' IQBAL HAMEEDUR RAHMAN, J.--- The instant writ petition has been filed for the payment of the bills of the petitioner amounting to Rs,2,15,538 which was due on account of the supply of goods to the respondents.
2. Brief facts succinctly required for the determination of this writ petition are that the petitioner- firm supplies furniture and other related items. The petitioner-firm received a letter, dated 28-2- 1994 (Annexure "A") from the Deputy District Education Officer, Alipur, who was Secretary of the Purchase Committee for the Girls Community Model Schools Alipur, that it requires furniture and other items and in case the petitioner-firm supplies the same in accordance with the rates mentioned against the items and is also ready to fulfil other conditions, then its samples be presented before the Purchase Committee. The petitioner-firm showed its readiness to supply the items as mentioned in Annexure "A" as per its specification and rates and also to fulfil other conditions contained in the letter dated 28-4-1994. Thereafter, the petitioner-firm received another letter dated 16-4-1994 from the same office directing the petitioner-firm to submit samples of the items which the petitioner-firm presented before the Purchase Committee comprising of an Assistant Commissioner (Chairman), Deputy District Education Officer (Secretary) and Headmistress, Government Girls School Alipur. After the approval of the samples submitted by the petitioner-firm by the Committee, the Purchase Committee on 31-8-1994 directed the petitioner- firm to fulfil the condition of making call deposit at the rate of 10% on 12-9-1994 which the petitioner-firm complied with and deposited the same on 12-9-1994. Thereafter, the petitioner-firm received another letter, dated 13-9-1994 from the Secretary Purchase Committee, ordering the petitioner-firm to supply the items of store mentioned. The petitioner-firms supplied the item of furniture on 25-4-1995 and the Inspection Committee inspected the same and held that the items were according to specification and standard and in this respect a report was placed before the Purchase Committee who agreed to it and decided to distribute the same to the schools.
Thereafter, the petitioner-firm submitted bill for the payment of Rs,2,21,538 for the supplied items which was subsequently approved by the Secretary Purchase Committee vide Annexure "F".
Thereafter, the payment of the bill was delayed by the Purchase Committee on one pretext or the other. The petitioner-firm did not receive the payment of its bill. Therefore, the petitioner-firm lodged a complaint before the Provincial Ombudsman. The representatives of the respondent- Department appeared before the Provincial Ombudsman and acknowledged the supply made by the petitioner-firm in accordance with the specification and quotations within due date and also the approval of the bill of the petitioner-firm by the Purchase Committee. The Provincial Ombudsman vide his order, dated 26-12-2000, observed as under:-- "Moreover, the representatives of the Agency reported that the grievance of the complainant is genuine as the firm had supplied the stores of quality and specification required for the school of the work which was completed within the scheduled date. The apprehension of the Project Director shown in terms of his observation apart, the Purchase and Technical Inspector Committee had satisfied themselves in award of contract of its supply and there seems no fault on the part of the contracting firm whose grievance may be genuine. The complainant, if so advised, lodge an appeal before the competent authority who shall examine the issue, decide on merit and finalize the matter in accordance with law within three months from todate under intimation to this office.
The complainant be informed."
' On the passing of the order of the Provincial Ombudsman, the petitioner-firm on 19-4-2001 repeatedly approached the competent authority/Project Director along with the order of the Provincial Ombudsman vide Ref. No,672 dated 30-5-2001, Ref. No,675 dated 4-6-2001, Ref. No,680, dated 9-6-2001 and Ref. No,703 dated 5-7-2001 but received no response. Again the petitioner-firm was constrained to file a complaint before the Provincial Ombudsman that his order is not being complied with and the respondents have not made any response nor any payment has been made to the petitioner-firm. The petitioner-firm also approached the Special Secretary School Government of the Punjab, for the redressal of its grievance vide Reference No,750 dated 18-8-2001.
The bill of the petitioner-firm was delayed unnecessarily by the respondents on one pretext or the other and now it has turned out that the very project has since 20-9-2005 been closed. In view of the same, the petitioner-firm invoked the constitutional jurisdiction of this Court through Writ Petition No,5981 of 2005 and this Court vide its order, dated 23-11-2005, observed as under:-- "According to the learned counsel the petitioner made some supplies to the respondent in accordance with specification. However, his bill in the sum of Rs,2,21,538 was not paid. He ultimately approached the Provincial Ombudsman before whom the Department admitted the factum of supply of goods as alsp the fact that the supplies were in accordance with the specification. The petitioner was accordingly advised to approach the competent authority in the Department.
According to the learned counsel ever since his client had been made to go from pillar to post but without any avail.
(2) Having examined the several documents, appended with the writ petition, particularly order of the learned Ombudsman I dispose of this writ petition with the direction that the petitioner to approach .Respondent No,1 with a copy of this writ petition and its Annexures who shall institute an inquiry in the matter and decide the same under intimation to the petitioner as well as D.R. (Judi.) of this Court, within six weeks of the presentation of the application by the petitioner as directed above."
' In pursuance of the order dated 23-11-2005, the petitioner-firm approached the Secretary Education Government of the Punjab, Lahore/ respondent No,1 but the petitioner-firm was not heard and after a lapse of 7 weeks no order was passed which led the petitioner-firm to approach this Court through Criminal Original No,77-W of 2006 complaining the non-compliance of the order of this Court, dated 23-11-2005. In the said criminal original, reply was called but the respondents failed to file any reply. The petitioner again filed Criminal Miscellaneous No,945 of 2006, in which again reply was sought by the respondents vide order, dated 29-5-2006. Vide order, dated 28-6- 2006 passed in Criminal Original No,77-W of 2006, this Court observed as under:-- "At long last one Ahmad Bilal has filed a reply on behalf of the respondent-Secretary. I have examined the same and find the same to be wholly unsatisfactory. Notice be issued to the respondent-Secretary calling upon him to file reply after carefully regarding the contents of the criminal original and the judgment of this Court. Needful to be done within four weeks, failing which he shall appear in person to be charged in contempt. The learned A.A.-G. Also to convey this order to the respondent-Secretary."
' Thereafter on 26-9-2006 parawise comments were filed by the respondents, stating therein that a regular inquiry against the delinquent officials is being conducted, therefore, Criminal Original No,77/W of 2006 was disposed of by this Court vide order, dated 26-9-2006 with the following observations:-- "Learned A.A.-G. Has filed decision taken by the respondent in compliance with the orders of the learned Provincial Ombudsman. Learned counsel states that the decision is against law and facts.
If this is so, let the petitioner challenge the said decision in appropriate proceedings. This Criminal Original is disposed of and notice is discharged."
' It is asserted by the petitioner that there was no decision of the respondent-Secretary on the file of the case except parawise comments and when the learned A.A.-G. Was contacted in this regard, it was told that A.A.-G.'s file too was without its copy. Hence this writ petition.
3. It is contended on behalf of the petitioner that it is an admitted fact that the goods were supplied by the petitioner-firm which were duly inspected and received by the respondents-Department, as is apparent from the Karwai of the Purchase Committee dated 24-5-1995; that the grievance of the petitioner is genuine; that the petitioner-firm had supplied the goods and for the last 12 years, the petitioner is running from pillar to post for the recovery of the amount of its bill which was duly approved by the Secretary Purchase Committee; that before the Provincial Ombudsman the respondents admitted the claim of the petitioner-firm and the respondents did not file any appeal against the order of the Provincial Ombudsman; that the petitioner-firm has been continuously approaching the respondents as well as this Court through writ petition, in which the respondents while filing comments have admitted the supply of goods, therefore, non-payment of the amount of the bill of the petitioner-firm is arbitrary, illegal and unjust and the petitioner is entitled to the payment of Rs,2,21,538+14% 'markup+Security of Rs,28,000. In support of his contentions, learned counsel for the petitioner has placed reliance on Muhammad Javaid v. LESCO through Chief Executive and 5 others PLD 2007 Lah. 91, Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisar Elahi and others 2005 SCMR 678, Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121 and Messrs United International Associates through Managing Partner v. Province of the Punjab and another 1999 MLD 2745.
4. On the other hand, the learned A.A.-G. Raised legal objection as to the maintainability of the writ petition. It is urged that the petitioner-firm has an alternate remedy of filing a civil suit and the ultimate jurisdiction rests with the Civil Court; that contractual obligations and factual inquiries cannot be conducted by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as such the writ petition is not maintainable; that in view of the directions given in the order dated 23-11-2005 passed by this Court in Writ Petition No,5981 of 2005 an Inquiry Committee was constituted to inquire into the matter and the Committee after examining the record, visiting the relevant schools and recording the statements of the concerned teachers submitted its comprehensive report and after examining the probe report action was initiated against the delinquent officers/officials who were found guilty of illegal purchase, tampering the record and non-availability of complete store articles; that the petitioner for the first time filed a writ petition in the year 2005 when the matter pertains to the years 1994-95 and it was after 9/10 years that the petitioner had agitated the matter; that the Provincial Government was not impleaded as a party in the whole process started by the petitioner-firm and it was only for the first time in Writ Petition No,5981 of 2005 that the Provincial Government has been impleaded as a party and the same has been maneouvred in such a way so as to cover up the whole fictitious and false purchase alleged to have been made by respondents Nos.2 to 4; that after the order dated 23-11-2005 passed by this Court in Writ Petition No,5981 of 2005, the order of the Provincial Ombudsman would stand emerged in the said order of this Court as there was no direction on the part of the Provincial Ombudsman to make payment to the petitioner-firm and that the petitioner has not approached this Court with clean hands, as such this petition may be dismissed with special costs.
5. I have heard learned counsel for the parties and perused the parawise comments as well as the record.
6. Admittedly, the petitioner-firm was offered through a letter dated 28-2-1994 from the Deputy District Education Officer, Alipur being the Secretary Purchase Committee for the Girls Community Model Schools Alipur for the supply of furniture and other items. The petitioner-firm accepted the offer and samples of the items were submitted before the Purchase Committee who approved the same and the petitioner was asked to make call deposit at the rate of 10%. The petitioner-firm made the call deposit as is evident from Annexure "C". Thereafter, the petitioner-firm made the supply of goods and the same was accepted by the Purchase Committee, as is apparent from the proceedings of the Purchase Committee dated 24-5-1995 Annexure "G". Thereafter the petitioner- firm had submitted its bill and the same was approved by the Secretary Purchase Committee as is apparent from Annexure "F" but the payments were not made to the petitioner-firm. The petitioner moved a complaint before the Provincial Ombudsman and the Project Director GPEP and Deputy District Education Officer GPEP appeared before the Provincial Ombudsman and admitted that the Technical Committee inspected the furniture on 25-4-1994 and its delivery was according to specification. Thereafter, the respondents have been appearing in the writ petition filed by the petitioner-firm. They had been directed to probe into the grievance of the petitioner and decide the same under intimation to the petitioner as well as Deputy Registrar (Judicial) of this Court vide order, dated 23-11-2005 passed in Writ Petition No,5981 of 2005. When the supply of goods and its receipt were admitted by the respondents, to contend that the same pertains to contractual obligations and cannot be taken into consideration by this Court would not be appropriate as it was held in Messrs United International Associates through Managing Partners v. Province of the Punjab and another 1999 MLD 2745 that where enforcement of a term of contract was sought against the statutory corporation or the Government, Court could interfere in the matter and further held that since delivery of items and liability to make payment had been accepted, it would not be fair to non-suit the petitioner merely on ground that contractual obligation could not be enforced through a constitutional petition. In this respect, reliance is also placed upon Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisara Elahi and others 2005 SCMR 678, Airport Support Services v. Airport Manager, Quaide-Azam International Airport, Karachi and others 1998 SCMR 2268; Ramna Pipe General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.)
2004 SCMR 127 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271.
' In view of the above-referred authorities, the preliminary objection raised by the learned A.A.-G. As to the maintainability of this writ petition cannot be accepted.
7. In the instant case, the Deputy District Education Officer, Alipur was the Secretary of the Purchase Committee for Girls Community Model Schools Alipur and he was fully authorized to make purchases by the Additional DPI (Schools), Punjab, Lahore, through his letter No,ADPI/952/GPEP dated 24-1-1993, a copy whereof is appended as Annexure "B" with the parawise comments filed by the Secretary, Education Government of the Punjab, Lahore/respondent No,1.Therefore, the Deputy District Education Officer (M) Tehsil Alipur District Muzaffargarh had made purchases from the petitioner-firm and he had admitted receiving the goods supplied by the petitioner-firm. In this view of the matter, non-payment of the bill of the petitioner-firm is sheer arbitrariness on the part of the respondents in depriving the petitioner of payment for such a long time. Even otherwise if there is any lapse on the part of the Purchase Committee, it is internal matter of the department to take action against its officials/officers for the said lapses in purchase procedure and the petitioner cannot be made to suffer.
8. In view of the above circumstances, this writ petition is accepted and the respondents are directed to make payment of the bill amounting to Rs,2,21,538 with compensation at the rate of 14% per annum for depriving the petitioner-firm of his due amount for a period over more than a decade to the petitioner-firm. The respondents are also directed to return the security of Rs,28,000 to the petitioner-firm.