BAKHTIAR KHAN Versus GOVERNMENT OF PAKISTAN

SHAH JEHAN KHAN YOUSUFZAI, J .‑‑‑On the promulgation of Zakat and Ushr Ordinance (No.XVIII of 1980) (hereinafter to be called as the Ordinance) the Provincial Zakat and Ushr Department was established wherein the petitioners were appointed as Junior Clerks/Naib Qasids. Initially the recurring expenditures were borne by the Provincial Government but subsequently the law was amended to the effect that Zakat was federalised and the assessment and collection of Ushr was entrusted to the Board of Revenue of each Province. In this connection an S.R.O. No.762(1) of 1993, dated 5‑9‑1993 was issued whereby section 8(2) of the Finance Act (NO.VII of 1990) (hereinafter to be referred to as the Act) substituting section 6 of the Ordinance was given effect from Kharif, 1993. There was some confusion regarding liability of payment of salary to the staff engaged in assessment and collection of Ushr, that whether the Federal Government or the Provincial Government shall be liable to pay. In this respect, a decision was taken in a 2nd Inter‑Provincial Ministerial Meeting held on 3‑1‑1994 in the following words:‑

"The staff which has been recruited by the Provincial Government for establishment of Zakat and Ushr system under the Zakat and Ushr Ordinance, 1980 would be the liability of the Federal Government because of its re‑organization, except for those on deputation or those engaged for collection of Ushr which is still assigned to the Provincial Government, under the amended Ordinance."

The Provincial Government taking shelter of the Ordinance as amended up to 1‑7‑1994 regretted the liability to release budget and salaries of the petitioners (employees of Ushr) and informed the Secretary to Government of N.‑W.F.P., Board of Revenue accordingly. The matter was once again referred to the Federal Government through the concerned Department and in a letter dated 2‑7‑1995 issued by the Section Officer (FA‑1), Ministry of Finance, Zakat and Ushr Division to the Assistant Secretary, Board of Revenue, N.-W.F.P., Peshwar, while quoting the above decision of Inter‑Provincial Ministerial Meeting, it was clarified that payment of salary to the staff employed for the enforcement of Ushr is not the liability of the Federal Government (Zakat and Ushr Division) and that, therefore, the staff engaged for the enforcement of Ushr shall be adjusted in the Provincial set‑up and the salary be paid from the Provincial Budget. As a result of the aforementioned correspondence the Secretary to Government of N.‑W.F.P., Revenue Department released a sum of Rs.16,90,910 as salaries of the Ushr employees for the period from 1‑1‑1995 to 30‑6‑1995 which was to be met out from the sanction budget for the year, 1994‑95. The matter was still hanging fire because neither the Federal Government nor the Provincial Government was inclined to accede to the liability of payment of salaries to the petitioner. However, in a letter dated 22‑7‑1996 (Annexure 'H') the Secretary to Government of N.‑W.F.P., Revenue Department conveyed to all the Commissioners/Deputy Commissioners in the N.‑W.F.P. orders of the Chief Secretary (respondent No.2) which are as under: ‑

"Pl. revert the Tehsildars/Naib‑Tehsildars to their original posts, as the Department stands disbanded. The cases of J.Cs./N.Qs. may be disposed of by the Appointing Authorities concerned."

In view of above orders the petitioners were neither accommodated in any other Department nor terminated and their salaries since July, 1995 are still outstanding and both the Federal and Provincial Governments are not yet acceding to their liability to pay. In this state of affair, the petitioners having no other adequate and efficacious remedy have filed this Constitutional petition under Article 199 of the Constitution of Pakistan, 1973 wherein it has been prayed that the respondents be directed to do what they are required under the law to do and to pay forthwith the salaries to the petitioners alongwith arrears.

2. Respondent No. l maintained in his parawise comments, while replying to para.2 and ground (B) of the writ petition, that Zakat and Ushr system was federalised with effect from 1‑7‑1994 by amendments in the Ordinance of 1980 and that following the said system of federalization the Government of N.‑W.F.P. (Zakat and Social Welfare Department) had placed the services of those employees who were appointed in connection with enforcement of Ushr at the disposal of Board of Revenue for their adjustment. In these circumstances and the legal position respondent No.1 denied the liability to deal with the payment of salaries of the petitioners.

3. Respondent No.3 (Secretary Finance) in his parawise comments, which were disclosed to be vetted on 5‑4‑1997, took the stance that the liability to pay salaries to the petitioners was put on the shoulder of the Federal Government for the reason of federalising the Zakat and Ushr system. while giving reply to para.6 it was pleaded that earlier the salaries for the period from 1‑1‑1995 to 30‑6‑1995 amounting to Rs.16,90,910 were paid from the sanction budget for the year 1994‑95 on the condition that the Board of Revenue will obtain re?imbursement of the fund from the Federal Government on priority basis and that the Department has failed to get the amount reimbursed from the Federal Government.

4. Respondent No.4 (Secretary Social Welfare Department) has mostly admitted the factual position. However, it was opined that the petitioners were recruited in pursuance of a Federal Legislaticn (Zakat and Ushr Ordinance, 1980) and the financial liabilities shall also be borne by the Federal Government. It was disclosed that initially when Zakat was not federalised and collection and distribution were to be made by Provincial Zakat Council, which was also competent to constitute District Zakat Committees, the expenditure on administrative side was also borne by the Provincial Government. But after the change in law and taking over control by the Federal Government the responsibility of the Provincial Government to bear expenditure on administrative side also came to an end.

5. We have heard the learned counsel for the petitioners and the learned Additional. Advocate‑General in support of their respective contentions and have also gone through the available material on record and the relevant law. It is not disputed that the petitioners were duly appointed to carryout the functions of Zakat and Ushr and still they are in service. Their appointments were made under the Ordinance. The administrative control of Zakat and Ushr was vested in the Provincial Government. It is also a fact that the petitioners were never paid their salaries by the Federal Government. Even after the federtalisation of Zakat and leaving the assessment and collection of Ushr with the Provincial Government the petitioners were paid from the Provincial exchequer for the period from 1‑1‑1995 to 30‑6‑1995.

6. Now we will revert to the relevant provisions of the Ordinance. Section 8 of the Ordinance reads as under:‑

"8. Utilisation of Zakat Funds.‑‑The moneys in a Zakat Fund shall be utilised for the following purposes, namely,‑

(a) assistance to ....;

(b) expenditure on the collection, disbursement and administration of Zakat and Ushr:

Provided that;----

(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 Regional Administrator and a District Committee shall be met by the Federal Government."

The Ordinance was amended in 1991 wherein section 8 of the Ordinance reads as under:‑

"8. Utilisation of Zakat Funds .‑‑The moneys in a Zakat Fund shall be utilised for the following purposes, namely,‑

(a) assistance to ....;

(b) expenditure on the . . . ; collection, disbursement and administration of Zakat and Ushr:

Provided that the expenditure on the Central Zakat Council and the administrative organisation of the Administrator‑General shall be met by the Federal Government, that on a Provincial Zakat Council and the administrative organization of a Chief Administrator, and that on a District Committee, Tehsil Committee, Taluqa Committee or Sub? Divisional Committee by the Provincial Government concerned and that on a local Committee from the Local Zakat Fund not exceeding ten per cent. of the receipts in that fund during the year."

The above provision of the Ordinance was substituted by Act XII of 1994 in the Finance Act, 1994 wherein it has been added as under:‑

"Explanation.‑‑On commencement of the Finance Act, 1994, the Provincial Zakat Funds shall cease to exist and the balances in these Funds shall be transferred to the Central Zakat Funds;

(5) in section 8,...

(a) assistance to ....;

(b) expenditure on the collection, disbursement and administration of Zakat and Ushr:

Provided that

(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 a District Committee and the Sub‑Divisional Zakat office shall be met by the Federal Government; and ,

(iii) the funds not exceeding ten per cent. approved in the budget shall be retained in the Central Zakat Fund to meet such additional expenditure of a District Committee, a Sub‑Divisional Zakat office and a Local Committee as may be approved by the Zakat and Ushr Division."

The above provision of law was further amended through Zakat and Ushr (Amendment) Ordinance promulgated on 31st of January, 1997 wherein section 8 (c) reads as under:‑

"8. Utilisation of Zakat Funds.‑‑The moneys in a Zakat Fund shall be utilised for the following purposes, namely,‑‑

(a) assistance to ....;

(b) assistance to the needy ....;

(e) expenditure on the collection, disbursement and administration of Zakat and Ushr:

Provided that ‑‑

(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." '

7. From the above quoted relevant law we have noticed that the claim of the petitioners pertaining to the period from July, 1995 till 31‑1‑1997 when the law was amended by the Finance Act, 1994 was holding the field and the Federal Government was to bear the expenditure of salaries and after the 31st of January, 1997 Provincial Government shall be responsible to meet the same expenditure.

8. For the foregoing reasons, we direct respondent No.1, Secretary to Government of Pakistan, Zakat and Ushr Division in the Ministry of Finance that the petitioners be paid their salaries from July, 1995 till January, 1997. Similarly, we also direct respondents Nos.2 to 5 herein to make payment of the outstanding salaries to the petitioners from February, 1997 and onwards if they are not absorbed in any other administrative Department. This writ petition is allowed in the above terms with no order as to costs.

A.A./2176/P ??????????????????????????????????????????????????????????????????????????????????????? Petition accepted.