Anwaar Hussain, J. Through the instant constitutional petitio n, the Petitioner , has challenged the award of Joint Venture Agreement ("the JVA") executed between Pakistan Medical Commission ("the Commission ") and respondent No.9-Soar Testing and Evaluation Platform (SMC-Private) Limited, which is a special purpose vehicle established by Respondent No. 8, for holding and conducting different computer based MCQs tests such as Medical & Dental Central Admission Test (MDCA T), National Licensing Exam (NLE), National Equivalence Board Exam (NEB) and License Revalidation Exam (LRE). It has been prayed that the complete process of inviting proposal for the award of contract, and subsequent execution of the JVA, be declared against the letter and spirit of the Constitution of Islamic Republic of Pakistan, 1973 (" the Constitution" ) as well as provisions of Public Procurement Regulatory Authority Ordinance, 2002 ("the Ordinance, 2002" ) along with the Public Procurement Rules, 2004 ("the Rules, 2004 ") in general and Rule Nos. 7, 13, 23, 29, 35 and 47 in particular and that the Commission be directed to restart the procurement process.
2. At the outset, it is relevant to state that the JVA was neither appended by the Petitioner along with the petition nor provided by the Commission along with its report and para-wise comments. Hence, it was directed to be provided to this Court, which was done and the same has been placed on the file during the course of arguments and perusal thereof reveals that the same is valid for a period of ten years in terms of clause 3 thereof.
3. Learned Counsel for the Petitioner has thrown the constitutional gauntlet to the JVA primarily on the grounds that the provisions of the Ordinance, 2002 and the Rules, 2004 framed thereunder have been thrown to the winds of impunity and the entire process carried out commencing from the advertisement dated 04.05.2021 to the award and execution of the JVA is in violation of the provisions of the Ordinance, 2002 and the Rules, 2004 inasmuch as that while soliciting the procurement of services, the advertisement dated 04.05.2021 provided only 07 days for submission of proposal, which was later extended to 10 days through a corrigendum whereas Rule 13 of the Rules, 2004 emphatically and in a mandatory manner lays down that response time shall, in and under no circumstances, be less than fifteen (15) days in national competitive bidding and thirty (30) days for international competitive bidding from the date of publication of advertisement or notice and no evaluation report was prepared and made public, as per the mandatory requirements of law. Argues that while the Petitioner along with other bidders were asked to join zoom meeting by the Commission, vide email dated 20.05.2021, the same never took place and the Petitioner along with others remained waiting for Godot. The subsequent enquiry , vide emails by the Petitioner , as to the status of procurement and/or zoom meeting also rebounded no response from the Commission and its officials. Submits that it dawned upon the Petitioner only on 26.06.2021 through an English Daily , namely the Dawn, that the JVA has been awarded to Respondents No. 8 and 9 in utter disregard of the process laid down in the Ordinance, 2002 and Rules, 2004 with regard to the public procurement, therefore, the same is liable to be set aside being mis-procurement in terms of Rule 50 of the Rules, 2004 and against the norms of transparency , good governance and doctrine of trust. Adds that the Commission has traversed beyond the scope of the advertisement in executing the JVA and has hurriedly disbursed substantial amount to Respondent No. 9 on a misconceived pretext that execution of the JVA does not fall under the definition of procurement. Refers to the past practice of the Commission where Ordinance, 2002 and Rules, 2004 were adhered to by the Commission while procuring goods and services. Further submits that the Commission has dispensed with the adherence to procurement laws on its own whims and wishes whereas the proposal sought through impugned advertisement was clearly in the nature of bid and was to be proceeded in accordance with the procurement laws. Lastly , adds that the Transparency International too has taken serious note of the mis-procurement by the Commission in the instant case.
4. Conversely , learned Counsel for the Commission, raises preliminary objection as to the maintainability of the present petition primarily on the premise that Section 37 of the Pakistan Medical Commission Act, 2020 ("the Act, 2020") provides an appeal before Medical Tribunal ("the Tribunal") constituted under the Medical Tribunal Act, 2020 ("the Tribunal Act") against the order or direction of the Commission including the Council, Authority or Disciplinary Committee. He further submits that in addition to the above remedy, the Petitioner also has remedy before Respondent No.7 (Authority established under the Ordinance, 2002), which has already taken cognizance of the matter on the application filed by M/s Judicial Activism Panel and the Commission has also submitted its response to Respondent No.7 in this regard. He adds that Rule 48 of the Rules, 2004 provides remedy of appeal before Respondent No.7. Further avers that as a measure of self-accountability and good faith, the Commission on its own has submitted the JVA to NAB authorities as early as 07.07.2021 for its review in response to which NAB has called for the record from the Commission. In addition, learned Counsel for the Commission submits that the JVA is not subject to the procurement laws as it is not to be carried out with the `Public Funds' for which he resorted to the definition of `Public Funds' as provided under Section 2 (k) of the Ordinance, 2002. Learned Counsel for the Commission hurls attack on the conduct of the Petitioner to the effect that the Petitioner has approached this Court with unclean hands. It has been submitted that the sponsor of the Petitioner, as a business group and being owner of a TV channel, has launched a mala fide campaign against the Commission and the present petition is part of the larger maligning campaign let loose by the Petitioner against the Commission.
Moreover, the group of the Petitioner has its own medical college in the name and style of `Azra Naheed Medical College', which clearly establishes the conflict of interest of the Petitioner. Further adds that the Act, 2020 in terms of its Section 47 has an overriding effect, which renders the Ordinance, 2002 inapplicable to the Commission and subservient to the provisions of the Act, 2020. Moreover, learned Counsel for the Commission argues that the purpose of adopting a joint venture mode to award a contract is to ensure that a neutral body, with no conflict of interest, in collaboration with the Commission, conducts the examinations for the next ten years. Finally, learned Counsel for the Commission argues that at present around two hundred and seven thousand students have been registered for taking the MDCAT examination alone, which is scheduled to be held on 30 of August for this year's admission in MBBS as well as BDS degree and if the JVA is set aside, the educational career of the said students is likely to get hampered. Learned Counsel for Respondents No. 8 and 9 toed the arguments advanced on behalf of the Commission.th
5. Learned Additional Attorney General, on behalf of the Federation, submits that generally the Ordinance, 2002 and Rules 2004 are applicable to the procurement by the Commission. However , in present case, the Petitioner is not entitled to any relief as after participating in the process and having failed to get through, the Petitioner has challenged the same. Adds that even otherwise, Respondent No.7 is assumed to be specialized forum having expertise to examine the matter , and is conferred with regulatory role by law having ample powers in terms of section 5 of the Ordinance, 2002 to examine and decide the same. Learned Additional Attorney General, however , has not supported the argument of learned Counsel for the Commission that the remedy of appeal under Section 37 of the Act, 2020 is available to the Petitioner with the submission that every act, order or decision of the Commission is not appealable in terms of Section 37 thereof.
6. In rebuttal, learned Counsel for the Petitioner submits that the Petitioner does not have efficacious and alternative remedy as Rule 48 of the Rules, 2004 provides remedy of appeal only against the order of the grievance committee, which is non-existent in the instant case. Places reliance on the judgment dated 12.08.2021 of this Court in W.P No.6534/2021/BWP titled Laiba Noor v. Pakistan Medical Commission through Secretary , PMC and another to submit that this Court has already directed to extend the date for registration of students to take MDCA T examination and hence, the ground taken by the Commission that if the JVA is set aside, the educational career of the said students is likely to get hampered is misplaced. Adds that he has no objection if the JVA is set aside and the matter is remitted to Respondent No.7 for decision as regards the applicability of procurement laws in the instant case. Further adds that there is every possibility that the funds received pursuant to the JVA will be disbursed immediately , if the JVA is not set aside and matter is remitted to Respondent No.7.
Learned Counsel for the Petitioner concludes that possibility of disbursement in favour of Respondents No.8 and 9 cannot be ruled out, in the absence of any restraining order of this Court in the matter , if the decision of Respondent No.7 comes in favour of the Commission and before the said order of Respondent can be assailed in accordance with law .
7. Arguments have been heard and record has been perused with able assistance of learned Counsel for the parties.
8. From perusal of the record and arguments advanced, the instant petition calls for the opinion of this Court on the following questions/issues of law:
(i) Whether the instant petition is not maintainable in view of Section 37 of the Act, 2020 where a right to appeal before the Tribunal is provided?
(ii) Whether the instant petition is not maintainable in terms of Rule 48 of the Rules, 2004?
(iii) Whether the amount received by the Commission from the candidates/students falls under the definition of Public Fund? as defined under the Ordinance, 2002?
(iv) Whether the JVA executed between the Commission and Respondent No.9 is impervious to the procurement laws?
(v) Whether the Act, 2020 has overriding ef fect viz. the Ordinance, 2002?
9. It is noticed that both the Ordinance, 2002 through its Rules, 2004 as well as the Act, 2020 under its Section 37 provide remedies of appeal to aggrieved person as a result of which this court is required to adjudicate upon the interplay of both the statutes, particularly their provisions relating to appeal/alternate remedy and the forum thereof available to the Petitioner , if any, for the present purposes. Therefore, questions of law No. (i) and (v) spelled out above are discussed jointly . Section 37 of the Act, 2020 is reproduced as under: "37. Appeals to the Medical Tribunal: (1) Any person including an employee of the Commission aggrieved by any order or direction of the commission, including the Council, Authority or disciplinary committee, under any provision of this Act, or rules or regulations may prefer an appeal only before the Medical Tribunal within thirty days of the date of communication of the impugned order or direction.
(2) An appeal to the Medical Tribunal shall be in such form, contain such particula rs and be accompanied by such fees as may be prescribed."
(Emphasis supplied )
The Act, 2020 has been promulgated with the object and purpose to regulate the profession of medical and for the purposes of establishing a uniform minimum standard of basic and higher medical education and training and recognition of qualification in medical and dentistry. Various bodies such as Council under Section 4, National Medical and Dental Academic Board under Section 10, and National Medical Authority under Section 15 have been constituted under the Act, 2020 with their statutorily assigned functions and powers respectively. Perusal of the preamble of the Act, 2020 coupled with the powers and functions of various bodies created under the Act, 2020 leaves no ambiguity that the Act, 2020 is regulatory in nature with clarity as to powers and functions of bodies constituted thereunder. Regulatory statutes do not operate in a vacuum rather they regulate a particular field, profession etc., and, more often than not, provide adjudicatory mechanism with respect to measures taken or orders/directions passed by such regulatory bodies or their officials. Therefore, any remedy provided under a regulatory statute is limited and confined to the adverse orders, directions and steps/measure taken by regulatory bodies with respect to their regulatory functions under their respective statutes. Perusal of Section 37 reveals that it provides appeal before Tribunal against the order or direction of the Commission including various bodies such as Council, Authority or Disciplinary Committee created under the Act, 2020 and Rules or Regulations made thereunder. Such bodies are performing their regulatory functions and when pass some order or direction in performance of such regulatory function, it is such order which is appealable under Section 37 of the Act, 2020.
However, there might be some steps, acts/omissions of a body under the Act, 2020, which may fall within the statutory mechanism/scheme of some other laws, for instance, the award of JVA or other procurement by the Commission. It is settled principle that tribunals created under their respective special law(s) possess limited jurisdiction and cannot be equated with the courts of general jurisdiction. Muhammad Shafi & Co. v. National Bank & Others (PLD 1995 Lahore 360) is referred in this regard. Similarly, the scope of a special tribunal created under a statute has to be construed strictly in terms of the statutory provisions of the statute that create it. In Digital Radio Paging Ltd. v. Pakistan Industrial Credit and Investment Corporation and others (2003 CLD 1612 ), the Sindh High Court held as under: "When Special Tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute. It may be limited by conditions as to its constitution, as to the persons whom or the offences which it is competent to try, and as to the orders which it is empowered to make or by other conditions which the law makes essential to the validity of its proceedings and orders".
The above principle was also followed by the Balochistan High Court in Sheikh Abdul Hakeem v. Shamsuddin (PLD 2008 Quetta 14). Keeping in view the above principle, the scope of the appellate jurisdiction of the Tribunal under section 37 of the Act, 2020 is limited in nature and is confined to appeals against any order or direction of the Commission, Council, Authority and Disciplinary Committee under any provision of the Act, 2020 and the Rules & Regulations made thereunder . There is yet another angle to look into the matter . Appeal has been provided before the Tribunal, which has been constituted under Section 4 of the Tribunal Act. The name of the Tribunal in itself is reflective of the expertise of the Tribunal. Moreover , the jurisdiction of Tribunal has been spelled out in Section 6 of the Tribunal Act and perusal thereof indicates that the jurisdiction of the Tribunal does not extends to hearing matters related to award of JVA or procurement rather the same is attracted to the orders or directions passed by the Commission and/or the bodies established under the Act, 2020 in performance of their regulatory functions. Any other interpretation of Section 37 read with Section 6 of the Tribunal Act would badly protrude out of the scope and object of the Act, 2020 as well as the Tribunal Act. It follows, therefore, that any decision or action that either does not amount to an "order" or a "direction" or is not passed under any specific provision of the Act 2020 or Rules or Regulations made thereunder will not be appealable before the Tribunal and no remedy such as that of appeal is available against such action before the Tribunal. Thus, the objection of learned Counsel for the Commission on maintainability of the present petition on the basis of availability of remedy of appeal under Section 37 is ill-founded and not tenable. As regards the contention of learned Counsel for the Petitioner with respect to Section 47 of the Act, 2020 which contemplates an overriding effect to the provision of the Act, 2020, the same is also misconceived. From a plain textual reading of the Section 47 it is clear that the over-riding effect contemplated by the said Section extends only to anything to the contrary contained in any other law?. Unless it can be shown that a particular provision of the procurement laws is contrary to the provision(s) of the Act, 2020, the latter will not have an over-riding effect and both laws will operate in their respective fields. In the case of Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), the honourable Apex court while examining the effect of section 46 of the Lahore Development Authority Act, 1975 ("the LDA Act"), which was similar though not identical to section 47 of the Act 2020, on the Punjab Local Governments Act, 2013 (the "PLGA") and in considering whether the LDA Act would have an over-riding effect over the PLGA, held as follows: "78. That being so what should one make of Section 46 of the LDA Act, 1975 which gives its provisions overriding effect. Its use as a tool to demolish the PLGA would be repugnant to Article 140A . To strike it down would mean that even where the provisions of the LDA Act conflict with provisions of other statutes it would not override those.
That cannot be the legislative intent. We are of the view that section 46 would apply only in the event of a conflict or inconsistency between its provisions and that of other statutes. It would have no application and cannot be used to make the LDA Act to otherwise stall PLGA 2013 when substantive factual or policy grounds are unavailable. When harmoniously construed, as stated above, there is no conflict between the provisions of the PLGA 2013 and the LDA Act 1975."
Guided by the above ratio and having regard to the plain words of Section 47 of the Act, 2020, suffice to observe that such overriding effect is confined and limited to the regulatory functions of the Commission under the Act, 2020 and would come into play only where some other law impinges upon the regulatory functions of the Commission or the bodies established under the Act, 2020 in respect of which the legislative intent is clear . This view is also in accord with the principle of harmonious construction of statutes. An instructive case in this regard is that of Rauf B.
Kadri v. State Bank of Pakistan & another (PLD 2002 SC 1111), where the august Supreme Court examined the effect of the Protection of Economic Reforms Act, 1992 and whether the same would over-ride the powers of the State Bank of Pakistan under the Banking Companies Ordinance, 1962. The Apex court applied the test of whether there was any inconsistency between the relevant provisions of the two enactmen ts and finding there to be none and in para 21 of the judgment held that "the rule of harmonious interpretation of statutes requires that both the statutes would operate in their respective fields without any overlapping. "
10. Having answered issue No. (i) and (v) in negative, I would like to address question No. (ii) as to whether the present petition is maintainable in terms of Rule 48 of the Rules, 2004. For the ease of reference, it would be convenient to reproduce Rule 48 of the Rules, 2004, which is as under: "48. Redressal of grievances by the procuring agency .-
(1) The procuring agency shall constitu te a committee comprising of odd number of persons, with necessary powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract.
(2) Any party may file its written complaint against the eligibility parameters, evaluation criteria or any other terms and conditions prescribed in the bidding documents if found contrary to the provisions of the procurement regulatory framework, and the same shall be addressed by the grievance redressal committee(GRC) well before the proposal submission deadline.
(3) Any bidder feeling aggrieved by any act of the procuring agency after the submission of his bid may lodge a written complaint concerning his grievances within seven days of announcement of the technical evaluation report and five days after issuance of final evaluation report.
(4) In case, the complaint is filed against the technical evaluation report, the GRC shall suspend the procurement proceedings.
(5) In case, the complaint is filed after the issuance of the final evaluation report, the complainant cannot raise any objection on technical evaluation of the report: Provided that the complainant may raise the objection on any part of the final evaluation report in case where single stage single envelope bidding procedure is adopted.
(6) The GRC shall investigate and decide upon the complaint within ten days of its receipt.
(7) Any bidder or party not satisfied with the decision of the GRC, may file an appeal before the Authority within thirty days of communication of the decision subject to depositing the prescribed fee and in accordance with the procedure issued by the Authority . The decision of the Authority shall be considered as final.
Perusal of Rule 48 brings out that the complaint could be filed before grievance committee to be constituted by the procuring agency , which allegedly in the instant case is the Commission whose stance is that the JVA is not procurement but a collaboration, which does not involve utilization of Public Fund', hence, neither question of constitution of grievance committee nor the filing of an appeal before the same arises as sub-rule (7) of Rule 48 makes it clear that the remedy of appe al to be filed, under Rule 48, finds its genesis in the constitution and subsequent decision of grievance redressal Committee which, in the instant matter , has neither been constituted nor any such decision of grievance committee is in field that may be assailed in the appeal. Therefore, the contention of learned Counsel for the Commission as to availability of remedy of appeal under Rule 48 of the Rules, 2004 is also misconceived. Howev er, the learned Additional Attorney Gener al's submission on the status of Respondent No. 7, as well as role qua a regulatory body obligated under Section 5(2)(a) of the Ordinance, 2002 to monitor application of the laws, rules, regulations, policies and procedures in respect of, or relating to, procurement, has force and it is here where the answer to question No. (ii) lies. In this regard, it is important to highlight that while Section 5(2)(a) and 5(2)(e) of Ordinance, 2002 obligates Respondent No. 7 to monitor application of the laws, rules, regulations, policies and procedures in respect of, or relating to, procurement and to monitor public procurement practices and make recommendation to improve governance, transparency , accountability and quality of public procurement, Section 5(1) read with Section 5(2) (i) and Section 16(1) of the Ordinance, 2002 empowers Respondent No. 7 to call for information from any procuring agency in pursuance of its objectives and functions, which imply that Respondent No. 7 in its regulatory role is fully equipped and empowered to look into the procurement practices, their legality and adherence to procurement laws by procuring agencies such as the Commission. In exercise of such powers and functions, admittedly Respondent No. 7 has already taken cognizance of the matter on the application of M/s Judicial Activism Panel and is proceeding accordingly .
11. It is settled law that when the matter falls with the domain of specialized body/regulator , the writ jurisdiction must be used sparingly . Reliance is placed on the judgment of this Court in the case of Muhammad Masood v.
Bank of Punjab (BoP) through President and 3 others (2013 CLD 1810 Lahore) wherein this Court did not interfere on the ground that the petitioner therein had remedies available before multiple regulatory bodies including the State Bank of Pakistan, the Securities and Exchange Commission of Pakistan and Institute of Chartered Accountants of Pakistan. Respondent No.7 is the Regulatory Authority , which the legislature has established to perform such functions related to transparency qua procurement processes carried out by public sector bodies such as the Commission and hence, is an instrumentality of the Federal Government in terms of Article 98 of the Constitution. When the executive delegates its regulatory functio ns to an administrative agency , that agency?s ability to act is governed by the statutes that authorize it to carry out these delegated tasks.
Accordingly , in the course of its work, an agency must interpret these statutory authorizations to determine what it is required to do and to ascertain the limits of its authority that can always, subsequently , be judicially reviewed by this Court under Article 199 of the Constitution. Since Respondent No. 7 is already seized of the matter in the performance of its regulatory functions and interference by this Court, at this stage, would be predatory in nature and would undermine the regulatory functions of Respondent No. 7. Interference in the regulatory functions of statutory regulatory bodies particularly when they are seized of a matter would not only send negative vibes and undermine their confidence to regulate but would also nibble away the spirit and object of creating specialized regulatory bodies. When a matter , prima facie falls within the regulatory domain of a special body created for this purpose, Courts shall refrain from making a decision, however , it may instruct such body to act in accordance with law and in a manner , that is consistent with the public interest. In this regard, reference can helpfully be made to a judgment from the Indian jurisdiction where in the case of Avishek Goenka v. Union of India & Anr. (AIR 2012 SC 2226) , the Indian Supreme Court held as under: "17. We have clearly stated that it is not for this Court to examine the merit or otherwise of such policy and regulatory matters which have been deter mined by expert bodies possessing requisite technical knowhow and are statutory in nature. However , the Court would step in and direct the technical bodies to consider the matter in accordance with law , while ensuring that public interest is safeguarded and arbitrary decisions do not prevail."
Efficacious remedy does lie in favour of the petitioner to approach Respondent No.7 in terms of the functions and powers envisaged under Section 5 and Section 16(1) of the Ordinance, 2002 more particularly when being regulatory body with respect to the procurement, Respondent No.7 has already taken cognizance of the matter and as submitted by learned Counsel for the Commission, it has also submitted its response thereto with respect to the issue involved. Respondent No. 7 is a specialized regulatory body with respect to procurement and is under obligation to administer the statute i.e., Ordinance 2002, and its interpretation in the matter is of vital importance keeping in view the principle of judicial deference. Therefore, in the first instance, Respondent No.7 is appropriate forum to decide any question of law as to whether the JVA in the instant case falls within the scope of procurement or not as well as whether the funds forming subject matter of the JVA attract the definition of the term Public Fund? under the Ordinance, 2002. In this view of the matter , at this stage, this Court finds it inappropriate, to render any opinion on questions/issues No. (iii) and (iv) referred above, lest it may prejudice the case of the parties before Respondent No. 7.
12. In view of the above discussion, the present petition is decided and disposed of in the follow terms: i. Office is directed to transmit the instant petition along with its annexures to Respo ndent No.7, who shall treat it as representation/complaint on behalf of the Petitioner and decide the matter within 15 days from the date of receipt of certified copy of this judgment, while keeping in view questions No. (iii) and (iv) quoted above, in the light of the provisions of the Ordinance, 2002 as well as the Rules, 2004 in general and Section 2(k) and 2(l) (iii) of the Ordinance, 2002 thereof in particular , after hearing all the stakeholders; and ii. Since the matter in hand involves huge amount collected from the candidates/students, registered to take MDCA T examination for this year alone, which may or may not fall under the purview of the term Public Fund? in the light of the decision of Respondent No.7 to be made as directed hereinabove, therefore, no further disbursement shall be made to Respondents No.8 & 9, in furtherance of the JVA, till 10 days after the decision in the matter is made by Respondent No.7, enabling any party aggrieved thereof to challenge the same in accordance with law .