' AHMED ALI M. SHAIKH, ACTG. C J.--Through instant petition, petitioner seeks following reliefs:- "a. Direct the Respondent No,2 to initiate an inquiry and investigation under the National Accountability Ordinance, 1999, in relation to the 'Procurement of Hepatitis B & C Medicines for the year 2014-2015', floated through invitation of Bids Notice dated 28.11.2014, in accordance with law. b.
Declare that the failure of the Respondents Nos.3 and No,5 to take action, regarding the mis- procurement in relation to the 'Procurement of Hepatitis B & C Medicines for the year 20142015', floated through invitation of Bids Notice dated 28.11.2014 is unconstitutional, mala fide and of no legal effect. c. Direct the Respondent No,3 to initiate disciplinary proceedings against officials of the procuring agency responsible for mis-procurement, in relation to the 'Procurement of Hepatitis B & C Medicines for the year 2014-2015', floated through Invitation of Bids Notice dated 28.11.2014, in accordance with law; d. Grant such further, additional or alternative relief, as this Honourable Court may deem fit and proper."
2. Brief facts of the case as per pleadings are that petitioner is a research based Generic Pharmaceutical Company, largest exporter of pharmaceutical products from Pakistan since last ten years, classified as the leader in tax payment, etc to the Government by the FBR, winner of Export Award in pharmaceuticals for the last eight years from amongst 650 unit in Pakistan and included by the WHO in the list of Prequalified Quality Control Laboratories.
3. The Program Manager, Prevention and Control of Hepatitis, Sindh, through advertisement published in various newspapers invited bids from various firms, manufacturers, importers and/or supplier and the Procurement Committee of whose Respondents Nos.6 to 10 were key members, awarded tender for supply of Hepatitis B&C Medicines, Vaccines, Machinery, Equipment and etc for prevention and control of Hepatitis in Sindh for the year 2014-2015 to Respondents Nos.11 and 12 through the Respondent No,13 and rejected the technical bid of the petitioner on the conditions not specified in the tender document itself. Being aggrieved, petitioner filed Civil Suit No,62 of 2015 on the Original Side of this Court, in which interim orders in favour of petitioner was passed.
4. Petitioner further pleaded that Respondent No,6 in their parawise comments has submitted that Technical Committee evaluating the technical bids of Peg Interferon adjourned the meeting to 30.12.2014 at about 1.30 P.M. On which date the technical bid of petitioner's drug 'Unipeg' was rejected but the written synopsis submitted by the said respondent through Additional Advocate General, Sindh, it was stated that the bid of the petitioner was rejected vide letter dated 26.12.2014 but dispatched in the afternoon of 30.12.2014 through TCS. According to petitioner on the one hand respondent claimed that letter was dispatched on 30.12.2014 but their parawise comments revealed that the meeting taken place on 30.12.2014 at 4.30 P.M. To demonstrate further inconsistency, the petitioner pleaded that M/s Roche, respondent No,11, categorically stated in their counter-affidavit the meetings took place on 18th, 26th and 31st December, 2014 while on 31st December, 2014 petitioner's technical bid was evaluated. Thus, according to petitioner, it is evident that its technical bid for drug `Unipeg' was not rejected on 26-12-2014.
5. According to petitioner, the respondents under clause 19(4) of the bidding documents for such Tenders were required to prepare minutes of meeting while under Rule 9 of Sindh Public Procurement Rules, 2010 ("SPPR, 2010"), the procurement agency was required to maintain a record of their proceedings along with all associated documentation at least for a period of five years.
6. According to pleading, notice dated 24.12.2014 issued by Respondent No,6 manifests that meeting of Procurement Committee was scheduled on 26.12.2014 at 2.30 P.M. For opening of technical bid of Inj: Pegasys and finalization of technical bids of all items including Pegasys, drug of Respondent No,11. This shows that Respondent No,6 was in favour of Respondent No,11, competitor of petitioner, and already decided to award the tender of Pegylated Interferon to his rival.
7. It is further pleaded that petitioner's technical bid was rejected, inter alia, for the reason that its product was 20 kDa and not 40 kDa, as, according to the Procurement Committee, 20 kDa is not recommended for human being therapy. Nonetheless, after passing of order dated 26.3.2015 in Suit No,62 of 2015, which was not even appealed against by the Government of Sindh, fresh tender was floated by the Government specifically mentioning the requirement of a 20 kDa medicine in its technical specifications.
8. It also appears from the pleadings that only Respondent No,11 filed High Court Appeal bearing No,119 of 2015 against the order dated 26.3.2015 and a Division Bench of this Court vide order dated 29.5.2015 disposed of the Appeal giving certain directions in relation to the fresh tender which was floated as such. Thus, it is quite clear that rejection of petitioner's technical bid that its product is 20 kDa not recommendable for human being therapy was completely illegal and mala fide and aimed at to oust the domestic manufacturer even though the domestic industry is able to provide similar treatment for less than one-third price of these foreign multinational companies.
9. It is also pleaded that according to petitioner's information Respondents Nos. 6 to 10 also members of Procurement Committee, 'which rejected petitioner's technical bid, received illegal gratification from Respondent No,13, which information/allegation requires a detailed inquiry and investigation by the Respondent No,2, National Accountability Bureau.
10. After notice, respondents filed counter-affidavits to which affidavit-in-rejoinders have also been filed. Pursuant to order 26.6.2015 passed this Court Respondent No,3 on 30.8.2015 filed a statement that record of bids connected to this petition has been preserved in sealed boxes and in custody of the Secretary (I&C), SGA&CD. The petitioner however filed objections that delay in complying with the orders of this court indicative that record of bids has been tampered with.
11. Mr. Abdul Sattar Pirzada, learned counsel for the petitioner contended that the Program Manager, Prevention and Control of Hepatitis, Sindh vide letter dated 26.12.2014 accepted the technical bid of petitioner for its product 'Ribazole' but rejected the same for 'Unipeg'. According to learned counsel, inter alia, rejection was based upon the grounds that 'Unipeg' was not approved by FDA/EMA; it is 20 kDa, which is not recommended for human being therapy and thirdly that this Court vide order dated 30.12.2014 passed in C.P. No,D-6723 of 2014 bound the respondents to ensure quality and merit regarding conditions mentioned in the tender documents for 2013-2014 like FDA/EMA approved, WHO recommended. According to him, per tender, the eligibility criteria was that the manufacturers must be ISO certified and either GMP or FDA approved while evaluation was to be done on a points based system based on the manufacturer meeting various criterions, which criterions were fulfilled by the petitioner. He also submitted that this Court vide orders dated 30.12.2014 only questioned the maintainability of the petition, which was dismissed. Per learned counsel rejection of the bid was based on mala fide as in letter dated 26.12.2014 reliance has been placed on the aforesaid Court order dated 30.12.2014, passed four days before.
12. Per counsel pursuant to Notification No,SORI(SGA&CD)2-30/ 2010 dated 8.10.2013 Rules 21-A and 32-A were added to SPPR, 2010, which provide that failure to provide a clear and unambiguous evaluation criteria in the bidding documents shall amount to mis-procurement and in case of mis- procurement the competent authority is to initiate disciplinary proceeding against the officials of procuring agency responsible for mis-procurement and may also refer the matter to the Sindh Enquiries and Anti- Corruption Establishment for initiating action against such officials. According to learned counsel the purpose of these amendments is to impede the prevalent practices followed in relation to the tenders, ensure transparency and hold officials of the procuring agency responsible for mis-procurement and investigate such practice. He while referring to the order dated 26.3.2015 passed by a learned Single Judge in Suit No,62 of 2015 submitted that tender conditions imposed. Were' violative of Rules 21(2), 21-A, 23(2) and 26(1) of the SPPR, 2010.
13. He next contended that as neither the Government of Sindh nor Respondents Nos.6 to 10 have filed any appeal against the afore-dated Court order thereby accepting their mala fides and illegalities in rejecting petitioner's technical bid. He also submitted that one of the reasons for rejection of technical bid of the petitioner was that its product was 20 kDa and not 40 kDa while according to Respondents Nos.6 to 10 20 kDa is not recommendable for human being therapy.
However, after passing of order dated 26.3.2015 in aforementioned civil suit, the Government of Sindh has floated a fresh tender specifically mentioning requirement of a 20 kDa medicine in its technical specifications. Therefore, in other words, rejection of petitioner's bid on the ground of 20 kDa medicine, not fit for human therapy was illegal and based on mala fide. He further submitted that such rejection of bid by the Respondents No, 6 to 10 on the one hand a deliberate and mala fide design to oust the domestic pharmaceutical company and on the other to purchase these medicines at a rate three-times higher than the domestic company, that too using tax-payers money. Therefore, it is quite necessary that official of procuring agency responsible for mis- procurement be held accountable.
14. According to Mr. Pirzada, as senior government officials are involved in the corrupt practices, no independent and fair investigation can take place by the Sindh Inquiries and Anti-Corruption Establishment, therefore, in the circumstances, in terms of Sections 9 and 18 of the National Accountability Ordinance, 1999, Chairman, NAB be directed to initiate an inquiry and investigation in relation to "procurement of Hepatitis B and C Medicines for the year 2015-2015, floated through notice dated 28-11-2014. Per Mr. Pirzada, if no inquiry or investigation for alleged acts of corrupt practices committed by senior government officials is conducted petitioner's right as enshrined in Articles 4, 10A, 23 and 25 of the Constitution, 1973, will be violated. He in support of his contention has relied upon the cases reported in 2012 SCM R 773 relevant at page 853 and PLD 2010 Islamabad 85.
15. Per contra, Mr. Sarmad Hani, counsel for Respondent No,11, M/s Roche Pakistan Limited, the competitor of petitioner, submitted that the respondent applied to Ministry of Health, Government of Pakistan for registration and approval of its drug "Pegasys" at Rs,27,467.97 per vial but the Ministry of Health accepted the application and fixed maximum retail price (MRP) at Rs,13,000/- per vial. He further pointed out that in wake of counterfeiting of Pegasys, the respondent after approval of Ministry of Health replaced the vial with fully imported prefilled syringe and supplying the same without seeking any increase in MRP. He pointed out that Pegasys is FDA, EMA and Swiss Medic approved pegylated interferon Peg2A 180 mcg for treatment of Hepatitis B and C while only other EMA approved Peg2A in Pakistan is Ropegra, which the respondent after approval and as suggested by the Drug Regulatory Authority of Pakistan, introduced in Pakistan at MRP of Rs,6,500.00 per vial and withdrawn Pegasys from market.
16. Mr. Sarmad Hani further submitted that institution of present petition is yet another addition in the lists of legal proceedings initiated by the petitioner M/s Getz Pharma as 10 suits, etc are pending against the Respondent No,11 in different Courts at Islamabad, Lahore and Karachi. He submitted that instant petition is not maintainable as petitioner without exhausting the alternate remedies available to him approached this Court directly while on the other hand his grievances have been redressed by the orders passed by this Court in Civil Suits Nos.62 and 980 of 2015 and HCA No,119 of 2015.
17. Learned counsel next submitted that on 18.12.2014 technical bids for item Peg2A were opened but the same was adjourned to 26.12.2014 on which date the Procurement Committee evaluated the products of the Respondent No,1 and the Petitioner but matter was adjourned to 30.12.2014.
According to him, petitioner was disqualified as its drug Unipeg was inefficacious. However, when the decision was to be communicated, a notice was received from this Court in C.P. No,D-6723 of 2014, pursuant to which on 30-12-2014 Secretary Health, Government of Sindh, respondent No,4 herein, appeared and gave an undertaking that all drugs procured would be "WHO certified FDA/EMA approved/compliant and of international standard." Accordingly, on same day the Committee, in view of above undertaking, after assessing the bids in respect of Peg-2A, rejected petitioner's bid and accepted that of respondent No,11. He pointed that date 26.12.2014 is a typographical error and nothing more as official respondents could not imagine on 26.12.2014 that this Court seized of C.P. No,D-6723 of 2014 would pass an identical order that it passed in the Petition on 30.12.2014.
18. The learned counsel for respondent No,1 next contended that aggrieved with the above decision of the Committee, petitioner filed Civil Suit No,62 of 2015 before this Court, inter alia, seeking declaration against award of tender 2014-2015 for procurement of Hepatitis B and C to the Respondents Nos.11 and 12 and rejection of its bid for 'Unipeg' and this Court on 20.1.2015 granted ad-interim orders in respect of medicines "Ropegra" and "PegIntron" of respondents while such supplies had already commenced. However, on 26.3.2015 learned Single Judge allowed the injunction application filed in the suit and directed the Government to float fresh tender. Against said order High Court Appeal was filed and on 28.5.2015; this Court permitted Respondent No,11 to file tender documents and on 29.5.2015 the Appeal was disposed of by a consent order. According to learned counsel on 29.5.2015 technical bid was opened and technical bid of respondents Nos.11 and 12 were accepted while petitioner's bid for 'Unipeg' was ejected.
19. According to learned counsel in wake of order dated 29.5.2015 passed in High Court Appeal by this Court the order of learned Single Judge passed in Suit No,62 of 2015 has become redundant. He further submitted that procurement in the first and second round were transparent and in consonance with the SPPR, 2010. In both rounds the Procurement and Technical Committee with reasons rejected petitioner's drug and the petitioner having no option filed another Suit No,980 of 2015 claiming verbatim relief as in Suit No,62 of 2015. He also submitted that the Procurement Committee in consonance with the Technical Advisory Group evaluated the drugs and petitioner's in respect of Peg-2A having molecular weight of 20 kDa also investigated thordughly but there was no extensive study or clinical tests available, it was not found safe and rejected.
20. He also submitted that the petitioner has failed to avail alternate remedies available under the law and hurriedly filed the instant petition, which in wake of civil suits pending on the original side of this Court, has become infructuous .
21. M/s Malik Naeem lqbal, Altaf Shahid Abro and Behzad Haider, Advocates for respondents Nos.6 to 10 and 12 adopted the arguments advanced by Mr. Sarmad Hani, counsel for respondent No,11.
22. The learned Additional AG, Mr. Mukesh Kumar Karar submitted that if the petitioner is aggrieved by the actions of the Respondent No,5 or of the Committee that evaluation criteria was not followed, he can file appeal/complaint under the SPPR, 2010, which provides complete mechanism for redressal of grievances and opportunity to bidder to lodge written complaint. However, instead of filing appropriate complaint the petitioner filed the Constitution Petition against the spirit of Article 199 of the Constitution, 1973. He prayed that the petition be dismissed.
23. The learned ADPG, NAB, Mr. Noor Muhammad Dayo, submitted that petitioner has not approached NAB for redressal of his grievance and in terms of Section 18 of National Accountability Ordinance, 1999, petition is not maintainable. He further submitted if any complaint is filed the same would be dealt with in accordance with law.
24. In rebuttal, Mr. Abdul Sattar Pirzada, Counsel for the petitioner placed reliance on the case reported in 2015 SCM R 1348 and submitted that NAB could initiate proceedings against a person on its own accord, only on coming to know about an offence from any source. He lastly submitted this petition can be disposed of and petitioner would be satisfied if this Court directs the petitioner to approach NAB for redressal of its grievance.
25. We have heard the learned counsel for the parties, Additional AG and ADPG, NAB and perused the record. In a nutshell, the petitioner has approached this Court for issuance of a writ of mandamus against official respondents, who according to learned counsel for the petitioner was obliged to take notice of the corruption allegedly taken place in rejection of petitioner's technical bid for its drug `Unipeg.' The writ of mandamus commands the person to whom it is addressed to perform some public or quasi-public legal duty, which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. In light of Article 199 of the Constitution, for issuance of writ of mandamus petitioner being aggrieved has to show that he has no other alternate and efficacious remedy or has exhausted the other remedies available under the law. Moreover, issuance of writ or grant of relief in writ jurisdiction is always discretionary. In the instant case, it is also to be seen whether the petitioner had a vested legal right for the enforcement under Article 199 of the Constitution on the date when it filed the petition and petitioner had no other adequate and legal remedy available under the law.
26. Rule 31 of Part-II of SPPR, 2010 provides mechanism for redressal of grievances of bidders that may surface during the procurement proceedings. Moreover, Rule 32 provides Appeal to the Review Committee in case a bidder is not satisfied with the decision of the procuring agency's complaints redressal committee. In terms of Rule 32(7) of SPPR, 2010, the Review Committee, inter alia, may: (i) annul in whole or in part of a non-compliant act or decision of a procuring agency, other than any act, or decision bringing the procurement contract into force; (ii) if the procuring agency is in breach of its obligations under the Act, Rules or Regulations, order the payment of compensation by the officer(s) responsible for mis-procurement for cost incurred by the bidder on preparation of bid; or direct that the procurement proceedings may be terminated, in case the procurement contract has not been signed; and (iii) declare the case to be one of mis procurement if material violation of Act, Rules, Regulations, orders, instructions or any other law relating to public procurement, has been established. Likewise, for detection, investigation, prosecution and swift disposal of cases involving corruption and corrupt practices, misuse or abuse of powers or authority National Accountability Ordinance, 1999, has been promulgated. In terms of Section 18 of the Ordinance, on receipt of a complaint if the Chairman NAB or an officer of the NAB duly authorized by him is of the opinion that it is or may be necessary and appropriate to initiate proceedings against any person he shall refer the matter for inquiry or investigation.
However, during course of argument and in the pleadings too, it is admitted that petitioner has not approached any of the official respondents i.e, NAB and or Sindh Public Procurement Regulatory Authority, established for regulating procurement of goods, services and works in the public sector and for matter connected therewith or ancillary thereto.
27. Learned counsel for the petitioner during arguments submitted that learned single Judge in its order dated 26.3.2015 passed in Suit No,62 of 2015, observed that Respondents Nos.6 to 10 have acted illegally and mala fidely and rejection of technical bid of the petitioner and acceptance of bids of respondents Nos.11 and 12 were illegal and mala fide and in violation of SPPR, therefore tender proceedings were a violation of fundamental rights of the petitioner under Article 23 of the Constitution, 1973 and respondent No,3 be directed to initiate disciplinary proceedings against official of procuring agency responsible for mis-procurement while the respondent No,2 to initiate inquiry and investigation under NAB Ordinance, 1999.
28. As the petitioner, for redressal of his grievances in relation to rejection of its bid and acceptance of that of respondents Nos.11 and 12, has also failed to approach the relevant forum under SPPR, 2010, which Rules provide complete mechanism for redressal of grievances and settlement of disputes, we do not find it appropriate to give any direction to the official respondents in this regard.
29. Additionally, the petitioner has also filed Civil Suits, including Civil Suit No,62 of 2015 wherein it has specifically sought declarations, inter alia, in regard to rejection of its bid for its product 'Unipeg' for 2014-2015 tender for the procurement of Hepatitis B and C Medicines; and Award of 2014-2015 tender for the Procurement of Hepatitis B and C Medicines to respondents Nos.11 and 12. It is also settled principle of law that before an order passed by a pubic authority is struck down it is the duty of the court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. Consequently, any finding or direction at this stage and in the given circumstances of the case in the instant collateral proceedings would be prejudicial to the rights of contesting parties and would also amount to circumventing the civil suit.
' For the foregoing reasons, we do not find any merit in the instant petition, which is accordingly dismissed leaving the petitioner to .Pursue proceedings already initiated by it and avail remedies provided under the law, if so advised.