MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 1-2-2000, whereby the writ petition filed by the respondent was accepted and the proceedings of pre-qualification committee with regard to pre--- qualification of contractors relating to various development projects of District Poonch were quashed.
2. The necessary facts, giving rise to the present appeal, are that in compliance of notification, dated 8-10-1998, read with relevant provisions of Pakistan Engineering Council Act, the Chief Engineer Highways, keeping in view the fact that it would be in the interest of public-at-large that magnitude and nature of the various projects for the construction, metling and black--topping of various Highways of District Poonch and Sudhnooti, decided that the contractors should be pre- qualified. Thereafter, the Superintending Engineer Highways Rawalakot Circle got published a pre- qualification notice on 28-9-1999, inviting application for pre-qualification. In the aforesaid notice the Superintending Engineer directed that particulars may be furnished till 25-10-1999, and that incomplete applications would not be entertained. Likewise, it was also notified that the pre- qualification committee constituted for the said purpose shall have the power to reject any application without assigning any reason. In pursuance of the pre-qualification notice the respondent filed a writ petition on October 29, 1999, after submitting his application for pre- qualification in compliance of notice, dated 28-9-1999 and that too, after expiry of the last date mentioned in the notification. On 1-2-2000, vide the impugned order the High Court, as said earlier, quashed the proceedings of pre-qualification by accepting the writ petition filed by the respondent. The aforesaid order of the High Court is the subject of present appeal.
3. In support of appeal, Raja Muhammad Hanif Khan, the learned counsel for the appellants, challenged the impugned order on the following grounds:--
(i) that the learned Judge in the High Court without admitting the writ petition for regular hearing, as is apparent from the interim orders, dated 29-10-1999, 2-11-1999, 8-12-1999, 24-12-1999 and 20-1- 2000, ultimately quashed the proceedings of re-qualification committee;
(ii) that the interim order on the other an reveal that the case was made over by the learned Chief Justice to Mr. Justice Muhammad Siddique Farooqi and parawise comments were sent for from the respondents (the appellants herein). The learned Judge was on tour on 20-1-2000, therefore, the order was recorded by the Registrar and the case was fixed for 1-2-2000. On 1-2-2000 the appellants appeared alongwith their counsel and filed parawise comments, whereupon the learned Judges observed that the writ petition has been admitted for regular hearing and directed the appellant's counsel to file written statement forthwith. The counsel for appellants had no alternative but to state that parawise comments may be treated to be written statement. However, according to the learned counsel, later on it reveals that as a matter of fact the writ petition was never admitted for regular hearing and without admitting the same the learned Judge decided the case on 1-2-2000 by accepting the writ petition;
(iii) that -the respondent in compliance of notification, dated 28-9-1999, submitted his application before the pre-.Qualification committee the request to pre-qualify him for the projects mentioned in the said notice. The pre-qualification committee considered the application of respondent and did not pre-qualify him for the projects. Thereafter, the respondent tiled a writ petition in the High Court. However, the Chief Engineer was not impleaded as party, who presided over the meeting of the pre-qualification committee. Thus, the finding against the Chief Engineer was recorded by the High Court without giving him an opportunity of being heard. Thus, in this view of the matter, the Chief Engineer who was not party before the High Court also tiled the present appeal;
(iv) that in view of the Government Notification, dated 28-9-1999, the respondent after submitting himself to the jurisdiction of the pre---qualification committee could not turn round to challenge its decision when he did not get a favourable decision from it; and
(v) that the object for the pre-qualification is that there should be fair competition of bidding for construction works amongst the well---reputed firm particularly in respect of financial soundness, plants and equipment capability, previous experience and business management which in the opinion of employer are essential for the execution of engineering work in question. The mere fact that a contractor is enlisted as 'A' class contractor or is a no limit constructor, is not ground to allow such a contractor to participate in bidding for construction works through tenders.
4. In reply Mr. M. Sayab Khalid, the learned counsel for the respondent, controverted the arguments advanced by the learned counsel for the appellants. He contended that the writ petition was admitted for regular hearing and on the request of appellants their comments were treated as written statement. The learned counsel contended that the proceedings of pre---qualification committee were declared invalid as the same were ultra vires of law and beyond any jurisdictional competence. The learned counsel contend that though the pre-qualification committee was not impleaded as party in the writ petition but all the same the Superintending Engineer Highways was present in the Court on the day the judgment was announced by the learned Judge in the High Court. Thus, according to the learned counsel, for the respondent the impugned judgment, by all means was unsustainable. -
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the learned Judge in the High Court committed a patent error by accepting the writ petition filed by respondent without even admitting the same for regular hearing. The perusal of the interim orders recorded by the High Court shows it beyond any doubt that the writ petition filed by respondent was not admitted for regular hearing and as such the subsequent proceedings on the assumption that the same had been admitted for regular hearing are not sustainable on the said sole ground: It may also be pointed out that the High Court travelled beyond its jurisdiction by observing that before pre-qualifying the contractors it was incumbent upon the pre-qualifying committee to take a decision and then to decide the question of pre-qualifying or not pre--qualifying a contract. In our view the High Court went beyond the pleadings of respondent as no such ground was taken by the respondent in his writ petition nor the same was agitated by the respondent at the time of hearing of writ petition. The ground being alien to the pleadings of respondent could not have been made the basis of the impugned judgment.
6. In this view of the matter, we by setting aside the impugned judgment of the High Court, order the dismissal of writ petition filed by respondent. In the circumstances of the case we pass no order as to costs.