I intend to decide the following writ petitions by one consolidated order having similar facts and law and inter dependent upon each other.
Writ Petition No. 1090 of 2001 and Writ Petition 2039 of 2001,
2. Brief facts out of which these writ petitions arise are that the respondents initiated applications for pre-qualification of bidders for the grant of Caterring contracts of Dining Cars. Petitioner submitted his application before the respondents in obedience of the advertisement which was accepted. Petitioner also participated in the auction proceedings hold by the respondents. The bid of the petitioner was highest and his bid was accepted and confirmed by the respondents for the Catering contract/licence of Dining Car respecting Awami Express. Petitioner had also deposited Rs.40.00.000 with the respondents, The respondents directed the petitioner and other contractors vide order, dated 18-12-2000 to ensure that only products of Messrs Coca Cola Export Corporation be sold in the Dining Car. Petitioner being aggrieved filed Writ Petition No.1090 of 2001 challenging the vires of the order of respondents, dated 18-12-2000. During the pendency of this writ petition respondents terminated the contract of the petitioner vide order, dated 24-1-2001. Petitioner being aggrieved file Writ Petition No.2039 of 2001 challenging the vires of the order dated 24-1-2001.
3. Learned counsel for the petitioner submits that action of the respondents is without lawful authority and is result of mala fide and the respondents have taken the aforesaid action against the petitioners on account of previous litigation which was ended between the parties up to the level of superior Courts of this country in Writ Petition No.12705 of 1999 and I.C.A. No.618 of 1999.
Therefore, action of the respondents is without lawful authority and is result of mala fide. He further submits that policy was changed by the respondents unilaterally and exercise discretion in violation of the law laid down by the superior Courts. He further submits that clause (7) of the terms of the agreement is controlled by clause (17) of the agreement, therefore, action of the respondents is not within the parameters prescribed through the aforesaid clauses of the agreement agreed between the parties. He further submits that action of the respondent is in violation of the principle of natural justice. He further submits that vested right had already accrued to the petitioners and the respondents had no authority whatsoever to take away the aforesaid right of the petitioner by an executive order. He further submits that executive order has to take effect prospectively and not retrospectively. He further submits that both the orders were passed by the respondents against the petitioners in violation of the law laid down by the Honourable Supreme Court. In support of his contention he relied upon Shaukat A.I's case PLD,1997 SC 342.
4. Learned counsel for the respondents submits that petitioner wants enforcement of a contract through these Constitutional petitions which is not permissible in the eyes of law. He further submits that respondents are well within their right to terminate the contract of the petitioner in view of clauses (24) and 25(b) of the agreement without issuing notice to the petitioner. He further submits that order, dated 18-12-2000 was not passed against the petitioner only as is evident from the order itself that it was passed against all the contractors Nos.1 to 9. All the contractors accepted the same and implemented the terms of the impugned order without agitating the matter before them or before any Court of law. He further submits that respondents are well within their right to change the policy as is evident from clause (7) of the agreement. He further submits that clause (7) authorize the respondents to change policy at any time during subsistence of agreement between the parties. He further submits that clause (7) is not controlled by clause (17).
The clause (17) prescribed penal action. He further submits that both clauses are independent and are not dependent upon each other. He further submits that action of the respondents is in accordance with law in the welfare of the General Public. He further submits that petitioner failed to point out any specific mala fide against the respondents. He further submits that petitioner is estopped to file these writ petitions on the well-known principle of estoppel and-waiver as the petitioner himself signed the contract with the aforesaid terms. He summed up his arguments that respondents terminated the contract of the petitioner on the report of the Vigilance Directorates.
An Organization which was set up with the sanction of the President of Pakistan on the recommendation of joint meeting of the National Security Council and the Cabinet held on 29-9- 1999. The vigilance Directorate was assigned certain functions including function mentioned in paragraphs 5(A and E) which reveal to monitor and keep the Secretary/ Pakistan Chairman, Railways informed on proper observance and implementation of the laid down procedure and system in various departments particularly the systems related to financial discipline, revenue, sales, services stores and purchases. The order itself reveals that petitioner allowed the passengers to travel without purchasing the ticket. This fact is sufficient to dismiss these writ petitions of the petitioner.
5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:--
(i) Respondent No.3 had given following undertaking before the Honourable Supreme Court in Shaukat A.I's case PLD 1997 SC 342.
"It has been decided now that all these licences shall be auctioned in a transparent manner with the prerequisite of experience in the business. The Railway Administration is going to issue notices to all existing licencees under the clauses of agreement with a fortnight.
After the expiry of the above notice open bid will be invited through Press. All these petitioners will be allowed to participate in the open auction."
(ii) 26-8-1998, the respondents invited sealed bids.
(iii) Petitioner being aggrieved by the action of the respondents dated 26-8-1993 filed Writ Petition No. 17455 of 1998 which was accepted by this Court vide order, dated 31-8-1918.
(iv) Open auction was held on 26-11-1998.
(v) Petitioner was highest bidder for Awami Express in the sum of Rs.10,75,000 for one year.
(vi) Petitioner had deposited 25 % of the bid money to the- respondents within the prescribed period.
(vii) Respondents did not hand over the possession of the Dining Car for 3 months to the petitioner.
(viii) Petitioner filed Writ Petition No. 12705 of 1999 which was disposed of by this Court vide order dated 16-7-1999 with the direction that the fate of the contract of the petitioner be finalized till 24- 7-1999.
(ix) Respondent filed I.C.A. No.618 of 1999 which was dismissed by the Division Bench on 13-1-2000.
(x) Respondents handed over the possession of the Dining Car to the petitioner in obedience of the direction of the Division Bench of this Court.
(xi) On 18-12-2000 respondents directed the petitioner and other contractors to ensure that only products of Messrs Coca Cola Export Corporation be sold in the Dining Car.
(xii) Petitioner challenged the vires of the order dated 18-12-2000 in Writ Petition 1090 of 2001 on 22- 1-2001 which was fixed before this Court on 23-1-2001.
(xiii) On 23-1-2001 notice was issued by this Court to the respondents to file report and parawise comments.
(xiv) Respondents terminated the contract of the petitioner on 24-1-2001.
Respondents passed the orders on 18-12-2000 against all the contractors 9 in number. It appears that all the contractors. Accepted the order, dated 18-12-2000 except the petitioner. The order, dated 18-12-2000 reveals that it was not passed only against the petitioners but it was uniform qua all the contractors. Therefore, question of discrimination does not arise. It is a policy matter which was accepted by other 8 contractors. This fact brings the case in the area of policy. Policies are determined generally with reference to the domestic need their priorities and multitudes of other factors of which the Federal Government is the sole arbitrator in exercise of its executive authority.
It is admitted position that our Constitution is based on trichotomy as per principle laid down by the Honourable Supreme Court in Zia-ur-Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473. This Court has only power to interpret the law and has no jurisdiction to take the role of the policy-maker. In arriving to this conclusion I am fortified by Zameer Ahmad Khan's case PLD 1975 SC 66 and 1978 SCM R 327. It is also admitted fact that petitioner challenged the vires of the order, dated 18-12-2000 in Constitutional petition on 22-1- 2001, meaning thereby the petitioner did not approach this Court immediately. Therefore, I am not inclined to exercise my discretion in favour' of the petitioner as per principle laid down by the Honourable Supreme Court in Haji Saif Ullah's case PLD 1989 SC 166 coupled with the fact that writ petition is liable to be dismissed on the well-known principle of laches as per principle laid down by the Honourable Supreme Court in Khiali Khan's case PLD 1997 SC 304. It is pertinent to mention here that petitioner failed to attach any agreement executed between the petitioner and other than Messrs Coca Cola Export Corporation. This fact brings the case in the area that the contention raised by the learned counsel of the petitioner has no force that the impugned order has retrospective effect and vested right accrued to the petitioner could not be taken away by the executive order.
Now I intend to decide the Writ Petition No.2039 of 2001. In case the aforesaid facts are put in a juxtaposition then the action of the respondents is mala fide. Therefore, impugned order of termination dated 24--1-2001 is not sustainable in the eyes of law. This Court has ample power to set aside the order which was passed by the respondents with malice. The D Honourable Supreme Court has considered this aspect of the case in Shaukat A.I's case 1997 SC 342 and laid down the following principle:-- "We may observe that even in case of a licence if the action of the State functionary concerned is prompted with malice/mala fide, the Court may interfere with."
The Honourable Supreme Court also considered the aforesaid proposition of law in Messrs Airport Support Services' case 1998 SCM R 2268 and laid down the following principle:-- "Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. "
The Honourable Supreme Court also laid down the following principle in Shaukat A.I's case PLD 1997 SC 342:-- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concepts of fairplay and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not given to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of the State functionary. "
It is pertinent to mention here that petitioner filed Writ Petition No. 1090 of 2001 which was fixed before this Court on 23-1-2001. Notice was sent to the respondents and the learned counsel for the petitioner was directed to hand over copy of the writ petition to Mr. Sher Zaman, Deputy Attorney- General. The impugned order passed by the respondents on 24-1-2001 coupled with the previous litigation between the petitioner and respondents brings the case in the area that the respondents did not terminate the contract of the petitioner in good faith and in violation of the terms of contract. It is the duty and obligation of the public functionaries to act in accordance with law without fear, favour and nepotism as is envisaged by Article 4 of the Constitution. The Constitution is a commitment of the Nation. It is duty of each and every citizen including the public functionaries to discharge his duty in obedience of the Constitution and law by virtue of Article 5(2) of the Constitution of Islamic Republic of Pakistan. Nobody is above the Constitution as is held by the Honourable Supreme Court in Ch. Zahoor Elahi's case PLD 1975 SC 383. Railways Authorities has a chequer history qua the awarding of the contracts as is evident from the aforesaid narration of facts. It is settled proposition of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State by .Virtue of Articles 189 and 190 of the Constitution. It appears that resplendent No.3 did not act in accordance with the direction of this Court and acted in the violation of law laid down by the Honourable Supreme Court. Resultantly the respondents have to involve themselves in litigation. The respondents have bear the expenses which would he paid from the public exchequer. In view of these circumstances, let a copy of the order of this Court be sent to respondent No.1 who is directed to look into it what is happening in his department that his subordinates are not acting in accordance with law and issue appropriate directions to avoid unnecessary litigation. The possibility cannot be ruled out that on account of this litigation the earning unit of the Railway is on loses and ultimately the Nation is suffering from the inaction of the subordinates of respondent No.1 .