1. MIAN ALLAH NAWAZ, J.--This judgment will govern two Intra--Court Appeals Nos.440 and 466 of 1995. The first is filed by M/s. Flying Board and Paper Products Limited while the second is by M/s. Lab-Aids Corporation/ respondent No. 1 in I.C.A. No.466 of 1995. These call in question the order passed by the learned Single Judge of this Court dated 8-10-1995/partly accepting the Constitutional petition filed by Messrs Lab-Aids Corporation.
2. In order to appreciate to rival claims of the parties, it is necessary to set out the material facts of the case in detail. The Punjab Textbook Board/respondent No.2 herein (shortly stated as "Board"), invited tenders for the supply of 9,800/Metric Tons Water Marked (best quality) paper vide advertisement made in Daily "fang" dated 15-6-1995. It was stipulated therein that the local Manufacturers would not be eligible to give their bids. Against this, M/s. Suleman Papers (Pvt.) Ltd.
2. Moved a Constitutional petition bearing Writ Petition No.7919 of 1995. In the course of hearing of that petition, the Chairman, Board made a statement that the tenders submitted by the local manufacturers/suppliers will be considered. The Board, however, scrapped its proceedings and issued fresh invitations in Daily "Jung" dated 27-6-1995/calling for fresh tenders. The Board, this time, allowed both foreign manufacturers/suppliers as well as locals to give their tenders. Feeling aggrieved, M/s. Flying Board & Paper Products Ltd. Filed a Constitutional petition, which was dismissed in limine by my brother Tanvir Ahmed Khan, J. On 13-7-1995. Against this order I.C.A.
3. No.293/95 was preferred. This was followed by two Writ Petitions Nos. 9142/95 and 9148/95. The I.C.A. As well as the two Writ Petitions were disposed of vide order dated 25-7-1995, when the Chairman Board stated that the tenders of foreign manufacturers had been rejected on account of some technical deficiencies. In pursuance of this, the tenders were opened on 16-7-1995 in the presence of participating Bidders. The rates quoted by the competitors in the said tenders were as under:-- Names Rates Met. Ton M/s. Rythem Impex Enterprises US$ 1084 M/s. Salman Paper US$1500 M/s. Pakistan Art Paper.
4. US$ 1200 M/s. Popular Traders.
5. US$ 1520 M/s. Pakistan Machinery & Equipment Co.Karachi.
6. US$ 1195 M/s. XIN Jiang Foreign Trade Enterprise, Islamabad US$ 1785 Rate quoted for local paper: With Taxes Without Taxes M/s. Flying Paper.
7. 47,380 41,200 M/s. Premier Paper.
8. 47,380 41,290 M/s. Mandiali Paper Mild 47,610 41,400 The Board amazingly enough, divided the work into three parts and awarded these portions to following persons in following manner:-- Name Quantity Rate per M.Tons M/s. Flying Paper.
9. 5000 M.Ton.
10. 41,100 M/s. Premier Papers.
11. 3100 41,100 M/s. Mandiali Paper Mill 1700 41,100 Dissatisfied with the above exercise, M/s. Lab. Aids filed Constitutional Petition No. 10225/95 without impleading M/s. Flying Board & Paper Products Ltd., M/s. Premier Papers and M/s. Mandiali Paper Mills. The afore stated parties were impleaded on 24-9-1995. After hearing the parties, the learned Judge in Chamber concluded that the Board had no authority to reject the offer of M/s. Lab. Aids without assigning any reason; that the offer of that party was lowest and so could not be ignored.
12. On this conclusion, the learned Judge in Chamber accepted the petition in following terms:-- "8. The other ground that respondents Nos.3 to 5 are local manufacturers, as such, they should be given preference over the foreign manufacturers so as to save the foreign exchange prima facie appears convincing. There is also no cavil with this proposition that the local manufacturers are to be encouraged. But the policy certainly cannot be adopted at the cost of the national exchequer particularly so when the better material at lesser price is available. Simply because the local manufacturers are to be encouraged the exchequer cannot be burdened with heavy costs.
13. Resultantly, for what has been stated above; the writ petition is accepted and it is directed that the fresh tenders be called by making publicity in the 'daily paper' and the same shall be finalized in accordance with law and rules. There shall be no order as to costs. "
14. This led to I.C.As. Nos.440, 441, 466 of 1995 and Writ Petition No.15612/95. During the hearing of the case on 23-11-1995, I.C.A. No.441/95 and the Writ Petition No. 15612 of 1995 were withdrawn. We were informed that the appellants as well as the respondents had participated in the tenders opened in pursuance of the order of the learned Single Judge dated 25-7-1995.
3. Mr. Shahzad Jahangir, Advocate, appearing on behalf of appellants in .C.A. No.440/95, raised following points:--- Firstly: that the perusal of advertisement-dated 26-10-1995 clearly indicated that the Board was competent to reject the offers of tenderers without assigning any reason. On the strength of this condition, it was within the discretion of the Chairman Board to accept or reject the offers of any tenderers and the tenderer whose offer was rejected, had no vested right to enforce it through Constitutional jurisdiction. On this view it was suggested that M/s. Lab. Aids Corporation was neither an aggrieved person under Article 199 of the Constitution nor was equipped with any right to invoke the Constitutional jurisdiction of this Court. The learned Single Judge, according to the learned counsel, erred in law in overlooking rule laid down in Shamsher Khan & Co. v. Karachi W & S Board 1988 CLC 1891, Munshi Muhammad v. Faizanul Haq 1971 SCMR 533, Rehmat Ali v. Revenue Board, West Pakistan 1973 SCMR 342 and Muhammad Younus v. Islamic Republic of Pakistan PLD 1972 Lah.
15. 847.
16. Secondly: the perusal of the advertisement clearly showed that only the manufacturers were eligible to participate in the tenders. According to the learned counsel M/s. Lab. Aids was the agent of foreign suppliers and so had no right to give the tender. On these premises it was suggested that the petition filed by M/s. Lab. Aids was incompetent and merited to be rejected.
17. Thirdly: that the tenders were opened on 16-7-1995. The same was, however, accepted on 31-7-1995 and the information was conveyed to the appellant on 31-10-1995; that the appellant thereafter opened a letter of credit, so that Board had no authority whatsoever to revoke that contract on the premises of locus poenitentiae. Reliance was placed on Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 and Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973.
18. 4: The learned counsel appearing on behalf of the Board/respondent No.2, vigorously supported the impugned orders. Relying upon the result of fresh tenders, he submitted that on account of the order of this Court, the Board had saved huge amounts of Rs.10 crores. Continuing, he contended that the local manufacturers/suppliers i.e. M/s. Flying Board & Papers Products, M/s. Premier Papers, M/s. Mandiali Papers and M/s. Lab. Aids Corporation, have re-entered the scene, submitted their tenders which were much below the tenders they had submitted in earlier round; and that respondents Nos.3 to 5, in fact, were the party. On these circumstances, it was suggested that the appellants had come to the Court with unclean hands and with a motive to rob away the State largess. The learned counsel for M/s. Lab. Aids/appellant in I.C.A. No.466/95, although supported the impugned order, but taken an exception to that part of the impugned judgment by which the learned Single Judges had ordered respondent No.2/Board for calling fresh tenders. According to him his client was entitled to get contract as his bid was the lowest i.e. Rs.35,000''per Metric Ton. Mr. Atta-ur-Rehman Sheikh, Advocate, appearing on behalf of respondents Nos.3 and 5 adopted the line of argument of Mr. Shahzad Jahangir, Advocate.
5. Having penned down the facts, circumstances of the case and arguments advanced by the learned counsel for the parties, we now proceed to deal with rival contentions of the parties. As regards the preliminary objection, it needs to be noticed that it has been a vexed question. There has been series of precedents to the effect that an applicant while invoking jurisdiction under Article 199 of the Constitution, has to show that he has suffered some personal injury to his property, body, mind or reputation. This flows from the word "aggrieved party" used in Article 199 of the Constitution. This question has not been entirely free from difficulty. The problem of locus standi/aggrieved party/standing has been dealt with by Courts in the context of variety of the circumstances. See A.K.M. Fazalul Quader Chowdhry v. Government of Pakistan PLD 1957 Dacca 342, Saeed Khan v. 4airman, District Council of Bannu and others PLD 1961 Peshawar 347, Standard Vacuum Oil Co. v. Trustees of the Port of Chittagong PLD 1961 Dacca 289, Miss Asima Jillani v.
19. Government of Punjab PLD 1972 SC 139, Muhammad Boota v. Commissioner, Sargodha Division PLD 1973 Lab. 580, Ramamoorthi AIR 1953 Madras 94, Abonindra Kumar -v. A.K. Mujumdar AIR 1956 Cal.
20. 273, Charanjit Lal v. Union of India' AIR 1951 SC 41 and M/s. Associated Cement Co. Ltd. v. Pakistan through the Commissioner of Income Tax PLD 1978 SC 151 are the authorities in support of the proposition that Article 199 does not confer any substantive right .Upon a party but provides a party only an additional remedy under the extraordinary jurisdiction of this Court, conferred by the Constitution provided, he is able to show that any of his personal or property rights as recognised by law had been invaded or denied to him. However, with the march of time superior judiciary did not adhere to the rigid view but took liberal construction of the word 'aggrieved party'. In Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, it was held that right considered sufficient for maintaining a proceeding is not necessarily a right in the strict juristic sense but it is enough if the applicant disclose that he had a personal interest in the performance of the legal duty which, if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment of privilege or liberty or franchise. This view was reiterated in Miss Benazir Bhutto's case PLD 1988 SC 416. Following this rule a Division Bench of this Court in Calicon Pvt. Ltd. v. Federal Government of Pakistan etc. 1996 MLD 705, it was observed that:-- "From the foregoing discussion, we are clear in our mind that the objection of the learned counsel for respondent No. 2 is misconceived. From the narration of the facts and circumstances given above, it is evident that the petitioner had submitted tender which according to him was rejected illegally and discriminately. According to the learned counsel for the petitioner, the action of respondent No.2 is in defiance of Article 2A, Article 4 and Article 25 of the Constitution, which embody the golden principles of equal protection. On these facts, the petitioner is found to be an aggrieved party within the meaning of Article 199 of the Constitution. For the above reason the objection of the respondent is repelled."
21. Applying this principle to the facts and circumstances of this case it is clear that M/s. Lab Aids had participated in the proceedings of tender, which was lowest; that it was rejected by the Board without assigning any reason and that too on technical ground. In view of above we have no difficulty in coming to the conclusion that M/s. Lab Aids was aggrieved person within the meaning of Article 199 of the Constitution and so we do not find any force in Point No.1 raised by the learned counsel for the petitioner. The same is, accordingly, answered in negative. ,
6. Before dealing with the second contention we are tempted to quote with admiration the saying of Justice Frankfurter in Vitarelli v. Seaton (1959) 359 US 535 3 L. Ed 2d 1012:--- "An executive agency must be rigorously held to the standards by which it professes its action to be judged---Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed---This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. "
22. This principle came up for consideration in Ramana Dayaram Shetty v. The International Airport Authority of India and others AIR 1979 SC 1628. While speaking for the Bench Mr. Justice P.N.
23. Bhagwati, said: Today the Government in a Welfare State is the regulator and dispenser of Specie Services and provider of a large number of benefit, including jobs, extracts, licenses, quotas, mineral rights etc. The Government pours forth health, money, benefits, services, contracts, quotas and licence. The valuables dispensed by Government take many forms, but they Eli share one characteristic. They are, steadily taking the place of traditional forms of wealth. These valuables which-derive from relationship to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State as local welfare. Then again, thousands of people are employed in the gate and the Central Government and local authorities. Licences are requited before one can engage in many kinds of business of work. The power of giving licences means power to withhold them and this gives the control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public lend valuable for mining and other purposes. These resources are available for utilization by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of Governmental functions as we move closer to a welfare State; more and more of our weal consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognize the importance of this new kind of wealth and the need to protect individual interest in it, and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognized as rights while others have been given safeguards protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Professoi Eich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Government action be based on standards" that are not arbitrary or unauthorised". The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as private individual. "
24. The learned Judge continued that: "It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweetwill and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences, etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable,, to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
25. The survey of the case-law will not be complete without examining the oriental saying of his Lordship Mr: Justice Hamoodur Rehman, the then Chief Justice of Pakistan in Miss Asma Jillani v.
26. The Government of the Punjab PLD 1972 SC 139. His Lordship while dealing with the Muslim heritage held as under: "In any event, if a grounds norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grounds norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is sacred trust. This .Is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passta by the Constituent Assembly of Pakistan on the 7th .Of March, 1949. This Resolution has been described by Mr. Brohi as the `cornerstone of Pakistan's legal edifice' and recognised even by the learned Attorney-General himself ' as the bond which binds the nation', and as a document from which the Constitution of Pakistan must draw its inspiration'. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, Military or Civil. Indeed, it cannot be, for it is one of the fundamental principles enshrined in the Holy Qur'an.
27. (In arabi)
28. Say, O! Allah, Lord of sovereignty Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest away Sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou absest whomsoever Thou pleasest: Thou exaltest whomsoever Thou pleasest and Thou absest whomsoever Thou pleasest.
29. (Pt. 3, Ch. 3, Al'Imran, Ay. 27).
30. The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a council, which must hold its meetings in public view and remain accountable to public. It is under the system that the Government becomes a Government of laws and not .Of men, for no one is above the law. It is this that led Von Hammer, renowned orient list, to remark that under the Islamic system 'the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it'.
31. This trust concept of Government filtered into Europe through Spain and even as early as 1685 John Locke rejected Hobbes Leviathan and propounded the theory that sovereignty is vested in the people and they had the right not only to decide as to who should give them but also to lay down the manner of Government which they thought to be best for the common good Government was, therefore, according to Locke, essentially moral trust which could be forfeited if the conditions of the trust were not fulfilled by the trustee or trustees as the case may be.
32. The trustees under this concept of ours are referred to those who are in authority among you' and (Pt. 4, Ch. 4, Ay. 60, Al-Nisa, p.207) which again negates the possibility of absolute power being vested in a single man, for, the reference is clearly to a plurality of persons and to an authority properly constituted by law. "
7. From the foregoing discussion following amongst others principles of judicial review are deducible:---
(i) With the march of time the sphere of Governmental powers has been considerably widened.
33. Public functionaries had to perform multi--dimensional activities i.e. Giving jobs, entering into contracts, issuance of quotas; licences, so on and so forth, dealing with State largess. These functionaries are the actual trustees of State and are enjoined under the law to act with reasonableness, neutrality and without any inch of arbitrariness. They are to safeguard the State largess and must not squander/waste it by their capricious unfair actions. Their such actions are subject to judicial review of this Court.
(ii) Our Governments are the Government of Laws. The State functionaries derive their powers from the Constitution and laws and are enjoined to act clearly within the sphere of their powers.
34. Furthermore, the Governmental power, residing in such functionaries, is a sacred trust. Whenever the action/order or decision of State functionaries do not conform to above principle, this Court has power, under Article 199 to strike down such orders. In short, the Constitutional scheme leaves no room for arbitrariness, capriciousness, nepotism and jobbery. The jurisdiction, embodied in Article 199 of the Constitution, is sparkling jewel in the Scheme of balancing the various organs of State. It is designed to keep the mighty functionaries of the State within the ambit of their authority.
35. In the word of Alpheus Thomas Mason, it brings the mighty officers of the State howhighsoever may be, to their heels. See Judicial Activism: 55 Virginia Law Review 411 (1969). It is designed to foster justice between the parties and is not aimed to help unscrupulous, greedy persons who might invoke this jurisdiction with ulterior motive.
8. Applying these principles to the facts and circumstances of the case, it is quite clear that in the first round, the Board did not accept the offers made by the tenderers but, surprisingly enough, divided the work into three portions and awarded these to M/s. Flying Papers, M/s. Premier Papers and M/s. Mandiali Papers. This course, we are sure, was not legally permissible. If the Board was not satisfied with the offers, it received, it was obliged under the law to reject the offers and invite fresh tenders. This methodology, by inviting tenders or by giving contracts by open auction ensures the transparency on the part of the Board. This course, for reasons known to the Chairman of the Board, was not adopted. A counter offer was made to M/s. Flying Papers, M/s. Premier Papers and M/s. Mandiali Papers, who is stated to have been accepted by them: This methodology was clearly illegal. It was in defiance of paras. 23 and 24 of the Punjab Purchase Manual. On this material, the learned Single Judge was eminently correct in coming to the conclusion that the award of contract to appellant and respondents Nos.4 and 5 was without any lawful authority. This conclusion is congruent with the law and the principles of fairness. We are, therefore, of the view that the order of learned Single Judge is unexceptional.
9. Turning to third contention, it is common ground between the parties that the offers of the appellants were not accepted and actually counter offers we are made which were accepted by the appellants on 31-7-1995. These counter-offers incorporated a stipulation to the effect that the appellants were to enter into a written agreement with the Board. This is also not denied that this condition was not fulfilled. The appellant had opened the letter of credit on 31-10-1995. Meanwhile writ petition was filed which resulted into the order passed by the learned Single Judge. On these facts we are clear in our mind that no concluding contract came into existence between the parties and before that this Court had granted the interim relief. The principle of locus poenitentiae was, therefore, inapplicable. The action on the part of the Board was subject to judicial review of this Court. The third contention of the learned counsel for the appellant, therefore, is also found to be permitless and is rejected. Furthermore, the claim of M/s. Lab Aids is also untenable. Mere filing of an offer, in our view, does not equip with any right to seek a contract.
10. As a result of foregoing discussion I.C.As. Nos.440/95 and 466/95 are found to be wholly without any merit and are accordingly dismissed in limine. While parting with this judgment we find it necessary to note that the Board has been saved of the loss of approximately ten crores of rupees on account of the order passed by the learned Single Judge. We further note, with anguish, that the Board has not so far framed Rules regarding invitations of offers, their acceptance and finalisation of agreements. The wisdom demands that the Board must frame necessary Rules with regard to afore noted and other allied matters in order to ensure transparency in their dealings. The Board, we hope, shall undertake the necessary exercise and frame Rules to save itself from any further litigation. A copy of this order shall be sent to the Chairman of the Board.