KHILJI ARIF HUSSAIN, J.--- The above petition was dismissed by short order dated 28.3.2003. These are the reasons for the same.
2. Brief facts of the case are that the petitioner, a proprietorship concern, filed petition against the respondents alleging that the respondents on 10.12.2001 calling tender for clearing of various departments of the respondent No. I viz: Flight Kitchen, PIA Training Centres, Jinnah Terminal, PIA Air Cargo Centres, Technical Ground, Support,- etc. And the petitioner purchased five tenders for the above-named locations to serve as contractor. The respondents again called application for pre- qualification of the firms for Janitorial services by an advertisement and the petitioner, in response the said advertisement, submitted its application. It is alleged in the petition that without finalizing the proceedings, respondent No. 1 wants to give contract to their favourities and they do not want any other person to participates in open tender proceedings.
3. Heard Mr. Syed Ansar Hussain, learned counsel for the petitioner, and Mr. Yawar Faruqui, learned counsel for the respondents.
4. The learned counsel for the petitioner argued that the respondent No. 1, being a public concern is under an obligation to allow all contractors to participate in tender proceedings regarding any tender and without any jurisdiction the respondents want to award the contract to their favorites. In support of his contentions, the learned counsel relied upon 1993 NLR 168 and PLD 1969 SC 223.
5. On the other hand, the learned counsel for the respondents argued that the petition is not maintainable as it pertains to contractual rights. He drew our attention to one of the terms of advertisement through which pre-qualification applications were invited from the interesting parties that respondent can reject. One or all applications without assigning any reasons. He further argued that even otherwise since the petitioner was not qualified for award of the contract, the respondent No. 1, after scrutinizing the tenders, submitted by various parties, awarded the same to most deserving persons.
6. We have gone through the record before us and we are quite conscious of the fact that an obligation arising out of the contract normally cannot be enforced by means of the Constitutional Petition, but at the same time Court cannot shut its eyes if it is established that the manner, the method and the motive of decision of entering or refusing to enter into a contract by an organization controlled, by the Government or a local bodies or any statutory by the Government or a local bodies or any statutory authority entered into or refused to enter into an agreement just to favour their chosen one, or acted against any rules including rule of fair opportunity to all as guaranteed by the Constitution then it is open to judicial review on the touchstone reasonableness, transparency, fair-play and nondiscrimination. Every organization, while dealing with the general public, should prefer the interest of the State and of . The organization and while doing so should act in a .Transparent manner so as to build-up confidence of the public on such institutions. While dealing with the matters in exercise of writ jurisdiction, Court normally avoid as rule to investigate disputed question of fact and to enforce contractual obligations, but at the same time Court expects that the Government organizations should not use the rule, that since the matter pertains to the contractual obligations the Court cannot look into it, as shield for their act, in discharge of their official function while dealing with the public. The organization is required to place sufficient material on record to prima facie establish that while discharging their duties as public functionaries they have acted fairly, impartially and strictly in accordance with law..
7. In the case of Shaukat A.I and others v. Govt. Of Pakistan (PLD 1997 SC 342), the Hon'ble Supreme Court held as under:- "Since the Railways intend to grant licences in the above terms in order to ensure that no one is discriminated or favoured for the reason other than the well-being of the people and the country at large, no purpose will be served by granting lave. 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 Concept of (airplay and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account discriminatory treatment of otherwise. While discharging official functions, efforts should be made to, ensure that no one is denied to earn his livelihood' because of the unfair or discriminatory act on the parts of any State functionary."
8. We have gone through the record placed by the respondents and it appears that the committee was constituted by the respondent No. 1, who, after going through all the documents, filed by the respective contractors, who submitted applications for pre-qualification for the tender in respect of Janitorial services made to the conclusion that the petitioners have not acquired sufficient experience and is also not holding sufficient equipment and is not suitable for pre-qualification as .
Janitorial contractor of respondent and out of 22 firms submitted applications, respondent pre- qualified 13 firms only and not approved applications of 9 firms including the petitioner's firm.
9. After having all this material before us, we have come to the conclusion that the respondent No. 1 has prima facie established that while awarding the contract, they have acted fairly; impartially and have not violated any rules and regulations.
10. As regards case-law relied upon by the learned counsel for the petitioner the principles laid down in the said matters are not attracted to the facts of this matter.
1 1 The petition is liable to be dismissed on another ground that the person/firm, in whose, favour contract has been awarded by the respondent No. 1, has not been joined as a party.
These are the reasons for the dismissal of the petition by our short order dated 28.3.2003.