1. ' Petitioner through this Constitutional petition has sought a direction in the nature of writ of mandamus that the respondent functionaries be directed to release the payment of bill to the tune of Rs,12 lacs qua the supply of 24 hydraulic beds.
2. ' Facts briefly for the disposal of this. Constitutional petition are that the bid of the petitioner for the supply of 24 hydraulic beds was accepted by respondent No,1 at the rate of Rs,50,000 per bed on 12-6-1998. The specification and description of hydraulic beds is given in detail by the Technical Officer, Government of the Punjab Health Department in the contract bearing No,SO(P.111)39- 30/97(13728), dated 12-6-1998. Thereafter vide letter, dated 13-6-1998 emanated from the Purchase Cell of the Health Department, Government of the Punjab, the Medical Superintendent, Punjab Institute of Cardiology along with Specialist as well as Mr. Mazhar Mahmood, Technical Officer of Health Department were directed to carry out the necessary inspection of the consignment.
3. Accordingly inspection was conducted on 26-6-1998 and 30-6-1998. The report was submitted under the signatures of three officers namely Medical Superintendent Punjab Institute of Cardiology, Technical Officer, Health Department and concerned Specialist of the Punjab Institute of Cardiology on 30-6-1998 annexed as B/1 with the writ petition. The concluding paragraph of the report is in the following terms: "Final stage: ' The Final Inspection of 24 beds was carried out at the consignee end on 30-6-1998. Random samples were checked in complete finished form (including Powder Coating) and compared with the approved sample at Punjab Institute of Cardiology, Lahore and found according to contracts specifications and accepted."
4. ' Thereafter inspection certificate was issued by the Technical Officer who observed as under:
1. CCU/ICU Bed Hydraulically Operated.
5. ' Detailed specifications as per Annexure-A attached.
6. ' Store inspected and accepted.
7. ' After the completion of supply and necessary inspection the bill for an amount of Rs,12 lacs was submitted which was duly verified by the Purchase Officer. However, due to the delay in the submission of bill by the Health Department the Accountant-General Office did not entertain the same as on 30-6-1998 the funds allocated had already lapsed. The Medical Superintendent, Punjab Institute of Cardiology wrote a letter to the Secretary Health vide No,PIC/DEV/7647/98 on 1- 8-1998 for re-allocation of funds. The necessary additional funds were allocated by the Finance Department Budget Wing, Government of the Punjab on 6-4-1999.
8. ' Grievance is made through this Constitutional petition that even after allocation of additional funds from the Finance Department and in spite of incessant approach by the petitioner, the respondents till date has not made the payment.
9. ' Learned counsel has stated that the respondent functionaries are not adhering to their duties and are denying the payment for the reasons best known to them.
10. ' Learned Law Officer has filed reply duly signed by respondent No,2 Medical Superintendent, Punjab Institute of Cardiology. He has stated that on 30-6-1998 it was found out that the petitioner had neither supplied hydraulic system nor the mattresses with the beds as such this deficiency was pointed out to him who assured that the LC had already been opened and the supply would be made shortly. Since the petitioner till date has not supplied the deficient items as such the payment cannot be made.
11. ' I have considered the contentions and have gone through the reply submitted by respondent No,2. Mr. Asif-ur-Rehman, S.O. And Dr. Abdul Qauddus Arshad who have appeared along with learned Law Officer for the respondents have admitted the execution of all the documents mentioned in the preceding paragraphs. However, they have stated that those were signed by the functionaries at the insistence of the petitioner as he undertook to supply the deficient material.
12. When asked they failed to show me any document from their file from which it could be gathered that at any stage any complaint was made in writing regarding the alleged deficiency to the petitioner or any other authority. On the contrary the then Medical Superintendent of Punjab Institute of Cardiology wrote on 1-8-1998 to respondent No,1 Secretary Government of the Punjab health Department about the re-allocation of the funds so as to make the payment. The Store Keeper and all other functionaries had inspected the material and gave a certificate to this effect that the beds supplied were according to the specification. Nearly two years have passed by and the respondents have not made the payment in spite of the fact that the Finance Department re- allocated the funds. The plea of the respondents that only verbal reminders were made to the petitioner does not inspire confidence. I fail to understand how all these functionaries affixed their signatures at different times holding the supply according to the specification. I would not have interfered in this matter of contractual nature but for the fact that the respondents functionaries have totally accepted the supply in black and white and thereafter they cannot turn round and find fault in the supply of material. The respondents cannot approbate and reprobate in the circumstances of this case. Reliance in this respect is placed upon AIR 1956 SC 593 at 602 wherein it was held as under: "The observations of Scrutton, L.J. In Versuchures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. (1921) 2KB 608 (D), on which the appellants rely are as follows: 'A plaintiff is not permitted to approbate and reprobate'. The phrase is apparently borrowed from the Scotch Law, where it is used to express the principle 'embodied in our doctrine of election namely, that no party can accept and reject the same instrument: Ker v. Wacuchope (1819) I Bligh 1(21)(E). DoughlasMenzies v. Uphelby 1908 AC 224 232(F). The doctrine of election is not however confined to instruments. A person cannot say at the time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on that footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction." (Underlined is mine).
13. Accordingly I accept this writ petition and direct the respondents to make payment to the petitioner in accordance with law for the material supplied to them.
14. ' Before parting with this judgment I must observe that if some deficiency has occurred in the supply of the material that should be recovered from all those persons/officials who have given certificates sanctifying the supply of 24 hydraulic beds in accordance with the specification. There shall be no order as to costs in the circumstances.