M. Tabassum Aftab Alvi, J.--The supra titled writ petition has been addressed under Section 44 of The Azad Jammu & Kashmir Interim Constitution Act, 1974 whereby following relief is solicited by the petitioner:-- "It is, therefore, most humbly prayed that while accepting the above captioned writ petition an appropriate writ may kindly be issued in the following manner:--
(i) The respondents be directed to act upon the lawful order/ approval of the summary of the Chief Executive/Prime Minister of Azad Jammu & Kashmir and while doing so issue the formal notification providing pay, perks and other privileges admissible to a Judge of High Court in favour of the petitioner herein.
(ii) Directing the respondents to decide the matter expeditiously.
(iii) The respondents be restrained from interfering in the discharge/function of the petitioner, canceling, setting aside notification of his appointment as Chairman Azad Jammu and Kashmir Zakat Council or from removing him as Chairman Zakat Council before the completion of his tenure as provided in the law.
(iv) The notification dated 21.01.2012 may kindly be declared ineffective, inoperative, unwarranted, and illegal, without lawful authority, without jurisdiction and is of no legal consequence which may be set aside.
(v) Any other relief which is admissible under law may also be granted in the interest of justice. "
2. The precise facts necessary for disposal of the instant writ petition are that the Azad Jammu & Kashmir Legislative Assembly approved an Act known as Zakat and Ushr Act, 1985. The purpose of the said legislation was to make provisions for assessment, collection and disbursement of Zakat and Ushr. It is stated that under Section 13 of the above mentioned Act, the Government is empowered to establish a Zakat Council for providing policy and guidelines and to exercise general superintendence and control on matters relating to Zakat and Ushr. The said Section also provides the mode of appointment of its Chairman and Members. Government-respondent constituted the Azad Jammu & Kashmir Zakat Council vide notification dated 13.5.2011. Through the same notification, the petitioner was appointed as Chairman Azad Jammu & Kashmir Zakat Council. It is alleged that Government-respondent granted pay, perks and other privileges equal to Judge of the High Court in favour of Ex-Chairmen, Raja Muhammad Yaqoob Khan and Muhammad Naseem Khan vide notifications dated 16.08.2008 and 02.03.2010 respectively. It is stated that keeping in view the earlier practice, a summary was prepared, whereby it was suggested that the same privileges may be granted to the petitioner. The said summary was approved by the Prime Minister Azad Government of the State of Jammu & Kashmir and the same is lying in the office of Chief Secretary who has not taken any step for issuance of formal notification. It is also claimed that during pendency of the instant writ petition, the respondents in collusion with each other issued notification dated 21.01.2011, whereby, honorarium of Chairman and Members of the Zakat Council have been determined. The petitioner through amended writ petition has also challenged vires of the above notification for having been issued with malice and contrary to approval of the Prime Minister dated 13.06.2011.
3. The respondents contested the writ petition through filing detailed written statement, wherein it is stated that petitioner has got no locus standi to invoke extra ordinary constitutional jurisdiction of this Court. It is alleged that petitioner has not impleaded necessary party in the writ petition. It is further stated that under Section 29 (A) of Zakat and Ushr Act, 1985, the Government-respondent is empowered to dissolve the Zakat Council and Committees at any time. It is also claimed that petitioner was holding the post of Chairman Zakat Council at the pleasure of the Government- respondent, hence, cannot claim completion of three years period as of right. It is stated that pay, perks and privileges admissible to the Chairman, Members, Chairman District Constituency Zakat Committees were subject to collection of Zakat fund and budget allocation. As in the year 1999, Zakat was collected up to Rs, 33,00,00,000/- which now has gradually been decreased to Rs, 12,00,000/-, hence such a huge amount cannot be paid to the petitioner from the budget of the Council which had to meet its, expenditure within 10% of total collection of the collected fund.
Moreover, the Government-respondent spends Zakat fund on the treatment of the patients suffering from several diseases i,e, Cancer, Heart attack, Hepatitis and Kidney failure etc. besides providing assistance to orphans, needy people and students studying in religious and technical institutions. It is also stated that appointment of the petitioner was made on contract basis against which writ does not lie.
4. The learned counsel for the petitioner, Raja Gul Majeed Khan, Advocate, while reiterating the grounds taken in the petition, submitted that admittedly petitioner was appointed as Chairman Zakat Council vide notification dated 13.05.2011 and later on was granted pay and perks equal to those of Judge of the High Court as is evident from the order dated 13.06.2011. He argued that no formal notification has been issued in light of the approval of the Prime Minister, hence, direction for implementation of the same may be issued. The learned counsel while referring to orders of appointment of Raja Muhammad Yaqoob Khan and Ch. Muhammad Naseem as Chairman Zakat Council vide notifications dated 16.08.2008 and 02.03.2010 respectively, submitted that both the above appointees were granted pay and perks equal to those of Judge of the High Court, therefore, order passed by the Prime Minister dated 13.06.2011 is in line with the previous practice, hence, petitioner being similarly placed cannot be discriminated. The learned counsel pressed into service that during pendency of the instant writ petition, the Government-respondent with mala-fide intention has issued a notification whereby fresh honorarium has been fixed as Rs, 50,000/- for the Chairman. He argued that this notification cannot be given retrospective effect under law, hence, is liable to be ignored, so far petitioner case is concerned. The learned counsel in support of his contentions referred to and relied upon the following cases:--
(i) Mir Abul Hamid Vs. Azad Government and 2 others [1997 SCR 96];
(ii) Justice (Rtd.) Qazi Abdul Ghafoor Vs. The Azad Jammu & Kashmir Government [1996 CLC 1556]; and
(iii) Federation of Pakistan and others Vs. Shaukat Ali Mian and others [PLD 1999 SC 1026].
In Mir Abul Hamid's case, it was held that if a legal order has been passed by the Prime Minister and is not being implemented, it creates a right into concerned person to move an appropriate forum that the order may be implemented.
In Justice (Rtd.) Qazi Abdul Ghafoor's case, inter-alia, it was held that no notification or order can be given retrospective effect by an administrative order.
In the third case, it was held that a notification adversely affecting a right of any person cannot be made operative retrospectively but if the same confers any benefit on an individual, the same can be applied retrospectively.
5. Sardar M. R. Khan, the learned Additional Advocate General, while controverting the arguments of the learned counsel for the petitioner, submitted that at the time of appointment as Chairman Zakat Council vide notification dated 13.05.2011, terms and conditions of the petitioner were not determined and matter was subjudice before the authority for the purpose. The learned counsel pressed into service that order of the Prime Minister dated 13.06.2011 sought to be implemented has been taken back on recommendations of the committee constituted by the Government and after reviewing the above order, notification pertaining to honorarium of Chairman Zakat Council, Chairmen district Zakat Committees, Chairmen Constituency Zakat Committees and Members Zakat Council were determined vide notification dated 21.01.2012, therefore, the instant writ petition has become infructuous. The learned counsel emphasized that in accordance with provision of Section 29 (A) of the Zakat and Ushr Act, 1985 the Government may at any time dissolve Zakat Council and its Committees. The learned counsel strenuously argued that the office of Chairman Zakat Council is subject to pleasure of the Government, therefore, completion of three years period cannot be solicited against the law. In support of his contention, the learned Additional Advocate General referred to and relied upon an unreported judgment of this Court titled "Syed Azhar Ali Shah Vs. Azad Jammu & Kashmir Government and others" decided on 11.02.2012.
6. We have duly considered the arguments Advanced at the bar on behalf of the learned counsel for the parties and also minutely gone through the record of the case.
7. A contemplate perusal of the petition reveals that main grievance of the petitioner pertained to non-implementation of approval dated 13.06.2011 of the Prime Minster of Azad Government of the State of Jammu & Kashmir, whereby terms and conditions of the petitioner were allegedly determined. The approval to be implemented is reproduced as under:-- {{URDU TEXT}} A bare reading of the above reveals that petitioner was granted the privileges which were admissible to the previous Chairman of the Zakat Council. For proper appreciation of the matter the notification issued in favour of Ch. Muhammad Naseem on 02.03.2010 , the predecessor of the petitioner herein, is reproduced as under:-- {{URDU TEXT}} A bare reading of the above order reveals that pay and perks, as claimed by the petitioner, were never granted to him through order dated 13.06.2011 passed by the Prime Minister, however, he was allowed only privileges of Ex-Chairmen. The phraseology applied in the above-mentioned order was considered by the apex Court in a case titled "Bostan Chaudhary Vrs. Audit and Accounts Department & 6 others" [2011 SCR 279] wherein at page 290 of the report it was observed as under:- - "Now the question arises that what has been granted to the appellant through notifications dated 14.05.1998 and 31.10.1998.
The term {{URDU TEXT}} as applied in the notification conveys a limited purpose. The term {{URDU TEXT}} cannot be so liberally interpreted to include salary and pension in the light of hereinbefore discussed provisions of law. The notifications through which the terms and conditions of service of the appellant as Chairman Service Tribunal, Chairman Zakat Council and the Chairman Public Service Commission have been determined only granted {{URDU TEXT}} (conditions and privileges) equal to Judge of the High Court. Whereas, according to Constitutional provision, the pay and pension of Judges of the High Court are independent and different expression, which have not been granted to the appellant through these notifications. The legislature or authority where intended to grant the salary, allowance, privileges and pension as are admissible to a Judge of the High Court, it has clearly and expressly applied the specific terms and phraseology as has been done in the case of Judges of the Shariat Court. The sub-section (11) of Section 3 of the AJ&K Shariat Court Act, 1993 is; "A Judge of the Shariat Court who is not a Judge of the High Court shall be entitled to the same salary, allowance, pension and privileges as are admissible to a Judge of High Court in Pakistan".
Again, at page 294 of the precedent case, it was observed as follows:-- "The above referred luminous legal precedents help us to draw the conclusion that the application of term {{URDU TEXT}} with reference to the Judge of the High Court doesn't mean that the remuneration is also included. The principle of law enunciated by the Supreme Court of Pakistan in relation to interpretation of scope of legal expressions "terms and conditions" has laid down a yard stick that it should be understood in a narrow and limited sense according to the spirit of the relevant instrument, so as to refer to concrete matters while the post is occupied and not for the future prospects. Therefore, it can be safely held that the appellant was granted conditions and privileges of a Judge of the High Court excluding the remuneration specially the pension which has not been mentioned in the relevant instrument i,e, notification dated 14.05.1998 and 31.10.1998."
The contention of the learned counsel for the petitioner Raja Gul Majeed Khan, Advocate that on the basis of order of the Prime Minister of Azad Government of the State of Jammu & Kashmir dated 13.06.2011, the petitioner is entitled to, pay and perks equal to those of Judge of the High Court, in view of the above-mentioned dictum of the apex Court is misconceived, therefore, is hereby repelled.
8. Even otherwise, at the time of appointment of the petitioner against the post of Chairman Zakat Council vide notification dated 13.05.2011, no terms and conditions with regard to payment of salary and other privileges were determined and matter was pending before the Government. Petitioner was conscious of the fact that the matter was pending before the authority, that's why he solicited direction to decide the matter expeditiously. However, it was decided by the Government respondent during pendency of the instant writ petition vide notification dated 21.01.2012 on recommendations of the concerned committee that Rs, 50,000/- per month would be paid as honorarium for the Chairman Zakat Council. It seemed that earlier summary/order of the Prime Minister dated 13.06.2011 was considered while issuing the subsequent notification and stood reviewed, hence, there remained nothing for implementation through writ of Mandamus. The contention of the learned counsel for the petitioner that order passed by the Prime Minister dated 13.06.2011 being lawful, hence, Respondents No, 2 to 4 were bound to issue the formal notification on the basis of rule of law laid down by the apex Court in Mir Abdul Hamid's case referred to hereinabove, cannot be disputed and there can be no other opinion that if order of the Prime Minister is lawful then the same must be implemented, however, as stated earlier due to issuance of notification dated 21.01.2012, the order sought to be implemented is no more available, therefor, no direction can be issued. The contention of learned counsel for the petitioner that Ex-Chairmen Zakat Council Raja Muhammad Yaqoob Khan and Ch. Muhammad Naseem were granted pay and perks equal to those of Judge of the High Court vide notifications dated 16.08.2008 and 02.03.2010 respectively is also belied from the above notifications as no pay and perks were granted to the said Ex-Chairmen.
9. The other contention of the learned Counsel for the petitioner, Raja Gul Majeed Khan, Advocate, that before completion of three years period the petitioner cannot be removed from the post of Chairman Zakat Council is also not maintainable in view of amended sub-section (4) of Section 13 of the Zakat and Ushr Act, 1985, which was brought on the Statute Book vide Ordinance XXXVI of 2011 dated 25.10.2010. The said sub-section reads as under:-- "(4) The Chairman and other members of the Council, not being an ex-officio member, shall hold office on discretion of the Government".
A bare reading of the above-mentioned Statutory Law makes it crystal clear that appointment against the post of Chairman Zakat Council is subject to the pleasure of the Government, hence, as per law, the petitioner cannot claim completion of three years period, vis-a-vis, discretion of Government. It is liable to be observed here that the above-mentioned amended provision still exists on the Statute Book. The point also came under consideration before this Court in Syed Azhar Ali Shah's case, Writ Petition No, 1163/11, decided on 11.02.2012, wherein it was observed as under;-- "13. As the appointments of petitioners were made subject to the pleasure of the Government on the basis of laid down law, therefore, the respondents cannot be restrained through writ of prohibition from terminating petitioners' services before completion of three years period.
14. The appointment of the petitioners as laid down in their notifications dated 25.05.2010 and 06.12.2010 were for three years, therefore, appointments pertained to their contract period. It is settled principle of law that writ petition is not competent to enforce the terms of contract.
10.The contention of the learned counsel for the petitioner that notification dated 21.01.2012, whereby, lump sump honorarium of Rs,50,000/- per month was fixed regarding post of Chairman Zakat Council cannot be given retrospective effect is also misconceived for the reason that previously no terms and conditions pertaining to the said post were determined and at the time of appointment of the petitioner as Chairman Zakat Council, the matter was pending before the competent authority and ultimately the terms were finalized through the above-mentioned notification dated 21.01.2012, therefore, question of taking away vested rights of the petitioner retrospectively does not arise. The Government has competency to issue notification under proviso clause (b) of Section 9 of Zakat & Ushr Act, 1985. The Government has jurisdiction to determine the terms and conditions of the non-official Chairman Zakat Council, Chairman District and Constituency Zakat Committees etc.
11. Before parting, it is liable to be observed here that the petitioner was appointed as Chairman Zakat Council vide notification dated 13.05.2011 who is continuously holding the above post on the basis of order of this Court dated 16.08.2011, therefore, he will be entitled for salary/honorarium from the date of appointment till holding the said post on the basis of notification dated 21.01.2012.
The nub of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed, with the above observation, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.