' This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases: 1.W.P. No. 26355 of 2015. MM. Mega Pharmaceuticals Limited, v. The Government of the Province of Punjab, etc. 2.W.P. No. 27515 of 2016. M/s. FYNK Pharmaceuticals, v. The Government of the Province of Punjab, etc. 3.W.P. No. 30123 of 2015. M/s. Venus Pharma. v. The 'Government of the Province of Punjab, etc. 2.Brief facts for disposal of this writ petition are that petitioner-company is engaged in the business of pharmaceutical drugs. Respondents invited applications through website to prequalify for supply of drugs for the year 2015-16. Petitioner accordingly applied in April 2015. Respondents declared the petitioner as "Not Prequalified" in the List of Prequalified Firms by the Health Department, Punjab for Central Rate Contract 2015-16' dated 13.08.2015. Feeling aggrieved of the aforesaid, petitioner submitted representation before Respondent No. 1, which was rejected, vide decision of the Grievance Committee Meeting dated 27.08.2015, on the basis of sample fail and conviction and the petitioner was again declared "Not Prequalified". The aforesaid decisions of respondents have been assailed through the instant petition, with the following prayer:.
"In these circumstances, it is most respectfully prayed that this petition may very kindly be accepted, the decision dated 13.8.2015, working paper and decision dated 28.8.2015 passed by the respondents whereby the respondents ordered "NOT PREQUALIFIED" the petitioner mentioned with reference to the Application No. 196 at Serial No. 161 in Annex "D", "D/1" and "F" dated 13.8.2015 and 28.8.2015, and the entire proceedings regarding prequalification process, prequalification and not qualification, invitation of Tenders/ Bids may very kindly and graciously be declared as unlawful, illegal, unconstitutional, void therefore of no legal effect, without lawful authority, as such set aside the same by an appropriate order for Re-tendering / bidding in the interest of justice.
' It is further prayed that during the pendency of titled petition, operation of the impugned order/decision i.e. Order dated 13.8.2015 Annex. "D", working paper Annex. "D/1" and Decision dated 28.8.2015 Annex. "F" may very graciously be suspended and respondents may very kindly be directed to receive the Bids and entertain the petitioner's Tenders for the purchase of Drugs for the year 2015-2016 to meet the ends of justice, in the meanwhile further process of bidding / Tender that of awards may kindly be stayed.
' Any other relief which this Honourable Court deems fit and necessary in the interest of justice may also be allowed."
3. Learned counsel for petitioner submits that the Chapter IV of the Punjab Procurement Rules, 2014 (hereinafter referred to as the "Rules, 2014") deals with the prequalification, qualification and disqualification but not for medicines. Condition of prequalification is in violation of the Circular dated 29.04.2010, which was placed before this Court by the respondents in W.P. No. 3553 of 2010.
He adds that the said Circular contained the guidelines for procurement of drugs / medicines equipments for District Governments, which was reproduced by this Hon'ble Court in the order dated 28.05.2010, as under:-- "with reference to electro medical equipment and medicine pre-qualification and registration of firms may not be undertaken henceforth."
' Learned counsel for the petitioner argues that respondents are under legal duty to specify a mechanism and manner for the purposes of barring a contractor from participating in any procurement process of the procuring agency which they have failed to provide in the light of law and principles laid down by this Court in the decisions rendered in W.P. No. 9910 of 2014 dated 05.05.2014 and W.P. No. 424 of 2014 dated 22.01.2015. Regarding test reports of samples, he submits that all the test reports were not supplied to petitioner, and they have yet to pass through the process of scrutiny, and are even otherwise irrelevant for the purposes of prequalification being not the part of mechanism and manner. Adds that Rule 16 of the Punjab Procurement Rules, 2014 is not applicable for the Procurement of Pharmaceutical Drugs and Rule 16(2) of the said Rules exempt the bidders from the condition of prequalification in case the goods for procurement are worth rupees One Hundred Million and above. He also referred to the Rule 34 of the Rules, 2014, which lays down that no procuring agency shall introduce any condition, which discriminates between bidders or which is difficult to meet. In support of his submissions, he has relied upon Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 Supreme Court 261) and Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 Supreme Court 116), to contend that this Court possesses the jurisdiction to examine the validity of order with regard to grant of' a concluded contract and strike down the same on the ground of mala fide, arbitrary exercise of discretionary powers, lack of transparency, discrimination and unfairness etc. He further submits that the decision to debar the petitioner is a void order based on discrimination, prepared for political victimization, as rendered in the judgment passed in W.P.No. 424 of 2015 supra. He finally submits that the impugned actions of' respondents are violative of the Articles 4 and 18 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") as well as the provisions of the Drugs Act, 1976, and Drugs Regulatory Authority of Pakistan Act, 2012.
4. On the other hand, learned Assistant Advocate General submits that Health Department, Government of the Punjab, received a reference from Drug Regulatory Authority of Pakistan, Ministry of National Health Services, Regulation and Coordination, Islamabad, wherein it was intimated that the Senate Standing Committee has recommended to ensure prequalification of manufacturers for supply of drug medicine in Government Hospital and Health Institutions. He further contends that the Defective Drug Inquiry Tribunal, constituted to probe the incidence of Punjab Institute of Cardiology, in its report made following amongst other recommendations regarding acquisition of medicines for the hospitals:-- "13.6 RECOMMENDATIONS REGARDING ACQUISITION OF MEDICINES:
(a) The procedures prescribed in PPRA Rules may be followed with modifications designed to acquire medicines for hospitals.
(b) There must be emphasis on ensuring that the intending suppliers meet the minimum criteria of cGMPs compliance and are pre- qualified for that purpose before they are pre-qualified to submit bids for supply of medicines to the hospitals.
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(n)The pre-qualification procedures and criteria adopted and followed by Agha Khan Hospital for acquisition of drugs may be studied and adopted in order to ensure that the emphasis shifts from price to quality."
' Learned AAG submits that Health Department gave advertisement in the press for prequalification of Pharmaceutical suppliers and 277 applications were received by the Prequalification Cell, notified vide Notification No. PA / ASA / 1-2 / 2015 dated 25.03.2015, on 22.04.2015. On initial scrutiny, it was observed that only 233 applications were from local pharmaceutical manufacturers and sole agents of foreign principals (importers) whereas others were firms marketing products which were not registered with Ministry of Health/Drug Regulatory Authority of Pakistan, Islamabad. He submits that meeting of Prequalification Committee was held on 11.08.2015, under the chairmanship of Additional Secretary (Drug Control), to assess the applications and prequalify the pharmaceutical manufacturers and sole agents of foreign principals who had applied for prequalification to the Health Department, and, keeping in view the recommendations of Senate Standing Committee and Defective Drug Inquiry Tribunal, it was decided as under:- "(i) Not to prequalify those firms who have applied for prequalification and marketing products which are not registered with MOH/DR,AP, Islamabad and those in which there are no competitors (Monopoly items).
(ii) Only those firms will be prequalified who have valid GMP for manufacturing marketing in Pakistan and not to consider the GMP issued for export purpose by the Federal Government.
(iii) For those companies whose GMP Certificate is in process, the inspection report will be considered in which there are no adverse remarks for action to be taken by the Federal Government.
(iv) The firms will not be prequalified if convicted from the Drugs Courts as reported by Chief Drugs Controller Punjab.
(v) The firms will not be prequalified whose numbers of drug samples are greater than three as declared by Drugs Testing Laboratories (DTLs) in Punjab; as reported by the Provincial Quality Control Board (PQCB)."
' Learned AAG submits that the 16 samples of the petitioner were reported substandard by Drugs Testing Laboratories ("DTLs") in Punjab, and it was also convicted by the Drug Court, Lahore, on 13.05.2015, therefore, the petitioner was declared as "Not Prequalified". He further submits that the petitioner filed a grievance petition in the Health Department against the decision of Prequalification Committee which was rightly rejected by the Grievance Redressal Committee of Health Department. Adds that petitioner has not approached this Hon'ble Court with clean hands.
Prequalification process was initiated prior to the invitation of bid. Applicants were declared prequalified and not-prequalified without any discrimination, and the non-prequalified firms were debarred to participate in the further process of bidding of procurement of medicines and surgical disposable on 09.09.2015 by the Health Department, Government of the Punjab. Learned Assistant Advocate General finally contends that petitioner has failed to point out any illegality or legal infirmity in the bidding process and violation of rules, regulations and law applicable thereto, therefore, the writ petition is liable to be dismissed.
5. Arguments have been heard and record perused.
6. Pre-qualification process, which is the subject matter of the instant case, is provided under Rules 16 and 17 of the Rules, 2014, which are reproduced below for ready reference:-- "16. Prequalification.--(1) Subject to sub-rule (2), a procuring agency may, prior to floating the tenders or invitation to proposals or offers, engage in prequalification of bidders in case of services, civil works, turnkey projects and also in case of procurement of expensive and technically complex equipment to ensure that only technically and financially capable firms or persons having adequate managerial capacity are invited to submit bids.
(2) The procuring agency shall prequalify bidders under sub-rule (1) in case of procurement of goods of one hundred million rupees and above and large consultancy, except where a procuring agency, for reasons to be recorded in writing, dispenses with the requirement of prequalification of bidders.
(3) For purposes of the prequalification of bidders, a procuring agency shall take into consideration the following factors:
(a) qualifications;
(b) relevant experience and past performance;
(c) capabilities with respect to personnel, equipment, and plant;
(d) financial position;
(e) appropriate managerial capability; and co any other factor that a procuring agency may deem relevant, not being inconsistent with these rules.
(4) The procuring agency shall ensure that the prequalification is based on the capacity of the interested parties to satisfactorily perform the services or works.
(5) In case of fast track projects where the time is the essence or where potential consultants are limited or the assignment is of a complex nature, the procuring agency may, after recording reasons and with the approval of Provincial Development Working Party, invite a request for proposals through public notice under Rule 12.
(6) Notwithstanding anything contained in sub-rules (1) and (2), Planning and Development Department of the Government may shortlist the individual consultants, firms or companies involving legal, financial and technical expertise.
(7) A procuring agency may, at the time of prequalification process consider any of the individual consultants, firms or companies shortlisted under sub-rule (6), after conducting the due evaluation process (technical or financial), in case where:
(a) procuring agency lacks capacity of pre qualification process;
(b) sufficient time to take up the process of prequalification is not available; and
(c) expertise acquired by individual consultant, firms or companies shortlisted under sub-rule (6) in line with the requirements of the procuring agency.
(8) Planning and Development Department of the Government shall:
(a) before shortlisting process, in consultation with the key line departments, determine the parameters and selection criteria for shortlisting of individual consultants, firms or companies to be considered as consultant;
(b) shortlist all such individual consultants, firms or companies only for one financial year through its notified committee strictly in accordance with the procedure provided under these rules;
(c) shortlist at-least three individual consultants, firms or companies for each area of expertise;
(d) upload the list of such shortlisted individual consultants, firms or companies on the website of Punjab Procurement Regulatory Authority and Planning and Development Department of the Government for the consumption of public sector organizations; and
(e) circulate the list to all the public sector organizations.
(9) A procuring agency intending to use the facility of shortlisted individual consultants, firms or companies, while taking up the process of procurement, shall invite technical or financial bids from all such shortlisted individual consultants, firms or companies as per requirement of the procuring agency.
(10) A procuring agency may select a consultant under this rule and where this rule is silent about any selection process, it shall adopt the selection process of a consultant provided in other rules.
17. Prequalification process.--(1) The procuring agency engaging in prequalification shall announce, in the prequalification documents, all information required for prequalification including instructions for preparation and submission of the prequalification documents, evaluation criteria, list of documentary evidence required by contractors to demonstrate their respective qualifications and any other information that the procuring agency deems necessary for prequalification.
(2) The procuring agency shall provide a set of prequalification documents to any contractor, on request and subject to payment of such price as the procuring agency may determine to defray the cost on account of printing and provision of the document.
(3) The procuring agency shall promptly inform the contractor who has applied for the prequalification whether or not he has been prequalified and shall; on request from the applicant who had applied for prequalification, a list of contractors who have been prequalified.
(4) On a request, the procuring agency shall communicate to the contractor who has not been prequalified the reasons for not prequalifying the contractor.
(5) Only the prequalified contractors shall be entitled to participate in the subsequent procurement proceedings."
' Bare perusal of Rules 16 and 17 shows that in terms of sub-rule (1) of Rule 16, it is discretionary for a procuring agency to engage in pre-qualification of bidders, however sub-rule (2) of the Rule 16 mandates that in case of procurement of goods of one hundred million rupees or above and large consultancy, the procuring 'agency is required to pre-qualify bidders, except where a procuring agency, for reasons to be recorded in writing, dispenses with the requirement of pre-qualification of bidders. Rule 16(3) enlists factors to be considered by procuring agency for the purposes of the pre-qualification of bidders, and in terms of Rule 16(3)(f) a procuring agency can consider any factor which it may deem relevant and which is not inconsistent with the rules. Similarly Rule 17 ibid deals with the process of pre-qualification. Under Rule 17(5) only the pre-qualified contractors are entitled to participate in the subsequent procurement proceedings. In the facts and circumstances of this case, reliance of the learned counsel for the petitioner on judgments passed by this Court in W.P. No. 9910 of 2014 and W.P. No. 424 of 2014 is totally misplaced as in the said judgments, learned single benches of this Court has discussed and interpreted "mechanism" and "manner" for exercising power of blacklisting a person under Rule 19 of the Punjab Procurement Rules, 2009 (repealed) and Rule 21 of the Rules, 2014, respectively, and not the process of pre-qualification which has been provided under Rules 16 and 17 of the Rules, 2014.###TE#
7. Record shows that the petitioner was not declared qualified as 16 samples of its medicines were reported substandard by the DTLs in Punjab, and, admittedly, the firm was convicted on 13.05.2015 by the Drug Court, Lahore. Learned counsel for the petitioner has laid much emphasis on Circular dated 29.04.2010, which was placed before this Court by the respondents in W.P.No. 3553 of 2010, to argue that Rule 16 of the Punjab Procurement Rules, 2014 is not applicable for procurement of medicines, therefore, the impugned process of qualification is in violation of the said Circular. This argument of the learned counsel is without any force as the entire process of qualification of pharmaceutical manufacturing units of drugs (medicines and disposables) & sole agents of foreign principles has been carried out under Rules, 2014 and the said Circular cannot over ride the Rules ibid which have been lawfully made by the Government under Section 26 of the PPRA Act, 2009 for carrying out the purposes of the said Act of 2009.
8. Learned counsel for the petitioner has leveled allegations of mala fide, arbitrary exercise of discretionary powers, lack of transparency, political victimization, discrimination and unfairness etc. Against the respondents. It is now well settled that such allegations require proof of high order and the burden of proof lieson the person who makes it, therefore, mere leveling of unsubstantiated allegations of mala fide, unfairness and discrimination on the part of the public functionaries does not advance the case of the petitioner. In this regard, reference can be made to Afzal Motors Company (Pvt.) Limited v. Province of Sindh and others (2009 SCM R 659) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCM R 455). Learned counsel for the petitioner has failed to point out any condition, which discriminates between bidders or which is difficult to meet in violation of the Rule 34 of the Rules ibid. Even minor deviation from rules / regulations in absence of any credible allegation of mala fides or corruption does not furnish a valid ground for interference in judicial review. As held by the Supreme Court of India in M/s. Michigan Rubber (India) Ltd. v. State of Karnataka and others (2013 SCM R 526), basic requirement of fundamental right of equality before law is fairness in action by the public functionaries, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions of public functionaries are amenable to judicial review only to the extent that the public functionaries must act validly for a discernible reason and not whimsically for any ulterior purpose.
Where the public functionaries act within the bounds of reasonableness, it is legitimate to take into-consideration the national priorities.
9. The question as to whether a contractor or supplier or a class of contractors or suppliers are qualified or not is either a policy issue or commercial transaction requiring specialized fields.'
Courts lack expertise to express any opinion as to technical expertise or managerial capabilities of the contractors and, therefore, ordinarily refrain from entering into the policy making domain of executive authority unless the same smacked of arbitrariness, favoritism and in total disregard for mandate of law. In this regard reference can be made to the case of Dr. Akhtar Hassan Khan supra and M/s. Khalid and Brother through proprietor and 5 others v. Punjab Province through Secretary Housing Urban Development and Public Health Engineering Department, Punjab Lahore and 2 others (2014 CLD 1410). Case law relied on by the learned counsel for the petitioner is not applicable on the facts and circumstances of this case, therefore, does not support the case of the petitioner.
10. Learned counsel for the petitioner has tried to take altogether new pleas, for challenging the orders impugned in the instant writ petition; by presenting two rejoinders at the time of final hearing of the case without confronting the same to the respondents. In one of the two rejoinders presented by the petitioner, it has been contended that the Public Procurement Rules, 2014, framed under the Public Procurement Regulatory Authority Act, 2009, are in contravention of the statute as there is no provision for "qualification" in the PPRA Act, 2009, therefore, the same must be regarded as ultra vires of the statute. In support of this plea taken in the rejoinder, judgments reported as Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others (2006 SCM R 1630), Kh.Awaja Ahmad Hassaan v. Government of Punjab and others (PLD 2004 Supreme Court 694), Zarai Taraqiati Bank Limited v. Said Rehman (2013 SCM R 642) and Syed Imam Shah and others v. Government of N.-W.F.P. And others (PLD 2004 Supreme Court 285) have been mentioned. These submissions of the petitioner cannot be considered for various reasons. New and contradictory pleas have been raised in the rejoinders, which are even otherwise vague, unclear and outside the pleadings of parties. If is well settled that new plea cannot be raised in rejoinder.
No party can be allowed either to make a departure from its pleadings or improve the case set up by it therein. Petitioner was bound to make out its own case in conformity with the assertions made by it in the petition. Rejoinder is supposed to be just a supplement of its petition and is supposed to clarify such ambiguities which are left in the petition or are pointed out by the respondents in their reply. Altogether new case cannot be allowed to be presented in rejoinders based on additional set of papers at the time of final hearing as there will be no opportunity for the respondents to controvert such a new case set up in the rejoinders. Reference can be made to State Life Insurance Corporation v. Haji Abdul Ghani and 3 others (1986 M LD 1245), Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari (1993 CLC 31). Similar view has been taken by the Superior Courts from Indian jurisdiction. In the case of Vishal Nilesh Mandlewala v. Justice R.J. Shah (Retd.) (2007) 2 GLR 1764), Gujarat High Court has held as under: "11. The aforesaid submission does not deserve consideration for the simple reason that this submission does not form part of the pleadings and as recorded hereinbefore, at the stage of rejoinder, it is not possible to permit the petitioner to develop a new case. Apart from that, the petitioner has to succeed or fail on the facts of the case pleaded by the petitioner himself and cannot seek any relief on the basis of so-called case of omission or commission of the other side qua third party, without there being any prima facie evidence or pleadings to substantiate the averments that the case of the petitioner is identical with those third parties, namely in absence of any foundational facts."
' Similarly, Madras High Court in the case of Mls. Dollar Company (Pvt.) Ltd. v. The Deputy Commissioner of Central Excipe, Division C, Chenna.i I Commissioner ate, and others (2013 TMI 244 Madras High Court), and Rajasthan High Court in the case of Ram Prasad Somani v. The Bank of Rajasthan Limited (2001 (3) WLC 517 (2002 (1) WLN 163) has held that a new case cannot be set up in rejoinder. Relevant part judgment passed by Madras High Court in the case of Mls. Dollar Company (Pvt.) Ltd. Supra is as under: "24. It is not understood how altogether a new case can be set up in rejoinder based on additional set of papers. Only those typeset of papers can be taken note of, which form part of pleadings, as the Court is to decide the case on the basis of pleadings set out in the writ petition, and not on the typeset of papers or additional typeset of papers as is sought to be projected by petitioner in this case."
11. Petitioner has failed to point out any illegality or mala fide on part of the respondents warranting interference in judicial review. Even otherwise, question as to whether petitioner is qualified or not is a factual controversy, which cannot be resolved by this Court in its Constitutional jurisdiction.
12. For the reasons discussed above, this petition has no merits and the same is dismissed with no order as to costs.