1. ' WAJIHUDDIN AHMAD, J.---The facts pertaining to these several miscellaneous applications, principal amongst them being applications under Order XXXIX, Rules 1 and 2, C.P.C. and Order VII, Rule 11, C.P.C., are somewhat scattered on the record and have been marshalled together from the plaint and various affidavits in the case. Plaintiff is a catering contractor stated to have been established in 1946 and has been working with a number of organizations including the defendant No,1 Pakistan International Airlines Corporation (P.I.A.). Thus, and while the list of companies whom the plaintiff has represented appears to be long, the plaintiff has more particularly rendered services to Messrs Bilfinger and Berger of West Germany, The Karachi Dockyard, The Civil Aviation Authority, Messrs General Tyres and The Pakistan International Airlines besides being prequalified with The Pakistan State Oil, Messrs Union Taxas and the IDBP etc. As against this, the defendant No,2, Cafe-D-Pak, has eight years' experience with the P.I.A. and has been 'carrying on catering contracts in various corganizations' (details not specified). The plaintiff, prior to the filing of the suit, in pursuance of an Invitation to Tender dated 26-6-1990, was awarded the 'Annual Contract for operating P.I.A. Fast Food Services'. Correspondingly, the defendant No,2, has been running the canteen in the Engineering Department of the defendant No,1. Plaintiff's aforesaid contract was operative from 16-9-1990 to 15-9-1991 but was extended by the P.I.A. for a period of 90 days from 16-9-1991 to 15-12-1991 per letter dated 22-10-1992. It may bear mention here that while the letter of acceptance dated 12-9-1990 addressed to the plaintiff spoke of awarding the Annual Contract for Operating P.IA. Fast Food Services the letter of extension, dated 22-10-1991, by way of subject, refers to Agreement for Operating P.I.A. Burger Shop: P.I.A. Fast Food Services and Burger Shop thus appear to be synonymous.
2. ' Now, the grievance which gives rise to this suit is premised on allegations that the initial accommodation provided by the P.IA. to the plaintiff for catering purposes of 900 individuals was basically unfit for that purpose and was handed back on an assurance that necessary relief would be provided but such did not come about, even though following upon reminders, after a period of four months, construction work was taken up to build a new Burger Shop on the restituted premises. The plaintiff, in the meantime, had been moved into a temporary accommodation. The plaintiff allegedly served in deplorable conditions. Meanwhile, plaintiff's contract scheduled to expire Rules, procedure and practice warranted due tenders and that not being resorted to, allegedly, P.I.A. ought to have negotiated with the plaintiff for extension but the plaintiff came to know that certain vested interests had hindered these negotiations and manoeuvrings were taking place to hand over the plaintiff's contract without following due procedure to Cafe-D-Pak., defendant No,2 in the suit. The plaintiff, therefore, rushed to file this suit on 15-12-1991 and obtained an ad interim order from the Court on that date. Per order dated 20-2-1992, however, it was made clear, if that was at all required, that the ad interim order aforementioned did not extend the running of the plaintiff's then expired contract.
3. ' Reverting back, in response to summons and notices, Tabassum K. Minhas, Manager Office Services and Canteens, P.I.A. maintains that the suit is misconceived and not maintainable as the plaintiff has no legal right, necessary to constitute a cause of action. On the factual plane, it is urged that P.I.A. is due 'to introduce a new completely mechanised system of Fast Food Services in place of the old Burger Shop. This necessitated the selection of a contractor, who could supply not only foodstuff but also provided, at own cost, necessary machines for the mechanised system of Fast Food Services. A committee consisting of the Director-General Services, as (Chairman, Director Stores and Purchases, General Manager (Admin Services), Manager Office Services and Canteen, President of S.SA. and President of A.T.A.P. was set up to invite qualified contractors to make presentation of their cases before such committee. Out of the contractors so invited only three namely, the plaintiff Messrs Seagram, contractor of P.I.A. Executive Dining Hall and Messrs Cafe D- Pak, contractor Engineering Area Canteens, defendant No,2, came forward. Plaintiff, allegedly, fully participated and made presentation of its case, submitting due quotations. The committee, allegedly, considered all the three contractors and keeping in view the past performance and eight years experience in P.I.A. of defendant No,2 recommended that they may be granted contract to run the Fast Food Services. Resultantly Tabassum K. Minhas, Manager Office Services and Canteens, put up the proposal for approval of the Managing Director through General Manager (Admin. Services). The proposal was finally approved on 5-12-1991 and letter dated 8-12-1991 according the contract for operating P.I.A. Fast Food Services was issued to Cafe-D-Pak. The contract was thus awarded on 8-12-1991, before the present suit was filed and the plaintiff allegedly, was aware of the fact. No material as to such knowledge has, however, been relied upon.
4. Copies of purported Minutes dated 12-11-1991 and letter dated 8-12-1991 have been placed on record. In regard to the contract for Executive Dining Hall and Canteens (incumbents Seagram and Cafe-D-Pak) which were also to expire on 15-12-1991 it is maintained from the side of the PIA. that tenders in the normal way were invited from the approved Contractors including the plaintiff. The plaintiff sought for extension of time to support the tender with earnest money but failed to do so.
5. On the other hand, through letter dated 15-12-1991, the plaintiff was informed that the P.I.A. management had decided to discontinue with the existing Burger Shop facility and the plaintiff was to calf it a day with effect from 16-12-1991 but the plaintiff refused to receive such letter, occasioning a telex of even date. Plaintiff explains that the letter dated 15-12-1991 was sought to be served after the grant of stay in the suit and urges that the alleged award of contract to Cafe-D- Pak is a back-dated manoeuvre designed to circumvent Court orders. Coming to the performance of the plaintiff, P.I.A. maintains, never did the plaintiff perform its contract satisfactorily and three letters are submitted, one to the effect that seasonal fruits of best quality were to be supplied but the plaintiff provided inferior and unfit apples and the other two suggesting that inadequate portions of chicken were served. Plaintiff clarifies that objection as to apples was misconceived and necessary repudiation through letter dated 3-11-1990 was registered (copy filed) but no reply was received. As regards the other two letters the same are termed as non-specific and mala fide.
6. If the plaintiff's performance was bad why, it is questioned, the plaintiff, within six months of commencment was allowed upward revision in rates and besides, upon expiry, its contract was even extended. The pointation is not without substance because all these letters arc of 1990 origin and revision of plaintiff's rates and the extension of contract came about in 1991.
7. ' Messrs Cafe-D-Pak, on their part, assert that there are no mala fides involved and the contract to them was awarded on merit. They also say that pursuant to the aforesaid letter from the P.I.A. they have entered into an agreement involving the purchase of locally manufactured machinery, which has also been delivered though part payments are still due. Two things are significant here; One, the agreement for supply of equipment to Cafe-D-Pak is unstamped and on a plain paper, nor does it carry any date underneath the signatures, in the body thereof above words, 'on date 10-12- 1991' incongruously finding mention. Next, the Agreement purportedly details the equipment as `following Equipment' yet no details follow. Second, no copy of any receipt of payments is filed. The transaction, at best, therefore, is of a doubtful character.
8. ' The case of the plaintiff, essentially, is that the P.I.A. officials entertained and have manifested mala fides in the purported grant of the disputed contract involving favour to Cafe-D-Pak and inequitable treatment to others, including the plaintiff. In such exercise, alleged, rules and procedure have been thrown overboard. No tenders, were invited, as was the obligation under the Rules. Plaintiff is being deprived of livelihood upon being discriminated against. Plaintiffs performance, which was never in doubt throughout 1991, has been trumped up now and for mala fide reasons alone. It is denied that any invitation, as such to make offers was extended. Allegedly, it was only in routine that the plaintiff was required to submit a profile, which it did. Quotations were only subsequently taken. Not a single letter was addressed or issued, such conduct least befitting a public body operating under a statute namely, the Pakistan International Airlines Corporation Ordinance, I of 1955 PLD 1955 Central Statutes 31. No Committee was constituted that the plaintiff knows of. No hearing was accorded. Everything was done to fit defendant Cafe-D-Pak in a preconceived and stage-managed scheme of things. Even according to the documents filed by the defendants themselves the contract was to be for three years but was inexplicably granted, instead, to the defendant No,2 for five years. As regards the expense for providing necessary machinery and equipment, the plaintiff itself, avowedly, is equally ready and willing to do the needful. These are all arguable issues and may go to establish what technically is termed as prima facie case.
9. ' The first question to be seriously examined is whether there are any Rules, binding on the P.I.A. which they have failed to observe and adhere to. Alternatively or in addition, whether any rules of practice have been violated. Next, whether any mala fides have manifested themselves. Thirdly, whether the plaintiff has no cause of action. Finally whether this suit is infructuous, contract in favour of Cafe-D-Pak having been finalised and substantially acted upon.
10. ' As to the Rules, it has been urged by Mr. Saeed A. Sheikh, learned counsel for the P.I.A., that the Rules relied upon do in fact exist (P.I.A. Procurement Manual produced) but have neither been framed by the competent authority, contemplated by the Pakistan International Airlines Corporation Ordinance, 1955, nor notified as is postulated under the same statute. Such, therefore, according to him, are not statutory Rules and are neither binding nor can be given effect to. These, at best in counsel's submission, are internal instructions to be followed by the P.I.A. management for the procurement of P.I.A. stores and do not confer any right or entitlement on an outsider.
11. Further, according to Mr. Saeed A. Sheikh, the nature of the contract was such that even in terms of the said Rules no tenders need have been called. for. Prequalificd contractors, including the plaintiff, were considered and award was made in favour of the most deserving namely, Cafe D- Pak, defendant No,2. In support are cited Muhammad. Yusuf Shah v. Pakistan International Air Lines Corporation PLD 1981 SC 224, Principal, Cadet College, Kohat v. Muhammad Shoab PLD 1984 SC 170, Burhanuddin Shaikh v. National Bank of Pakistan 1985 CLC 2003 and Rafiq Ahmad Shaikh v.
12. Pakistan PLD 1992 Kar. 190, all cases pertaining to service matters where it has been held that the relevant Service Rules (inclusive of those applicable to P.I.A.) were not Rules of a statutory character as neither the same were framed by the competent authority nor due notification followed thereupon. I am afraid the citations may not be helpful in the instant case. Service matters stand at an independent and distinct footing. Unless, there are statutory or constitutional guarantees, the relationship is that of master and servant and termination or regulation of service under that concept carries only specific and limited remedies, though the principle is still evolving, as may be indicated in some recent Supreme Court dicta. See Evacuee Trust Property Board v.
13. Muhammad Nawaz 1983 SCMR 1275 etc. On the other hand, it may or may not be correct that the instant Rules, as incorporated in the P.IA. Procurement Manual, have not been framed by the competent authority since the Rules do not disclose the source. The question should, therefore, await evidence. It may, however, be correct that the Rules were not notified, since no notification is cited or produced. Thus, there could be substance in urging that the Rules do not have statutory force. But then can any one deny that the P.I.A. is a statutory body, that currently it is the only national Carrier and apart from other things, the Federal Government controls and supervises its affairs? If these Rules have even been for internal management only, such do not lose applicability and have to be followed, if not by all concerned at least by the P.I.A. itself. The P.I.A.C. Ordinance of 1955 clearly envisages Rule-making powers. Some Rules have been framed PLD 1956 Central Statutes 278 but those do not apply here. If due Regulations are wanting, who is responsible? Surely not those who come to deal with the P.IA. The Manual in question obviously is calculated to forestall arbitrariness and to provide checks and balances to ensure fairplay in the conduct of affairs of a public body. In consonance, it appears to be altogether irrelevant that the regulations therein do or do not qualify under statute. if not so qualified, the only result should be that such, without express or implied consent, would not bind third parties and strangers. Yet, in so far as the P.I.A. functionaries are concerned it would be pure equivocation to urge that the instructions do not bind them. What then are they for? Obviously, even if such are only for internal guidance and instruction it is no apology for those who are expected to draw upon them to say that they failed in implementation solely because the regulations did not qualify under statute. A degree of estoppel, since evolved, applies to such matters.. Besides, law abhores unbridled power. Checks and balances are a definitive norm of all civilised conduct. They must be discovered. If not readily discoverable they have to be evolved, if not invented. I am reminded of an observation of Denning M.R. in Norwest Hoist v. Deptt. of Trade (1978) 3 All. ER 280 where even rules of natural justice, so central to our system, were relaxed and it was said:-- "It is important to know the background of the legislation. It sometimes happens that public companies are conducted in a way which is beyond the control of the ordinary shareholders. The majority of the shares are in the hands of two or three individuals. These have control of the company's affairs. The other shareholders know little and are told little. They receive the glossy annual reports. Most of them throw them into the wastepaper basket. There is an annual general meeting but few of the shareholders attend. The whole management and control is in the hands of the directors. They are a self-perpetuating oligarchy; and are virtually unaccountable. Seeing that the directors are the guardians of the company, the question is asked; quis custodier imsos custodes? who will guard the guards themselves?"
14. ' Next question to be considered is whether the instant controversy is at all covered by the postulates in the P.I.A. Procurement Manual. Under paragraph 6 of Chapter 2 in the Manual, requirement is that all purchases of the Corporation shall be in accordance with operative rules and regulations and procedures approved by the Central Purchases Committee. Amongst the principles to be followed is one, stipulating that tenders for annual contracts shall be invited through press. Likewise, paragraph 2 in Chapter 6 of the Manual requires that where the cost of the indented requirement is estimated as rS,5,00,000 or above tender enquiry is normally to be floated through the press and is open to the general public to bid, the only exception for limited tender being where the estimated value of requirement is high but the nature of stores or services is peculiar and suppliers and firms have had to be prequalified. Here, it is to be seen that according to defendant P.I.A. itself, as regards the contracts for the Executive Dining Hall and Canteens 'tenders in the normal way were invited from the approved contractors including the plaintiff. This assumes that public tenders in such cases were not invokable and, therefore, the foregoing exception was resorted to and tenders were invited from the approved contractors. If such was normal for the Executive Dining Hall and Canteens, it is obvious that no different could have been the approach to the instant contract. In that, impliedly, no such tenders were invited there is a patent deviation from established procedure. How and why it came about is not explained. Even if the referred instructions are found to bind nobody, admittedly, there is a normal procedure and such implicitly was not followed, lending strength to the allegations that extraneous factors were involved. Whether or not that was so, shall remain a question to be examined, a circumstance in no way detracting from the arguable case, required by law to be made out from the side of the plaintiff.
15. ' Then there is a contest, whether the present is a case involving mala fides. Allegations and counter-allegations have been detailed above. In the first place, even though some documents are submitted from the side of the defendant PIA purporting to be 'Minutes', on examination, I find that such are no Minutes of any proceedings.. To start with, it was a proposal. In the proposal, even the current contract is mentioned as that for a Burger Shop. There is no mention whatever of anyone in such proposal except of Cafc-D Pak whose only qualification cited is past performance (no details) and an eight years experience with the P.I.A. What to say of plaintiff's antecedents, plaintiff is not even mentioned. Obviously, the plaintiff was the incumbent and if it was to be bypassed some reason for its rejection ought to have been spelled out. It is not denied that the plaintiff had operated its contract from a make-shift accommodation in hopes of a better one, when put up. Plaintiff, under improved circumstances, could not be brushed aside so summarily.
16. Besides, the plaintiff, as to performance, has been able to show that it was allowed revised rates and even a 90 days' extension. Nothing has been shown as amiss in the plaintiff's performance during the entire span of the year 1991. Others were allowed fresh contracts but the plaintiff was refused. Plaintiff urges that the officers of the defendant-P.I.A. have, in bad faith, favoured Cafe-D- Pak and discriminated against it. As a result Cafe-D-Pak, perhaps, has two distinct contracts and the plaintiff has none. There could be some substance in what the plaintiff says. On the subject, it is difficult to ignore that a contract proposed and approved for 3 years was, at the correspondence level, altered to be of 5 years duration, a very serious matter when the instructions require even annual contracts to be floated publicity through the press. Further, it is nobody's case that the plaintiff was heard at any level. Such rule of Natural Justice is to be read in every statute and where there are only handpicked prequalified contractors whose qualifications are to be examined there is no reason why a fair opportunity is not provided to each one of them. This does not seem to have been done. At this stage, no conclusive finding as to mala fides and want of hearing can be arrived at. Suffice it to say that neither can be ruled out. A determination made in bad faith in colourable exercise of power as well as one in contravention of the rules of lc Natural Justice is void. That is a tall order, which the defendants are yet to surmount.
17. ' Next to be approached is an objection that the plaintiff has no cause of action for the suit. It has already been observed that the defendant No,1 is a statutory body governed and controlled by the Federal Government. In Rex v. Board of Education (1910) 2 KB 165, the Court of appeal in England lays down that a local Education. Authority has no power to differentiate in the matter of teachers equally qualified and teaching the same subjects. The dictum may apply to competing contractors contesting before statutory bodies controlled by the State. In Nagle v. Feilden (1966) 1 AER 689, Denning M.R. observes that it was against public policy to deny a woman her. Trainer's licence solely on the ground of sex. In Ramana v. The. International Air Port Authority. AIR 1979 SC 1628, and Harbinder Singh v. Union of India AIR 1986 SC 1527, the Indian Supreme Court invokes objective tests as regards grants of tender-contracts by the State, its agencies and statutory bodies. These decisions, inter alia, would show that in a State governed by the Constitution and law every citizen has a right to enjoy the protection of law and to be treated in accordance with law. In this country, the right is enshrined in Article 4 of the, Constitution of Pakistan. The plaintiff was the incumbent in relation to the very contract, which, in a modified form, came up for grant before the officials of the defendant No,1-P.I.A. The plaintiff had a right, as a qualified contractor, to be considered and duly at that. Such was a vested right. It is not denied that the plaintiff was not entitled to be considered; what is urged is that, in fact, it was considered. Still, whether the plaintiff was considered duly and not discriminated against are doubts which the record, produced from the side of the defendant-PIA., has failed to put at rest. The plaintiff, therefore, has necessary cause of action for bringing the suit.
18. ' Lastly, may be examined the defendants' plea that the suit is still-born and the plaint is liable to be rejected. Plaintiff counters the contention by urging that no contract was, in fact, awarded before the institution of the suit and the officials of the defendant P.I.A. have indulged in colourable exercise of power by issuing a back-dated letter so as to confront the _Court with a Fail Accompli.
19. In urging its point of view the plaintiff refers to the letter dated 15-12-1992, bringing the plaintiffs' contract purportedly, to an end. There is no mention in such letter of a corresponding award in favour of the defendant No,2 nor is the plaintiff required to hand over to the defendant No,2. Further, no formal contract has been concluded between the defendants Nos.1 and 2. On the other hand, Cafe-D-Pak, defendant No,2 Ex facie, has not been able, satisfactorily,. to establish that it has entered into commitments for the performance of its alleged contract prior to the filing of the suit.
20. Details have been stated above. It will thus be premature and too early in the case, before evidence is recorded, to say that the suit was still-born. It cannot, therefore, on the existing material be found that the action is infructuous.
21. All the foregoing questions, which have been touched purely for the purposes of plaintiff's application under Order 39, Rules 1 and 2, C.P.C. do make out a prima fade case, balance of convenience also lies in favour of the plaintiff to continue the existing 'state of things. Further, in the event interim relief is not granted, the plaintiff would be out for at least five years and thus should be exposed to irreparable loss. In the result, therefore, the defendant No,1 is restrained from awarding or formalising the disputed contract in favour of the defendant No,2. C.M.A. 6465/91 is granted to that extent. This, during the pendency of the suit, however, if the parties agree, shall not preclude the P.I.A. from refloating the same or any other cognate contract.
22. ' C.M.As. 286 of 1992 and 1260 of 1992 arc applications by the plaintiff for filing two additional affidavits, highlighting fresh developments. Such affidavits only detail the factual position relevant to the present controversy. Replies, apparently, have been submitted. Grant of such applications is only conducive to a more comprehensive disposal of the inte rlocutory matters. The applications, therefore, stand granted.
23. ' C.M.A. 365 of 1992 has been filed from the side of the defendant No,2 and seeks rejection of the plaint on the ground of want of cause of action. It has already been found that there does subsist a cause of action for the suit. This application is, accordingly, dismissed.
24. ' C.M.A. 717 of 1992 is an application by the plaintiff seeking the return of the security passes to the plaintiff which allegedly have been taken away by the staff of the defendant No,1. .It further seeks the continuation of the plaintiff's erstwhile contract till a new contractor is appointed in due course of time. This application cannot be granted, because an order of restraint against the defendant No,1 from awarding a contract, except in due course of law, does not necessarily mean or give rise to a licence for continuation of the plaintiff's previous contract. This application is dismissed.
25. ' In the result, all the above-listed applications stand disposed of.