' The relevant facts for the decision of this Constitutional petition are that the respondent processed the case for grant of contract of Dining Car attached with 107 Up and 108 Down Trains commonly known as Faisalabad Express running between Faisalabad and Karachi. The prospective bidders applied. Their cases were processed. The petitioner and others, who pre-qualified, were allowed to participate in the bid. They were required to deposit a sum of Rs,50,000 as security. The auction took place on 26th November, 1998, The petitioner was highest bidder for Rs,13,55,000 and accordingly deposited Rs,3,38,000 being 25% of the bid amount. In addition to this it was made also to pay a sum of Rs,8,800 as fee of the Auctioneer. It was thereafter that the petitioner was informed vide letter dated 27th November, 1998 that his bid has been accepted. The petitioner waited for the execution of the contract document and delivery of the possession of the Dining Car, so it could perform its part of the contract but respondents did not take any steps, therefore, they were reminded. Still the respondent paid a deaf ear to the demand of the petitioner and failed to perform their part of the contract. In this background the petitioner was compelled to file this Constitutional petition. The same came up for limine hearing on 12-2-1999 when it was admitted to regular hearing and notices were issued to the respondents, who Were represented by Mr. Masud Mirza, Advocate.
2. Learned counsel for the petitioner argued that the moment the bid of the petitioner was accepted on 27th November, 1998, the petitioner became entitled to the possession of the Dining Cars to perform its part of the contract. It is added that inaction on the part of the respondents is illegal and mala fide.
3. On the other hand, Mr. Masud Mirza, Advocate argued that the process was started in pursuance of the judgment of the Hon'ble Supreme Court reported as Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 SC 342) but subsequently the policy was changed. It is added that a sitting lessee cannot resort to the Constitutional jurisdiction for enforcement of his right. In this behalf reliance is placed on M.A. Naser v. Chairman, Pakistan Eastern Railways (PLD 1965 SC 83) and Pakistan National Shipping Corporation v. Rent Controller, Lahore (PLD 1992 Lahore 305) besides the judgment of Shaukat Ali (supra). It is added that contractual obligations cannot be enforced through Constitutional petition. In this behalf reliance is placed on Zamir Ahmad Khan v. Government of Pakistan (1987 SCMR 327) and 1994 CLC 848. It is argued that in respect of the licence or obligation arising therefrom no writ is competent. It is added that Railways did not proceed with the grant of contract licence because the policy had gone under change. The whole effort of the Railway administration is to improve the system and give the public better facilities. It is argued that the new policy has been framed, according to which the system of Dining Cars is being given up because it brought many evils with it and instead catering facilities to the public are being provided on platforms.
4. Learned counsel for the petitioner while summing up the arguments submitted that it is the inaction on the part of the respondents that the petitioner was compelled to invoke the Constitutional jurisdiction of this Court.
5. During the arguments on 16-6-1999 it was deemed in the interest of justice to hear the Chief Commercial Manager (C.C.M.). Accordingly learned counsel for the respondents was directed to ensure his presence. He has appeared today, His statement has been recorded.
6. Learned counsel for the petitioner submitted that it is clear from the statement of the C.C.M. And the record of this case that the Railways administration is in no mood to honour its solemn commitment given to the Hoeble Supreme Court and on the basis of which the judgment in Shaukat Ali case was pronounced. It is added that there is no question of enforcement of any term and condition. It is explained that no new policy has been produced, therefore, it is only a false pretext. It is explained that provisions of catering service on the platform is without any merit as far the contract of the petitioner is concerned because the Faisalabad Express is non-storey.
7. I have given my anxious consideration to the arguments and gone through the record. The matter up to the stage of acceptance of the bid of the petitioner processed strictly in accordance with rule laid down by the Hon'hle Supreme Court and undertaking given by the Railways administration in Shaukat Ali's case but thereafter rule laid down was ignored altogether and the case of the petitioner was not finalized. It is clear from the statement of the C.C.M. That this could not be done for the following reasons:--
(i) The new policy;
(ii) Pendency of the writ petition; and
(iii) It was not possible for the petitioner , to perform the contract in view of the higher lease money offered by him and this was likely to impair the standard of the food to be supplied to the passengers, therefore, the Railways administration did not perform its part of the contract.
8. The reasons furnished for inaction on the part of the respondents and particularly the C.C.M. Are afterthought, superficial and false pretext to defend this writ petition for the reasons: Firstly, the admitted position is that the petitioner was never informed that it is not possible to proceed with the contract further and asked to secure the refund of the amounts paid by it. This fact alone is sufficient to prove that the aforementioned reasons were only fake pretext and an afterthought.
The same have been put forward to get rid of this writ petition; secondly the respondents have failed to produce any policy which has been formulated instead of the of letting out this contract through open auction. So much so even no draft of the such policy has been produced; thirdly, the reason advanced is that the petitioner had offered such a high price that it was not possible for it to perform the contract and maintain, the quality of the eatables. The reason on the face of it is not genuine because the petitioner insisted to perform the contract while the respondents were not allowing it to proceed with it. This conduct of the respondent is unnatural and the justification rendered is without any merit. More so, the respondents were not helpless in case the petitioner failed to supply the food articles in accordance with the specification. The contract could have been cancelled forthwith; and Fourthly the pendency of the writ petition is again a false pretext.
This Court has not passed any interim order restraining the respondents to perform their legal duties, Moreover, the writ was filed not after two days but after waiting for more than two months.
9. It is a classic case of dereliction of duty on the part of the .Railways administration particularly C.C.M., who was to sign the contract. The result is that firstly the petitioner is waiting for the decision for the last 7 months, secondly the Railways got only. Rs,70,000 per annum instead of Rs,13,55,000 and thirdly the Railways administration failed to act as directed by the. Hon'ble Supreme Court of Pakistan and that too on its own undertaking. It is not only a case of delay in the decision as to the rights of a party but a criminal negligence on the part of C.C.M. It became evident why the Railways is suffering huge losses every year and become a liability of the State. This case at least gives a clear indication that the basic reason is inefficient and negligent top brass who is responsible for the unfortunate state of affairs in the Railways.
10. The upshot of this discussion is that the writ is allowed with costs of Rs,50,000 which shall be the responsibility of the respondents themselves and recovered from them. The result is that:--
(i) The respondents are directed to decide the fate of the contract of the petitioner expeditiously by 30th June, 1999;
(ii) the Secretary Establishment is directed to ensure that forthwith E&D proceedings are initiated against Syed Gulrez Hashamey, Chief Commercial Manager, Pakistan Railway for inefficiency and misconduct resulting in loss to the Railways;
(iii) the present Chairman, C.C.M. And General Manager are issued notice to show cause why they should not be proceeded and punished for contempt of Court as they have tailed to grant the contract in accordance with the judgment of the Hon'ble Supreme Court in Shaukat Ali case and reiterated in the subsequent order, dated 3-12-1998 passed in Criminal Original Nos. 23-L/97, 24- L/97, 25-L/97 and 26-L/97; and
(iv) the petitioner is at liberty to initiate action against the respondents in accordance with the law