' UMAR ATA BANDIAL, J.---The petitioners are contractors for execution of public works who are registered with the respondent-Authorities of the Pak. P.W.D. Respondent No,3 published advertisement giving notice of tenders of public works to be executed under the Peoples Works Programme in three National Assembly constituencies namely NA.76, NA.78 and NA.83. The tender document for the said projects were made available for purchase until 23-9-2008 in the office of respondent No,3. The petitioners approached the Court with the grievance that respondent No,3 has refused to issue the tender document to them without disclosure of cause whereas the same were being provided to other contractors. It was alleged that respondent No,3 was trying to exclude the petitioner from the competition and thereby to favour selected parties.
' On 19-9-2008 Court passed the following order:-- "Report and parawise comments be filed within one week. Meanwhile, the respondents shall either issue the tender documents to the petitioners in accordance with law or else shall give in writing the grounds upon which the petitioners are denied the same. Relist on 22-9-2008."
2. On 22-9-200$ the Court was informed that its previous order had not been delivered to the respondents for compliance. The matter was put off to the date when tenders were to be opened namely 24-9-2008 in the expectation that by then respondent No,3 would inform the petitioners the grounds for refusal to issue them the tender document. Rather than doing so, respondent No,3 extended the date for submission and opening of tenders to 7-10-2008. Accordingly, on 24-9-2008 the Court ignored the non-compliance of its earlier order and the matter was adjourned again to give respondent No,3 more time to comply. At the hearing on 7-10-2008 the respondent No,3 was represented through a private counsel who sought time to file parawise comments. It became obvious during the hearing that respondent No,3 was aware of the Court's order of 19-9-2008 but had declined to provide the petitioners either the tender document or the grounds for refusing to do so. Accordingly, respondent No,3 was ordered to appear in Court on the following day.
3. On 8-10-2008 respondent No,3 filed comments explaining that refusal to issue tender document to the petitioner was caused by the default of the petitioners to complete public works already awarded to them. This allegation was made in the comments without reliance or reference to any finding to such effect by a contractual or departmental authorities. Respondent No,3 also could not show any document in his record that reflected or supported such a view.
4. More relevantly, the parawise comments failed to allege that the petitioners had been blacklisted by the respondents for the award of future contracts. A letter dated 11-8-2008 by respondent No,3 to his immediate superior, the respondent No,2 S.E. Is attached with the comments. It requests that black listing of one of the petitioners on the ground that its proprietor had been rude and abusive to respondent No,3 on 9-8-2008 to demand undue favour. A general and sweeping allegation is then made that the said contractor had failed to complete his existing project within the stipulated time. No project is mentioned nor the period of delay or any finding of the contractor's fault by the engineer or other competent authority is referred. No complaint is made out by respondent No,3 in his letter against the second petitioner before the Court. Although the impugned refusal is aimed at both petitioners, actually the respondent No,3 had sought blacklisting of one of them that too for a personal affront allegedly done to him on 9-8-2008. The background, details or cause of the alleged incident are lacking in the letter which is, therefore, not better than a mere wish-list. Needless to say, respondent No,2 took no action on the said letter to black-list the petitioner. However, the parawise comments show that respondent No,3 took it upon himself to implement his own recommendation for blacklisting not one but both the petitioners without any order or direction from the competent authority authorizing such action. In the above background of events and acts, the Court took note of the default by the respondent No,3 to comply with the direction contained in order dated 19-9-2008 yet gave him time to rectify the situation by making the following observation in its order of 8-10-2008:-- "The Court sparingly exercises its contempt of Court jurisdiction against an alleged wrongdoer. The respondent No,3 is granted an opportunity to demonstrate fairness in the discharge of his official duties which is a public trust. He shall report his action to resolve the matter on the next date of hearing on 15-10-2008".
' On 15-10-2008 respondent No: 3 placed on record his letter dated 11-10-2008 containing his resolution of the dispute. The petitioners and other bidders were invited for "negotiation" on the pricing and award of projects subject to execution in two rather than three N.A. Constituencies "as per direction of the Hon'ble Lahore High Court dated 8-10-2008". By this letter 33 out of 41 development schemes were excluded from "negotiation" scheduled allegedly at the behest of this Court. Learned counsel for the petitioners objected that the proposal lacked transparency and integrity; for protecting selected bidders of schemes in one NA constituency, for resorting to negotiations rather than competition on the bids for remaining projects and finally for attributing the commission of the above acts to this Court.
5. The letter dated 11-10-2008 makes it apparent that the respondent No,3 has sought to save certain contracts that had been awarded by him on 7-10-2008 notwithstanding the pending proceedings in this petition. Accordingly, he has offered the remaining projects for negotiation in which respect also he has reserved personal discretion to select by negotiation the successful bidders. This is done in the background of previous acts by the respondent No,3 to exclude the petitioners from the bidding, without an adverse finding of fault being made against the petitioners and without authorization from the competent authority, at best for a personal grouse.
6. A departmental process for award of a public contract that is laden with personal discretion or infected with personal bias cannot be termed a transparent, fair or lawful process as mandated by law. In Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCM R 2268 the Hon'ble Supreme Court has observed as follows;-- "Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitable, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation."
7. In the present case the award of projects to bidders on 7-10-2008 by respondent No,3 was done in undue haste with an object to pre-empt competition that may be ordered by the Court in its proceedings on 8-10-2008. It goes without saying that the proceedings undertaken by respondent No,3 initially to exclude the petitioners from the bidding and thereafter to omit projects from the competition cannot be termed as just, fair and transparent. In fact these actions are infected with personal bias to select contenders in the bidding solely through personal discretion and not by regard to the relevant objective criteria. This renders the bidding process non-transparent and unfair, arbitrary and discriminatory."
8. However, to make matters worse, the respondent No,3 rather than demonstrating fairness desired by the Court on 8-10-2008, proceeded to impute his partial scheme of selective consideration by negotiations to directions by the Court. Proceedings that suffer from any one of the defects mentioned above falls to the ground because each contain the defects of unfairness, subjectivity and discrimination. Such vices are abhorrent to the exercise of public power even if the same be committed in contractual matters. Reliance in this behalf is placed on Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCM R 1274.
9. What is necessary for the respondent to do is to hold completely transparent and fair auctions of public largesse which demonstrate that the competition is open, based on previously disclosed rules of the auction that provide equal and fair opportunity to all bidders to vie for the projects that are available for execution. Such attributes being absent in the selection process conducted by respondent No,3 on account of reasons already discussed above, the Court has no hesitation to declare the auction proceedings held by respondent No,3 to be illegal. Fresh bid shall accordingly be invited for the projects advertised by respondent No,3 under a new schedule that shall be announced by him.
10. The constitutional jurisdiction of the Court is meant to promote substantial justice. Any steps taken by a party during the proceedings must not be allowed to circumvent the process of the Court or its finding or else judicial determination of live controversies shall be rendered to be of academic value only. The foregoing direction is issued by the Court as a means to mould the relief in order to render effective the adjudication of the dispute arising for determination in the matter.
Writ with no order as to costs.