1. SAJJAD ALI SHAH, J.---3-4. 'These applications have been filed by the successful bidders for impleading them as defendants. Mr.Shahenshah Hussain for the plaintiff has no objection for grant of these applications, the applications consequently are allowed and the applicants i,e, successful bidders are arrayed as defendants Nos.2 and 3 respectively. Let amended title be filed. All present insist for taking up applications listed at Serial No,1 and 2 and the Counsel for the newly impleaded defendants submit that their application under Order I, Rules 10, C.P.C. Detailed the entire defence and be treated as counter affidavit to application listed at Serial No,2. At joint request hearing of applications listed at Serial Nos.1 and 2 is taken up.
2. 1-2. The plaintiff through application listed at Serial No,2 has prayed for an order restraining the defendant from awarding the contract for infrastructure development works in D.H.A. Phase-VIII, Sub-Sector Infrastructure Work (D), Contract No, DHA-8-INFRA-D-East, INFRA-D-Central and Sub- Sector Infrastructure Works (D) Contract No,DHA-8-INFRA-C-Balance Works on terms and conditions other than those on which the contractors were pre-qualified and through application listed at Serial No,1 the defendant No,1 has 'prayed for vacating Order dated 28-10-2011 whereby they were restrained from awarding infrastructure work in Phase-VIII.
3. Mr. Shahenshah Hussain, learned counsel for the plaintiff contends that the plaintiff carries work of construction, architect and interior designing and is registered with Pakistan Engineering Council and has been licensed to carry out various works of construction up to the cost of Rs,1000 Million.
4. The plaintiff further is enlisted with the defendant No,1 D.H.A. a statutory body in Acategory since 2000 and has completed their various construction work. The defendant on 25-11-2010 invited contractors registered with Pakistan Engineering Council to participate in prequalification process for ten types of infrastructure development work in Phase-VIII, DHA Karachi varying from Rs,50 Million to Rs,500 Million by providing following prequalification criteria: Qualification criteria:- Category Max Points General Experience 350 Personnel Capabilities 150 Equipment Capabilities 200 Financial Soundness 300 Total 1000 BREAKUP FOR EACH CATEGORY: General Experience (Max 350 Points)
5. Sr.No.Description Maximum Points
(i) Overall Experience 100
(ii) Specific Experience 100
(iii) International Experience 50
(iv) Regional Experience (Karachi/DHA) 50
(v) Valid registration ISO-9001-2000 OR better50 Sub Total 350 Personnel Capabilities (Max 150 Points)
6. S.No.Description Maximum Points
(i) Graduate Engineers registered with PEC A) Number of Engineers
(b) Experience of Engineers in number of years60 30
(ii) Number of Diploma Engineers in employment of Firm
(a) Number of Engineers
(b) Experience of Engineers in number of years 40 20 Sub Total 150 Equipment Capabilities. (Max. 200 points A maximum of 200 points shall be awarded under this category on the basis of the various kinds of equipment available with the contractor which are relevant to the specific Work, Financial Position (Max 300 Points)
7. S.No.Description Maximum Points
(i) Bank credit Line 100
(ii) Average of Annual Turnover in last 5 years100
(iii) Registration with Income Tax Department50
(iv) Litigation History where decision went against the Firm (Full points for no litigation and vice verse)50 Sub Total 300 Evaluation Criteria Minimum requirement to secure at least 50% score in each category Minimum requirement to secure overall 700 points (out of 1000 points)
8. The plaintiff applied for seven types of work (viz. A3, B3, C3, F3, G2, 1-3 and 72) ranging from Rs,200 Million to Rs,500 Million and paid Rs,25.000/- as scrutiny fee for each type of work, and out of 700 applicants who applied for such prequalification 20 including the plaintiff on 16-3-2011 were pre- qualified (pages 123 and 127).
9. The defendant after completingthe prequalification process on 16-9-2011 floated tender arid invited sealed bids under Single Stage Two Envelops bidding procedure from,, pre-qualified firms for infrastructure work (D) and (C) balance work. The plaintiff consequently paid a sum of Rs,5,000/- as per requirement and purchased the bidding documents and was surprised to note that the defendant has provided totally different evaluation criteria than the one on the basis whereof plaintiff along with other contractors was qualified. Per counsel, the fresh criteria (reproduced herein below) was prescribed by the defendant only to eliminate most of the bidders and to favour their blue eyed.
NEW EVALUATION CRITERIA
1. Previous Experience Max. Point 30
(a) List of overall experience of the firm with details of works in past five years(one point for each project of Rs.100 million or above)Max. Point 05
(b) Experience of similar works in last 10 years for each project of Rs.100 million or above subject to a maximum of 2 projects in a specific filed i.e. Roads, Drains, Water Supply and Sewerage)Max. Point 03
(c) List of similar works i.e. Integrated Infrastructure Development, in hand (01 point for each project of Rs.150 million or above subject to a maximum of 3 projects)Max. Point 15
(d) Previous successful experience with DHA of similar works over Rs.100 Million (Five points for each such project)Max. Point 50
2. Proposed Construction Schedule, Method Statement, and Organization CourtMax. Point 15
(a) Proposed detailed Construction Schedule (inter-relating all the sub-heads of the works)Max. Point 15
(b) Detailed Method Statement (inter-relating all the sub-heads of the works.Max. Point 05
(c) Organization Chart Max. Point 03
(d) CV of the proposed Project Manager with 15 years overall experience and 10 years experience in related works with proofMax. Point 02
(e) List of Engineers and other key personnel as per Organization ChartMax. Point 05
(f) List of machinery and equipment intended to be used on the project duly co-related with proposed Construction ScheduleMax. Point 05
(g) Proof of Ownership of machinery and Equipment as mentioned aboveMax. Point 20
3. Documentary evidence of Financial SoundnessMax. Point 06
(a) Financial Soundness Certificate from the Bank issued in last one yearMax. Point 15
(b) Audited Reports of the firm for last 03 yearsMax. Point 01
(c) Bank Statements for the last 12 months Max. Point 10
(d) Average Annual Turnover of at least Rs.150 Million per years in last 03 years as determined by Audited reports onlyMax. Point 10 Total of Max Point 100 Per counsel the previous experience at Karachi/DHA which had 14% marks in the relevant head was restricted to DHA only and the points were raised to 50%. Likewise, condition of previous work of Rs,100 Million or above, was imposed to benefit only those contractors who have been frequently awarded such work by the defendant and to eliminate others who pre-qualified. Likewise, financial soundness which previously had 30% of the point i,e, (300 out 1000 was reduced to 20% i,e, 20 out of 100). Points for equipment in the earlier criteria were 20% i,e, 200 out of 1000 whereas, in the revised it was reduced to 10%. The plaintiff immediately vide their letter dated 23-9-2011 (page 185) lodged their protest for adopting such post qualification criteria by informing the defendants that such post qualification criteria was to benefit a selected group of contractors against the PPRA Rule 32 and requested for a meeting, which request was not heeded having no option for the plaintiff but to participate in the bidding which required submission of bid documents comprising technical as well as financial bid on 3rd October 2011 at 11 am whereas technical bid was to be opened on the same day at 12 noon. Per counsel, after filing the instant suit plaintiff received a letter dated 21-10- 2011 informing the plaintiff that her technical bid proposal was rejected as the plaintiff failed to achieve qualifying points provided in the evaluation criteria vide sub clause 28.5 of the bid data sheet and consequently the financial bid was returned.
10. Mr. Shahenshah Hussain while referring to Sub-Rule (3) of Rule 16 of the Public Procurement contended that neither the pre-qualified bidder can be excluded nor they were required to submit technical bid, as the rule provides that only pre-qualified Contractors are entitled to participate in procurement proceedings. Counsel while referring to the Public Procurement Regulation 2008 made under section 27 of the Public Procurement Regulatory Authority Ordinance 2002 contends that Regulation 3 requires the procuring agency to use standard form of bidding documents prescribed by the Pakistan Engineering Council. And Clause 3.21 of the standard procedure of prequalification of Constructors issued by the Pakistan Engineering Council, Islamabad provides exactly the same marking as was assigned to earlier prequalification criteria and the change was a violation and to discriminate the paintiff Mr. Shahenshah further while referring to clauses 2(a) and (b) of the revised prequalification criteria, has contended that initially these requirements were not there when the prequalification process was carried out and subsequently were malafidely incorporated to widen the discretion of the employer. Mr. Shahenshah while referring to Manual of Procurement Policies, Standard Bidding Documents for goods, works and services, contended that One Stage Two Envelops procedure cannot be undertaken by the employer for awarding contract for execution of work and the prescribed procedure is One Stage Single Envelop.
11. Per counsel the plaintiff has successfully demonstrated that the action of defendant. No,1 is not only void but discriminatory and therefore, is liable to be struck down. In support of his contention he has placed reliance on the Judgment of this Court in case of Ovais Co. v. Federation of Pakistan (PLD 1999 Karachi 472) to plead that in case where it is established that the Government had acted arbitrary or in unfair manner the Court could strike down such action.
12. In response M/s M. Ilyas Khan and Omer Siyal, learned counsel for the defendant, have contended that technical bid in the instant matter were opened on 3-10-2011 while rejecting plaintiff's technical bid and thereafter the financial bid of the Contractors, whose technical bid was accepted, was opened on 21-10-2011 and the work has been awarded to M/s MJB Construction Company (defendant No,2) and lndusmens Corporation (defendant No,3) and therefore, the suit is hit by provision of sections 21 and 56(f) of the Specific Relief Act. It was next contended that revision was made known to the plaintiff on 16-9-2011 in the bid document despite his participation reflects that he had waived his right of objection to such revised prequalification criteria. Mr. Ilyas contended that the plaintiff was ousted in prequalification therefore, had no vested right by merely submitting the bid documents. Reliance was placed on the judgment of the Supreme Court in the case of Muhammad Abid and 2 others v. Nisar Ahmed (2000 SCMR 780,) Petrosin Corporation (Pvt.) Ltd.
13. And others v. MOL Pakistan Oil and Gas Co. And others (PLD 2008 SC 472). It was next contended that adopting Single Stage One Envelop procedure or Single Stage Two Envelop procedure is a matter of discretion vested with the employer in terms of Section 36 of the Public Procurement Rules 2004 (hereinafter referred to as "Rules 2004") by placing reliance on an unreported judgment of Division Bench of this Court passed in C.P.D. No, 2829 of 2010 (Re: M/s Iqbal and Sons J/V Engineering v. City District Government and others) and has power to teject those technical proposals which do not confirm to their specified requirements. It was lastly contended that the plaintiff upon rejection of his technical bid had 'a remedy before the Committee for redressal of grievance as provided under Rule 48 of Rules 2004, and, therefore, prayed for the rejection of the application as well as the suit. Reliance was placed on the Judgments of this Court in the cases of Shah Jehan Khan v. Fazal-ur-Rehman Khan and another (2001 CLC 1695) and Abdul Ghaffar v.
14. Wallas Hafeez and others (2010 CLC 285) to contend that the final relief cannot be granted while granting interim relief.
15. On the other hand Mr. Muhammad Saleem Mangrio appearing for the successful bidder MJB Corporation Company (defendant No,2) for the first work i,e, B-Central, contended that the change in the pre-qualifying criteria was made known to the plaintiff on 16-9-2011 through bid documents and by participating in the bid process despite knowing such change amounts to waiving his right to objection, if any. It was next contended that bid document is only an offer and unless it is accepted the plaintiff has no right to object and lastly that once the contract is awarded it is too late for a bidder to approach the Court and seek injunctive orders. Reliance was placed on the Judgment of Apex Court in the case of City Schools (Pvt.) Ltd., Lahore Cantt v. Privatization Commission, Government of. Pakistan and others (2002 SCMR 1150) and of this Court in the case of BBJ Pipe Industries (Pvt.) Ltd. v. Sui Northern Gas Pipelines Ltd. (2003 YLR 1442).
16. Mr. Naveed Ahmed Khan, learned counsel appearing for successful bidder M/s Indusmens Corporation (defendant No,3) has adopted the arguments of Mr. Mangrio and seeks dismissal of the instant application .
17. In rebuttal Mr. Shahenshah contends that the remedy provided in Rule 48 firstly is inappropriate and secondly cannot oust the jurisdiction of this Court when allegations are of mala fide and discrimination and further that the defendants have not constituted a Committee as envisaged in Rule 48 prior to the entry in the force of procuring contract. As to participation despite knowing the change in conditions of prequalification, Mr. Shahenshah contended that on 16-9-2011 he received the bid documents and on 23-9-2011 lodged protest well before the date when he submitted the tender documents, therefore, plaintiff's participation was without prejudice to his right to object.
18. I have heard the learned counsel for the respective parties, perused the record with their able assistance as well as case-law cited at bar.
19. Perusal of the documents filed by the defendant along with their counter- affidavit reflects that the plaintiff was enlisted as "A" Category Contractor with the defendant since August 2000 and had undertaken Various works of construction since then, and it was only in the year 2010 when the defendant intended to develop phase-VIII, they through an advertisement dated 25-11-2010 published in Daily Dawn invited PEC registered contractors to participate the prequalification process for developing (1) Bulk Water Supply and Water Reservoirs Works, (2) Major Sewera:ge Works, (3) Major Drainage Works, (4) Electrical Distribution System Works, (5) Sewerage Treatment Plant Works, (6) Building Works, (7) Sector/Sub Sectors Infrastructure Development Works, (8)
20. Repair/Construction of Sea Wall Works, (9) Development of Parks and Green Areas Work and (10)
21. Road furniture Work at "Phase VIII of DHA to be carried out as planned, designed and under supervision of OSMANI & COMPANY. (Pvt.) 'Ltd Engineers and Consultants. The applicants/contractors were to take prequalification documents in respect of each category of work separately against payment of Rs,2,000/- and to further pay a sum of. Rs,25,000/- as scrutiny fees for each category of work with the work limit in various categories right from Rs,50 Million, or below to Rs,500 Million and above and there is no denial that out of these ten works for which prequalification was required the applicants applied and paid scrutiny fees for seven categories of work and Was declared qualified for a period of three years with the condition that in case the data provided for prequalification is found incorrect then such prequalification on the sole discretion of the defendant would be withdrawn. There is also no dispute that the work under Award through two different tenders i,e, subject matter of the instant suit is, in respect of those two out of seven categories of works in which the plaintiff had pre-qualified for a period of three years. It also appears to be an admitted position that pre-qualifying criteria was changed in the tender documents and there is hardly any justification of such change given by-the defendant except that the prequalification procedure does not create any vested right in the participants to be directly selected for any prospective bid and that the earlier pre-qualifying procedure was general and the one with the tender being specific.
22. Taking up the first objection, of course there cannot be two opinions about the proposition that mere prequalification of a prospective bidder does not create any vested right in him to be directly selected for any prospective bid but at the same time once a prospective bidder who has meted out the prequalification criteria laid down for execution of a particular work cannot be, ousted from participating in financial bid by knocking him down while changing prequalifying criteria and that too without any lawful justification. The power to engage the prospective bidders in prequalification vest in procuring agency by virtue of Rule 15 of -Rules 2004 which provides, that before floating tenders in .Cases of acquiring services, execution of civil works turn key projects and expensive and technically complex equipment's, to ensure that only technically and financially capable firms having adequate managerial ability are invited to submit bids, likewise Rule 16 of the Rules 2004 beside laying down prequalification process provides that in cases where the procuring agency has undertaken prequalifying procedure then only those suppliers or contractors who have been prequalified shall be entitled to participate further in procurement proceedings and for this very reason four different methods are provided in Rule 36. Of Rule 2004 for procurement through open competitive bidding. According to the plaintiff, the first procedure i,e, "Single Stage-One Envelope Procedure" (hereinafter referred to as "Procedure- A") is applicable in the instant case, whereas, according to the defendant "Single Stage-Two Envelopes Procedure" (hereinafter referred to as "Procedure-B") has application. Both Procedures-A & B are reproduced herein below for the sake of convenience:-
(a) single stage - one envelope procedure. - Each bid shall comprise one single envelope containing, separately, financial proposal and technical proposal (if any). All bids received shall be opened and evaluated in the manner prescribed in the bidding documents.
(b) single stage - two envelope procedure. - (i) The bid shall comprise a single package containing two separate envelopes. Each envelope shall contain separately the financial proposal and the technical proposal;
(ii) the envelopes shall be marked as "FINANCIAL PROPOSALand 'TECHNICAL PROPOSAL" in bold and legible letters to avoid confusion.
(iii) initially, only the envelope marked "TECHNICAL PROPOSAL" shall be opened.
(iv) The envelope marked as "FINANCAIL PROPOSAL" shall be retained in the custody of the procuring agency without being opened;
(v) The procuring agency shall evaluate the technical proposal in a manner prescribed in advance, without reference to the price and reject any proposal which do not conform to the specified requirements;
(vi) During the technical evaluation no amendments in the technical proposal shall be permitted;
(vii) The financial proposals of bids shall be opened publicly at a time, date and venue announced and communicated to the bidders in advance;
(viii) After the evaluation and approval of the technical proposal the procuring agency, shall at a time within the bid validity period, publicly open the financial proposals of the technically accepted bids only. The financial proposal of bids found technically non-responsive shall be returned un- opened to the respective bidders; and
(ix) The bid found to be the lowest evaluated bid shall be accepted.
23. In procedure-A words "if any after the words "Technical proposal" are very significant and of course refers to a. Situation where there is no need of obtaining technical proposal from the prospective bidders or where such procedure has already been undertaken. Whereas, Procedure-B is to be adopted in cases where the prospective bidders have to simultaneously submit their technical proposal as well as financial proposal and it is only when their technical proposal is accepted their financial proposal is considered. In the instant case procuring agency for a specified civil work had engaged contractors and even those who were enlisted in "A" Category in prequalification process and further against the spirit of Rule 16 of 2004 instead of charging cost of printing of prequalification documents have charged hefty amounts under the garb of such prequalification engagement, therefore, could not by adopting Procedure "B" without lawful justification oust the prequalified contractor by providing different qualification criteria. I am of the firm view that such prequalified contractor had vested right unless disqualified or blacklisted in terms of Rules 18 and 19 of Rules, 2004 to directly compete in financial bidding and for this reason Procedure-A after the words Technical Proposal provides "if any".
24. Coming to the changes made in the technical bid i,e, prequalification, scrutiny reveals that in the earlier prequalifying criteria 10% marks were reserved for Overall experience and 10% for specific experience, whereas 5% marks for Regional Experience Karachi/DHA and 5% for Valid Registration ISO 9001-2000, whereas in the new criteria for Overall experience points were reduced to 7%, in Specific Experience also points were reduced from 10% to 5%, whereas instead of Regional Experience within Karachi / DHA points from 5% were increased to 15% and the Experience at Karachi was omitted which means that undue advantage is given to those contractors who have been working in DHA and the other contractors having experience in Karachi, have been discriminated. Likewise, points for financial position were reduced from 30% to 20%, and points for Equipment Capabilities were reduced from 20% to 10% and for Personal Capabilities were reduced from 15% to 10% whereas 30% points were reserved for Proposed Detailed Construction Schedule and Detail Method Statement for which earlier no points were reserved at all despite the facts that prequalification was job specific. The change in the prequalification criteria was not only discriminatory but against the spirit of section 3 of the Public Procurement Regulations 2008 and even the process for asking the prequalified contractors to go through prequalification process afresh and that too without any plausible or lawful justification was also without lawful authority.
25. As to the second objection that earlier prequalification was general and therefore the defendants have a right to call for the technical bids and -to change valuation criteria, suffice is to observe that the plaintiff admittedly was enlisted with the defendants since 2000 as "A" Category contractor and had completed their various projects, therefore, there was no need or justification for prequalifying him generally and secondly as already observed that the process of prequalification undertaken by the defendants was project specific and therefore could not be termed as general.
26. Coming to the objections raised by Mr. Ifyas Khan that the plaintiff as provided under Rule 48 of Rules, 2004 had a remedy before the committee for redressal of grievances, no doubt in cases where review is provided before a domestic forum and such forum is ceased of authority to grant any relief which is claimed from the court, any interference would undermine the authority of such forum and also produce sense of distrust in such statutory forum as held in the case of M/s. Lqbal and Sons .J/V Engineering (supra) heavily relied upon by Mr. Ilyas Khan. However, the situation in this case is different, firstly for the reason that Rule 48 of Rules 2004 provides that procuring agency shall constitute a committee comprising of odd numbers of persons with proper powers and authorization to address the complaints of bidders that may occur "prior to the entry into force of the procurement contract" (underlined by me) and, therefore, upon taking such objection Mr. Ilyas Khan was asked to disclose as to whether any committee for redressal of the grievances of bidders was, constituted but he had no answer and, therefore, Mr. Shahenshah's submission that no such committee was constituted appears to be correct and secondly the Division Bench of this Court in the said case has given its opinion while examining Section 31 of Sindh Public Procurement Rules, 2010 and not the Public Procurement Rules 2004 as applicable in the instant case. The committee constituted under Section 31 of Sindh Public Procurement Rules, 2010 to properly scrutinize the action of Procurement Committee is either headed by the head of Procuring Agency or an officer at least one rank above the head of Procuring Committee and such redressal committee has the powers to prohibit procurement committee from acting or deciding in a manner, inconsistent with the rules and regulations, annul in whole or in part any unauthorized act or decision of the procurement committee and even to reverse any decision of the procurement committee or substitute its own decision and the committee so constituted has to give its decision within seven days and further the procuring agency is bound to award the contract after decision of the complaint by the redressal committee, whereas the redressal committee constituted under Public Procurement Rules, 2004 neither per statutory force comprises of head of Procurement Agency nor there is any statutory requirement regarding its composition and further it does not enjoy such vast statutory powers as the redressal committee under section 31 of the Sindh Public Procurement Rules, 2010 and can only under Sub-Rule 3 of Rule 48 investigate and decide the complaint within 15 days which decision under Sub-Rule 5 is appealable before the Court of competent jurisdiction.
27. Therefore, neither the Constitution nor the powers of redressal committee constituted under Section 48 of the Public Procurement Rules, 2004 can be equated to redressal committee constituted under Section 31 of Sindh Public Procurement Rules 2010 nor the principle pronounced in the case of.M/s lqbal and Sons J/V Engineering (supra) can be made applicable in this case.
28. Coming to the legal objection raised from the defendant's side that the action is hit by laches and their reliance on the case of BBJ Pipe Industries (Pvt.) Ltd. In the said case tenders were floated on 4-5-2002 and the last date for submitting bid was 30-6-2002 but the prequalification application of the petitioner was not processed, the _ petitioner challenged the action after bids were opened and the Court concluded that since sufficient time was available with the petitioner to challenge non-scrutiny of his prequalification application and, therefore, refused to grant relief by holding that the petition was hit by 'aches, whereas in the instant case admittedly bid documents were received by the plaintiff on 16-9-2011 by stating the opening date of technical bid as 3-10-2011 and the plaintiff on '23-9-2011 objected to different post qualification criteria by asserting it for the benefit of selected group of contractors and against PPRA Rules, and also against PEC standard procedure which notice/objections were never decided or even replied even the technical bid of the plaintiff was rejected by the defendant vide their letter dated 21-10-2011, which was received by the plaintiff after filing the instant suit, therefore, cause cannot be held to be hit by laches.
29. As to the contention of the defendants that the plaintiff has neither any prima facie case nor injunctive relief can be granted at this stage as it would amount to granting final relief at the initial stage of the proceedings and lastly that the balance of inconvenience is in favour of defendant as the procurement process cannot be stayed indefinitely. As to first objection, since it has been held that the plaintiff after succeeding the pre-qualification test had a vested right to participate in financial bid and the post qualification criteria was discriminatory and against the spirit of section 3 of Public Procurement Regulations 2008, therefore, in my opinion the plaintiff has sufficiently established a prima facie case.
30. As to the second objection though a principle has been evolved that a relief to which the plaintiff is ultimately found entitled normally is not granted as an interim measure, however, in my opinion; this argument is totally misplaced and inapplicable as this doctrine is applicable in cases where the interim relief so granted creates a new situation which corresponds to the ultimate relief claimed in the suit as held by the apex Court in the case of Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zairian Khan and others (1997 SCMR 1508) and not where in a suit for injunction parties are directed to maintain statusquo as mere directing the parties to maintain status quo would neither amount to granting the main relief nor creating a new situation.
31. Taking up the most stressed objection regarding balance of inconvenience, I am of the view that in cases where the allegations are against public functionaries for violating the rules which they are bound to follow while discharging their functions, then balance of inconvenience hardly matters as it is the bounded duty of the Court to ensure that the public functionaries while discharging their functions should act strictly in accordance with the rules and therefore, cannot ignore such violation while weighing the balance of convenience. In number of cases it has been observed that the power vested in government functionaries is a sacred trust and they are bound to exercise such powers and perform their duties as trustees in a most transparent manner and in cases where the decisions of the State functionaries are either mala fide or contrary to law, the same are liable to be struck down. In the instant case violation of Public Procurement Rules, 2004 as well as Public Procurement Regulations, 2008 has been sufficiently established and any procurement in violation of the Rules is not only ultra wires of the Procurement Committee but is termed as misprocurement as defined in Section 2(h) of the Public Procurement Regulatory Ordinance, 2002 and in such circumstances, balance of inconvenience is hardly of any importance. Even otherwise, the arguments in its present form are totally misplaced and inapplicable to the instant case.
32. Maintaining balance of convenience in the instant case would be to allow the procurement agency to continue with the procurement process afresh strictly in accordance with law and so I have decided.
33. In the circumstances, I allow the application as prayed with a rider that the defendant No,1 would be at liberty to initiate the procurement process afresh strictly in accordance with the rules and the