' BASHARAT AHMAD SHAIkH, J.---The appellant was performing functions as Chairman of the Zakat Council when he was relieved from the said office with effect from 27th of August, 1992 on the ground that the appellant had been appointed to the office mentioned above for unexpired period of his predecessor,, but was continuing without legal warrant after the afflux of the unexpired period. The order was unsuccessfully challenged by the appellant before the High Court by filing a writ petition. Hence this appeal, by leave of the Court.
2. Briefly stated the facts of the case are that Justice (Rtd.) Ch. Rahim Dad Khan was appointed as Chairman of Azad Jammu and Kashmir Zakat Council on 27th of August, 1989 for a statutory period of three years but he resigned when about ten months still remained out of his term. His resignation became effective on 15th of October, 1991. On 30th of April, 1992 the appellant was appointed as Chairman of Azad Jammu and Kashmir Zakat Council and it was stated in the appointment notification that the appointment was for three years in pursuance of subsection (3) of section 13 of the Azad Jammu and Kashmir Zakat and Ushr Act, 1985..The appellant was relieved from office on 27th of August, 1994. The relevant notification recites that the President had appointed the appellant for the period which remained unexpired from the three years' term of Justice (Rtd.) Ch. Rahim Dad Khan but in the notification appointing the appellant issued on 30th of April, 1992 it was "malaciously" stated that the appointment was for a period of three years. The notification went on to say that the appellant was illegally continuing as Chairman of Zakat Council. In operative part of the notification it was stated that the President, in exercise of powers under section 13 of the Azad Jammu and Kashmir Zakat and Ushr Act, 1985, had ordered that the appellant shall stand relieved from the office of Chairman of the Zakat Council with effect from 27th of August, 1992.
3. Before adverting to the other points which need to be resolved in the case in hand, we may observe that it was rightly contended by Raja Muhammad Siddique Khan, the learned counsel for the appellant, that section 13 does not confer any power on the President to remove Chairman, Zakat Council and reliance on section 13 in the notification is misconceived. There are 8 subsections in section 13 out of which the only subsection which deals with removal from office is subsection (8) which reads as follows:- "(8) the Preident may, in consultation with the Chairman and after giving an opportunity of being heard, remove any member of the Council as he may deem fit."
' This provision of law deals with removal of a member of the Zakat Council in consultation with the Chairman and does not authorise the President to remove the Chairman. However, it is rightly contended by Ch. Munsaf Dad, the learned counsel for the Azad Government of the State of Jammu and Kashmir, that wrong recital of a provision of law does not render and order as one without jurisdiction. It was submitted by him that if the appointment was illegal it could be rescinded by the President. This proposition of law has been recognised as a broad principle of law.
4. The High Court has formed the view that in accordance with the provision of Zakat and Ushr Act if a Chairman' of the Zakat Council resigns before expiry of his term a new incumbent can only be appointed for the unexpired period out of the total term of three years. The High Court has held that the notification by which the appellant was appointed for three years was without lawful authority and had been rightly recalled by the President. It has been further held by the High Court that an illegal order cannot be restored in exercise of writ jurisdiction which is discretionary and equitable in nature.
5. It is vehemently contended by Raja Muhammad Siddique Khan that the view expressed by the High Court is not correct. He contended that if a Chairman resigns during his incumbency section 13 of the Act gives an option to the President to appoint a person for unexpired period or for a fresh term of three years.
6. Section 13 of the Zakat and Ushr Act is as follows:-- "13. Zakat Council.--(1) The Government shall, by notification in the official Gazette, establish a Zakat Council to provide policy guidelines for, and to exercise general superintendence and control on matters relating to Zakat and Ushr, particuarly the Zakat Fund and maintenance of their accounts.
(2) The Council shall consist of--
(a) a Chairman;
(b) two Ulema to be nominated by the President, in consultation with the Council of Islamic Ideology;
(c) one person froth 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-Deenai Department;
(f) the Secretary to the Government in the Local Government Department;
(g) the Chief Administrator, who shall also be the Secretary to the Council; and
(h) the Accountant-General, Azad Jammu and Kashmir.
(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 a term of three years and shall be eligible for re-appointment.
(5) The Chairman or a member, not being an ex officio member, may, by writing under his hand 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 filed by the nomination, in accordane with subsection (2) or subsection (3), as the case may be, of a person qualified to hold the office.
(7) The Chairman or member nominated under subsection (6) shall hold office for the unexpired term of his predecessor.
(8) the President may, in consultation with the Chairman and after giving an opportunity of being heard, remove any member of the Council as he may deem fit."
7. It will be seen that subsection (4) deals with a full term appointment of Chairman and other members of the Council, except of ex officio members. Subsection (4) does not visualise the appointment of a Chairman and other members of the Council, leaving aside the ex officio members, for a period of less than three years or more than three years which indicates that the intention of the law-maker is that the Chairman and Members of the Council have to assume office and as well lay down office together. Subsection (5) lays down that the Chairman or a member may resign his office and in subsection (6) the manner of filling up of a casual vacancy is laid down. The use of word "shall" in subsection (6) clearly indicates that a vacancy can only be filled up by nominating a qualified person under subsection (6). Subsection (7) then specifically lays down that a person nominated under subsection (6) will hold office for unexpired period of his predecessor's term. It is thus clear that a full time appointment has to be made under subsection
(4) while every vacancy shall be filled up under subsection (6). This is the view which has been taken by the High Court. We have no hesitation- in upholding it.
8. Some arguments were addressed whether it is correct or not that the President had sanctioned the appointment of the appellant for the unexpired period. The High Court has held that it makes no practical difference whether the fact is one way or the other because if the President had accorded sanction to the appointment of the appellant for the full term of three years the order was clearly illegal and could not operate beyond the unexpired term of the predecessor of the appellant. This view is also correct enunciation of law and we uphold it. It, therefore, follows that the President was right in withdrawing the order of appointment of the appellant.
9. However, the order of the President relieving the appellant from the post of Chairman, Zakat Council was issued on 23rd. Of April, 1994 but was given effect from 27th of August, 1992. If the order is accepted on its face value, it means that the appellant ceased to be the Chairman on 27th of August, 1992 while he in fact kept on functioning till the 23rd of April, 1994 when the notification to relieve him was issued. In our considered view, it has been rightly advocated on behalf of the appellant that the order of the President could not be given retrospective effect. Law is now firmly settled that retrospectively is the sole prerogative of the Legislature and a notification or administrative order cannot be given retrospective effect. On this point reliance of Raja Muhammad Siddique Khan on the following cases is well-placed:--
(1) Islamic Republic of Pakistan v. Mazhar-ul-Haq (1977 SCM R 509),
(2) Muhammad Sulemany. Abdul Ghani (PLD 1978 SC 190),
(3) Fazal Ahmad v. Ziaullah Khan and others (PLD 1994 SC 494).
10. We have already noted that the order of appointment of the appellant was for a period of three years. In the notification issued for relieving the appellant from office it was stated that in the appointment order period of three years had been malaciously incorporated but when the case came to the Court the plea taken by the Government was that "the notification was typed erroneously and against Zakat Act". It means that the Government resiled from position taken in the notification. It shows that the Government has been taking inconsistent pleas which is.Sad commentary as to how the case was dealt with. It is also worth noticing that when the appellant was appointed unexpired period of his predecessor was roughly about four months. The appellant took over as Chairman and continued working for about two years but the Government did not realise its mistake. The functions performed by the appellant and Zakat Council under his Chairmanship are past and closed transactions. The appellant drew salary for the duties he had performed. It is not understandable as to what the Government wanted to achieve by notifying that the appellant be relieved from office with effect from 27th of August, 1992. Be that as it may, the order to the extent of retrospectivity was illegal and it cannot be sustained.
11. It was also contended with great vehemence by the learned counsel for the appellant that in any case the appellant was entitled to a show-cause notice before being relieved from office. This argument is met by Ch. Munsaf Dad by relying on Muhammad Rashid v. Azad Jammu and Kashmir Government (PLD 1987 SC (AJ&K) 60), in which is laid down that a void order or an order without jurisdiction does not create any vested right and such order can be withdrawn without giving an opportunity of hearing. After giving our anxious consideration to this aspect of the matter we feel that it is not in the interest of justice to decide the case on this technical point. If we hold that no order could be passed against the appellant without affording an opportunity of showing cause we would have, while setting aside the order, allowed the Government to take action de novo after fulfilling the requirement of natural justice. This would lead to prolongation of the matter which is not desirable in view of the fact that 3 years term has already expired with the result that the appellant cannot in any case be restored to office. Another factor is that there is no allegation against the appellant which may require a detailed inquiry after a show-cause notice. What has to be decided is a pure question of law which has been examined by the High Court and now by this Court. Yet another factor is that we have already reached the conclusion that the appellant is partly entitled to relief which cannot be given to him if we accept the appeal on technical point of violation of natural justice and direct the Government to issue a new order after giving an opportunity of hearing to the appellant.
As an upshot of the above discussion, the writ petition is partly accepted and it is ordered that the notification of 23rd of April, 1994 shall not take effect from 27th of August, 1992 but from the date on which it was issued. Parties will bear their respective costs throughout.