' IRFAN SAADAT KHAN, J.-This constitutional Petition has been filed with the prayer that the respondents may be directed to add the petitioner among the three top short listed companies and to allow them to compete in the rim of award of contract of consultancy on the project Sindh on Farm Water Management Project (SOFWM).
2. Brief facts as they appear from the record are that the petitioner is a leading consulting company having experience and background of sophisticated construction technology. The petitioner company has been enlisted and certified as Engineering Consultant in the Pakistan Engineering Council (P.E.C). The Agricultural Department Government of Sindh through its Director General, Agricultural Engineering and Water Management Sindh, Hyderabad, along with the Director General Agriculture Sindh, Hyderabad, and Managing Director, Sindh Irrigation Development Authority (SIDA) executed a project as Implementing Agencies in the year 2004 with the financial aid of World Bank Donor International Development Association (IDA) known as "Sindh On Farm Water Management Project" bearing credit No,3905-Pak. The petitioner entered into a contract with respondents Nos.2 and 3 as Consultant for the above project as Project Implementation Assistance Consultant and worked from 2-9-2004 to 31-12-2008, which contract was subsequently extended upto 31-12-2009. Thereafter the respondent No,2 noted some shortcomings and violation of certain rules by the petitioner and informed the petitioner vide letter dated 12-3-2010 that as to why their contract may not be terminated with effect from 31-3-2010 due to the said irregularities. It would not be out of place to mention that prior to issuance of the said show-cause notice in a meeting held on 9-12-2009, under the Chairmanship of Additional Chief Secretary the issue of extension of consultancy service was discussed and it was found that the performance of the petitioner was not up to the mark, however, as a grace they were allowed to work on the incomplete project till such time the same is completed, however, their further continuation would be subject to their performance, which would be reviewed again in the meeting which is to be held in the month of February, 2010. The petitioner replied the said notice on 16-3- 2010. Thereafter petitioner came to know, that the respondent No,3 has given an advertisement on the internet for a project known as Additional Financing For Sindh On Farm Water Management Project and the interested parties were called upon to submit their expression of interest latest by June, 2009 up to 4-00 p.m. This act of the respondent No,3 has annoyed the petitioner who subsequently came to know that the respondents Nos.2 and 3 have short listed certain companies for taking part in the above project and the petitioner is not among those companies. In this backdrop the present petition has been filed with the above mentioned prayer.
3. Learned counsel appearing on behalf of the petitioner has contended that the respondents have acted malafidely by not placing the name of the petitioner amongst the short listed companies to enable the petitioner to compete for the incoming project. As per the learned counsel the respondents Nos. 2 and 3 without assigning any reason have not short listed the petitioner whereas it was the petitioner who had successfully competed the previous project. As per the learned counsel the allegations levelled against the petitioner are vague and not specific and those allegations are liable to be ignored altogether. As per the learned counsel, Rules 68 and 74 of the PEPRA Rules have been violated by the respondents and the petitioner has been made victim of the technicalities. As per the learned counsel the respondents Nos.2 and 3 want to appoint the consultant of their own choice for the reasons best known to them and that is why they have not short listed the petitioner. The petitioner, as per the learned counsel, has successfully completed the previous project assigned to them by the respondents Nos.2 and 3, hence they were legally obliged to place the petitioner among the top three short listed companies to enable the petitioner to compete in the incoming project mentioned above. The learned counsel further submitted that the respondent No,9 being an Engineering Company has already been disqualified due to its poor performance, which clearly depict the manner in which the said short list has been prepared by the respondents Nos.2 and 3 and the same action as per the learned counsel, was not transparent. In the end, the learned counsel prayed that the petition be allowed by directing the respondents Nos.2 and 3 to place the name of the petitioner among the top three short listed companies.
4. Learned counsel appearing on behalf of the respondent No,3, leading the panel of the respondents' counsel at the very outset submitted that the petition is not maintainable as the petitioner has been found to be unqualified on the basis of its poor past performance, that is why the petitioner was not amongst the companies who were short listed by the respondents. The learned counsel invited our attention to the decision taken in the meeting held on 9-12-2009, whereby it has clearly been mentioned that the performance of the petitioner was not up to the mark and their working on the project would be subject to a review. The learned counsel submitted that the petitioner filed a petition bearing C. P. No, D-361 of 2010, before this Court which was heard by a Division Bench and was disposed of by making the following observations:- "Since the consultancy services contract of the petitioner has not been terminated as yet and only a show-cause notice for such termination has been issued, therefore, the respondents within seven days hereof after hearing the petitioner shall decide as to whether his consultancy services are to be retained or dispensed with in accordance with the terms of the agreement and thereafter shall act accordingly."
5. The learned Counsel further submitted that the petitioner was even issued a show-cause notice after finding that fake verifications were made by their field engineers. Learned counsel affirms that though a reply to the said show-cause notice was given by the petitioner but so far as their performance is concerned it has a chequered history, that is why the respondent No,3 issued an advertisement on internet for the upcoming project by inviting the interested parties to show their expressions of interest for their selection as consultant for the said project. As per the learned Counsel all the legal and codal formalities in this regard would be fulfilled. The learned Counsel kept on to argue that the project is being undertaken with the assistance of the IDA and all the affairs of the project are transparent, as the same is being monitored by International Agencies. As per the learned Counsel in view of the above mentioned facts this petition deserves to be dismissed in limine, as the petitioner has no locus standi to challenge the manner and mode in which the petitioner was not short listed among the top three companies due to the fact that their past performance was not found to be satisfactory and due to others factors also, which fact has not been denied by the petitioner.
6. All the remaining learned Counsel appearing on behalf of the respondents have adopted the arguments of Mr. Noorul Haq Qureshi.
7. We have heard the learned Counsel appearing on behalf of both the sides at length and have perused the record. The petitioner was incorporated in Pakistan with CUIN Registration No,0036889(L08754) and is being registered with P.E.C. As Consultant No,841. They are also an ISO 2001:2000 certified company which has been granted vide approval No,P/07013 from QMS Certification Services (Pvt.) Limited Australia. The act of the respondents Nos.2 and 3 for not short listing the petitioner for the said project has annoyed the petitioner and has challenged the same by filing the present petition. The petitioner was a consultant on the previous project and has worked on it from 2004 till its completion on 31-12-2009. While the previous project was in it's mid the respondent No,2 found that the petitioner was not carrying on the assigned job in the prescribed manner. As mentioned above, a meeting was held on 9-12-2009 and thereafter show- cause notice was issued to the petitioner. The record reveals that the Project Director Monitoring Unit has also shown its apprehensions in respect of the work done by the petitioner on the project.
Against the show-cause notice issued to the petitioner, C.P. No,D-361 of 2010 was filed by them, which was disposed of in the manner as mentioned above. The record further reveals that in the said show-cause notice a number of technical questions were asked from the petitioner but the petitioner instead of replying the same filed the above mentioned Constitutional Petition, which subsequently was disposed of as stated above. There is no proposition of law that if a previous project is awarded to a consultant then they are entitled to get another project. We find nothing wrong in the advertisement issued on the Internet by the respondent No,3 for inviting the interested parties to show their expressions of interest so that the successful consultant qualifying to be selected as a consultant could be appointed. Initially the petitioner was among the 11 consulting firms which were short listed for the selection of consultant for the upcoming project, thereafter short listing of all the interested firms was made in view of the guidelines given by the World Bank.
The Departmental Evaluation Committee comprising of five members thoroughly evaluated and examined the expression of interest of all the 12 interested parties and thereafter it recommended and short listed 06 most highly ranked firms which authority, in our view, surely rested with the said Committee to recommend and short list the consultancy firms on the basis of their performance etc. This evaluation report was even sent to the World Bank for its approval and the said Bank has issued a no objection letter on the selection of these firms, which amply proves that the entire job has been culminated a transparent manner leaving no room for any quarter to question the same.
Necessary documents in this regard have also been placed on record for perusal. We have also seen that relevant material in this regard is also available on the project website www,sotwmp.Org.Pk. It would not be out of place to mention that except the petitioner the other unsuccessful consultant firms, who have not been short listed, have neither shown their concern over the transparency of the said short listing nor have questioned the same. Complete mechanism of short listing the consultancy firm has also been brought on record.
8. The perusal of the record further reveals that the act of short listing was not done by respondent No,3 in isolation rather the same is based upon the performance evaluation chart formulated by a committee comprising of five high officials of the concerned departments. It has no where been shown that the said committee has acted in mala fide manner or without lawful authority or with material irregularity. It is a trite law that the High Court while exercising constitutional jurisdiction does not sit over the findings recorded by competent authority until and unless the same is tainted with malice, lacks jurisdiction or is perverse in any manner. In the instant petition the decision of the Committee was duly approved by the World Bank, which is the donor authority, and no interference in this regard is warranted. It is also a well settled proposition of law that it has not been the practice of the High Court while exercising constitutional jurisdiction to have a deeper appreciation of the facts and to record the evidence or to dilate upon the disputed questions requiring thorough inquiry or resolving intricate factual controversies.
9. As per the record under the guidelines of the World Bank the expression of interest (EOI) was invited for which admittedly the petitioner also applied meaning thereby that it is a new project.
Vide letter dated 15-7-2009 a representative of the World Bank was duly informed about the report of the said Evaluation Committee in its second meeting held on 14-7-2009, which finalized the ranking of the consultants on the basis of the points secured by each consultant based on the guidelines and parameters provided by the World Bank. As per the said list six consultants were short listed and the said list duly contained signatures of all the five members who placed the petitioner on 7th place after thorough investigation. The World Bank vide its E-mail dated 22-2-2010 informed the respondent No,3 about their no objection on the said proposed short listing. It is the requirement of the World Bank that while selecting the consultant highest standard of ethics during selection and execution of the contract has to be followed. The only grievance of the petitioner is that the short listing has not been done on the basis of subject evaluation whereas perusal of the record reveals that the same has been accepted by the World Bank, who is donor of the said project, hence its transparency which is based on factual examination, in our view, could not he challenged by way of invoking constitutional jurisdiction of this Court.
10. It has further been alleged that no questions/doubts have been alleged on the previous project conducted by the petitioner, which is also found to be contrary to the record as not only in the minutes of the meeting held on 14-7-2009 but also in the 18th, meeting held on 9-12-2009 reservations were recorded and a show-cause notice dated 12-3-2010 was also issued in this regard to the petitioner. The project was not abandoned due to the fact that the said project was nearing its completion and displacing the petitioner and appointing some other consultant would only hamper the project as has clearly been mentioned in the minutes of 18th meeting held on 9- 12-2009. It has also been mentioned in the minutes of the said meeting that the petitioners further continuation would be dependent on their performance, which will be reviewed again in a subsequent meeting. A letter dated 24-2-2010 was also addressed by the Project Director/Additional Secretary to Chief Minister to Secretary Agricultural regarding fake and erroneous verification of W/C by the petitioner, who in turn forwarded the same to the Secretary to the respondent No,3 for information. It is also noted that the petitioner was given a show-cause notice dated 6-4-2009 for submitting fake documents by P.E.C.
11. The learned counsel for the petitioner has also invited our attention to Rules 68 and 74 of The Sindh Public Procurement Rules, 2010, which read as under:- "68 Quorum.---The Chairman, representatives of the Finance Department, and the Planning and Development Department shall form the quorum for conducting the, business of the Consultants Selection Committee".
"74. Criteria for Short-listing of Consultants---(1) Procuring agency shall short list the applicants according to a predetermined criteria mentioned in the Request for Expression of interest.
(2) The procuring agency while engaged in short listing of consultants shall take into consideration the following factors:
(a) qualification;
(b) experience;
(c) financial capability: and
(d) any other factor that a procuring agency may deem relevant not inconsistent with these Rules."
12. Perusal of the above Rules would reveal that apparently the respondents have adhered to the said Rules and the request for expression of interest published in the Internet had taken care of the parameters as provided in the above said Rules. We do not find any illegality so far as following of the abovementioned Rules is concerned. This argument of the learned counsel for the petitioner has no force.
13. So far as the role of respondent No,9 is concerned we refrain ourselves from making any observation in this regard as this is a matter purely between the respondents Nos.2, 3 and respondent No,9, hence the allegation of the petitioner so far as the role of respondent No,9, is concerned, the same is hereby repelled. Moreover the record reveals that the respondent No,9 has worked as an associate of the petitioner in a watercourse project conducted in AJ&K. Though the respondent No,9 has produced documents showing their active participation in a number of projects but, as stated above, we abstain ourselves from making any comment in this regard as it is for the relevant concerned department to decide as per their own rules and regulations to appoint any person as their consultant in a given project.
14. We in view of the above findings have come to the irresistible conclusion that no case of interference on our part is made out by the present petitioner and the petition is liable to be dismissed in limine.
' Above are the reasons of our short order dated 30-11-2010, through which the above petition was dismissed along with the listed application.