1. ' Petitioner through this Constitutional petiton has impugned the order dated 26-7-1992 Annex. "N", whereby contract for the supply of injectable contracepitves "Doryxax" has been awarded to respondent No,3 by the Ministry of Industries of Pakistan.
2. ' Facts briefly are that the petitioner, a subsidiary of Schering A.G. Of Germany has been supplying injectable contraceptives "Norigest" ampules for the use of Population Welfare Programme for the last two decades. A plant, according to the averments, was set up locally with the collaboration of Schering for manufacturing these ampules in the year 1986. In response to a tender enquiry dated 21-11-1991 for the supply of injectable contraceptives, the petitioner quoted its price as Rs,27 per ampule of Norigest while respondent No,3 Pakistan Business International quoted its price as Rs,29.44 per ampule of its injectable contraceptives Doryxax, a Hungarian product. It is an admitted position by both the parties that this tender enquiry did not materialise. Subsequently petitioner and respondent No,3 submitted their fresh quotations in response to a fresh tender invited through press on 15-4-1992. Petitioner's bid was for Rs,24.98 per ampule of "Norigest" while respondent No,3 quoted the price as Rs,23.48 for "Doryxax". It is petitioner's case that subsequently to meet the price difference he undertook to supply 16000 extra ampules free of cost.
3. ' Argument has been advanced that in spite of the fact that the petitioner was supplying its product for the last two decades to the Population Welfare Programme who throughout supported its product as being of tried nature for many years in Pakistan, respondent No,1 has not given any weight to its recommendations and gave a contract in a mala fide manner to respondent No,3 through impugned order dated 26-7-1992. Grievance has also been voiced that in the grant of contract to respondent No,3 Ministry of Industries has completely ignored para. 77 of Revised Purchase Manual of 1972 which gives preference to indigenous product in order to save foreign exchange.
4. ' The learned Deputy Attorney-General as well as learned counsel appearing for respondent No,3 have argued that the exception cannot be taken to the grant of contract to the lowest bidder when the petitioner fully participated in the bidding process and remained unsuccessful. It has also been argued that the Revised Purchase Manual Instructions relied upon by the petitioner has got no force of law as they are only meant for internal management. The respondent after thoroughly satisfying the credibility of respondent No,3's product as well as its price margin granted contract. It is also argued by the learned counsel for respondent No,3 that the petitioner is trying to maintain its long drawn monopoly which he was having for the last more than 20 years by supplying its product at exorbitant rates. In support of the contentions that the petitioner has got no right to take exception to this grant, reliance has been placed upon Messrs Muhammad Bashir v Pakistan International Airlines Corporation and another (1985 CLC 178), Rehmat All and 2 others v. The Revenue Board, West Pakistan Lahore and another (1973 SCMR 342), Shamsher Khan & Company v.
5. Karachi Water and Sewerage Board and another (1988 CLC 1a91), Fawwad & Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh, Karachi and others (PLD 1983 Karachi 340), Ch. Muhammad Younus v. The Islamic Republic of Pakistan (PLD 1972 Lahore 847) and Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42).
6. ' I have considered the contentions and noticed that the petitioner as well as respondent No,3 participated in the bidding process. It is not denied that the bid of respondent No,3 was lowest as compared to the petitioner. It is also reflected from the record that the product of respondent No,3 "Doryxax" is registered with leading International .Forums as well as with the Government of Pakistan, Ministry of Health. The Director of Inspection, Department of Industries as well as Director General (Technical), Ministry of Population Welfare both satisfied themselves regarding its quality.
7. The Ministry of Population Welfare Wing confirmed its quality through its letter dated 14th of June 1992 wherein it was provided that the relevant informations provided by the Ministry of Industries regarding the product of Gedeon (Doryxas Brand) was examined by Technical Wing of the Ministry of Population Welfare, Islamabad and Ministry of Population Welfare has no objection for the purchase of product (Net-En) from the lowest bidder whether it is Schering or Gedeon (Annex. R- 27). The argument of the learned counsel that he also offered 16000 ampules free of cost just to cover up the difference in price as given by the respondent No,3, cannot be forced upon the respondents as the rules did not permit such like donations.
8. ' As far as the plea of mala fides is concerned it has simply been alleged by the petitioner and is not spelt out with particularity in accordance with the test laid down by the Supreme Court in Saeed Ahmad Khan's case (PLD 1974 SC 151) wherein it has been held as under:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it because there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala tides as has been pointed out by this Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
9. ' The argument that the petitioner was supplying its product for the last more than two decades does not give him any vested right to continue for the same. Since he has failed to compete in the bidding, as such, he cannot secure this contract simply on the basis that he was earlier supplying the product. The other argument that the Ministry of Population Welfare does not support the product of respondent No,3 is devoid of any force.
10. ' It is pertinent to mention here that the Ministry of Population Welfare not only authenticated the quality of `Doryxas through its letter dated 14-6-1992 prior to the grant of contract but even thereafter its Director-General Dr. Safia I. Ameen during the pendency of this writ petition through her lettrer dated 15th of February, 1993 has stated as under about the technical aspects of both the products:- ' Norethistrone Enantate (Net-En) injectable contraceptive, is manufactured by M/s. Schering AG, Berlin, Germany, subsidiary Medipharm, Lahore as Norigest.
(ii) Doryxas, is manufactured by M/s. Gideon Richter Ltd., Budapest, Hungary.
11. ' Both the products `Norigest' and `Doryxas' have the same chemical composition, i,e, Norethistrone Enantate (200 mgm in ml only solution). The two products are registered with the Ministry of Health,Islamabad. World Health Organization (WHO), Geneva has also recognized the abovementioned manufacturers for these injectables as safe contraceptives. On technical grounds products of both the pharmaceutical firms are same."
12. ' In view of what has been stated above, no exception whatsoever can be taken to the grant of contract through order dated 26-7-1992 for the supply of injectable contraceptives to respondent No,3 the lowest bidder in the field. Resultantly, this writ petition is hereby dismissed in limine.