamic Republic of Pakistan?
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(6) Relief. Issue No,1: 7. The procedure for trial of election petitions was laid down by the Election Commission of Pakistan, in exercise of the powers conferred by subsection (1) of section 62 of the Representation of the People Act, 1976, vide Notification No,F-1(7)85-CORD dated 16th March, 1985. The rules relevant to the controversy incorporated in this issue are worded thus: "(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block 'S', Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and the affidavits annexed to the petitioner have been supplied to the respondent. (2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly. ' Notice of the date published through the press, radio and television shall be deemed to be a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do so." 8. It was contended by the learned counsel for the contesting respondent that the petition was liable to be dismissed straightaway as the petitioner had not supplied copies of its "Annexures" to the respondent. The contention has no substance inasmuch as the certificate enclosed with the petition makes it manifest that the copies of the "Annexures" were sent by the petitioner to all the respondents through Registered Post Acknowledgment Due. The certificate is supported by an affidavit, therefore, the affidavit of the respondent supporting the contents of the writte statement cannot make the credentials of the petitioner doubtful. Besides, the election petition has been referred for trial to the Election Tribunal, therefore, there is a strong presumption that the procedure laid down by Rule 1 was complied with in letter and spirit. In any event the objection cannot be raised at this stage because the scope of Rule 2 is restricted to the power of the Secretary, Election Commission of Pakistan to decline to entertain an election petition which does not meet the requirements of Rule-1 and cannot be stretched so as to empower the Election Tribunal to invoke its provisions. This issue is, therefore, decided against, respondent No,1. ISSUE NO.2: 9. The objection reflected in this issue stems from subsection (3) of section 55 of the Representation of the People Act, 1976 which provides that every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings as well as clause (a) of section 63 ibid which lays down that the Tribunal shall dismiss the election petition if the provisions of section 55 have not been complied with, It was contended by the learned counsel for the respondent that the petition was liable to be dismissed under clause (a) of section 63 of the Representation of the People Act, 1976 as the petitioner had singularly failed to comply with the provisions of subsection (3) of section 55. 10. The procedure for verification of the pleadings is contained in Order 6, Rule 15, C.P.C. Which envisages that every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is true that the petitioner has only signed and attested the accompaniments of the petition and has not verified the same in accordance with the procedure laid down by Order 6, Rule 15, C.P.C., but this omission is not fatal as it is now well settled that omission to verify or defective verification is a mere irregularity which does not affect the merits and can be allowed to be made good at any stage of the proceedings. Besides, the objection has now become redundant as the relevant Annexures have since been admitted into evidence through statements of witnesses made on oath and the respondent in his statement has not
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questioned their authenticity. In any case the omission complained of cannot assume appalling proportions for the short reason that the "Annexures" attached to the petition only augment the allegations made in the petition and do not spell out any additional or independent allegation. It was held in Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175) that non-verification of the annexures attached to the election petition is not fatal to the election petition if the same do not make any additional allegation of substantive character or furnish better particulars of the allegations made in the petition. This issue is, therefore, decided against respondent No,1. ISSUE NO.3: 11. The evidence available on record in regard to the presence of the petitioner at the time of scrutiny of the nomination papers is discrepant in that while the petitioner has admitted in his statement that he was present the Returning Officer Said Ghafoor Shah (R.W.1) and one of the contesting candidates Muhammad Rashid Khan (R.W.3) have struck a discordant note in their statements that he was not present. Be that as it may, the admission of the petitioner has preference over the testimony of Said Ghafoor Shah and Muhammad Rashid Khan, therefore, this fact stands established that he was present at the time of the scrutiny of the nomination papers. The petitioner has also admitted that he had not raised any objection at the time of the scrutiny of the nomination papers and the explanation furnished by him in this respect is that he was not conversant with the antecedents of the respondent as he was not a resident of the constituency from which he had contested the election. There is no need to determine the plausibility of the explanation furnished by the petitioner because the plea of estoppel is not at all available to the respondent for the reason that the disqualification set up in the petition is contained in Article 63 of the Constitution of the Islamic Republic of Pakistan as well as section 99 of the Representation of the People Act, 1976 and it is C well-settled proposition of law that there is no estoppel against the statute. As a matter of fact the question of estoppel finds no place in this petition because under clause (b) of subsection (1) of section 68 of the Representation of the People Act, 1976 the Election Tribunal is empowered to declare the election of the returned candidate to be void if it is satisfied that he was not on the nomination day, qualified for, or was disqualified from, being elected as a c member. This issue is, therefore, decided against respondent No,1. ISSUE NO.4: 12. The importance of this issue hardly needs any emphasis because respondent No,1 has admitted having served in the Afghan Refugees Organisation N.-W.F.P. As a District Administrator uptil 31-5- 1993 and if it is held that the said Organisation is a body controlled by the Government of N.-W.F.P. He will surely be unseated. It was contended by the learned counsel for the petitioner at the outset that the Afghan Refugees Organistation, N.-W.F.P. Was a body controlled by the Government inasmuch as it was established by the Federal Government and is being run by the Government of N.-W.F.P. Home and Tribal Affairs Department which not only appoints and promotes its functionaries and officials but also monitors its activities. Reference in this context was made to several undisputed letters and Notifications, available on record, concerning the appointment and promotion of respondent No,1 in the Afghan Refugees Organisation. It was further contended that the employees of the Afghan Refugees Organisation had been held to be civil servants by the Supreme Court of Pakistan and this adjudication by itself was sufficient to prove that the Afghan Refugees Organisation was a Governmental Organisation. Reliance was placed on an unreported judgment of the Supreme Court of Pakistan dated February, 7, 1994 in Civil Appeal No, 574/92 titled Mir Ahmad Khan v. Secretary to Government and others, certified copy available on record, wherein it was held that the appellant, who had put in more than ten years temporary service before the termination of his services, and similarly placed other employees of the Afghan Refugees Organisation being Government civil servants were entitled to pensionary benefits if their cases were governed by Regulation No, 371-A of Civil Service Regulation.
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13. The learned counsel for respondent No,1 on the other hand, contended that the Afghan Refugees Organisation was a purely humanitarian Organisation which was funded by the United Nations High Commissioner for Afghan Refugees, therefore, it was neither a Governmental Organisation nor a body controlled by the Government. It was further contended that the word "control" should be given a restricted meaning as it was instrumental in disqualifying persons from being elected to public office. It was next contended that the appointment and promotion of the employees of the Afghan Refugees Organisation by the Government of N.-W.F.P. Being a regulatory function pure and simple was not enough to place it under the control of the Government of N.-W.F.P. Reliance was placed on Ghulam Rasool v. Muhammad Hayat (PLD 1984 SC 385) wherein it was observed that the word "control" shall be, given a restricted meaning and plenary, statutory and regulatory control of the Government by itself would not entail disqualification of employee of a non-statutory, non- governmental company, undertaking or enterprises. It was further contended that the employees of Afghan Refugees Organisation being contractual employees were not civil servants. Reliance was placed on Alamzeb Khan v. Commissioner, Afghan Refugees N.-W.F.P, Peshawar and two others (1994 SCMR 546) wherein it has been observed that the petitioner being an employee of the Afghan Refugees Organisation on contract basis was not a civil servant and as such was not entitled to maintain his appeal before the Service Tribunal. 14. The contentions raised by the learned counsel for the petitioner have got an edge over the arguments advanced by the learned counsel for respondent No,1 for reasons that are not far to seek. It is a matter of common knowledge of which one can take judicial notice also that in the wake of the influx of the Afghan refugees the Federal Government had established the Afghan Refugees Organisation in the N.-W.F.P. Which is headed by a Commissioner who is invariably a deputationist from the Government of N.-W.F.P. Besides, there is enough material on record which clearly proves that the Afghan Refugees Organisafion is a body controlled by the Government of N.-W.F.P. A perusal of Notification No 5/23-SOAR-I (HD)/82 (i), dated 5-9-1982, Exh,P.W.1/1, would show that respondent No,1, who had admittedly joined the Afghan Refugees Organisation as Village Administrator initially in Grade-16, was promoted by the Governor, N.-W.F.P. (Appointing Authority) on purely temporary basis to Grade-17. The letter dated 16-11-1982 addressed to the Commissioner, Afghan Refugees, N.-W.F.P. By the Secretary, Government of N.-W.F.P. Home and Tribal Affairs Department, copy Exh. P.W.1/2, would also suggest the same. Resultantly, the Commissioner, Afghan Refugees, N.-W.F.P., Peshawar vide Notification No,Commr: AR/G-17/Org-I/210 dated 27-9-1982, copy Exh. P.W. 1/4, had posted him as Area Administrator, District Dir, against the vacant post. According to another letter dated 19-4-1982, copy Exh. P.W. 1/3, the Commissioner, Afghan Refugees N.W.F.P., Peshawar had granted Rest and Recreation Allowance to the officers of the Afghan Refugees Organisation including respondent No,1 in pursuance of the Government of N.-W.F.P., Finance Department Letter No,SO (SR/II) FD/18-9(P)/77 dated 10-7-1978. Vide Notification No,2/93- SOAR.I(HD)/90 dated 18-3-1990, copy Exh. P.W.1/6, respondent No,1 was promoted by the Government of N.-W.F.P. To BPS-18. Another document pointing to the administrative control of the Organisation by the Government of N.-W.F.P., Home and Tribal Affairs Department is a Letter dated 25-5-1991, copy Exh. P.W./8, addressed by the Additional Commissioner (G), Afghan Refugees, N.W.F.P., Peshawar to the Secretary, Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar for grant of 45 days ex-Pakistan leave from 1-6-1991 to 16-7-1991 to respondent No,1 and issuance of an N.O.C. In his favour to enable him to proceed for Hajj. A perusal of the order dated 3- 6-1991 of the Government of N.-W.F.P., Home and Tribal Affairs Department, copy. Exh. P.W.1/9 would reveal that the requisite N.O.C. Was duly issued. Similarly Notification No,2/93-SOAR.I (HD)/91, copy Exh. P.W.1/10, would show that respondent No,1 was granted 45 days ex-Pakistan leave by the Government of N.-W.F.P. These letters and Notifications command respect as their contents were not challenged by respondent No,1 when he was confronted with the same during his cross-
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examination. It is also evident from the statement of Iltaf Gul, Establishment Superintendent, Afghan Refugees Organisation that same leave rules apply to the employees of the Afghan Refugees Organisation which are applicable to the civil servants, the officer of the Organisation in BPS-16 and above get their salaries from the office of the Accountant-General, N.-W.F.P., Peshawar and the funds are provided by SAFRON, a Division of the Federal Government. The source of funds is immaterial as it has no nexus with the administrative control of the Organisation which is being exercised by the Government of N.-W.F.P. Through Home and Tribal Affairs Department, It will not be out of place to mention here that in the aforementioned Civil Appeal No, 574/92 decided by the Supreme Court of Pakistan on February 7, 1994 the learned Deputy Attorney-General for Pakistan had raised a preliminary objection to the effect that the appellant and other employees of the Afghan Refugees Organisation were not Government servants as their salaries were not paid from the Annual Federal Budget and even if their salaries and allowances were reflected in the Annual Budget of the Government of Pakistan, the net expenditure is later on reimbursed by the United Nations High Commissioner for Refugees, but the objection had not prevailed. 15. The temporary employees of the Afghan Refugees Organisation have been declared as civil servants by the Supreme Court of Pakistan in the aforementioned unreported judgment and this adjudication goes a long way to suggest that the Afghan Refugees Organisation is a governmental Organisation. The authority (1994 SCMR 546) cited by the learned counsel for respondent No,1 only lays down that the contractual employees of the Afghan Refugees Organisation are not civil servants and is silent about the temporary employees or the employees on deputation from the Federal Government and the Government of N.-W.F.P., therefore, it cannot be inferred from it that the Afghan Refugees Organisation is not a governmental Organisation. As regards the authority Ghulam Rasool v. Muhammad Hayat (PLD 1984 SC 385) cited by the learned counsel for respondent No,1 it would suffice to say that it is distinguishable because it relates to a non- governmental Organisation whereas the Afghan Refugees Organisation is certainly a governmental Organisation. In that case the returned candidate whose election was challenged was the employee of the Pakistan. Oil Fields Limited. Company and the appeal was dismissed on the ground that the Government had no proprietary control as such over the Company and its regulatory control was not sufficient to entail disqualification. The Afghan Refugees, Organisation is not a commercial organisation, therefore, the question of properietary control by the Government does not arise and in this perspective the appointment and promotion etc. Of its employees by the Government of N.-W.F.P. Symbolises positive and not regulatory control. This issue is, therefore, decided in favour of the petitioner. ISSUE NO. 5: 16. The disqualification from which respondent No,1 allegedly suffered at the time of filing of his nomination papers is laid down in clause (k) of Article 63(1) of the Constitution of the Islamic Republic of Pakistan which reads as under:-- "63.--(1)........................ (k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service." 17. It was contended by the learned counsel for the petitioner that respondent No,1 was disqualified from being elected as a member of the Provincial Assembly N.-W.F.P. As he had been in the service of the Afghan Refugees Organisation, a body controlled by the Government, and had contested election before the expiry of a period of two years since he ceased to be in such service. It was further contended that it was immaterial whether respondent No,1 was a regular, temporary or contractual employee as the nature of service was not mentioned in clause (k) of Article 63 (1) of the Constitution. Reference in this context was made to Syeda Abida Hussain v. Tribunal for NA.69 Jhang-IV and others (PLD 1994 SC 60) wherein it was observed that the definition "service of
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Pakistan" does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled, therefore, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act. 18. The learned counsel for respondent No,1 on the other hand contended that respondent No,1 was not disqualified because firstly; the Afghan Refugees Organisation was not a body controlled by the Government and secondly, he was a contractual employee as was evident from the statements of Iltaf Gul, Establishment Superintendent (P.W.1), Taimoor Khan,…
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