(Application by Muhammad Nawaz Sial): In re (Application by Muhammad

' NASIR-UL-MULK, J.---By this common judgment it is. Proposed to dispose of S.M.C. No,15 of 2010, C.M.As. Nos,2689, 3244 of 2010, 5383 and 3068 of 2011, H.R.C. Nos, 44517, 13938 of 2010 and 22070 of 2011 and Constitution Petition No, 74 of 2011.

2. The petitioners in all these matters were employed on contract basis for fixed term by their respective District Zakat Committee as Field Clerks/Group Secretaries or AuditoRs, They were paid emoluments out of the. Zakat Fund set up under section 7 of the Zakat and Ushr Ordinance, 1980 (hereinafter referred to as 'the Ordinance"). They seek regularization of their services at par with the other regular employees of the Zakat and Ushr Department.

3. The jurisdiction of this Court was invoked by an application dated 31-10-2009 addressed to the Hon'ble Chief Justice of Pakistan by the contractual employees appointed by the Chairman District Zakat and Ushr Committee, Mianwali. By order of the Hon'ble Chief Justice the application was converted into Suo Motu No,15 of 2010. This was followed by a number of similar applications made by the other contractual employees and they too were converted into Human Right Cases. Some applications and a constitution petition were, directly filed under Article 184(3) of the Constitution.

All these matters were heard together.

4. Mr. Tariq Mehmood, learned Senior Advocate Supreme Court leading the arguments on behalf of the petitioners submitted that the petitioners have been serving the Department for periods ranging from 10 to 17 years; that they were not employees of a project mandated to be wound up upon its completion but were employed in a permanent department of the Government and are performing functions similar to those of regular employees. Referring to the various correspondence and the recommendations made by the Committees set up by the Provincial as well as the Federal Governments proposing regularization of the services of the petitioners the learned counsel contended that on principle all the opinions are in favour of regularization of the petitioners' services. He pointed out that the petitioners' services fall :within the definition of "Service of Pakistan" as defined in Article 260 of tile Constitution and in support of this argument he placed reliance upon "Hadi Bux v. Government of Sindh (PLD 1994 SC 532) and Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCM R 141)". He further placed reliance upon "Abdul Majid Sheikh v. Mushaffe Ahmed (PLD 1965 SC 208)" relating to regularization of the services of contractual employees. The learned counsel submitted that the Federal Gpvernment as well as the Provincial Governments had through legislative measures regularized the services of contractual employees but acted discriminately by not according the same benefit to the petitioners who have been serving their departments for decades. It was argued that instead of being .Paid from the Zakat Fund, the petitioners be treated at par with the regular employees and be paid from the Consolidated Fund. The learned counsel pointed out that before the subject of Ushr and Zakat was devolved upon the Provinces, the Provincial Governments had been recommending to the Federal Government regularization of the services of the petitioners but now when the subject has been transferred to the Provinces they have gone back on their earlier stand.

5. Mr. Abdul Rahim Bhatti, learned Advocate Supreme Court appearing in C.M.A. No,3244 of 2010 adopted the arguments advanced by Mr. Tariq Mehmood and added that the petitioners have been assigned work similar to those of the regular employees, some of whom are audit clerks while others group clerks. Relying upon "Managing Director, S.S.G. v. Saleem Mustafa (PLD 2001 SC 176) and Ikram Bari v. National Bank of Pakistan (2005 SCM R 100)", the learned counsel submitted that payment of meager salary ranging from Rs,5,000 to 10,000 is exploitation which under. Article 3 of the Constitution the State is enjoined to eliminate. He contended that this, was a unique case where employees have been serving in the Department of the Government for up to 27 years on contract basis with no prospect of permanent regular employment.

6. In C.M.A. No, 3068 of 2011, Mr. Mushtaq Ahmed Mohal, learned Advocate Supreme Court submitted that in the light of the policy of the Federal Government the Azad Jammu and Kashmir as well as the Government of Gilgit and Baltistan had regularized the services of their contractual employees of the Zakat and Ushr Department and on the principle of equal treatment the petitioners are also entitled to the same benefit.

7. In. C.M.A. No,74 of 2011, Mr. Amjad Ali, learned Advocate Supreme Court added that the petitioners be provided security of service and as their tenure is not fixed they serve at the mercy of their employer.

8. In C.M.A. No,2742 of 2010, Mr. Nazir Ahmed Bhutta, learned Advocate Supreme Court adopted the arguments of the other learned counsel and submitted that since this Court had during hearing of these matters ordered the reinstatement of a contractual employee whose services were terminated, the petitioners may also be accorded the same treatment.

9. To understand the nature of the employment of the petitioners it will be helpful to briefly refer to the Zakat and Ushr Ordinance, 1980 introducing the system of collection and disbursement of the Zakat and Ushr. For this purpose the Ordinance provides for setting up of four bodies. At the head is the Central Zakat Council set up by the Federal Government under section 12 of the Ordinance. It is mandated to provide policy guidelines and to exercise general superintendence and control over matters relating to Zakat and Ushr At the provincial level section 14 empowers the Provincial Government to establish a Provincial Zakat. Council, which in turn constitutes District Zakat and Ushr Committees in each district and down the line are tehsil, sub-divisional and Local Zakat and Ushr Committees. For administrative work government officials are attached to these Councils and Committees. The administrative expenditures of the Councils and Committees are provided .For in section 8(c) of the Ordinance, which reads:-- "(c) expenditure on the collection, disbursement and administration of Zakat and Ushr:

(i) the expenditure on the administrative Division and the Central Council shall be met by the Federal Government;

(ii) the expenditure on the administrative organization of a Chief Administrator, the Provincial Council, and a District Committee shall be met by the Provincial Government; and

(iii) the funds not exceeding ten per cent approved in the budget shall be retained in the Provincial Zakat Fund to meet such additional expenditure of a Local Committee as may be approved by the Central Zakat Council;"

' The salaries of the petitioners are not paid out of the expenditures under clause (c)(i) or (ii) and admittedly they are paid from the Zakat. Funds under clause (c)(iii).

10. After the 18th Amendment in the Constitution brought about.By Act No,10 of 2010, the subject of Zakat and Ushr was devolved to the 'B provinces and consequently by notification dated 2-12-2010 issued by the Cabinet Division, Government of Pakistan, it was declared that the Ministry of Zakat and Ushr shall cease to exist w,e,f, 7-12-2010. However, for the collection of Zakat, and Ushr and its disbursement to the provinces and other areas in accordance with the formula approved by the Council of Common Interest was reallocated to the Ministry of Religious AffaiRs, At this point it is relevant to note that although the subject of collection and disbursement of Zakat and Ushr have been devolved to the provinces, however, according to the decision taken in the meeting of 27-7- 2012 by the Federal Minister for Religious Affairs in consultation with the Chief Secretaries of all the Provinces, the collection of Zakat is to remain centralized with the Federal Government upto 2015 and thereafter further decision to be taken in consultation with the Provinces. The Zakat Fund was to be distributed by the Federal Government to the Provinces and other areas in accordance with the formula arrived at in the said meeting. Under the 1980 Ordinance a Central Zakat Fund was established under the provision of section 5 thereof and the bulk of fund credited to it was Zakat deducted at source or deposited in Banks. Out of this funds were transferred to the Provincial Zakat Fund which in turn distributed .The same into the District Zakat. Funds. At the distribution level of Local Zakat Fund for each Local Committee was set up to be funded by the Provincial and District Zakat Funds. Thus in this view of the decision of the 27-7-2012, the system of collection and disbursement of Zakat remained unchanged C notwithstanding the devolution of the subject to the Provinces.

11. In these proceedings the Federal Government as well as the Provincial Governments were duly represented who filed their separate, comments. The Federal Government took the stand that upon devolution of the subject of Zakat and Ushr to the Provinces and the consequent abolition of the relevant Ministry, the Federal Government is no more concerned with the staff employed, in the Provinces. That the issue of regularization of the petitioners now'rests solely with the Provinces.

12. The hearing of these matters were adjourned from time to time at the requests of the Law Officers representing the four Provinces on the plea that their respective governments were considering making of legislation on Zakat and Ushr after devolution, of the subject to the. Provinces. Three of the Provinces, Balochistan, Khyber Pakhtunkhwa and Sindh have enacted laws to provide for and regulate the collection and disbursement of Zakat and Ushr. The Additional Advocate General, Punjab informed us that a bill for appropriate legislation on the subject has been approved by the Cabinet and was to be submitted to the Provincial Assembly. The view point of the Government of Punjab has however been expressed in their comments.

13. We have perused the Balochistan Zakat and Ushr Ordinance, 2011 (Ordinance No,1 of 2011)% the Khyber Pakhtunkhwa Zakat and Ushr Act, 2011 (Khyber Pakhtunkhwa Act No,17 of 2011) and the Sindh Zakat and Ushr Act, 2011 (Sindh Act No,10 of 2011). We have found that the provisions of these three enactments are substantially similar to the Ordinance of 1980 and the Central Zakat Council provided for in the Ordinance has now been replaced by the Provinces with a Provincial Zakat Council. As regards the payment of salaries to the petitioners a provision similar to section 8(c)(iii) of the Ordinance has been incorporated in all the three enactments made by the Provinces. The status of the petitioners thus remained unchanged after devolution of the subject to the Provinces.

14. Mr. Jawad Hassan, learned Additional Advocate-General, Punjab, Syed Arshad Hussain Shah, learned Additional Advocate-General, Khyber Pakhtunkhwa, Mr. Qasim Mirjat, learned Additional Advocate-General, Sindh and Mr. Muhammad Azam Khattak, learned Additional Advocate- General. Balochistan, took a joint stand and opposed the grant of the relief claimed by the petitioneRs, They contended that the petitioners were not employees of the. Provincial Governments but employed by the District Zakat Committees and were to be paid out of the Zakat Fund; that the petitioners were part time seasonal employees whose services were required generally only twice a year at the time of disbursement of the Zakat to the needy. The Law Officers of Sindh, Khyber Pakhtunkhwa and Balochistan additionally submitted that the collection of the Zakat from the Provinces would be far less than that which these Provinces are now entitled to from the Central Zakat Fund and thus eventually the Provinces will be additionally burdened in case the petitioners are regularized and their salaries paid from the Consolidated 'Funds. With the help of charts showing the financial repercussions in case of regularization of the petitioners these Law Officers contended that it would be huge financial burden which the Provinces cannot bear.

15. We examined the various orders of appointments of the petitioners placed-on record and noted that the petitioners were employed/recruited on contractual. Basis for specific periods by the Chairman, of the District Zakat Committees. Their services were to be regulated by the terms and conditions of the agreement approved by the Provincial Zaat Council of the Provinces. It is not disputed that the petitioners were contractual employees recruited on a fixed salary for specified terms which in most cases were extended from time to time. The nature of their job has been highlighted in the comments filed by the Government of Punjab (C.M.A. No,2689 of 2010). Soon after promulgation of the 1980 Ordinance, the Provincial Zakat Councils of the Provinces decided to engage imam of mosques, school teachers, postmasters and other part time retired persons for preparation of records and accounts of the Local Zakat Committees. Their remuneration at the time was fixed at Rs,50 per month. In the year 1993. The. Provincial Zakat Council decided to engage part time workers for the maintenance of record at the fixed remuneration of Rs,200 per month. The Central Zakat Council on 13-10-1994 set up a scheme for Zakat Clerks, which, besides other conditions, decided that the appointments will be contractual; that they be paid fixed salaries and shall be appointed by the Chairman District Zakat Committee subject to endorsement of the Central Zakat Committee. It was on such terms that the petitioners were employed by their respective District Zakat Committees. This background demonstrates the nature of their employment being for specific purpose. Be that as it may, the fact remains that the petitioners are contractual employees and on that score according to the consistent view of this Court do not have vested right for regular appointment. See Government of Balochistan v. Zahida Kakar (2005 SCM R 642).

16. We have gone through the various Federal as well as Provincial legislation enacted from time to time for regularization of services of contractual employees as well as the case-law cited on behalf of the petitioners on subject. It will not be necessary to reproduce the relevant provisions of the regularization enactments. We have however noted that all such enactments provide for regularization of contractual employees appointed against posts in the Federal or Provincial Governments, as the case may be. The cases of the petitioners are entirely different and distinguishable. They were not appointed against any particular post nor by any government official or authority. They were appointed by the Chairman District Zakat Council on fixed salaries for a specific term and task. Their appointment is not under a particular law but under a policy decision taken by the Central Zakat Committee. Neither the 1980 Ordinance nor the subsequent provincial enactments make any reference to their employment and they are paid out of the Provincial Zakat Funds earmarked to meet "additional expenditure" of a local Committee.

17. As regards the question of discrimination, it may be pointed out that each Province is empowered and entitled to make its own decision regarding the subjects that fall within their respective domain in accordance with their own circumstances. A decision by one Province H regarding any matter cannot be cited as ground for discrimination if another Province does not take the same decision. To hold otherwise would be an intrusion into the provincial economy of the Provinces. Now that the subject of 'Zakat and Ushr is within the domain of the Provinces, it is up to each. Provincial Government to decide the terms and conditions of the petitioners' services.

18. The learned counsel for the applicants in C.M.A. No,2742 of 2010 has referred to the order of this Court dated 14-12-2011 passed in. C.M.A. No,178 of 2012, wherein the applicant had complained that instead of extending his contractual employment the District Zakat Officer employed his own brother on contract basis. We had then directed the Additional Advocate-General Punjab to verify the correctness of the allegation. On the following date of hearing it was reported that the employment of the brother of District Zakat Officer was terminated and the contract of the said applicant extended. This order was passed in view of the conduct of the District Zakat Officer who before any action could be taken against him reversed the appointment of his brother and on his own extended the contractual period of the applicant. It is upto the competent authority whether or not to extend contract of the applicant. We are in no position to order the. Chairman of the Zakat Committees to refrain from terminating the contractual employment of the petitioners or to extend the contract whenever the contract expires. To hold otherwise would be usurping the powers of the Chairman of the Zakat and Ushr Committees.

19. We might agree with Mr. Abdul Rahim Bhatti, learned Advocate Supreme Court that the petitioners' employment is unique but the petitioners had accepted the terms and conditions of their employment at the time of appointments. The petitioners are now being paid from the Zakat Fund disbursed from the Central Zakat Fund but in case their services are regularized their salaries and other emoluments are to be charged to the Provincial Consolidation Funds, adding to the financial burden of the Provinces. Three of the Provinces, as noted above, have already expressed their inability on account of financial constraint to regularize the petitioners' services. We, therefore, leave it to the Provinces to determine whether or not, and to what extent, the terms and conditions of the petitioners' employment require change. With these observations all these petitions and applications are dismissed.