1. SYED AKHLAQ AHMED, J. --- Through this Constitutional petition, Raja Khalid Mahmood/petitioner calls in question the validity of the transfer/posting order dated 11.11.2010 passed by D.C.O., Rawalpindi and all subsequent orders connected therewith or ancillary thereto with the prayer that the petitioner be allowed to perform his duties as Budget and Accounts Officer at Rawalpindi. 2.
2. Brief facts of the case are that the petitioner is serving in Education Department since 13.6.1987. He was posted as Budget and Accounts Officer in the office of District Education Officer (WEE), Rawalpindi since 1.9.2006. His were Mst. Zarqa Nasreen is a PTC teacher and is posted in Government Primary School, Abun Chuk, Rawalpindi.
3. Vide order dated 11.11.2010 passed by the District Coordination Officer, Rawalpindi, the services of the petitioner has been surrendered and placed at the disposal of the Secretary, Education (Schools), Punjab, Lahore. Being aggrieved, the petitioner filed a representation to the Secretary, Education (Schools), Lahore. However, till to-date, the same has not been attended to. Hence this writ.
3. Learned counsel for the petitioner contends that bare perusal of the impugned order shows that the petitioner has been transferred as punishment. Under law no punishment can be imposed upon a civil servant without serving him charge-sheet, show-cause notice and holding a full- fledge inquiry. According to the wedlock policy issued by the Government of the Punjab, spouses are to be allowed to work at the same station to avoid hardship. The petitioner's were being a PTC teacher is posted in Government Primary School, Abun Chuk, Rawalpindi. Therefore, the transfer of the petitioner out of Rawalpindi is violative of the wedlock policy. The District Coordination Officer can exercise his jurisdiction within the District and he has no lawful authority to exercise his powers outside the District. In this case the services of the petitioner have been surrendered and transferred to Lahore which is outside Rawalpindi District. Therefore, the impugned order passed by respondent No. 2 is illegal. Moreover the transfer of a civil servant can only be made in exigency of service or in public interest. No such reason has been assigned in the impugned order. Hence the same is nullity in the eyes of law and not sustainable.
4. 2004 PLC (C.S.) 622 (Lahore High Court).
4. I have heard the learned counsel for the petitioner and have also gone through the documents available on the file.
5. It has been laid down by the Supreme Court of Pakistan in case "Peer Muhammad v. Government of Baluchistan through Chief Secretary and others" (2007 SCMR 54) that:--- "Admittedly the petitioner had no legal right to be posted against a particular post. Hence the question of its infringement does not arise as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner.
5. It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder.
6. The question of posting/transfer relates to the terms and condition of Government Servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters". In this regard we are fortified by the dictum laid down in case Kh.
7. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534. "Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another" 2009 SCMR 61, Dr. Ghazanfarullah and two others v. Secretary Health, Government of the Punjab, Lahore and 6 others, 2010 PLC (C.S.) 51 (Lahore High Court) and Khan Muhammad v. Secretary, Education (Schools), Government of the Punjab, Education Department and another 2010 PLC (C.S.) 238 (Lahore High Court).
6. The only citation relied upon by the learned counsel for the petitioner is not attracted to the facts and circumstances of the present case.
7. In view of the categorical pronouncements of the Supreme Court of Pakistan and the jurisdictional bar contained in Article 212 of the Constitution this Court has no jurisdiction to entertain proceedings that fall within the domain of Punjab Service Tribunal Act, 1974.
8. For the said reason, this petition is dismissed in limine .
9. Petition dismissed.
10. 2011 C.L.R. 529 [AJ&K] Preent: GHULAM MUSTAFA MUGHAL, CJ.
11. Paragon Constructors (Pvt.) Ltd. Through its Attorney Sardar M. Ajaz Khan and 2 others Versus Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarabad and 3 others Writ Petition No. 1361 of 2010, decided on 30th December, 2010.
CONCLUSION
(1) No doubt, that the disputed question relating to factual inquiry arising out of a contract ordinarily are not entertained by High Court in exercise of writ jurisdiction but it is not an absolute rule.
(a) General Clause Act (X of 1897)--- - --S. 24-A---Provision of---Mandate---Said section makes it obligatory for a public functionary to record reasons in support of the order otherwise the same cannot be saved.
12. (Para 7)
(b) State Functionaries, Duty of-- - -The State and its subordinate functionaries has a Constitutional obligation to act fairly even while performing an administrative function.
13. (Para 6)
(c) AJK Interim Constitution Act (1974)- - --S. 44---Enforcement of contractual obligations---Invocation of writjurisdiction of High Court--- Remedy---A remedy of writ can be availed in cases involving contracts between a private person and State functionaries to act within limit of his statutory authority where a contract is executed with a State or its subordinate functionaries.
14. (Para 5)
15. Ref. PLD 1998 Lah. 565, PLD 1992 Kar. 283.
(d) AJK Interim Constitution Act (1974)--- - --S. 44---Bidding contract---Enforcement of---Maintainability of writ petition in High Court---It was not disputed that petitioners were not lowest bidders---It was not disputed that petitioners were not directed to start preliminary work on spot---Held: Objection that instant petition had been filed for enforcement of contractual obligation and condition of contract which was outside ambit of Constitutional jurisdiction had no force---No doubt that disputed questions relating to factual inquiry arising out of contract ordinarily are not entertained by High Court in exercise of its writ jurisdiction but it is not absolute rule---A remedy of writ could be availed in cases involving contracts between a private person and State functionaries---There is no bar on powers of Courts to direct public functionaries to act within limits of his statutory authority where a contract is executed with State or its subordinate functionaries.
16. (Para 5)
17. Ref. PLD 1992 Kar. 283, PLD 1998 Lah. 665.
18. BIDDING CONTRACT --- (Remedy of writ)
(e) AJK Interim Constitution Act (1974)--- ---S. 44---General Clauses Act, 1897, S. 24-A---Bidding contract for construction of University--- Petitioners were declared lowest bidders---Precise case of petitioners was that after issuance of acceptance letter, cancellation of same was arbitrary, unjust and unfair and by doing so respondents-functionaries had transgressed their authority which had resulted in violation of Constitutional guarantee regarding fundamental right of trade/profession--- Respondents- functionaries pleaded that funds were not available and that a bid could be accepted or rejected without disclosing any reason---Cause of action--Validity--In instant case petitioners were pre- qualified for project and were declared as lowest bidders---Petitioners had consented to carry out the work against reduced amount---But without providing a right of hearing petitioners had been deprived from award of contract---Reasons listed by respondents were whimsical, flimsy, irrational, unreasonable and arbitrary because subsequent advertisement had been issued against same amount without any change in the specification of work---Reasons must be based on objective approach and they must be judicious-Impugned action of respondents was declared without lawful authority and of no legal effect---Writ petition allowed.
19. (Paras 5,6,7,8)
20. Ref. PLD 1998 Lah. 665, PLD 1992 Kar. 283. {{URDU TEXT}}i v _jyr) :e.22 Key Terms:- Enforcement of bidding contract.
21. [Even after issuance of acceptance letter, bidding contract for construction of University was cancelled without any reasons. High Court allowed writ petition].
22. For the Petitioners: Dr. Farogh Naseem, Advocate.
23. For the Respondents Nos. 2 to 4: Abdul Rasheed Karnahi, Advocate.
24. For the respondent No. 1: Nemo.
25. Date of hearing: 29th November, 2010.
26. GHULAM MUSTAFA MUGHAL, CJ. --- Through this petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 a direction is sought to respondents herein to award the contract for reconstruction of the University of Azad Jammu & Kashmir (Chatter Class Campus)
27. Muzaffarabad to the petitioners.
28. Necessary facts for disposal of the instant petition are that the Chief Engineer, Saudi Fund for Development & Kuwaiti Fund (SFD & KF) in AJ&K, respondent No. 2 herein, issued a public notice on 9.3.2010 inviting thereby reputed companies to participate in the tendering process for reconstruction of the University of Azad Jammu & Kashmir, Muzaffarabad known as King Abdullah University. The petitioners while forming a joint venture for the purpose after receiving the tender documents submitted their necessary particulars and after detailed scrutiny they were pre- qualified and were asked to submit their offer/bid. Ultimately, petitioners herein, were declared the lowest bidder as is evident from comparative statement listed in para-15 of the petition, which has been admitted by the respondents. Vide letter dated 27.9.2010, respondents requested the petitioners to participate in a meeting on 28.9.2010 at Islamabad. They were requested to bring alongwith them a detailed working of the rate analysis of the major items for further clarification.
29. The required detail of the rate analysis were submitted and thereafter, in the meeting held on 28/29.9.2010 respondents informed the, petitioners that petitioners' bid is for entire project amounting to Rs. 5.47 billions. As respondents are lacking funds from the donors, therefore, construction will be carried out against Rs. 4.00 billion. In view of the latest situation petitioners again participated in a meeting as requested by the respondents on 12.10.2010. The petitioners agreed for proportional reduction in the project amount/bid from Rs. 5.47 billion to 4 billion.
30. Thereafter, on 18.10.2010 the respondents confirmed the petitioners as lowest bidder and intimated that the steering committee has accepted the offer of the petitioners and the formal work order will be issued soon after obtaining N.O.C. From the Saudi Development Fund. The petitioners were directed to start the initial work, indicated in the aforesaid letter. It is alleged that all of a sudden respondents changed their mind and without disclosing any reason cancelled the acceptance letter and bid of the petitioners and re-advertised the project for fresh bidding against the same amount through advertisement dated 16.11.2010. The precise, case of the petitioners is that after issuance of acceptance letter, cancellation of the same is arbitrary, unjust and unfair and by doing so respondents herein, have transgress their authority which has resulted in violation of the Constitutional guarantee regarding the fundamental right of trade/profession.
31. On the pre-admission notice respondents herein have filed comments. After hearing the learned Advocates representing the parties the petition was admitted for regular hearing vide order dated 20.12.2010. Respondents have filed written statement whereas nobody has turned up on behalf of the Government, therefore, ex parte proceedings were ordered.
32. The learned Advocate representing the petitioners requested for making written submissions on the ground that in view of his engagement before the apex Court of Pakistan he is unable to appear before this Court. In alternative, he prayed for a long adjournment. It was not in the interest of justice to delay the reconstruction of a foreign supported project, hence, he was allowed to submit his written arguments. In written arguments the learned Advocate has submitted that petitioners' firm stood pre-qualified for the project and finally was declared as the lowest tenderer in a meeting held on 3.8.2010. He argued that respondents vide letter dated 18.10.2010 intimated the petitioners that their bid has been accepted and the process of execution the contract is under way which shall be executed after obtaining N.O.C. From the donor agency hence, the petitioners should move on the spot and start preliminary work. It is stated that after receiving the aforesaid letter the petitioners made arrangement and mobilize on the spot but all of a sudden respondents illegally and with mala fide intention vide letter dated 26.10.2010, cancelled their acceptance letter dated 18.10.2010. The petitioners sought an explanation from the respondents for cancellation of the bid and were told that funds are not available whereas vide advertisement dated 16.11.2010 respondents have again invited tenders for the said project against the same amount which action is a clear mala fide, arbitrary and without lawful authority. It is also claimed that the action under challenge is not in the public interest and also militate against the fundamental right of trade /profession and freedom of contract besides, being violative of the rule of transparency and good governance. The learned Advocate has further submitted that action of respondents is also against the previous departmental practice which has continuously been followed by them but in the case of the petitioners totally a different course has been adopted which is a discriminatory treatment. It is further stated that after acceptance of the bid a vested right stood accrued in favour of the petitioners, therefore, adverse order can not be passed by the respondents in violation of the principle of natural justice. The learned Advocate in support of his submissions placed reliance on the following cases:---
(1) M/s. Pacific Multinational (Pvt.) Ltd. v. Inspector General of Sindh Police & others [PLD 1992 Karachi 283].
(2) M/s. Dadabhoy Investments (Pvt.) Ltd. v. Federation of Pakistan and another [PLD 1995 Karachi 33].
(3) Tariq Meer v. Azad Govt. & others [2009 CLC 803].
(4) Aklasc v. District Council, Muzaffarabad and another [PLD 2003 SC (AJK) 6].
(5) M/s. M.A. Khan & Co. v. M/s. Pakistan Railway Employees Cooperative Housing Society Ltd. [2006 SCMR 721].
(6) Owaisco v. Federation of Pakistan and others [PLD 1999 Karachi 4721].
(7) M/s. Arif Builder and Developers v. Govt. Of Pakistan and others [PLD 1997 Karachi 627].
(8) Baluchistan Construction Company v. Port Qasim Authority [2001 YLR 2716].
(9) M/s. Shams & Brothers v. Govt. Of Pakistan and others [2007 CLD 125].
(10) Nehar Ali Biswa s v. Nazam Negar Rashida Banu [PLD 1968 Dacca 525].
(11) AJK Govt. & others v. Ch. Abdul Majeed & others [2004 MLD 844].
(12) British India Steam Navigation Company Ltd., London & others v. National Security Insurance Company Ltd. [1985 CLC 1720].
(13) Pakistan Burmah Shell Ltd. v. Phoenix & others [PLD 1979 Karachi 789].
(14) Collector of Customs, Karachi and others v. M/s. Abdul Majeed Khan and others [1977 SCMR 371].
33. Mr. Abdul Rasheed Karnahi, the learned Advocate representing respondents Nos. 2 to 4 has prayed for dismissal of the petition on the ground that neither contract nor its conditions can be enforced by invoking the extraordinary jurisdiction of this Court, hence, the petition is not maintainable. In this regard the learned Advocate placed reliance on Civil Appeal No. 158/09 titled M/s. AIRRS Associates (Pvt.) Ltd. Through its Proprietor and Chief Executive v. Health Department and others decided on 19.8.2009 and writ petition No. 756/09 titled M/s. AIRRS Associates (Pvt.) Ltd. V. Health Department & others decided on 10.6.2009. The learned Advocate has not disputed that the petitioners are not the lowest bidder. It is not disputed by him that they were not directed to start the preliminary work on the spot. However, he argued that a bid can be accepted or rejected without disclosing any reason hence, petitioners have no cause of action.
34. So far as the objection raised on behalf of Mr. Abdul Rasheed Karnahi, the learned Advocate for respondents Nos. 2 to 4 that the instant petition has been filed for enforcement of the contractual obligations and conditions of the contract which is outside the ambit of the Constitutional jurisdiction is concerned, i.e. Devoid of any force. No doubt, that the disputed questions relating to the factual inquiry arising out of a contract ordinarily are not entertained by this Court in exercise of writ jurisdiction but it is not an absolute rule. A perusal of the latest authorities of the superior Courts would show that a remedy of writ can be allowed in cases involving contracts between a private person and State functionaries. There is no bar on the powers of the Courts to direct the public functionaries to act with in the limits of his statutory authority where a contract is executed with the State or its subordinate functionaries. I may also refer to a case titled M/s. WAK ORIENT Power & Light Limited v. Govt. Of Pakistan & 2 others [PLD 1998 Lahore 665] wherein a Full Bench of the Lahore High Court almost under the similar circumstances while relying upon PLD 1992 Karachi 283 and after of the earlier as under:---- "It is clear that the trend of authorities has now changed and remedy of writ is permitted to be resorted to in cases involving contract between a private person and State/statutory functionary as it is considered to be more efficacious and speedy remedy as compared to a civil suit or arbitration proceedings"
35. A reference can also be made to Muhammad Ashraf Al.s case [1986 SCMR 1096]. In that case the objection of availability of alternate remedy was turned down. Another. Case titled INPAK Tech Industries Pvt. Ltd. v. Govt. Of Punjab [PLJ 1998 Lahore 1234] can also be cited in support of the proposition.
36. "Now we take up the case of Muhammad Rafique Mughal. His tender was admittedly the lowest but was rejected. While doing so no reason was recorded by the Executive Engineer and he just wrote the word 'rejected. This is a clear violation of the Azad Jammu & Kashmir Delegation of Financial Powers Rules, 1983 the relevant part of which has already been reproduced above. It is clearly laid down therein that if lowest tender is not accepted reasons should be recorded. Where a provision of law enjoins upon a functionary to record reasons before taking a particular action the obvious purpose is that it must be known as to why that action has been taken and if the grounds are not reasonable and just the action may be set aside by the higher functionaries".
37. The apex Court contract to award the contract to the lowest bidder in this case.
38. The first case referred to and relied upon by Dr. Farogh Naseem, the learned Advocate for the petitioners unequivocally endorsed the same view that the State and its subordinate functionaries had a Constitutional obligations to act fairly even while performing an administrative function.
39. Their lordships further held that when a party complaints before the Court that the State while awarding a contract to a party had acted in an unfair or arbitrary manner or had discriminated against one of the parties who contested for the award of contract, such a grievance could be looked into by the superior Courts in exercise of its power of judicial review under Article 199. In the second case the same view was reiterated by observing that while rejecting a bid it is enjoined upon the government to act justly, fairly and reasonably. The same view has been taken in all the authorities referred to and relied upon by the learned. Advocate for the petitioners. The learned Advocate for the petitioners has rightly contended that the petitioners consented to carry out the work even against the reduced amount and proper course for the respondents was to negotiate with the petitioners, if so required but depriving them from the contract is illegal and an arbitrary action of the respondents. The steering Committee has also not given any reason except ordering for re-advertisement the project. Section 24-A of .The General Clauses Act, makes it obligatory for a public functionary to record reasons in support of the order otherwise the same can not be saved.
40. Section 24A of the General Clauses Act is as under-- "24A. Exercise of power under enactments.-- (1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reason for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
41. It is also rightly pointed out by the learned Advocate for the petitioners that respondents have deviated from their settled earlier which resulted in discriminatory treatment. The respondents themselves have admitted the whole case of the petitioners except saying that steering committee has ordered to re-tender. Reasons listed in the order of the committee are neither reasonable nor just and fair. The reason must be based on objective approach and they must be judicious, fair and just. In the circumstances of a case I have no hesitation in declaring that the action of the respondents is without lawful authority and of no legal consequences. Accordingly ordered.
42. The upshot of the above discussion is that the petition is accepted and respondents are directed to award the contract to the petitioners' company, however, Project Director and Chief Engineer shall ensure that the project is completed within the stipulated period. They will make sure to complete the project according to its specification. .