SAVED ZAHID HUSSAIN, J.--- Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the order passed by respondent No. 1 on 28.5.2007 is sought to be assailed whereby the respondents approached the wafaqi Mohtasib (Ombudsman's) Secretariat for recalling of recommendations/findings rendered in the year 1998, As a sequel to that letter dated 13.9.2007 was issued by the Wafaqi Mohtasib (Ombudsman) Secretariat. Same other correspondence also took place inter se the authorities, which, however, is not relevant for the present.
2. The learned counsel for the parties have been heard at length.
3. The undisputed position is that a complaint alleging discrimination in the matter of grant of move-over to the petitioner was filed before the Wafaqi Mohtasib (Ombudsman), which was decided on 29.7.1998. The operative part whereof as per paragraph-5 is as follows:-- "5.: In view of the above facts, it is recommended that the complainant Mr. Zaka Ullah, be allowed move-over to BS-18 w.e.f. 1.12.1986, pay and fringe benefits of the post of S.M.E., BS-18 w.e.f. 7.12.1991 to 18.10.1998 with move-over to BS-19 from 1.12.1993, and difference of commutation and pension. He should accordingly be paid the arrears of pay/allowances and pensionary benefits. The complainant is closed as it has borne fruit and the compliance report may be furnished within 60 days after receipt of this order."
Pakistan Railways, the respondents assailed such recommendations through several petitions of like nature under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 before this Court including the order passed in favour of the present petitioner (W.P. No. 6156/99). All such petitions were heard together by a learned Bench of this Court comprising Tassaduq Hussain Jilani, J., as His Lordship then was, when some of the petitions were sought to be withdrawn, which were dismissed accordingly whereas the rest of the petitions were dismissed by the Court. Paragrap-4 of the judgment, which is of relevance in the context reads as follows:- '
"4. I have heard learned counsel for the parties and have gone through the impugned order passed in the afore-referred petitions. Respondents are retired officials of Railway Department and have .Retired mostly in Grade 14, 15, 16 and 17. They filed complaints before Wafaqi Mohtasib alleging that they had not been paid monetary and other benefits of higher posts to which they were entitled under the law. The complaints were allowed and the Wafaqi Mohtasib directed that the respondents be paid the dues to which they were entitled in terms of their respective pay scales.
These orders were passed by the Wafaqi Mohtasib in a period spanning 2 to 3 months from July, 1998 to October, 1998. The impugned orders were revisable under section 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 and in the entire body of the petitions no tenable explanation has been given as to why the afore-referred orders were not challenged.
Today learned counsel for the petitioner has placed on record a letter from the Ministry of Railways and sought permission to withdraw 22 cases to which reference has been made above. Neither in the said letter nor during arguments learned counsel has explained as to how the case of the respondents against whom the writ petitions are being withdrawn is different from the ones against whom the department wishes to pursue the petitions. This policy decision is on the face of it discriminatory and cannot be countenanced in law. Learned counsel for the petitioner did not dilate much on the merits of the respondents' claim for the grant of benefits which have been allowed to them vide the impugned order but pressed his case primarily on the ground of jurisdictional defect in the orders passed. Having gone through the impugned orders I have not been able to persuade himself to subscribe to the view that the impugned orders have not been passed to ensure substantial justice. That being so this Court sitting in the discretionary writ jurisdiction of this Court may refuse to interfere. This is in line with the law laid down by the august Supreme Court in M/s Norwich Union Fire Insurance Society Ltd. Vs. Muhammad Thus the order/recommendations made by the Wafaqi Mohtasib (Ombudsman) merged into the order of the Court, which had never been assailed before the higher forum and holds the field till date. Its legal efficacy cannot be eroded due to some subsequent events or by mere passage of time. In Works Co-operative Housing and another vs. The Karachi Development Authority (PLD 1969 S.C. 430) it was observed that "It is new well-settled that a Notification cannot be made to operate retrospectively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action." Such a view was followed in Commissioner of Sales Tax (West), Karachi vs. Messrs Kruddsons Ltd. (PLD 1974 S.C. 180) observing that "It is well-settled proposition that a notification by the Provincial Government' cannot operate retrospectively to impair an existing right or to, nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed." Similar view is found in Capt. (Detd.) Abdul Qayyum, Executive' Engineer vs. Muhammad Iqbal Khokhar and 4 others (PLD 1992 S.C. 184). Since the right accrued to the petitioner merged into the judgment of the Court and matured, its nullification was not possible through an executive/administrative measure. The judgment, which had become final for all intents and purposes, could not be frustrated in the manner it is sought to be done. >Any such action is unsustainable in law and is declared so. . CJaved lqbal, etc. (1986 SCM R 1071), Export Promotion Bureau, etc. Vs. Qaiser Shafiullah (1994 SC.MR 859) and Secretary to the Government of Punjab vs. Ghulam Nabi, etc. (PLD 2001 S.C. 415)."