ORDER KHAWAJA MUHAMMAD SAEEDJ.- The petitioner, a retired Judge of this Court, has moved the present constitutional petition to challenge the validity of Notification dated April 23, 1994, whereby he was removed from the office of Chairman Zakat Council with effect from August 27,1992.
2. The facts as claimed in the petitioner, briefly stated are that on August 27,1989, the retired Chief Justice of Azad jammu and Kashmir Chaudhary Rahim Dad Khan, was appointed as Chairman Zakaat Council for a period of three years, on October 11,1991, the said Chairman tendered his resignation from his office which was accepted by the President on October 15, 1991. The office of Chairman Zakaat Council thus fell vacant on October 15,1991 and remained so up to Aprilr30,1992.
When the petitioner was appointed as Chairman Zakaat Council. A Notification was issued in this behalf which has been placed on the i.e as Annexure PB. The claim of the petitioner is that he thereafter, continued functioning as Chairman Zakaat Council and discharged his duties with rectitude and diligence. On April 23,1994, the impugned order was passed whereby he was removed from his office with effect from August 27,1992. Through this petition, the said order of removal has been challenged inter alia on the grounds:-
(i) That the petitioner's appointment as Chairman Zakaat Council was made for a period of three years, in pursuance and din consonance with the provisions of Section 13(3) of the Azad Jammu and Kashmir Ushar and Zakaat Council Act, 1985 (hereinafter referred to as an Act), therefore, the President was not legally competent to remove him from his office before the expiry of three years term ;
(ii) That the appointment of the petitioner as Chairman Zakat Council, make under sub-section (3) of Section 13 of the Act, was independent of the provisions contained in sub-sections (6) and (7) of Section 13 of the said Act, as such the consequences envisaged in these Sub- Sections could not legally be attracted in the case of the petitioner ; (i.e) That the impugned notification was issued on April 23, 1994, but it was given retrospective effect from August 27, 1992. This is a clear proof of the fact that it was motivated by mala fides and was passed due to vindicativeness. .3. In written statement, the non-petitioner has contended that as office of the Chairman Zakaat Council fell vacant on account of resignation tendered by the retired Chief Justice Choudhary Rahim Dad Khan, as its Chairman as such under law, the petitioner could have held the office only for an unexpired period of his predecessor. According to the non-petitioner, the petitioner was in fact, appointed for an unexpired term by the President who was competent to do so but while issuing the Notification erroneously the period of three years was mentioned in the same.
4. In the back -ground of these facts, the learned Counsel for the petitioner argued that the petitioner's appointment was categorically made for a period of three years, under Section 13(3) of the Act. The Notification issued in this respect Ex. PA. Does not contain even the remotest reference to his appointment as Chairman in substitution or in succession to his predecessor's appointment.
Therefore, the President was legally not competent to remove him from his office before the expiry of the fixed term. He further argued that under sub-section (3) of Section 13 of the Act, the President was not prohibited or precluded from exercising his statutory powers as embodied in Section 13(3) of the Act and appoint the petitioner as Chairman Zakaat Council for period of three years, even in a situation contemplated under Section 13(6) of the Act. In fact the President after having appointed the petitioner as Chairman Zakaat Council for a period of three years, had no legal competence to remove him from his office before the expiry of the fixed term, without any reasonable excuse or complaint against him. The impugned Notification thus being arbitrary, capricious and whimsical, is liable to be set aside, he relied on a case titled "Phassco Hardware Co.
V. The Government of Pakistan & 3 others" (PLD 1989. Karachi 621).The facts of this case are that a Notification was issued under Section 25(B) of the Customs Act, 1969 and the same was given retrospective effect. The petitioner feeling aggrieved by its application, challenged the same through a writ petition before the Karachi High Court, The High Court held that Notification cannot be made applicable retrospectively. The relevant observations appearing at pages 626 are as follows :- "As regards the second submission of Mr. Khursheed Anwar Sheikh that even otherwise the Notification dated 5.1.1989 cannot be made - applicable retrospectively, it may be observed that it is a well settled principle of law that notification cannot be made applicable retrospectively but it is to operate prospectively, whereas a statutory provision if so. Expressly provided can be made applicable retrospectively, in the instant case, the question whether the petitioner had filed ex bond bill of entry for clearance of the goods prior to the date of notification or after the date of notification will have to be adjudicated upon by the form as provided under the Customs Act and not directly by this Court."
6. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioner vehemently argued that under sub-section (3)of Section 13 of the Act, it is laid down that the Chairman Zakaat Council shall be a person who is or has been the Chief Justice or Judge or the Supreme Court or High Court. Therefore, no period can be fixed under this sub- Section of Section 13 of the Act. According to him, under the scheme of the Act, the Chairman can be appointed for a period of three years but if vacancy for the office of Chairman fell vacant on account of any reason, including resignation, then the President can appoint a person who fulfills the requirements as laid down in sub-Section (3) of Section 13 of the Act, as Chairman for an unexpired term of his predecessor. According to him, the worthy President was legally competent to appoint the petitioner only for an unexpired period and not for a full term. He further argued that in the impugned order, the President has specially mentioned that he appointed the petitioner for an unexpired term of his predecessor. He further argued that the petitioner being a retired Judge of the High Court, should have himself gone through the provisions of the Act and pointed out that Notification of his appointment was not issued in pursuance and in consonance of the provisions of Section 13 of the Act.
7. We have considered the respective arguments of the learned Counsel for the parties and have gone through the entire record made available with the petition.
8. For the sake of convenience, we deem it expedient to reproduce below the impugned Notification (EX PC) which is as follows:- {{ Urdu text miss }}
9. According to para 2 of the impugned Notification, the President has, in an unequivocal term, expressed himself that he appointed the petitioner for an unexpired term of his predecessor, but while issuing the Notification, the term of his appointment was wrongly fixed for a period of three years. The President has further mentioned that the petitioner, under the scheme of the Act, could have been appointed only for the remaining term of his predecessor. The order of the President in pursuance of which the Notification (EX.PA)was issued, is not available on the i.e. A notice to that, was taken by the President. The Secretary has, after preliminary inquiry, in his detailed note in para 12, opined as follows:- {{ Urdu text miss }} Section-13 Sub-Section (7).-- "The Chairman or member nominated under sub-section (6) shall hold office for the unexpired term of his predecessor."
9. Before adverting to the controversial point involved in the petition, we feel it expedient to reproduce in this order the relevant provisions of law i.e. Section 13 of the Act.
"13. Zakaat Council- (1) The Government shall, by Notification in the official Gazette, establish a Zakaat Council to provide policy I guidelines for, and to exercise genera superintendence and control on matters relating to Zakaat and Ushar, particularly the Zakaat Fund and maintenance of their accounts.
(2) The Council shall consist of -
(a) a Chairman;
(b) i.e persons, of whom three shall be Ulema, to be nominated by the President in consultation with the Council of Islamic Ideology;
(c) four persons, one from each District, to be nominated by the President;
(d) the Secretary to the Government in the Finance Department;
(e) the Secretary to the Government in the Ammoor-i-Deenia Department;
(f) the Secretary to the Government in the Local Government Department; and
(g) the Chief Administrative, who shall also be the Secretary to the Council.
(3) The Chairman of the Council shall be a person who is, or has been a Chief Justice or Judge of the Supreme Court or High Court to be nominated by the President.
(4) The Chairman and the other members of the Council, not being an ex officio member, shall hold office for term of three years and shall be eligible for re-appointment for a similar term.
(5) The Chairman or a member, not being an ex-officio member, may be writing under his had addressed to the President resign his office; ' '
Provided that he shall continue to hold office until his resignation is accepted by the President.
(6) Any vacancy in the office of Chairman or a member, other than an ex-officio member, shall be filled by the nomination, in accordance with sub-section (2) of sub-section (3), as the case may be, of a person qualified to hold the office.
(7) The Chairman or member nominated under sub-section (6) shall hold office for the Un-expired term of his predecessor."
11. On going through the aforesaid Section again and again, the impression that we have gathered is that under sub-section (1) of Section 13 of the Act, the Government, by Notification published in the official gazette, shall establish the Zakaat and Ushar Council. Under sub-section (2), the components of the Council have been mentioned, under sub-Section (3) of Section 13 of the Act, the Qualification of the Chairman have been mentioned that he shall be a person who is or has been the Chief Justice or Judge of the Supreme Court of high Court and further that he shall be nominated by the President. Under sub- Section (4) of the Act, the term of the office has been mentioned and it is laid down that the Chairman and other members of the Council, not being an ex- officio member, shall hold the office for a period of three years and shall hold the office for a period of -three years and shall' be eligible for re-appointment for a similar term. Under sub- Section (S), except the ex-officio members, the Chairman or any other member, by writing under his had, addressed to the President, may resign his office. However it is laid down that he shall hold his office till the time, his resignation is accepted by the President, under sub-Section (6) of the Act the vacancy in the office of Chairman or member, as the case may be, shall be filled in by nomination in accordance with sub-Section (2) of the Act or sub-Section (3),as the case may be, of a person qualified to hold the office. In case such situation, as mentioned in sub-Section (6) is created, then in that case, under sub-Section (7) ,whosoever, shall enter into the office by the order of the President, shall avail the remaining period of his predecessor. From the language in which Section 13 is coached, it becomes quite clear that intention of the legislature is that initially a Member of the Council tenders his resignation, then the person duly qualified to hold the office, shall be appointed to his place for the remaining period. It is settled principle of interpretation of statute that Courts shall not travel outside the words used in a statute to discover a secret intention. The words used in Section 13 referred to in the early part of this order, are dear and unambiguous, it is our duty to give these words effect, according to their plain dictionary meanings, neither adding nor substructing anything from them. The President, under the scheme of the aforesaid Act had no authority to appoint the petitioner for a period of three years when his predecessor had left the office of Chairman Zakaat Council before the expiry of his termd because under the scheme of law, it is our firm belief that the petitioner could have been appointed for an unexpired term. The Notification of his appointment was issued contrary to the spirit of the Act which was rightly recalled by the President. In the peculiar circumstances of the case, the petitioner's tenure under the Act could have been fixed under sub- Section (7) of Section 13 of the Act Sub-Section (3) of Section 13 only deals with the qualification of a person who can be inducted in the office of Chairman Zakaat Council. Therefore we cannot agree with the learned Counsel for the petitioner that as the petitioner was inducted Chairman Zakaat Council for three years, therefore, the impugned Notification issued by the President was without any lawful authority and was in fact, motivated by mala fides and vindictiveness against the petitioner.
13. Even if it is assumed for the ask of argument that the President had appointed the petitioner as Chairman Zakaat Council for a period of three years and later on, he through the impugned Notification held his appointment for unexpired term, still the order of his appointment cannot be given effect to or enforced by issuance of an appropriate writ, it is a settled law that writ jurisdiction cannot be invoked in support, of an unlawful order of any authority, even though it may be a competent authority. Because the unlawful orders of a competent authority are also nullity in the eye of law.
14. The upshot of the above discussion is that the order of appointment of the petitioner for three years when his predecessor had resigned before the expiry of his term, being violative of the relevant law, was unlawful and consequently is not enforceable by the High Court in its writ jurisdiction.
15. In view of what has been stated above, we find no merit in the writ petition which is accordingly dismissed with no order as to costs.