' This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. The succinct facts forming the back-ground of the instant writ petition are that petitioner had retried from service of the Judicial Department of Azad Jammu and Kashmir. When the petitioner retired from service, he was working as Personal Assistant in BPS-15, Selection Grade B-16 and Move-over B-17. He was retired on account of Cardiac disease. The petitioner moved an application for grant of successive Move-over. After obtaining approval from the relevant Selection Committee of the dgpartment, non-petitioner No.7, sanctioned B-18 with effect from 1-12-1999, while treating him being as employee of B-15 vide order No.469-71 dated 16-1-2001. The pro forma non-petitioner No.7 submitted the pay fixation form to non-petitioner No.1 under order No.607/HC/Budget/01 dated 22-2-2001 Non-petitioner No.1 fixed the pay of the petitioner in successive Move-over B-18 with effect from 1-12-1990, at the rate of Rs.7647 P.M. The pro forma non- petitioner No.7 prepared the arrear bill and paid Rs.8370 to the petitioner. As the successive Move- over B-18 was allowed to the petitioner after his retirement, and after the issuance of the P. P.O, so, the petitioner also moved for renewal of the said P.P.O. The pro forma non-petitioner No.7 informed the petitioner through letter dated 11th of May, 2001 by enclosing the letter No.1875/Accounts/Pension/2001, dated 29-10-2001, No.580 dated 20-3-2001 and No.339/Accounts/- II/2000, dated 18-10-2001, that the petitioner was not entitled to the successive Move-over B-18, therefore, non-petitioner No.4 has cancelled the order regarding grant of successive Move Over B-
18. It was also ordered by the said respondent that Rs.8370 may be recovered from the petitioner which were paid to him as arrears for the successive Move-over B-18. Now both the aforesaid orders have been challenged through the instant writ petition.
3. This writ petition was admitted for regular hearing. Notices were issued to the non-petitioners who have filed their respective written statements etc. Arguments have been heard.
4. The petitioner argued that when he was retired from service, at that time, he was in Basic Pay Scale No.15, selection grade B-16 and Move-over B-17. He submitted that Selection Grade B-16 is not a promotion but he was basically in grade B-15, In this respect, he referred section 8 of the Azad Jammu and Kashmir Civil Servant Act and submitted that under it, if a person is promoted to the post of higher grade, then, it shall be promotion, but the petitioner was not promoted to the post of higher grade. He remained on the same post but selection grade was awarded to him. It was not a promotion. In this respect, he also referred the clarification containing the modification of pay scales of 1983 for Move-over purposes and submitted that it contained that Move-over shall not be construed to be a promotion to the next higher basic pay scale, but the higher pay scale is to be treated to be an extension of the existing basic pay scale of the post. It was next submitted by him, that same like proposition came up under consideration before the learned Supreme Court of Azad Jammu and Kashmir in a case titled "Mubasharul Haq v. A.K. Government and others"., reported in PLC 1991 (C.S) 426. It was held by the learned Supreme Court that the term "promotion" means" promotion to a higher post". Thus, the selection grade could not be considered as a promotion. He also referred an unreported judgment of this Court titled "Muhammad Suleman v. A.G and others".
It was next contended by the petitioner that order, regarding the Move-over was passed by the Registrar, High Court. He was only competent to set aside the order. The non-petitioners Nos.1 to 4 and 6 have no jurisdiction to cancel the same. Even the non-petitioners have not provided an opportunity of hearing to the petitioner before passing the impugned order.
5. While controverting the arguments of the petitioner, Sardar Muhammad Razaq Khan the learned Additional Advocate-General argued that the order of the non-petitioners is perfectly legal and it does not require any interference.
6. I have heard the arguments of the petitioner and the learned Addl: Advocate-General and have also gone through the record appended with the writ petition.
7. The perusal of the record shows that when the petitioner was retired from service, at that time, he was in BPS-15, Selection Grade B-16 and Move-over B-17. Now, the question emerges that whether selection grade BP-16 was a promotion to the higher post or not? The term "promotion" has been used in section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976, according to which promotion to a post of higher grade of service or cadre, is termed as promotion. For having proper perception, I would like to reproduce section 8(1) of the aforesaid Act which is as under:-- "Promotion" (1) A civil servant possessing such minimum qualification as may be prescribed, shall be eligible for promotion to post, for the time being reserved under rules for departmental promotion in any higher grade of the service or cadre to which he belongs."
8. The aforesaid provision clearly conveys that promotion means "promotion to a post of higher grade of the service". Now in the instant case, the petitioner was not promoted to the post of higher grade. He remained on the same post but selection Grade B-16 was awarded to him which does not come within the ambit of "promotion". The word "Promotion" according to the Webster Dictionary page 1009 means, "Advancement, or preferment for honour, dignity or rank". According to the meanings of the Promotion provided in the Webster Dictionary, it means advancement in rank, but in the instant case, the petitioner was not promoted to any other rank. His rank remained the same but the Selection Grade was given to him, therefore, even from the meaning of the word "Promotion" by Webster, it does not mean that the petitioner was promoted to any higher rank, but simply financial benefits were given to him, while working on the same post. The same like proposition also arose before the Azad Jammu and Kashmir Supreme Court in a case titled "Mubashraul Haq v. A.K. Government and others". It was held by the learned Supreme Court that "promotion" means "promotion to the post of higher rank and not to higher grade". For having proper perception, I would like to reproduce the relevant observation which is an under:-- "Section 8 reproduced above clearly demonstrates that promotion a person is elevated to a post carrying a higher grade. "Promotion" is basically not to a higher grade but to a higher post. That is why there are many cadres in which civil servants keep on working against the same posts but are given higher grades by way of selection grade or by move-over. In such cases, the concerned civil servants are not said to have been promoted although they move in the higher grade."
' The aforesaid proposition further finds support from an unreported Judgment of this Court titled - "Muhammad Suleman v. A.G. And others" Writ Petition No.69 of 2001, decided on 15-2-2000.
Although the petitioner was drawing Selection Grad B-16 when he retired from service, but basically, he was in B-15 Thus, it could not be said that he was promoted in B-16. He was drawing BPS-15, as such, he was eligible to the successive Move-over B-18.
9. It would also not be out of place to mentioned here that in the instant case, the promotion order of the petitioner in successive Move-over was issued by the Registrar, High Court who was authority in this case and the remaining non-petitioners were not, at all, competent to set aside the order of grant of successive Move-Over B-18. They have no such jurisdiction. The order of the non- petitioner No.4 is without lawful jurisdiction. It is also pertinent to note that non-petitioners Nos.1 to 4 while passing the impugned orders, did not provide an opportunity of hearing to the petitioner, while it is settled principle of law that no one can be condemned unheard.
10. In the aforesaid circumstances, it is held that the orders passed by the non-petitioners regarding the cancellation of Move-over and the recovery of the arrear received by the petitioner, are without any legal justification and have been passed without affording any opportunity of hearing to the petitioner, as such, are not sustainable.
11. The nub of the above discussion is, that this writ petition is accepted and the orders passed by the non-petitioners are hereby declared to be without lawful authority.