' K. A. GHANI, J.-By this petition filed under Article 9 of the P. C.
0., 1981 the petitioners seek the following reliefs from this Court : "(a) declare that the impugned action of the respondent in not granting the contract to the petitioners for supply of items :
(i) Item No, 61 Inj. Dextrose 5 % in water 1000 cc bag with complete set. 125000 x 35000 Bags.
(ii) Item No, A-6, Inj. Dextrose in Saline 5 % 1,000 cc with complete set 1,25,000 x 2,000 vide Tender No, Msd/5 is without lawful authority and of no legal effect ;
(b) declare that calling of fresh tender for items 61 and 61-A of Tender No, Msd/5 vide Tender No, MSD/II is without lawful authority and of no legal effect ;
(c) direct the respondents to grant the order of supply of Items 61 and 61-A of Item No, 61 of Tender MSD/5 In, Dextrose 5% in water 1000cc bag with complete set. 125,000 x 35,000 Bags Item No, A-61 of Tender MSD/5 Inj. Dextrose in Saline 5%1000 cc with 125000+2000 Bags complete set."
2. The facts leading to the filing of this petition briefly stated are that the respondent No, 1 Director of Industries and Mineral Development Government of Sind issued 'Tender Inquiry No, MSD/5-II' due on 20-7-1982 wherein quotations were invited, inter alia, for the supply of the following two items :- ' Item No, 61 Inj. Dextrose 5% in water 1,000 cc bag with complete set. 1,25,000 x 35,000 Bags.
Item No, A-61. Inj. Dextrose in Saline 5 % 1,000 cc with complete set. 125000 x 2000 Bags.
3. The above-mentioned invitation of tender required the parties to submit their tenders for the stores detailed in the schedule thereto subject to the conditions which amongst others vide clause 9 provided : "The purchaser does not pledge himself to accept the lowest or any tender and reserves to himself the right of accepting the full or part quantity offered and the tender shall supply the same at the rate quoted. The tender is at liberty to quote for the full or part quantity."
4. Different parties including the petitioners as well as the respondents No, 3, quoted the rates at which they offered to supply the above-mentioned items. The tenders were opened on 20-7-1982 when the rates offered by the petitioners were found to be the lowest. But before the same were accepted or any acceptance could be communicated to the petitioners, the respondents No, 3 by their letters dated 27-7-1982 and 2-8-1982. First offered to supply the entire quantity ex-stock and thereafter by letter dated 12-9-1982 offered to supply the said items at a reduced price which worked out to a saving of Rs, 1,06,190 to the government on purchase of the said entire indented quantity of 2,87,000 Bags. It is the case of the department that in the circumstances the matter was referred back to the Finance Department with the suggestion to negotiate with all the participating firms including the petitioners in the hope to bring about reduction in the price and thus affect a further saving to the government. The Finance Department however instead of permitting private negotiations as suggested, decided to invite fresh tenders.
' Accordingly, fresh tenders were invitied which were opened on 10-11-1982. The offers thus received showed a saving of an amount exceeding Rs, 4 lacs to the government compared to the offers earlier when the tenders were first opened on 20-7-1982. The lowest offer was made by Mis. Shakeel Enterprises while that of the respondents No, 3 was the second lowest. The Petitioners also had submitted their offers but the same were admittedly found higher than those of the above- mentioned two parties.
5. In the meantime on 3-11-1982 the petitioners had filed the above-mentioned Constitutional Petition seeking reliefs reproduced in para. 1 above.
' Mr. Khalid Ishaque, the learned counsel, in support of the petition raised the following two-fold arguments :-
(I) that the offers made by the petitioners when the tenders were first opened on 20-7-1982 were approved by the purchase-officer as well as by the Finance Department and thus a contract was concluded between the parties and that the department acted without lawful authority and in breach of the contract in trying to resile from the same.
(ii) that the departmental authorities act in violation of clause 38 of the Sind Purchase Manual, 1977 in bypassing the lowest tender submitted by the petitioners and that the decision to reinvite the tender was against the said rules and liable to be quashed.
6. From the facts briefly stated above we find that there exists substantial dispute and controversy between the parties on question of fact as to the formation of any alleged binding contract between the parties. The petitioners on the one hand contend that they made offers when the tender were opened on 20-7-1982, that the same were accepted by the purchase officer as well as by the Finance Department and thus a concluded contract came into existence from which the Government authorities could not resile. On the other hand, in the parawise comments as well as affidavit filed by Mr. S. Mumtaz Hussain, Purchase Officer in the Department of Industries and Mineral Development, plea was taken that neither any acceptance of the tender took place nor communicated to the petitioners and that before this could be done the respondent No, 3 on 12-9- 1982 offered reduction in the price whereupon the matter was referred back to the Finance Department who instead of accepting the suggestion made for entering into negotiations with the parties for further reduction in the price, directed to invite fresh tenders.
' The Petitioners neither produced nor referred to any document in the petition in support of their plea that the offer made by them was accepted.
' We thus find that a serious controversy about existence of facts as to the formation of alleged contract between the parties exists which requires investigation/evidence and proof. Such disputed questions of fact certainly do not fall appropriately within the writ jurisdiction of this Court as was held by the Honourable Supreme Court in the case of Lan dale and Morgan v. Chairman, Jute Board (1).
' On the facts of the case we are also of the opinion that by giving the lowest bid which was not accepted, the petitioners acquired no iegal right to the grant of the contract in view of clause 9 of the 'Invitation of Tender', reproduced above, under which right was expressly reserved by the authorities not to accept the lowest or any other tender. The Petitioners thus acquired {{FOOT NOTE}}
(1) 1970 SC MR 853 {{FOOT NOTE}} no legal or vested right as laid down in the case of Rehmat Ali and others v. The Revenue Board West Pakistan Lahore (1) and Muhammad Din & Sons v. The Province of West Pakistan (2).
7. As to the second ground raised, reliance was placed by Mr. Khalid Ishaq on clause 38 of the Sind Purchase Manual, 1977. It was argued that the authorities acted in violation of the said clause, which the learned counsel described as a rule binding upon the departmental authorities. It was accordingly contended that the decision to invite fresh tender and thus bypass the lowest tender being wrongful, is liable to be challenged before the High Court. In order to appreciate these submissions made, we may first reproduce hereinbelow the relevant portions of clause 38 referred to by the learned counsel : "Passing over of lower tenders.-If it is decided to accept a tender other than the lowest satisfactory tender, the competent Purchasing Officer should record his reasons for passing over the lower tender and obtain concurrence of Finance Department! Director of Industries, where necessary.
' It may sometime be found necessary to ignore tender which did not comply with the requirements but before passing over the lower tender for any other reasons, the Purchase Officer should act in accordance with the above procedure for financial control as laid down in Chapter VII of this Manual.
' It is not permissible to pass over the lowest tender and to place order with one of the other tendering firms at the rate quoted by the lowest tenderer by special arrangement. Such a procedure is contrary to the principles which govern the system of competitive tender and should not be adopted by any officer of the Directorate of Industries (Supply Wing). If the lowest tender is passed over, the order should ordinarily be placed with the lowest acceptable tender at the price originally quoted by him, the reasons for rejecting the lowest tender being recorded. Should circumstances arise to make this course undesirable for any cause, a full explanation of the reasons and actions taken should be recorded and, if necessary, the matter should be referred to the higher authority for orders. If the lowest satisfactory tender is considered to be too high, all tenders should be rejected and fresh tenders called for if time permits."
' We have carefully gone through the abovequoted clause 38 but find ourselves unable to agree with the learned counsel. The mentioned clause provides for a situation where it is decided to accept a tender other than the lowest satisfactory tender. In such an eventuality the competent Purchase Officer is required to record his reasons for passing over the lowest tender and to obtain concurrence of Finance Department/Director of Industries, where necessary. It also prohibits the concerned authority to pass over the lowest tender and to place order with one of the other tendering firms at the rate quoted by the lowest tenderer by special arrangement.
' In the present case, as rightly pointed out by Mr. Saeed A, Shaikh the learned Advocate-General, there was no violation of the above-mentioned clause as instead of accepting the recommendation for receiving the reduced rates by the respondent No, 3 or permitting the authorities to enter into private negotiations with Finance Department decided to invite tenders afresh, The {{FOOT NOTE}}
(1) 1973 SCM R 342 (2) PLD 1269 Lab. 823 {{FOOT NOTE}} directions thus given by the Finance Department not only eliminated chances of giving preference to any party in any privately negotiated transaction but has also been justified by the result, as consequent to the offers thus received there would be a saying of over 4 lacs to the Government.
8. Mr. Saeed A. Shaikh the learned A.-G. Submitted that the Sind Purchase Manual 1977 contains instructions for the guidance of the officers of the department. While contending that there was no breach of any of its clauses, the learned A.-G. Argued that these instructions do not constitute rules of a class which could be enforced in exercise of the constitutional C jurisdiction of the High Court.
There is considerable force in the submissions made as above which find support from the case of G. T. Farnandes v. The State of Mysore and others (1).
' It was an appeal which arose out of a case wherein the appellant had challenged the grant of tender to another tenderer on the ground amongst others, that the rules in the Mysore Public Works Department Code (referred as the Code) were not followed. The learned Judges of the Supreme Court of India, after making the observation that in exercise of its executive of power, the State can give administrative instructions to its servants how to act in certain circumstance, held ".......But that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned : nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules."
' The learned Judges then held "We are, therefore, of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore, even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the Court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instructions 'contained in the Code with respect to tender and we do not therefore, so decide. But assuming that there has been any breach that is a 'matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant, to come to Court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach." {{FOOT NOTE}}
(1) AIR1967 SC 17 {{FOOT NOTE}} ' We would also like to refer here to the case of faidev Jain and Co. V. Union of India (1) where in the writ petition filed, contention was raised that acceptance of the tender submitted by respondent No, 3 on consequential rejection of the petitioner's tender, which was the lowest, was in contravention of rules contained in the clauses of the tender form, the learned Judges of the High Court of Calcutta held as follows even if there is breach of rules or regulation; accepting or rejecting the tenders that would at best come within the domain of contract, no writ will lie for enforcement of contractual right."
9. Reference may also be made to the authoritative pronouncement of the Honourable Supreme Court in the case of M. Muzaffaruddin Industries v. The Chief Settlement and Rehabilitation Commissioner, Lahore (2). In the said case while refusing to grant leave to appeal and upholding the order of dismissal of the petition by the High Court on the ground that writ jurisdiction could not be invoked for the enforcement of contract, it was held :- "On hearing the learned counsel for the petitioner we find ourselves in complete agreement with the view adopted by the learned Judges in the High Court that the only appropriate remedy to the petitioner was to file a Civil Suit for specific performance of the contract if so advised. At the same time it must be observed admittedly the Central Government has not granted approval to the sale of the land in favour of the petitioner and all evacuee lands have since been acquired under the Land Settlement Act, 1958."
' In the case of Messers Moin Motor Company v. Regional Transport Authority, Dacca (3), as well, the Honourable Supreme Court held that contractual rights are not enforceable by recourse to writ jurisdiction of the High Court.
' In the case of Shah Meer v. Board of Revenue etc. (4) the facts were that before the letter of allotment could be issued, the Collector of the District/ Commissioner recalled his approval of the highest bid given at the auction of the lease hold rights. The Honourable Supreme Court while repelling the contention raised that vested right had .Been created in favour of the petitioner or that contractual obligation had come into existence on the basis of approval granted by the Commissioner to the highest bid offered by the petitioner at the auction of the lease hold right, observed :- "It is well-settled that statutory and executive authorities have locus poenitentiae to recall an order if no effective step has been taken in implementation thereof. In the present case no such step had been taken, and accordingly the Commissioner was acting within the limits of his power to recall the approval previously granted by him for the confirmation of the auction."
Thus, we find that the arguments advanced in support of the second ground raised by the learned counsel for the petitioners, also cannot succeed.
10. In view of the discussions as above, finding that substantial disputed questions of fact which require investigation and decision are raised in the petition, that no breach of the instructions as contained in clause 38 of the {{FOOT NOTE}}
(1) AIR 1972 Cal. 253 (2) 1968 SCMR 1136
(3) PLD 1962 SC 108 (4) 1981 SCM R 604 {{FOOT NOTE}} Sind Purchase Manual, 1977 could be established, and further finding that it is not a fit case for exercise of extraordinary constitutional jurisdiction, the petition stands dismissed.
' The above are the reasons for the short order passed on 29-11-1982.
' In the circumstances of the case there shall however be no order as to costs.