' The captioned writ petition has been filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby following relief is solicited: "Under the circumstances, it is respectfully prayed that by accepting the instant writ petition respondents may kindly be directed to send the case of petitioner for move-over in B-20 and permanent promotion in B-20 with effect from 1997 to the concerned Selection Board. It is further prayed that the respondents may kindly also be directed to send the case of petitioner to the Accountant General Office for grant of pension and other benefits to petitioner. Any other relief which this Hon'ble, Court deems proper may also be granted to petitioner."
2. Precise facts giving rise to the instant writ petition are that petitioner being Assistant Professor .
(BPS-18) of Education Department, was promoted as Associate Professor (BPS-19) on recommendation of respective Selection Board, vide notification dated 31st May, 2006. The petitioner claimed that he was entitled to be promoted much earlier in grade (BPS-19), however, respondents, with mala-fide intention, failed to send his case before the concerned Selection Board. The petitioner, along-with other, Associate Professors, filed an appeal before the Azad Jammu & Kashmir Service Tribunal and challenged vires of Govt. Notification dated 31st May, 2006, which appeal after due process of law, was accepted, hence he was granted retrospective promotion as Associate Professor (BPS-19) from 1st September, 1990, through notification dated 29th July, 2008. It is averred that after completing the age of superannuation, petitioner was retired from service through Govt. Notification dated 20th January, 2007, wherein, it was mentioned that he shall be entitled to obtain all pensioner benefits. The petitioner moved an application before Director Public Instructions (Colleges), Respondent No, 2, for sending his case for promotion in grade BPS 20 before the concerned Selection Board, through Secretary Education Colleges, Respondent No, 1, as he was allegedly liable to be promoted in BPS-20 from 1997 who also claimed move-over in BPS-20 since the aforesaid year. It is alleged that another application was moved by petitioner before Director Public Instructions (Colleges), Respondent No, 2, for sending his case for promotion in grade BPS-20, however, neither his. Case was sent to the concerned Selection Board for such promotion nor he was granted pension benefits, hence, the instant constitution petition.
3. The respondents despite obtaining several opportunities failed to file written statement, therefore, their defence was closed vide order dated 22nd April, 2012. However, on Court order Secretary Higher Education, has filed report on 07th April 2015, wherein, it is stated that petitioner was a Principal, Government Inter College Baloch, who was retired on reaching the age of superannuation with effect from 15th Oct, 2006, vide notification dated 20th January, 2007. It is maintained in the report that despite elapsing long period petitioner failed to obtain clearance certificate/NOC from the Education Department, for the purpose of pension. It is further stated that as per report of Director Public Instructions (Colleges) dated 08th February, 2011, a sum of Rs, 3,30,719 plus Rs, 1,10,107/- total amount of Rs, 4,40,826/- was liable to be paid by petitioner to Education Department, then-NOC could be issued in his favour.
4. Sardar Muhammad Habib Zia, the learned counsel for petitioner strenuously argued that petitioner was entitled for promotion in BPS-20, since 1997, however, his case was not sent by respondents to respective Selection Board, for mala fide reasons. He further contended that petitioner was retired from service on reaching the age of superannuation, with all pensionary benefits vide Govt. Notification dated 20th January, 2007, however, inspite of elapsing about nine years, he has not been granted pensionary benefits on flimsy ground. The learned counsel emphasized that if any outstanding amount was liable to be returned by petitioner to Education Department, then the same could, be deducted from his leave encashment and pension, hence, craved that by issuing writ of mandamus respondents be directed to place, the case of his client for promotion in (BPS-20), before respective Selection Board, with further direction to send his file to Accountant General Office to extend him pensionary benefits as per law.
5. After hearing the learned counsel for petitioner at great length I have perused the contents of writ. Petition and examined the appended documents made available with utmost care.
6. A glance perusal of record reveals that petitioner being Assistant Professor (BPS-18), was promoted on recommendation of Selection Board No, 1, as Associate Professor (BPS-19), on the basis of four tire structure, vide Govt. Notification dated 31" May, 2006. However, as per judgment of Service Tribunal dated 12th February, 2008, inter-alia, petitioner was granted retrospective promotion in grade (BPS-19) w,e,f, 1st Sep,, 1990, vide Govt. Notification dated 29th July, 2008. The petitioner meanwhile was retired from service on reaching the age of superannuation, alongwith all pensionary benefits, w,e,f, 15th October, 2006, vide notification dated 20th January, 2007. The claim of petitioner that he was entitled to be promoted on regular basis in (BPS-20) since, 1997, seems as baseless for the reason that nothing has been brought on record that at the relevant time any post of (BPS-20) was vacant against which direction for his regular promotion may be commanded. Even no law has been cited at Bar that how petitioner was entitled for move-over in (BPS-20), since, 1997, therefore, according to my humble view, writ petition to the extent of promotion of petitioner either on regular or move-over basis against the aforesaid grade (BPS-20), is accordingly not maintainable.
7. The petitioner, however, was admittedly retired as a Principal of Govt. Degree College, Pallandri w,e,f, 15th Oct, 2006, through Govt. Notification dated 20th January, 2007, whose pension case has yet not been finalized despite elapsing about 09 years long period which omission of respondents is against the spirit of law and concept of good governance. As per statutory provisions, all the concerned authorities are under legal obligation to sanction the pension of a civil, servant a month before the date of retirement. It will be appropriate to refer here Rules 5.1 and 5.2 of the Azad Jammu & Kashmir Civil Servants (Pension) Rules, 1971, which speaks as under: "5.1 All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive his pension on the date on which it becomes due.
5.2 The responsibility for initiation and completion of pension papers is that of the Head of Department/Attached Department concerned in the case of gazzetted officers, and of the Head of Officer concerned in the case of non-gazzetted Government servants. The action should be initiated one year before a Government servant is due to retire, so that pension may be sanctioned, a month before the date of his retirement. For this purpose, every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement: ' Provided that in case in which the date of retirement cannot be foreseen 6, months in the advance, the Government servant, may be asked to submit his pension application immediately after the date of his retirement is known".
8. I regret to observe here that the aforesaid Statutory provisions of law have seriously been violated by respondents which P resulted into creating hardships, anomalous situations and agony for the retiring person.
9. As per report of Secretary Higher Education (Colleges), dated 7th. April, 2015, total amount of Rs, 4,40,826/- of Education Department, is outstanding against petitioner. The aforesaid amount, after due process, can be deducted from gratuity, leave encashment and pension of petitioner, as the case may be.
10. The upshot of above discussion is that by partly accepting the instant writ petition, for the ends of justice, keeping in view the peculiar facts of the case, the respondents and all other concerned authorities, including Accountant General Office, are directed to take immediate action and finalize the pension matter of petitioner within one month from the receipt of the instant judgment. The writ petition however, to the extent of sending the case of petitioner for promotion in (BPS-20) is refused. The costs shall follow the eventuality.