CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal with the leave of the Court is addressed against the judgment of the High Court dated 2-3-2012 whereby the writ petition filed by the appellant has been dismissed.
2. Necessary facts giving rise to the instant appeal are that the appellant, being a practicing lawyer, having more than 25 years practice in his credit, was appointed by the Government of Azad Jammu and Kashmir, as Chairman of Azad Jammu and Kashmir Zakat Council on 13-5-2011, however, in the appointment notification, the terms and conditions were not determined. The matter for determination of terms and conditions remained under consideration and finally the authority, the Prime Minister, on 13-6-2011 issued directions that;--- {{URDU TEXT}} ' These directions, due to change of Government could not be carried out. Thus, he was constrained to approach the High Court through the writ petition. In the writ petition, he has averred that terms and conditions of his predecessors in office were equal to judge of the High Court, as determined vide notification dated 2nd March, 2010. The High Court has not properly attended the moot point and the writ petition has been dismissed on some misconception of facts and law, which resulted into miscarriage of justice and perpetuating the discrimination because his predecessor and successor in office, both have been declared entitled to the terms and conditions as of a Judge of the High Court and the only appellant has been met discriminatory treatment which is clear violation of fundamental rights and constitutional provisions. The appellant challenged the judgment of the High Court dated 2-3-2012, through the instant appeal, with the leave of the Court.
3. Raja Gul Majeed Khan, the learned counsel for the appellant, after stating facts of the case, strongly opposed the judgment of the High Court and focussed his arguments mainly on the point of equality before law. He further contended that even the objections filed by the respondents also support the version of the appellant because vide notification dated 2-3-2012, the terms and conditions of the successor in the office of Chairman Zakat Council, who is also an advocate; but having less experience of practice as compared to the appellant has been determined equal to the Judge of the High Court. Thus, the ex-officio discrimination is proved from the official record. He further submitted that the authority, the Prime Minister has passed clear directions but due to change of Government, with mala-fide intention and political intervention, the same have not been carried out He finally submitted that the appeal may be accepted and the judgment of the High Court may be set aside.
4. Conversely, Mr. Mushtaq Ahmed Janjua Advocate, the learned counsel .For the respondents defended the impugned judgment of the High Court and submitted that the appellant has waived his right because he has joined the office of Chairman Zakat Council, without determination of terms and conditions, moreover, it is prerogative of the authority to determine the terms and conditions of the Chairman Zakat Council. No one can claim as of right the terms and conditions equal to the Judge of the High Court. The so-called summary, upon which the directions of the Prime Minister are allegedly passed, is fake document, thus, the appellant has got no cause of action. He finally submitted that the High Court has rightly dismissed the writ petition filed by the appellant, through the impugned judgment, therefore, the appeal merits dismissal.
5. We have heard the counsel for the parties and have also gone through the record of the case.
According to the admitted facts, the appellant is a leading senior lawyer of the Azad Jammu and Kashmir. Under the provisions of section 13(1)(2) of the Azad Jammu and Kashmir Zakat and Usher Act, 1985 (hereinafter to be referred as Act, 1985), vide notification dated 13-5-2011, he was nominated/ appointed as the Chairman of the Azad Jammu and Kashmir, Zakat Council. In this notification, his terms and conditions have not been mentioned. Subsequently, a summary for determination of same was presented to the Prime Minister by the Secretary Zakat and Usher Department, on 10-6-2011. The Prime Minister, on 13-6-2011 directed that Thus, it will be beneficial to reproduce here the notification of terms and conditions of predecessor of the office of appellant dated 2-3-2010 which reads as under:--- {{URDU TEXT}} ' Whereas even prior to the appellant's predecessor, the terms and conditions of the person, holding the office of Chairman Azad Jammu and Kashmir Zakat Council vide notification dated 16- 9-2008 were the same. The appellant has also placed on record a notification of terms and conditions of the successor in office dated 6-3-2012 which is reproduced as under:--- {{URDU TEXT}} {{URDU TEXT}}
6. All the three learned Chairmen, who were predecessors and successor in the office of the appellant, were the Advocates and the appellant is also an Advocate. Thus, there is apparently no difference of any qualification, experience and suitability. All are equally qualified, belonging to the same profession and are the State Subjects of the Azad Jammu and Kashmir. The respondents have taken stand that the Government, during pendency of writ petition in the High Court, vide notification dated 21-1-2012, on the recommendations of concerned committee, has fixed Rs,50,000 honorarium for the Chairman Azad Jammu and Kashmir Zakat Council, thus, the earlier order of the Prime Minister, issued in favour of the appellant dated 13-6-2011 stood reviewed, hence, his writ petition is not maintainable. It is further averred by the respondents that the office of the Chairman Zakat Council, is subject to pleasure of the Government, on contract basis and under the statutory provisions of Act, 1985, the administrative expenditures have to be met within 10% of the total collection by Zakat and Usher. Therefore, according to the statutory provisions, Rs,50,000 is appropriate honorarium for the Chairman Zakat Council.
7. The learned full bench of the High Court has dismissed the writ petition on the ground that as the Government has fixed honorarium vide notification dated 21-1-2012, thus, the Government is competent to determine the terms and conditions of the Chairman under the provisions of clause of section 9 of Act, 1985.
8. The appellant has also, challenged the validity of notification dated 21-1-2012 mainly on the ground of discriminatory treatment. A perusal of the judgment of the High Court reveals that this important aspect has not been considered. In our opinion, it does not require any detailed thesis that equally placed person deserve equal treatment before law is the constitutionally guarantee fundamental right. The Azad Jammu and Kashmir Interim Constitution Act, 1974 envisages Fundamental Right No,15 as under:--- "...All state subjects are equal before law and are entitled to equal protection of law."
' Thus, this constitutional provision has not only declared equality before law but also guaranteed equal protection of law. This Court, in a famous case, titled AJ&K Government and others v.
Muhammad Yunas Tahir and others, reported as (1994 CLC 2339) after thorough survey of case- law on the subject, specially the pronouncement of the apex Courts of the sub-continent observed as follows:--- "....In my view the guarantee of equality before law is more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations become meaningless without Right No,
15. The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law. Can a "law" contemplated by this right be discriminatory? The answer to this question must be in the negative because it cannot be visualized that, for instance, persons belonging to a particular ideology or political creed may be deprived of liberty under a harsher law than the others. Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc. ' If Right No,17 is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu and Kashmir will be reserved for sons of serving or retired Judges or that persons in Police service shall only be recruited from a particular Tehsil or that only those who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If we test these laws against the touchstones of Right No,17 the said laws will have to be declared valid. However, if Right No,15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zafar is without substance.
' The Interim Constitution Act through Right No,15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularisation in the phraseology these guarantees cover all laws dealing with state subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalized were experienced in literally implementing these guarantees. These difficulties are real and substantial. Therefore, reasonable classification was recognized..."
' In a recent case titled Mst. Tanveer Ashraf and others v. Azad Government and 2 others, reported as [2010 SCR 528], the same view has been enunciated by this Court. Relevant portion of the judgment in paragraph 6 is reproduced as under:--- ' The Interim Constitution of Azad Jammu and Kashmir has guaranteed the right of equality before law and equal treatment of law, thus, this right can only be enforced by following the prescribed mode of appointment by advertising the vacancies and determination of the merit of the eligible candidates through transparent selection process. Law doesn't admit any such tactics that any person, who has been appointed on ad-hoc basis and thereafter for one reason or the other continued such for an indefinite period and then becomes entitled for the permanent induction.
Such induction through back door in fact, amount to violation of constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment. If such practice is allowed it will encourage the influential and clever to manoeuvre for occupation of the civil post and deprive qualified candidates to complete on the basis of merit.
Such a violation of law and fundamental rights but also at the end may result into inefficiency, maladministration and also be of generating the corruption....
Thus, now it is almost settled that among equals, the constitution does not allow any discrimination whether it is in shape of executive order or a Legislative Act. In the instant case, as in the light of hereinabove stated facts, it is ex facie clear that in the matter of terms and conditions among equal State Subjects, the only appellant has been discriminately treated which cannot be authenticated or allowed, therefore, we have no hesitation to hold that the Government, although is empowered to determine the terms and conditions of the Chairman Azad Jammu and Kashmir Zakat Council under the provision of Act, 1985, but all these powers are subject to constitutionally guaranteed fundamental rights, therefore, the conduct of the Government with regard to the appellant appears to be discriminatory, hence, is without lawful authority and unconstitutional.
9. So for the contention of the respondents that under the provisions of the Act, 1985, the Administrative expenditures have to N.. Met within 10% of the total collection of Zakat and Usher, we have no cavil with this contention but the same is practically negated by the conduct of the respondents. We are consciously of the view that the laws should be strictly applied in true letter and spirit. Therefore, if the Government is serious to implement the provisions of Act, 1985, specifically with regard to keep the administrative expenditures within 10% of the total collection, then there is a way out for the Government to recall all the notifications of predecessors and the successor of the office of Chairman Azad Jammu and Kashmir Zakat Council and pay them honorarium as fixed under the notification dated 21-1-2012 and if any excessive amount is paid, that must be refunded but it appears from the facts that the respondents are not serious in this respect as after notification dated 21-1-2012, they have themselves violated it and determined the terms and conditions of the incumbent Chairman Azad Jammu and Kashmir Zakat Council contrary to it. Moreover, it has now become impossible because notification issued already has been acted upon, which has created legal rights and interest in favour of the beneficiary, therefore, in the hereinabove stated background, the notification dated 21-1-2012 is declared without lawful authority, being discriminatory to the constitutionally guaranteed fundamental rights, hence, is void and of no effect to the extent of the appellant. However, we may observe here that if in the future the Government is serious to comply with the provisions of the Act, 1985, in its letter and spirit to keep administrative expenditures within 10% of the total collection, it should adopt the consistent uniform policy and at the time of appointment of the Chairman Azad Jammu and Kashmir, Zakat Council, and other officials, terms and conditions must be expressly determined to avoid violation of law, litigation and any complicacy.
For the above stated reasons, keeping in view the peculiar facts of this case, we declare the notification dated 21-1-2012 as without lawful authority to the extent of appellant, hence, the appellant is declared entitled to the same terms and conditions as his predecessor and successor in the office, under the notifications dated 16-8-2008, 2-3-2010 and 6-3-2012 have been granted.
Consequently, by setting-aside the judgment of the High Court, the writ petition filed by the appellant is accepted in the terms indicated hereinabove.