1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This Constitutional petition, has been filed by Messrs Zahir Enterprises, styling themselves as Dealers in supply of wheat, to persons interested, including the Government Functionaries. As per the averments of petition, the Government of Balochistan, through its Secretary, Food Department, has entered into a secret deal, with the respondent No,3 (Messrs U.S. Traders) for purpose of 100 million M.T. Of wheat, at the price of Rs 760 or 750, per hundred kgms, without inviting publicly open tenders from the Traders, generally dealing in supply of wheat to interested persons or the Government Department, Thus, on coming to know about this fact, vide letter, dated 6th October, 1998, petitioner Firm requested the official respondents to refrain from illegal deal and to also provide equal chance of participation to all concerned in the public interest, but no response was shown, therefore, a legal notice through Advocate, was served upon the official respondents, but without any success. Inasmuch as, the official respondents were approached and requested to provide copies of relevant documents, but same were refused. As such, instant petition has been filed, claiming following relief:-- ' "It is accordingly respectfully prayed that this Honourable Division Bench may be pleased to declare:
(i) That the deal of official respondents for purchase of wheat from the private respondent is not transparent inasmuch the same was not made public, and therefore, action of official respondents is without lawful authority;
(ii) That petitioner who like others deals in the same business has Constitutional right to participate and contest in the purchase of wheat by the Government;
(iii) That official respondents have acted unfairly, unreasonably and partially in purchasing the wheat from private respondent and has been dealt with discrimination in allowing him to participate in the proceedings of purchase of wheat;
(iv) Resultantly, grant of contract by official respondents in favour of private respondent and action taken in the matter or intended to be taken may be declared to have been without lawful authority;
(v) Permanently restraining the official respondents not to in any, way act upon the contract of purchase of wheat granted/to be granted in favour of private respondent and not to start receipt of wheat from the private respondent; ,
(vi) Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case may also be awarded, in the interest of justice and equity."
2. ' Accordingly on 20th October, 1998, pre-admission notice was given to respondents, directing the Secretary and Director, Food Department, to appear and produce the record, pertaining to allowing contract to private respondent, for the purchase of wheat. In response to the notice, on 22nd October, 1998, the Secretary, Food Department, produced three files, for our perusal. On having gone through them, it was noticed that the contract of supply of wheat, granted to respondent No,3, is not transparent and has not been awarded, in accordance with the relevant Rules and Regulation, as well as the pronouncements of Superior Courts. As such, the petition was admitted for regular hearing and in the meanwhile, the official respondents were restrained from entering into any Agreement, transaction etc. With the respondent No,3, regarding supply of wheat. As in the petition, it was alleged that respondent No,3 has been blacklisted, therefore, the Advocate-General, was directed to produce the complete record, to ascertain, whether the allegations are correct or otherwise? Simultaneously, he was also asked to collect complete list of cases pending with the Anti-Corruption Establishment, against the Contractors, Officials, etc. Of Food Department, for perusal and necessary order by the Court.
3. ' It was also considered necessary to appoint Mr. Ehsanul Hach Advocate, to assist the Court, as amicus, curiae, as the matter involved in petition, was of public interest.
4. ' The official respondents filed reply to the petition, wherein following averments were made with regard 'to the deal of allocating, contract of supply of wheat, to respondent No,3:--- ' "That the deal with M/s. U.S. Traders has not yet been finalized and no such orders for the supply of wheat have so far been issued. Hence the allegations levelled in Para. 2 of the petition are denied.
5. The matter is under consideration with the Government in the light of the observations of the Finance Department regarding calling open tenders, consent of the Federal Government MINFAL was also to be obtained before the finalization of purchase of wheat through private importer, that is why supply order to M/s. U.S. Traders has not yet been issued."
6. ' On 26th October, 1998, the respondent No,3, submitted counter-affidavit to the application; filed by petitioner seeking interim relief. In its paras. 5 and 6 following facts were mentioned:-- "(a) That the contents of para. 1 of the petition as stated are not admitted and I say that the petition has been malafidely filed at the behest of the business rivals of the respondent No,4 with ulterior motives.
(b) That the contents of para. 2 of the petition as stated are not admitted, it is, however, submitted that the respondent No,3 did offer to supply the wheat to the tune of one million tonnes imported by him from Australia, Turkey and other countries as is evident from Annexures 'D-1' and 'D-2', annexed to this counter-affidavit supported by the bills of lading annexed herewith as Annexures 'D-3' and 'D-4' alongwith the relevant import Registration Certificates etc. To substantiate that the respondent No,3 is substantial and potential importer of wheat and also own flour mills in Balochistan as he hails from District Lasbella, Balochistan.
7. ' It is submitted that the Government of Balochistan was within its rights to replenish the stocks for the immediate consumption of the public and that the respondent No,3, had offered to supply imported wheat at lower rate than the rate fixed by the Government of Pakistan, therefore, his offer was being considered by the Government of Balochistan and the matter had not so far been matured, under the circumstances it is submitted that the petition is premature, as such, on this sole ground is not maintainable and is liable to be dismissed."
8. ' In continuation of above reply, on 27th October, 1998, a further statement was filed on behalf of respondent No,3. Relevant contents therefrom, for sake of convenience, are also reproduced hereinbelow:-- ' "It is submitted that the Government of Pakistan had asked the PASSCO to arrange and supply 40 thousand tons of wheat to the Government of Balochistan, but no wheat could be purchased as the Government reserve price of purchase was Rs,240 per 40 kgms and the market price is Rs,300 for per 40 kgms.
9. ' That there was undertaking/understanding given by the respondent No,3 to the Government of Balochistan that he was prepared to give credit to the Government of Balochistan for payment of entire consideration to facilitate the payment of entire price of one million bags of wheat."
10. ' Later on, a counter-affidavit, dated 2nd November, 1998, was filed, in which, the above stand was reiterated. However, a copy of reply, dated 20th October, 1998, sent by the Government of Balochistan Food Department, to the counsel of petitioner (Mr. Mujeeb Ahmad Hashmi) in response to his legal notice, dated 15th October, 1998, was also placed on record. In this reply, the Government of Balochistan, took the stand, that Food Department was of the view that in Balochistan there would be no sound party to invest amount in importing wheat from abroad, hence, to avoid confusion, the tendering idea was not considered. Messrs U.S. Traders being approved H/T Contractors (not black-listed) approached in April, 1998, that they intend to import Australian wheat and shown their willingness to offer at the lower raters than the rates charged by the MINFAL (copy enclosed). On 26-8-1998, the said Firm again approached through the Chief Minister Balochistan, offering one million wheat to Government of Balochistan as imported from Australia/Turkey at the rate Rs,7,500 per metric ton. In support of their offer, the documents to prove that the wheat is imported one and confirming to the standard was also submitted (copy enclosed) by the Firm. Case on the directions of Chief Minister Balochistan, has been processed and submitted to the Chief Minister, Balochistan through proper channel, as laid down in the Rules of Business. Since the offer is beneficial to the Government to save an amount of Rs,1,35,36,000 as compared to the purchase from MINFAL, therefore, after considering all financial aspects besides physical inspection of the available imported stock by the High Power Committee "who also approved the available wheat" confirmed upto the standard (copy enclosed). The Government of Balochistan is, thus, considering to purchase one lac tonnes imported wheat from the Firm M/s. U.S. Traders.
11. ' From the perusal of pleading of respondents, referred to hereinabove, it is abundantly clear that the Food Department, in fact in principle had agreed to purchase one lac tonnes of wheat from respondent No,3, because in pursuance of his offer, the High Power Committee, visited Karachi, allegedly inspected the wheat, imported from Australia and Turkey and confirmed that is upto the laid down standard, but before issuance of work order, instant Constitutional petition was filed and petitioner succeeded in getting stay order on 22nd October, 1998.
12. ' At this stage, it is equally important to make reference to the official files, to ascertain the nature of deal and objections, if raised by the concerned department.
13. ' A minute scrutiny of files, indicates that first application was moved on 3rd April, 1998, by the Proprietor of U.S. Traders (Mr. Abdul Sattar Lasi) addressed to the Secretary, Food Department, with copy to the Principal Secretary to Chief Minister, Government of Balochistan, introducing therein itself to be importer of wheat and informing that expected time of arrival of the currently shipped consignment is around 20th April, 1998 and request was made for willingness of the Department allowing the respondent to submit lowest possible rates for the supply of wheat. Alongwith this application, a FAX Message, sent by the Emirates Trading Agency (L.L.G.) Dubai to Messrs Seatrade (Private) Ltd., Karachi, with a copy to Messrs U.S. Traders, Karachi, was also attached, wherein it was informed to the Addressees that the subject Vessel has sailed Port Lincoln on 8th. April, 1998, with 12580 MT of wheat cargo, with expected date of arrival of ship at Bin Qasim Port, around end of April. A perusal of the application and the FAX Messagee reveals that till the time of submission of application, the Government of Balochistan had not requisitioned supply of wheat in bulk quantity from the recognized Traders etc. And in fact, it was the respondent No,3's Firm who itself took the initiatives. But it appears, that no response was given by the concern department. This application was followed by another application, dated 21st April, 1998, wherein the same request was repeated, with an addition of quoting the rates i,e, Rs,7,600 per metric tonnes in package of 100 kgms with empty Gunny bags at Port Bin Qasim or Rs,760 per bag. The rates at the destination from Port Bin Qasim will be Rs,7,600 per metric tonnes plus approved H/T (Handing & Transportation) rates of the Government of Balochistan, It appears that on this application, without the orders or directions of competent Authority, on 22nd April, 1998, the Director, Food Department, wrote a letter, which was signed by him on 23rd April, 1998 wherein, after mentioning few facts, particularly the rates of Ministry of Food, Agriculture and Livestock (in short "MINFAL") at Karachi, the contents of the application of respondent No,3 were supported, by making recommendations, to purchase this quantity of wheat, after clearance of quality, moisture contents and other specifications by a Committee, constituted for the purpose. It was also recommended that the mode of payments to the supplier may be made through cash credit limit, after approval of competent Authority and is adjustment made from sale proceeds. The letter so addressed was placed before the then Secretary, Food Department (Mr. Mubasher Ahmed Zafar), who fully supported the proposal, made by the director, Food Department. Contents of paras. 3 and 4 of the summary, being important to highlight the state of affairs, are reproduced hereinbelow:-- "(3) In the light of the report received from the Food Directorate, this department would like to submit the following for consideration:--
(a) MINFAL has all along been the sole supplier of imported as well as indigenous wheat to the Province according to our requirement, however, in 1995 a quantity of 40,000 tonnes indigenous wheat was purchased through sources other than Government.
(b) Normal monthly requirement of this Province is roughly 24,760 metric tonnes. Presently we have a stock of about 40,000 metric tonnes. This should suffice for the requirement of one and half month. Procurement of local indigenous wheat has also been started but it is apprehended that the prevailing market trends may not allow PASSCO to achieve the procurement target of 40,000 metric tonnes as private traders are offering better support prices.
(c) At present there is no imported wheat in the Province as well as port Bin Qasim. The Food Department is of the view that due to bumper crop of wheat in Punjab and Sindh, the Federal Government may not go for imports. However, if import is considered, we may get the imported wheat somewhere in October, 1998.
(d) A comparison of the rates given by M/s. U.S. Traders and the rate charged by MINFAL show that the offer in competitive.
14. Traders Rate MINFAL RATESDIFFERENCE Cost of wheat including all expenses.Rs. 7,600.00Cost ofwheat Incidental.Rs. 6,500.00 Rs. 1,135.36 Total. Rs. 7,600.00Rs. 7,635.36Rs. 35.36
4. Apparently the Government can save Rs,35.36 per tonne or Rs,8,85,000 on 25,000 metric tonnes." .
15. ' The Secretary, put-up the Summary before the Minister for Food, who after signing it on 28th April, 1998, forwarded it to the Chief Minister. The,Principal Secretary to Chief Minister, called following explaptions:--- "(a) How may the proposal affect the quota of wheat for Balochistan which is supplied by the Federal Government?
(b) Are there any other parties to offer competitive prices on such purchase?
(c) How the quality of the wheat can be ascertained and its compatibility with the price be ensured? These querries, the Chief Secretary, made a Note "The --- was sent bypassing me" and marked the file to Secretary, Food, who replied the above querries and Objection' Chief Secretary or not submitting the file to him, in lowing paras:-- ' "Reference query at para. 3 ante. It is pointed about that the file has been properly marked to the.
16. Minister. Food, Chief Secretary and the Chief Minister (in that order), however, if. The Minister chooses to take the file to the Chief Minister personally the undersigned cannot help it.
17. ' As far as the points raised by the Principal Secretary to the Chief Minister are concerned, the replies are given below seriatim.
(a) Federal Government has over the years reduced our monthly off-take of wheat to 28% of the actual requirement i,e, 66,000 metric tonnes. Presently we are getting only 24,000 metric tonnes per month. They can indeed raise an objection but presently we are facing shortage of wheat because of the procurement season in the country and the likely suspension of Atta supply from Punjab within the coming week. Therefore, the Federal Government can be asked to either meet our requirements or allow us to arrange supply of wheat on our own. Restrictions on inter-Proviincial movements of wheat which are unconstitutional may also be removed to allow free trade.
(b) Since no other private party has to our knowledge imported wheat prices cannot be judged.
18. However, when compared with prices of 'MINFAL' charge the Provincial Government, the rates offered by the Contractor look economical.
(c) As already mentioned at para. 6 of the summary under submission a Committee can be constituted to ascertain the quality of wheat and compatibility of prices.
19. ' Views of the Finance Department may also be solicited in this respect because the Balochistan Government shall have to pay the cost of wheat proposed to be purchased from the Contractor."
20. ' On receipt of file, the Chief Secretary, sent their case to Chief Minister and in turn, the Principal Secretary to. Chief Minister, asked the Finance Department to examine the proposal and give comments, for perusal of Chief Minister. Accordingly the Secretary, Finance (Mr. Ata Muhammad Jaffar), noted that the proposal of Food Department, is silent on following two important points:--
(a) Where from the amount of Rs,20 crores will come for purchasing the wheat particularly in view of the fact that the Food Department has to pay an amount of Rs,17 billion to MINFAL as liability and the Provincial Government is already having over-draft of about Rs,2 billion upto this month?
(b) Why the Food Department has chosen the option to take quotation from one party and compared it with the rates of MINFAL and avoided tenders for purchase of wheat from open market?
21. ' The Secretary, Finance, asked the Secretary, Food, to process this case and resubmit the whole case to the Chief Minister, for his orders. It appears that after the Note of Secretary, Finance, the matter was not processed ahead, nor respondent No,3, took interest in perusing the case.
22. ' On 26th August, 1998 the respondent No,3 submitted another application, addressed to the Chief Minister, Government of Balochistan, in which, after introducing himself to be a Trader, dealing in the import of wheat, an offer was made to purchase the wheat at the cost of Rs,7,500 per ton, Ex- Port Qasim including cost of wheat and others incidentally, comparing to the cost of Rs,7,635 per ton Ex-Port Qasim, which Provincial Government is paying to MINFAL. In this application, it was not mentioned that earlier two applications were submitted and those were processed, upto the office of Secretary, Finance and that happened thereafter. On this application, the Chief Minister referred the matter to Secretary, Food, for putting up Summary/detailed report and to process the same on priority. As such, the matter again went, firstly before the Director, Food, who recommended the purchase of wheat from respondent No,3 also suggested following modus operandi, for purchase of wheat, vide his letter, dated 7th September, 1998:--
(i) A committee will be constituted by the Food Department for inspection quality/quantity at the source.
(ii) The transportation to P.R. Centres will be offered to above Private Trader at the approved rates of Government to avoid transit shortages if handled by the different contractors.
(iii) An agreement will be executed with the importer on prescribed agreement form and a security of 2% will be taken being refundable just to cover the lossess/shortages if any.
(iv) The payments will only be made for quantity delivered at the destination by producing certificate or receipt alongwith inspection certificate conducted by the Committee.
(v) The Food Department may like to add other condition if any to safeguard the Government interest."
23. ' At this moment, it is also pertinent to note that in this letter, reference to earlier proceedings drawn on the application of respondent No,3 was not made at all by the Director, Food (Mr. Fazlur Rehman).
24. ' It is also important to note that in the meanwhile the Former Secretary, Food (Mr. Mubassher Ahmed Zafar) was transferred and new Incumbent Mr. Fasihuddin took over the charge as Secretary, Food. However, when this file was presented to him, he had no knowledge about the past history of case and as such, he prepared the summary, almostly on the same lines, as was submitted by the Former Secretary on 25th April, 1998 contents whereof, have been mentioned hereinabove. This Summary was rooted through Minister for Food who wrote following note, on it:-- ' "Chief Minister may peruse the Summary and pass orders accordingly. The proposal is beneficial for the Government of Balochistan vide para. 4 of the Summary.
25. (Sd.)
26. Minister for Food, 25-9-1998."
27. ' In turn, the Chief Minister pressed following order:-- ' "Approved paras. 4 and 6 as recommended by Minister of Food, Efforts be taken to reduce the costs of wheat, quality of the wheat be checked strictly.
28. (Sd.)
29. 28/9"
30. ' In pursuance of above order, the Chief Secretary, concurred with the order of Chief Minister in following words:-- ' "The committee should ensure the quality and weight of the bags/wheat as directed by C.M. Any shortfall in weight or quality will be the entire responsibility of the Committee/Food Department.
31. This issue with approval of C.M.
32. (Sd.)
33. 28/9"
34. ' Thereafter, the file was put-put before Minister, Food, who passed following order:-- ' "The Minister Food had perused the above orders and has desired that the case may be referred to Secretary Finance for financial approval."
35. ' Accordingly, the Secretary, Food submitted the file to the Secretary, Finance with the observations, that Secretary Finance may please initiate action vide paras. 5 and 6 of the summary as well as orders of the Chief Minister, Balochistan.
36. ' At this stage, it may be noted that during this time, Mr. Mubasher Ahmed, Former Secretary, Food was transferred as Secretary, Finance. Therefore, again in his department, the case was processed and Food Department was asked to constitute a Committee to examine the quality/quantity/moisture contents and other pre-requisite/tenchical matters, and case was referred back to Food Department. The Secretary, marked the file to Deputy Secretary, Food, with the Note "Please put-up". Accordingly the Deputy Secretary, prepared following Notification, dated 1st October, 1998, which was approved and signed by the Secretary, Food (Mr. Fasihuddin Khan):-- "No, SOL/Wheat/Purchased/98/7821-27 Government of Balochistan, Food Department.
37. Dated: Quetta the 1st October, 1998.
38. ' NOTIFICATION ' No, SOI/Wheat/Purchased/98. With the prior approval of the Chief Minister, Balochistan, the Secretary Food Department, Government of Balochsitan is pleased to constitute a committee comprising of the following Officers of the Food Department to examine the quantity/quality/moisture contents and other pre-requisites of the wheat stock to be purchased by the Food Department from M/s. U.S. Traders:--
(1) Mr. Fazlur Rehman, Director Food, Balochistan...Chairman.
(2) Mr. Muhammad Azam Mushtaq, Deputy Director Food (Despatch) Food Directorate, Balochistan.... Members.
(3) Mr. Abdul Ghaffar, Chief Accounts Officer, Food Directorate, Balochistan....Member/Secretary.
2. The Committee will also conduct negotiations with the representatives of the U.S. Traders to reduce the price of the wheat upto maximum extent. The Committee will submit its report within a week's time immediately.
39. (Sd)
40. (Fasihuddin Khan)
41. Secretary ' Stated by the Committee so constituted, somewhere after 1st October, 1998, submitted report to the effect that as per standard, the wheat grain should contain; 85% sound grain, 10-11% Moisture contents and 0.03% other foreign matters, and it was recommended that the wheat which they have physically seen at Karachi, fulfil this standard and for further verification, they have also collected samples from different lots, for laboratory analysis, at Quetta. On the submission of report, the Section Officer-1, submitted the file to Deputy Secretary, with a favourbale note on 5th October, 1998, who with his note, marked the file to Secretary, Food. The Secretary, Food, referred the matter to the Secretary, Finance, with following Note:- ' "Para. 4/n from the Secretary Finance is referred.
42. ' As asked for the report of the Committee constituted for the purpose may please he gone through vide pages 11-C to 20-C and approval be accorded for the purchase of one lac Metric tonnes of imported wheat from M/s. U.S. Traders (Private) at the rate of 7,500 per M.T. Within the available Budget under intimation of the MINFAL for their concurrence in this regard keeping in view the overall supply/availability of wheat against the demand/requirement of this Province."
43. ' On reference of file to Finance Department, the Section Officer-II, Finance with the following observations, marked the file to Deputy Secretary, Budget:-- ' "Finance Department has the following observations/view in this regard-
(i) As per rules such summaries/eases should have been routed through F.D. Before submission to the higher authorities so that we could incorporate our view. In this case, F.D. Had been bypassed, reasons better known to the Food Department.
(ii) MINFAL: has a sole supplier in respect of imported wheat and this year the Food Department has to purchase 200,000 M.T. Wheat through MINFAL as per our Budget books, authenticated by the Provincial Assembly, Food Department to obtain concurrence of MINFAL before placing work order to the supplier.
(iii) In June, 1998, the Food Department sent similar case for purchase of 25,000 M.T. Imported wheat through the same Firm (M/s. U.S. Traders) which was returned with the following observations:--
(A) From where the amount of Rs,20 crores will come for purchasing the wheat particularly in view of the fact that the Food Department to pay an amount of Rs,1.7 billion to MINFAL as liability and the Provincial Government is already having over-draft of about Rs,2 billion.
(B) Why the Food Department has chosen the option to the take quotations from the party and compared it with the rates of MINFAL and avoided tenders for purchasing of wheat from the open market.
44. ' The Food Department instead of giving reply of F.D's. Observations or incorporating the same in the proposed summary before submission to C.M. Has increased the quantity from 25,000 MT to 100,000 M.T. From the same firm, by saving Rs,100 per M.T.
(vi) The total off take would be 425,000 metric tonnes for 1998-99 including the proposed purchases.
45. ' Now since the Chief Minister has accorded approval to the purchase of 100,000 M.T. Imported wheat on the entire responsibility of the Food Department with the consultation of MINFAL. Orders are solicited whether we may convey our no objection to the Food Department for the above within the available resourses for current financial year, as Finance Department will not be able to provide additional funds. A draft advice is accordingly placed below for favour of approval please."
46. ' On this Note, the Deputy Secretary, wrote, that the contract of Rs,750 Million has been awarded, without completing the Codal formalities e.g. a single offer has been accepted and open tenders were not called, as required by the Rules. This fact was previously also brought into the notice of A.D. But apparently the advise was ignored. As per Rules, the Government Department can make purchases only after completing all laid down Codal formalities. Thereafter he marked the file to Secretary. The Secretary Finance (Mr. Mubasher Ahtnad Zafar) agreed with the observations and stated that "the advice communicated to the Food Department contained our observations, however, the Food Department chose to bypass the Financial Department and the approval to purchase wheat from a private party has been obtained from the C.M. On a summary. This approval has been conveyed to us through the C.S. Who has also recorded his observations and directed the Food Department to ensure certain things including quality, quantity, moisture contents etc. Since the approval has been granted, we may still include our reservations in the advice to be sent to the Food Department and ask them to say within their means/allocated budget. It may also be made clear that no additional funds shall be provided and they have to confine themselves in the procurement of wheat to the target approved in the budget. Draft amended and corrected may issue".
47. ' Accordingly this decision, was conveyed to the Secretary, Food vide better, dated 15th October, 1998 and in pursuance of another letter, dated 17th October, 1998, the file was returned to the Food Department.
48. ' Incumbent Secretary, Food, Mr. Fasihuddin Khan at this stage, explained in Court that he had no knowledge about the earlier proceedings in the natter drawn in pursuance of the applications submitted by the respondent No,3. However, when the above letter, was received from the Finance Department, the Assistant Accounts Officer, Food Department, submitted a note, mentioning herein, about the old Summary, which was not in the knowledge of any one of he Section Officer of the Department. The Deputy Secretary, Food, called the Private Secretary to Secretary Food, as the signs on the Receipt Register of the Finance Department, appeared to be of the staff of Food Department Mr. Hadi. On proper enquiry, the Private Secretary, Mr. Abdul Razzaque traced out the original papers/old summary from the side rack of the former Secretary Food (Mr. Mubasher Ahmed), and according to the Private Secretary, this Summary alongwith Note Sheets, were kept by the former Secretary, Food himself and not handed over to him, for sending the same to Deputy Secretary, Food, despite the fact that these papers were marked to the D.S. (Food), by the outgoing Secretary, Food. However, the written statement of the Private Secretary, was obtained in this behalf. The Assistant Accounts Officer, also suggested that before taking any further action in this particular matter, the kind Deputy Secretary, Food and the Secretary, are requested to take appropriate action, on the position explained above.
49. ' Later on, when the letter was still pending, waiting completion of other Codal formalities for awarding of contract in the meanwhile notice was sent by the petitioner's counsel, which was put up to the Secretary Food, who advised that fresh summary be prepared. It seems that in this behalf, a summary was prepared, which has not been signed by the Secretary, Food but he has owned it in the Court. A perusal whereof, also indicates that on behalf of the Secretary, it has been mentioned that no heed should be paid to the claim of petitioner, because he has not filed any documents alongwith his notice, for the supply of wheat at a lessor rate to the department and exactly on the same lines, notice was replied on 20th October, 1998, copy of which has been placed on record by the respondent No,3, alongwith his counter-affidavit. Hence, after issuance of the stay order, on 22nd October, 1998, the matter came to hault.
50. ' Mr. Tariq Mehmood, learned counsel, contended that as "far as the petitioner is concerned, he is only interested in the relief to the extent that while awarding the contract of supply of wheat, to.
51. Respondent No,3, the official respondent, the Minister for Food and the Chief Minister, should have done transparent deal. They being the Government officials as well as the Public Representatives, are not supposed to exercise their discretion in an unlawful arbitrary and colourful manner; because in view of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, every citizen has equal right of freedom of trade, business or profession. The official respondents as well as the Public Representatives have not bestowed by any law, with an authority, to indulge in under hand deals, pertaining to the public property. He further argued that now by the time, it is well-settled that all the Government transactions including awarding of contracts, supplies work, employments etc. Must be based on an open and transparent policy, otherwise it would be deemed that any deal of such nature is clothed with malignancy. In support of his contention, he relied of AIR 1979 SC 1628; PLD 1991 SC 14, PLD 1992 Kar. 283, 1995 M LD 15 1996 M LD 1238, PLD 1997 SC 342, 1997 SCM R 1043, PLD 1997 Kar. 627 1998 M LD 474 and 1219.
52. ' Mr. Sikandar Malik, learned Advocate General, made following statements on behalf of the official respondents:--
(i) Government believes that affairs in Food Department, suffer from financial indiscipline, irregularities, illegalities and improprieties, therefore, vide Notification No,10-23/1998-SOI (S&GAD)IV, dated 4th November, 1998 a Committee has been constituted, to look into the financial indiscipline and irregularities committed by the officers/offiials of the Food Department, comprising on; {{TABLE}} Mr. Mubasher Ahmad Zafar, Secretary Finance ....Chairman.
53. Department Mr. Fasihuddin Khan, Secretary, Food ....Member/Secretary Department.
54. Mr. Fazlur Rehman, Secretary Law ....Member.
55. Department.
56. Mr. Ahmad Baldish Lehri, Commissioner, Zhob ....Member.
57. Division.
58. ' The above Committee has been asked to submit its report/recommendations to the Government, within shortest possible time; and
(ii) The Government of Balochistan has decided in principle, to award all contracts of supply of wheat etc. On following the transparent process i,e, by making publications of the tenders in the Newspapers, inviting open bids from interested parties and also by providing open opportunity of competition, to all concerned.
59. ' Whereas contesting the petition, the learned Advocate-General, argued as under:--
(a) The petition is pre-mature, because, so far no contract has been awarded to respondent No,3 and as now the Government has decided to make open auction, for awarding contract of supply of wheat, through publication, therefore, no relief can be awarded to petitioner; and
(b) The petitioner is not an aggrieved person, as he has no locus standi and in fact the petition has been filed by him with mala fide intentions, therefore, it being not maintainable, is liable to be dismissed, without considering the merits of case.
60. ' Mr. M.M. Pirzada, learned counsel for private respondent stated that in view of the reply of official respondents that no contract so far has been awarded for the supply of imported wheat to respondent No,3, no cause of action has accrued to petitioner, for seeking the relief, as prayed for.
61. Further, he is also not an aggrieved person, because comparing to respondent No,3's case, he does not possess any quantity of wheat for supply to the Government. Therefore, he has filed the petition with mala fide intentions wherein he has also imputed baseless allegations against the respondent-Proprietor Mr. Abdul Sattar Lasi, that he has been black-listed. He further stated that under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, there is a concept of equality before law. As far as respondent No,3 is concerned, he being a Trader possesses a vested right to approach the Government of Balochistan for the supply of wheat at a subsidized rate.
62. Therefore, being in such profession, there was no impediment in his way to contact the Government for selling the imported wheat and in this manner, the respondent No,3, has not committed any fault, because the Government approved the proposal made by him, He placed reliance on 1992 CLC 219, ' Mr. Ehsanul Haq, learned Amicus Curiae, contended that he adopts the arguments, put forth by Mr. Tariq Mehmood, Advocate and also adds that the transaction done in the instant case is not fair, just and transparent. He stated that it was incumbent upon the High-ups to see; whether in view of paucity of foreign exchange, it is feasible to purchase imported wheat from the respondent No,3.
63. He further stated that it is not the only case, where in a clandestinely manner respondent No,3 succeeded in striking a deal with official respondents and Public Representatives, but there are number of cases, in which million of rupees are involved against the contractors; Officials, etc. And the department has totally failed to adopt effective remedial measures with a view to stop financial indiscipline, bangling of money, belonging to the Public Exchequer. During arguments, he quoted number of instances, but did not file any document in support thereof. Lastly he contended that as the instant matter involves the public interest, who have to purchase the wheat/Atta which Food Department, arranges for them at higher rate, therefore, in the largest interest of country/Province appropriate directions be made to concerned authorities for observing transparency in all such transactions, in future.
64. ' We have heard the parties' counsel at length and also thoroughly gone through the relevant documents, files etc., so made available to us.
65. ' At the very outset, it is essential to examine; whether the petition is pre-mature and no relief can be awarded? In this behalf, it would be important to refer the application, dated 26th August, 1998, directly submitted to the Chief Minister, Government of Balochistan, by respondent No,3, offering sale of one lac metric tonnes of wheat. This application was strongly recommended by the Director, Food (Mr. Fazlur Rehman) vide his letter, dated 7th September, 1998, contents whereof, have been reproduced hereinabove. Inasmuch as, he suggested the mode for completion of transaction without at all making reference to the earlier applications, filed by respondent No,3, dated 3rd April, 1998 and 21st April, 1998. Similarly he also did not mention that when these applications were processed, the then Principal Secretary to Chief Minister raised objection, vide his Note, dated 28th April, 1998 and the then Finance Secretary, asked the Secretary, Food, to answer two important points enumerated in his observations, for reference the said points have already been reproduced hereinabove. He also did not care to state that the then Secretary, Food (Mr. Mubasher Ahmad Zafar) received the file from the Finance Secretary, but did'not offer any explanation to the points, which were raised by the Secretary, Finance. Thus, concealing all these important aspects with a criminal intention, he referred the file to the Secretary, Food (Mr. Faihuddin Khan). As this officer was new incumbent in the Food Department, therefore, he endorsed the view of Former Secretary, Food (Mr. Mubasher Ahmad Zafar), through Minister for Food, he also endorsed the same with the Note, that proposal is beneficial for the Government of Balochistah. The Chief Minister approved paras. 4 and 6 of the Summary on 28th September, 1998, as recommended by Minister for Food, with directions that efforts be taken to reduce the costs of wheat, and quality of the wheat be also checked strictly. His approval was confirmed by the Chief Secretary, vide his Note of even date and thereafter, only financial approval was to be taken from the Finance Department and before reference of case to the. Finance Department, the Secretary, Food, constituted a Committee, to check the quantity/quality/moisture contents of the wheat, vide'
66. Notification, dated 1st October, 1998. In pursuance of the Notification, report was obtained from the Committee, comprising of Mr. Fazlur Rehman, Director, Food, Mr. Muhammad Azam Mushtaq, Deputy Director, Food and Mr. Abdul Ghaffar, Chief Accounts Officers, who allegedly stated that the wheat imported by respondent No,3, has been physically seen by them at Karachi, and same fulfills the required standard. The Secretary, Food, also gave approval for the purchase of one lac metric tonnes of imported wheat from respondent No,3, within the available Budget, under intimation to the MINFAL. Thereafter, the file was sent to the Finance Department, but its section Officer-II, raised objection. However, ultimately he also recommended for the purchase of one hundred thousand metric tonnes of wheat from respondent No,3, because the Chief Minister has accorded approval, and he solicited views of the Secretary, Finance; whether no objection should be conveyed to the Food Department, for the purchase of wheat, within the available resources, for the current financial year, because the- Finance Department, will not be able to provide additional funds. The Deputy Secretary, however, raised specific objection on the deal, 'namely; the contract is being awarded without completing the Codal formalities, as a single offer has been accepted and open tenders were not called as required by the Rules. He also pointed out in his Note, that this fact was also brought into the notice of A.D. But apOrently the advice was ignored. He was also of the opinion that the Government Department, can make purchase only after completing all laid down Codal formalities. Then he placed the file before the Secretary Finance (Mr. Mubasher Ahmed Zafar) who replaced the Former Secretary Finance (Mr. Muhammad Jaffar). It is worth to note that said Incumbent fully knew that prior to present proceedings, there had been an attempt by respondent No,3 to sell the wheat to the Government, as he submitted application in the month of April, 1998, when he himself was Secretary, Food and at that time, the then Finance Secretary, also asked for explaining two important points, concerning the fact, that from where the amount of rupees twenty crores will come for purchasing the wheat, particularly when Food Department has to pay an amount of Rs,1.7 billion to the MINFAL as liability and the Provincial Government is already having over-draft of about Rs,2 billion upto this month and the second very important query was that, why the Food Department has chosen the option to take quotations from one party compared it with the rates of MINFAL and avoided tenders for purchase of wheat from open market? Mr. Mubasher Ahmed Zafar, Secretary Food, as then he was, did not answer these two points nor he sent back the file for further action. But surprisingly when in capacity of Secretary, Finance, the file was put-up before him, he expressed his reservations, most probably to save himself from the deal, which might become highly objectionable, at a subsequent stage, before any competent Forum, by stating that the Food Department has bypassed the Finance Department and had obtained approval from the Chief Minister, directly on the summary, which has been conveyed to his Department through Chief Secretary, therefore, he stated 'we may still include our reservations in the Advice to be sent to the Food Department and ask them to stay within their means/allocated budget. It may also be made clear that no additional funds shall be provided and they have to confine themselves in the procurement of wheat to the target approved in the budget," It is important to note that if he had reservations in respect of the deal, he being the same Officer, should have not forwarded, favourable summary on 25th April, 1998, recommending that, by purchasing the wheat from respondent No,3, the Government would be in a position to save Rs,35.36 per ton or Rs,8,85,000 on 25,000 MT. Of wheat. It may be clarified at this stage, that in the earlier application, submitted in the month of April, 1998, the respondent No,3 offered to sell 25,000 MT of wheat, but in the last application, he increased this quantity to one lac metric tonnes. Had the Finance Secretary (Mr. Mubasher Ahmed Zafar) in capacity of Secretary Food, in the months of April, 1998, answered the queries of the then Secretary, Finance, positively and had also mentioned in the summary, dated 25th April, 1998, that the deal of purchasing the wheat from one party, being non-transparent, may not be accepted; then of course, there would have been no reservations against his conduct, but when earlier, he expressed favour to respondent No,3 and later on, in a different capacity i,e, Secretary, Finance, all of a sudden he took a turn, and expressed altogether a different opinion, obviously for the reason that at this stage, he did realize that by making such observations against respondent No,3 and the Food Department, he in fact can manage to show his non-involvement, by adopting this device. However, the last observations of the Secretary Finance, were communicated by his Section Officer-II to the Food Department, vide letter, dated 15th October, 1998, stating therein, that the Food Department may purchase one lac M.T. Of imported wheat during the current financial year, subject to the condition that the purchase is made from within the available resources and the Finance Department, will not provide additional funds for the purpose. Moreover, the concurrence of MINFAL is the responsibility of the Food Department itself. The Food Department will also ensure the quantity/quality/moisture contents and other pre-requisites as observed by the Chief Secretary. Any shortfall in weight or quality/quantity will also be the entire responsibility of the Food Department. The total procurement including that from MINFAL should not exceed 425,000 Metric tonnes for 1998-99.
67. Thus, these facts abundantly make it clear, that the deal of purchase of one lac metric tonnes of imported wheat from respondent No,3, had been completed with the 'concurrence of Chief Minister and Minister for Food, subject to the restrictions which were imposed by the Chief Minister, Chief Secretary and the Finance Department. Therefore, on completion of transaction of purchase of imported wheat, the Administrative Department was only required to complete the documentary formalities, concerning execution of ( Agreement and obtaining permission from MINFAL. As such, the petition is not pre-mature and has been rightly filed to challenge the administrative action of the Food Department, Government of Balochisian, to purchase the wheat from the respondent No,3.
68. 'Now the next question for consideration would be; whether the petitioner is an aggrieved person to file instant Constitutional petition ? In this behalf, first of all, we would like to make reference to Article 18 of the Constitution of Islamic Republic of Pakistan, which gurantees, that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business, subject to such qualifications, if any, has been prescribed by law, including the regulation of any trade or profession by a licensing system; or the regulation of trade, commerce or industry in the interest of free competition therein; or the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other person. This Article for the purpose of instant case, has to be read alongwith Article 25 of the Constitution, which guarantees, that all citizens are equal before law and are entitled tc equal protection of law and there shall be no discrimination, on the basis of sex alone and nothing in this Article shall prevent the State from making any special provision for the protection of women and children. However, for our purpose, the earlier part of this Article is relevant. In this context, first of all, reference can be made to the letter, dated 20th October, 1998, addressed by the Government of Balochistan, Food Department to the counsel of petitioner (Mr. Mujeeb Ahmad Hashmi), in response to his legal notice, dated 15th October, 1998. In its para. 5 it was mentioned that the application of Messrs Zahir Enterprises received on 6th October, 1998, simply seems to create confusion, as the aforesaid Firm has only offered imported wheat at the rate less than the disclosed rate of Messrs U.S. Traders. If Messrs Zahir Enterprises were the importer of wheat, they should have come earlier with their offer alongwith the requisite documentation about the contrary, from where, the wheat is being imported, landing bills Certificates, the quantity of wheat (imported) available and the quality thereof. But the Firm had simply made an application endorsing to all without any documents. It was further stated that the Food Department cannot consider the offer of Messrs Zahir Enterprises, without any documentation at this stage. However, the request of Messrs Zahir Enterprises can be considered in future, subject to the condition that the said Firm may submit all the relevant documents for the scrutiny about quality/quantity and authentication that the wheat being offered has been imported one or being imported etc. A perusal of these portions of the letter indicates that the petitioner was also interested in supply of imported wheat to the Government of Balochistan, but his offer was turned down, for the reasons mentioned in this letter.
69. ' It is also to be seen that as far as the respondent No,3's firm is concerned, it has also submitted applications, voluntarily on 3rd and 21st April, 1998, because there was no demand or move by the Food Department to purchase the wheat. At that time, the respondent No,3 offered, at its own to sell 25,000 metric tonnes of imported wheat and later on in the third application, dated 26th August, 1998, increased its quantity to one lac metric tonnes. Therefore, in such situation, when the respondent No,3, can offer voluntarily, to sell the wheat to Food Department, then on basis of right guaranteed to the petitioner-firm under Article 18 read with 25 of the Constitution, they were also competent to make an offer, which was, however, outrightly rejected for some subjective reasons.
70. But later on, when the Secretary Food (Mr. Fasihuddin Khan) realized the situation that another party is also interested, he as per the Note-sheet, dated 19th October, 1998, directed the Deputy Secretary, Food, that "in view of the changed position/new facts, we will have to move another summary in the case. Please put up the D.F.A. Accordingly". It was stated by the Secretary, during hearing of case that a Draft Summary, was prepared, though it was not signed by him, but in it, he sought advise that either the Food Directorate may be directed to complete further formalities to purchase one lac M.T. Wheat from M/s. U.S. Traders from within the available resource or otherwise they may be directed to call tenders. But this summary could not be forwarded to the concerned Authority, because in the meanwhile the petition was filed and stay order was granted and as per the statement made by Advocate-General, now the Government has decided to purchase the wheat, by calling open tenders.
71. From these facts it emerges that it was the petitioner, who created obstacles/hurdles for the Food Department, not to purchase wheat through non- transparent procedure and the transaction must be made transparent, by calling tenders.
72. It is well-known by the time, that to invoke the Constitutional jurisdiction under Article 199 of the Constitution, it is necessary that petitioner must show a vested right to claim discretionary relief.
73. This condition of being an aggrieved person, stands fulfilled, particularly in the matter, which involves. Public interest litigation, if it has been established that the petitioner is an interested person and the object of invoking the jurisdiction is not to claim relief, essentially in his favour, but only to show that by means of an administrative action, unlawful proceedings have been drawn, which are required to be rectified by exercising judicial review. As it has been noted hereinabove, in the instant case, the petitioner not only has shown his interest in seeking relief from the Court, that Administrative Department must provide equal opportunity to all the Traders, Suppliers, interested in the business of supply wheat, but has also proved with the help of record, maintained by the department that on a large scale, illegalities and irregularities, have been committed in the Food Department, to favour the respondent No,3, by entering into a deal of purchase of wheat, which he allegedly has imported from outside the country, although for this purpose, as far as the department is concerned, it has not shown its inclination, at any stage, to the wheat supplier Agencies; i,e, MINFAL, PASSCO or any other source, that it is not possible to procure wheat, therefore, it has become necessary to purchase wheat from respondent No,3. Thus, under these circumstances, the petitioner-firm falls within the category of persons, who validly and competently, can invoke the jurisdiction of this Court, under Article 199 of the Constitution of Islamic Republic of Pakistan. Reference in this behalf can be made to the judgments, reported in PLD 1992 Kar. 283; 1998 M LD 474 and 1998 M LD 1219. Relevant para. From the last mentioned is reproduced hereinbelow:-- ' "Thus, it would appear from the recent trend of the pronouncements of the superior Courts that for maintaining a petition under Article 199 of the Constitution all that has to be shown is that the petitioners have an interest in the subject-matter which may not, necessarily, be a right as such, in the stricto senso. As mentioned above, in the present case, some of the petitioners are residents of the same areas and have interest in the maintenance of the areas residential. Another reason why the petitioners have a right to maintain the petition is that the petitioners have also challenged the construction on the ground of it having encroached upon the proposed width of the Main Clifton Road and, therefore, every citizen who may at one time or the other happen to use that road would be directly affected by such encroachment for this would result in the narrowing down of the road.
74. For all the aforesaid reasons, we consider that the petitioners have locus standi to file the present petition."
75. ' Adverting to the question; whether the Food Department had an obligation to invite open tenders or to purchase the imported wheat from respondent No,3 otherwise, or by negotiations ? It is to be seen that as per the statement made by Director Food (Fazlur Rehman) in the Province of Balochistan, as Asian standard, 124 Kgs wheat, per head per annum, is required, depending upon the different tendencies. Out of the total requirement, only one-third of wheat is supplied by the Food Department from different sources i,e, local production, MINFAL and PASSCO. From 1987 to 1995, 66,000 M.T. Wheat per month was the requirement of Province. Later on, in 1995, the Federal Government reduced it to 33,000 M.T. Per month and for the year 1997-98, the Federal Government is presently supplying 24,760 M.T. Wheat per month to the Province of Balochistan. He also admitted that in order to cater the requirement of Province, in 1995-96, purchase of indigenous wheat was made through tenders and it is for the first time, that during this financial year, imported wheat was being purchased from respondent No,3. However, he stated that to mature the transaction with respondent No,3, it was incumbent upon the Provincial Food Department, to have obtained N.O.C.
76. From the MINFAL. He explained that the Province of Balochistan is deficit in wheat production, therefore, the requirement is to be fulfilled through the allocation, made by the MINFAL and by purchasing indigenous wheat through PASSCO and local procurement in Nasirabad Division. For our perusal, he placed on record statement of budget allocation, for purchasing the wheat, during the current financial year. According to it, the total quantity of wheat of 425,000 M.T. Has been estimated. Out of this requirement, two lac M.T. Imported wheat will be purchased from MINFAL, one lac seventy five thousand metric tonnes indigenous wheat will be purchased from PASSCO and fifty thousand M.T. Will be procured locally from Nasirabad Division. On our query, he admitted that for purchasing/procuring indigenous wheat, a detailed procedure has been laid down in the Manual of Food Accounts (Volumes I and II) by the Government of Balochitan, Food and Fisheries Department, but there 'is no procedure for procuring imported wheat. On our careful perusal of the official files, we are astonished to note, from the day one when respondent No,3 started pouring applications, dated 3rd April, 21st April and 26th August, 1998, in the Food Department, there was no indication at all, that on account of non-supply of wheat, either by the MINFAL, PASSCO or by local procurement, it has become essential to purchase wheat from Importer. Thus, in such like situation, one can conveniently conclude that the Food Department itself persuaded the respondent No,3, to obtain the contract of supply of imported wheat, otherwise, if there had been any shortfall/deficit, in the supply of wheat in the Province, the Food Department, could have approached the MINFAL or PASSCO and after bringing in their notice that the supplies of wheat, being made by them are not catering the requirement of the Province and have obtained permission to purchase the wheat from the Suppliers/Contractors. At this stage, it is important to note that when the applications, dated 3rd and 21st April, 1998, were being processed and the matter finally came before the Secretary, Finance, two important questions were raised by him, reproduced hereinabove, wherein, question was passed to the Food Department, that from where the amount of rupees twenty crores will come for purchasing the wheat ? It may be noted that initially respondent No,3 wanted to supply only 25,000 M.T. Wheat and the second question was, as to why the Food Department has chosen to take quotation from one party ? Both these questions were very important with regard to providing funds of 20 crores and obtaining of quotation from only one party, but the Food Department, kept silent and now it is alleged that the file was retained by the then Secretary, Food (Mr. Mubasher Ahmad Zaffar) and even after his transfer, no action was taken on it. Be that as it may, a perusal of the former question, suggests that initially the Food Department was not purchasing the wheat from respondent No,3 on cash credit basis and department itself wanted to make the payment of rupees twenty crores and that's why the Secretary Finance (Mr. Atta Muhammad Jaffar) enquired as to from where this amount will be arranged, particularly in view of the fact that the Food Department has to pay 1.7 million to MINFAL as liability and Provincial Government is already having overdraft of about 2 billion upto this month. Inasmuch as in the last summary submitted in pursuance of the application, dated 26th August, 1998, submitted by respondent No,3, again it was mentioned in para. 5 that in case the Government decides to purchase the above quantity, the payment of Supplier have to be arranged by the Finance Department, by providing an amount of Rs,750 million from within the available resources. The payment shall be allowed to the Supplier on local procurement account basis i,e, under para. 45 of the Manual of Food Accounts "Growers/seller will be paid 100% price of the stocks immediately on delivery." The Finance Department even in the latest letter, dated 5-10-1998, refused to provide additional amount, for the purchase of wheat from respondent No,3 and it was stated that the Food Department may purchase one lac M.T. Imported wheat during the current financial year, subject to the condition that purchase will be made from within the available resources.
77. Comparing to this decision of the Food Department and reservations expressed thereon, by the Finance Department, as indicated hereinabove, now for the first time, the respondent No,3, after filing of the counter-affidavit, submitted a further statement on 27th October, 1998, wherein, with a view to show his bona fide, stand has been taken, that there was undertaking/understanding given by the respondent No,3 to the Government of Balochistan that Firm was prepared to give credit to the Government of Balochistan for payment of entire consideration to facilitate the payment of the entire price of one million bags of wheat. But in the detailed counter-affidavit, this assertion was not mentioned. Similarly in all the three applications, dated 3rd, April, 21st April and 26th August, 1998, it was never expressed by respondent No,3, that the wheat will be supplied to the Government of Balochistan on credit basis.
78. ' At the time of arguments, learned counsel for respondent No,3 as well as the Advocate-General, attempted to persuade us that the wheat was being purchased on cash credit basis, procedure whereof explained by them was, that on the Guarantee of the Provincial Finance Department, as soft loan from the bank with the concurrence of State Bank of Pakistan, in the name of Supplier- respondent No,3 is to he arranged, which he will be repaying after receiving the price from Dealers and consumers. It is not understandable, as to what was the interest of Provincial Food Department to purchase wheat, particularly from respondent No,3, against the cost of Rs,750 million, payment of which, was to be arranged by the Provincial Government, either by Food or Finance Department and even if for sake of argument, statement of respondents is accepted, that the wheat was being purchased from the respondent on cash credit basis, then again the same .Question arises, that what was the interest of Provincial Government to involve itself for the sake of respondent No,3, by furnishing Guarantee. No one amongst them, could answer this query satisfactorily, except contending that the respondent No,3 was supplying the wheat at the subsidized rate comparing to MINFAL. But Mr. Tariq Mehmood, learned counsel for petitioner, stated that as per his instructions as well as in view of the contents of letter, dated 20th October, 1998, filed by respondent No,3, alongwith his counter-affidavit, actually U.S. Traders is a H/T Contractor and the department to award contract of the supply of wheat to this Firm, in fact wanted to further allow the contract of handling and transportation of respondent No,3, as this fact is indicative from the letter, dated 7th September, 1998 and by doing so, the Department would have not only illegally favoured the respondent No,3 in obtaining both the contracts, but would have ensured that this firm may make maximum gain for the deal, reasons of which are best known to the Food Department alone. We are inclined to agree with the learned counsel, because if the contents of the letters, dated 7th September, 1998 and 20th October, 1998, are read together, one will feel no difficulty to concure with the contention of learned counsel. It is quite astonishing to us that the whole Food Department, including the Drector and the Secretary were all out to ensure that the coptract of supply of wheat be given to respondent No,3, without calling the tenders or adopting the transparent procedure. For the grant of contracts. Inasmuch as the Former Secretary (Mubasher Ahmed Zafar) when failed to answer two important querries, raised by the then Finance Secretary (Mr. Atta Muhammad Jaffar) kept the file in his custody, till the time, when he was transferred. (This fact is indicative from the Note portion, wherein the subordinate staff has blamed each other, with regard to concealing the file). Later on when this application, dated 26th August, 1998, was submitted, all the previous proceedings were concealed and nothing was allowed to come on record, particularly by the Director Food (Mr. Fazlur Rehman) who was the same Officer, holding this very post, at the time, when Mr. Mubasher Ahmed Zafar was the Secretary, Food and reportedly in this behalf, they also kept the new Incumbent Secretary, Food (Mr. Fasihuddin Khan) in dark. As much as, the Director Food alongwith Mr. Muhammad Amin Mushtaq; Deputy Director and Abdul Ghaffar, Chief Accounts Officer, with no Expert knowledge, at their credit, gave a favourable report, that the wheat which has been imported by the respondent No,3; fulfils the standard, required for the wheat for consumption of human beings. At this juncture, we would like to state that even being a layment they stated that the wheat grains should contain 85% sound grain, 10-11% Moisture contents and 0/03% other foreign matters, for declaring it upto the standard. Whereas according to Rule 54 of the Pure Food Rules, 1965, Foodgrains for human consumption should be clean, dry and free from moulds and insect damages, bad smell, discolouration and admixture with deletrious and toxic material. But in the instant case without getting verification report from the concerned Laboratory, they gave their opinion that wheat imported by the respondent No,3 is of the prescribed standard.
79. We do not know that on basis of which material/knowledge they expressed their opinion. This is not the only example, there are number of their illegalities and irregularities committed by the department, as a whole, to ensure the deal through, by hook and crook. Inasmuch as, before submitting the last summary, neither the file was sent to the Chief Secretary, nor the Finance Secretary, although the amount of Rs,750 million was to be paid by the Finance Department. In this behalf, it is to be noted that as per Rule 13 of the Balochistan Government Rules of Business, 1976, no department shall without previous consultation with Finance Department, authorises any order, other than order in pursuance of any general or special delegation made by the Finance Department, which directly or indirectly affect the finances of the Province, etc. The official respondents for obvious reasons did not consult the Finance Department before sending the summary to the Chief Minister, through Minister for Food, because if at that stage, Finance Department has refused to make the arrangement of payment of Rs,750 million to the respondent No,3, there was every likelihood that the Chief Minister had also declined to approve the case of respondent No,3 for the supply of wheat and in this manner by indulging in an illegal and corrupt practise, just to favour the respondent No,3, the Finance Department was bypassed and successfully the Food Department, obtained an order in favour of respondent No,3 to supply one lac metric tonnes of wheat. There is no gain in saying that the provisions of statutory laws, particularly framed under the Constitutional Provisions, like the Rules of Business, cannot be considered redundant or absolete, because if such law is there, which has got Constitutional force, it requires to be adhered to, strictly, for doing certain acts and if it is not possible for any reason, not to apply such provisions of law, then it is better not to do things either. In this behalf reference may be made to PLD 1971 SC 61 and 1980 Quetta 1.
80. Now the stage has come, where, with reference to the Manual of Food Accounts and the information so supplied by the official respondents as well as the Advocate-General during argument, it is to observe, that the Food Department posseses no instrument, statutory or otherwise, to purchase, particularly imported wheat, through negotiations from a private Contractor, except following the open policy to make the transaction transparent in all respects as well as the free from malignancy, unjustness and unfairness etc. Therefore, the proposition for examination crops-up; whether in a case where the Control of supply of one lac M.T. Wheat has been awarded to one party and the amount is also to be paid by the Government Exchequer, without inviting the' tenders, such action of Administrative Authorities can be declared unlawful and it is open to judicial review by this Court, in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan ? It may be seen that the Administrative Authorities in making decision in the public interest are vested with discretion in exercise powers, either conferred upon them by the statutory law, subordinate Legislative instruments, by-laws or even by the presidential law, made by the Courts but such discretion, which has been entrusted to the Functionary, has to be exercised fairly, justly, transparently, innocently, so the one could know that the discretion so exercised is not clothed with mala fides, ill-wills, extraneous reasons as well as consideration, corruption, financial indiscipline etc. The Hon'ble Supreme Court in the case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14) discussed the exercised discretionary power, in following words:-- "(17)Whether wide worded powers conferring discretion are found in statute, there remains always the need and the desirability to structure the discretion and the need for this has been pointed out in the Administrative Law Test Kenneth Culp Davis in the following words:-- ' 'Structuring discretion means regularizing it, organizing it, producting order in it, so that decisions will achieve a higher quality of justice. The seven instrument that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to broad standards to broad principles to rules may be accomplished by policy statements, in any form, by adjudicatory opinions, or by exercise of the rules-making power. When legislative bodies delegate discretionary power without meaningful standards, administrator should develop standards at the earliest feasible time, and then, as circumstances, permit, should further confine their own discretion through principles and rules."
81. ' In this behalf, another authority reported in 1992 M LD 293 can also be quoted with advantage.
82. ' Even if, for sake of arguments, with reference to the Case in hand, it is believed that the Food Department give to understand to the Chief Minister that the transaction with respondent No,3 is beneficial (in the words of Minister of Food) then too, the department as well as the Public Representatives were bound to exercise discretion, openly, freely and to test; whether really the proposal made by the department is valid and there was all the more no necessity to call enders openly from the Suppliers and to complete this exercise within the minimum possible time, to ensure the smooth supply of food in the Province. Because the Government of Balochistan wanted to make huge investment of ks.750 million in purchasing the wheat from the Public Exchequer, therefore, it was its duty to ensure that the transaction being made with the respondent No,3 must be known to everybody and absence of such exercise, give rise to an nference that the transaction has been concluded in colourable manner warranting judicial review, by this Court, in exercise of its jurisdiction. Reference in this behalf may be made to AIR 1979 SC 1628; 1995 M LD 15, PLD 1995 SC 342, PLD 1997 SC 342 and 1997 SCMR 103.
83. ' Thus, in view of the dictums laid down in these judgments, we are inclined to hold that Policy of Openness, transparency in conducting administrative affairs, including the grant of contracts coupled with fairness and justness are the essential ingredients to declare any transaction free from any illegality, irregularity and malice and also to ensure full implementation of article 18 read with 25 of the Constitution of Islamic Republic of Pakistan, 1973.
84. ' As in proceedings of instant case, all these ingredients are missing, therefore, we are of the opinion that the actions taken by the official respondents is well as the Public Representatives, suffer from unlawfulness, thus, deserve to be declared as of no legal consequences being violative to the Article of Constitution of Pakistan referred to hereinabove.
85. ' We have procured details through Advocate-General to assertion; whether the respondent No,3 has been declared black list, but the list thereof so made available by him as well as the statements of criminal cases filed by D.I.-G police, pending investigation before the Anti-Corruption Establishment, shows that there is no indication that the respondent Firm has been blacklisted, except that its proprietor Abdul Sattar Lasi, own an amount of Rs,15,49,50,000 being lost of 30,000 M.T. Wheat issued on credit basis and now this amount has been recovered and matter is under consideration with the Provincial Anti-Corruption Council. Similarly list of 20 cases, pertaining to Food Department, registered during the period pending from 1996 to 1998, indicates that most of the cases have not been finalized for want of either departmental enquiries or for want of record.
86. Therefore, in such state of affairs, we direct the Chief Secretary to not only look into these cases personally, but also ensure their expeditious formalization.
87. ' He should also adopt appropriate measures against the officers/officials of the Food Department who have been instrumental either in the formalization of subject-sham transaction and should intimate to the Registrar of is Court, for our notice, the steps which he has taken or contemplates to take against them by sending fortnightly progress report positively. While doing this exercise against responsible officer/officials, he should follow the observations/principles relating to administrative decisions laid down by the Hon'ble Supreme Court in the case of Zahid Akhtar v.
88. Government of Punjab through Secretary Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530) as well as observations of the Hon'ble Supreme CotFt in case of Pervaiz Oliver and another v. St. Gabrial School through its Principal and others in Civil Petitions Nos. 53-Q, 57-Q and 79-Q of 1998, announced on 30th September, 1998. (Chief Secretary can make request to Advocate-General, Balochistan to supply him copy of this judgment because although it has been approved for reporting, but according to our knowledge it has not been published yet), so that in future, no one could dare to participate in such illegal, non-transparent, unfair, unjust and unreasonable transaction, at the cost of Public Exchequer. Additionally in order to prevent corruption, untransparent transactions as well as good governance, he should circulate steps taken by him in this behalf to the other Secretaries and Head of the Departments so they may also apply constrains in future in not passing illegal administrative orders or to succumb to un- Constitutional directives/directions of Public Representatives.
89. ' Before parting with the judgment, we would also like to observe with great concern that the respondents even did not disclose true facts before us, as they all were aware that in pursuance of the approval of Chief Minister, dated 28th September, 1998 the contract to purchase wheat has been assigned to respondent No,3 subject to certain conditions, incorporated in the letter, dated 15th October, 1998 of the Finance Department, but during hearing, they have been consistently trying to persuade us that so far no transaction/deal has been completed and matter is still under consideration and to support their stand, they also filed duly wrong Affidavits, respectively, which in our opinion, prima faice are false. Therefore, we have proposed to initiate action against all of them. Btu after expiry of the period prescribed by law, for filing of a petition for leave to appeal before Hon'ble Supreme Court, because might any one of them, or any other Functionary against whom instant order is proposed to be made, perhaps challenge instant judgment. As such, office will again put-up the file in Chamber for appropriate orders in this behalf after expiry of sixty days.
90. ' The upshot of the above discussion is that the proceedings, transactions actions, orders including that of Minster for Food, dated 25th September, 1991 and Chief Minster as well as of Chief Secretary, dated 28th September, 1998, 01 the application of respondent No,3, dated 26th August, 1998 are declared un Constitutional and having been passed without lawful authority, thus, are of no legal effect. Accordingly writ is issued with costs.
91. ' Office to return the three tiles of Food Department against valid receipt, after retaining their photostat copies duly attested by Secretary Food of record of this petition for future reference if need be.