1998 PLP 833 (CLC)

IFTIKHAR MUHAMMAD CHAUDHARY, J.‑‑‑In this Constitutional petition, orders dated 29th October and 1st November, 1997, issued by the Chairman, Balochistan Textbook Board, have been challenged, whereby the printing work of textbooks, for the Academic Year, 1998, has been granted to respondents M/s. New Quetta Printers and Messrs Spinzer Printers, respectively. As per these Work Orders, printing of Urdu and Mathematics books of Class ' Kachhi' was allocated to respondent M/s. New Quetta Printers, where respondent Messrs Spinzer Printers have been granted the work of printing Urdu and Mathematics books of Class‑

1. In this manner total work of Rs.81,97,200 plus Rs.66,08,750 equal to Rs.1,48,05,950 has been allocated to both of them respectively. Principal grievance of petitioner, is that allocation of work has been made by the respondent No.2, without calling tenders or adopting the method of hiding, and in order to provide illegal favour, which of course is not transparent, the work has been allocated to them in a clandestine manner. As such, on declaring the impugned Work Orders, as having been passed without lawful authority and jurisdiction, directions be made to official respondents 1 and 2, for awarding the work of printing of these books, in accordance with law. The petition was instituted on 7th November, 1997, and it came up for hearing on 10th November, 1997, when pre‑admission notice was issued to respondents, as well as the Advocate‑General. On the date fixed for hearing i.e. 13th November, 1997, during proceedings, it was considered proper to call for the record of case, pertaining to the grant of printing work to private respondents. Unfortunately, record was not produced, on one or the other pretext, thus, on examining the respective contentions of the parties' counsel petition was admitted, as all of them, had filed their pleadings. Simultaneously directions were made for disposal of case at an early date, because the matter relates to printing of four books, which are to be supplied by the Textbooks Board, to the Students of the Province. Thereafter, the matter remained pending on different dates of hearing, as the learned counsel for parties, addressed their lengthy arguments and` for some dates of hearing, they remained busy before the other Benches. Syed Ayaz Zahoor, learned counsel for petitioner, emphatically argued that Chairman, Textbook Board, has allocated the work of printing the books vide impugned Work Orders, without adhering to the provisions of section 10 of the Balochistan Textbook Board Ordinance, 1977 and the Rules framed thereunder. Inasmuch as no proper Scheme was prepared for allocating the work to private respondents, who are admittedly not Publishers but Printers. According to him, under any of the Schemes, framed from time to time, as for as the printers are concerned, no work can be allocated to them, unless a Scheme has not been framed, with due concurrence of the Government. As per his argument, if the printers have been found eligible for the work, then the petitioner, who has also got a printing press, was equally competent to compete for the said work, provided the respondent No.2, had not allocated the work, on basis of pick and choose, to private respondents, for the reasons known to him. He stated that in this case, neither any earnest money was got deposited nor any agreement was executed in respect of the printing work. Similarly no rate was mentioned, with regard to the printing of books and in a highly arbitrary manner, work has been assigned to them. According to learned counsel, the Board or its Chairman, are bound to take sanction from the Controlling Authority i.e. Secretary, Education, Government of Balochistan, under the Scheme of Ordinance of 1977, before taking a decision of implementing any scheme to promote an education policy of the Government for providing books to the students of the Province, but the respondents 3 and 4 have been favoured by respondent No.2, in a highly illegal and unlawful manner. Mr. W.N. Kohli, learned counsel for official respondents, conceded that in respect of awarding the contract to respondents 3 and 4, except the minutes of meeting held on 10th May, 1997, there was no other scheme or system available with the Board for allocating the work to the Printers. It may be noted that this fact has also been admitted in the counter‑affidavit, filed by respondent No.2. He further argued that the work has been assigned to respondents only to the extent of printing the books, details whereof have been mentioned in the Work Orders, and after completing of printing work, the cost of printing shall be calculated, as per the set Formula: He argued that previously there has been a system of allocating the printing work to the Publishers, after calling tenders or adopting the method of bidding, but for the last few years, this system had failed as the registered Publishers use to give high rates after making 'Ring' with each other. Therefore, in order to ensure that the books are supplied at a low cost to the students, this time, present Formula has been introduced, in pursuance whereof, the Chairman alongwith other Officers of the Board carried out survey of the Printing Presses, available in Quetta Town and found respondents suitable for the purpose of completing the work, which has been assigned to them. According to him, in this manner, the Board has made an attempt to save the public money. Mr. Tariq Mehmood, learned counsel for respondent No.3, contended that private respondents have not made any considerable profit, in getting the work from the Board, because they have to only charge the cost of printing of books which is to be carried out on the paper, to be supplied by the Board and after completion of work, the charges of printing shall be worked out, according to the Formula, which is already available with the respondent No.2, and in this way the Board had saved at least 15 per cent. of the total cost, which is to be paid by the Board to the Publishers, if the work of printing is done through them. He also conceded that except minutes of meeting, dated 10th May, 1997, there is no other Scheme System Rules or Regulation, on basis of which, private respondents have obtained the work. However, he emphasised that instant petition is not maintainable, because the petitioner, who claims himself to be the Printer also works as Publisher and for the current year, this very Firm had also obtained the work of publishing the books without tender. Inasmuch as, some of the sister concern of petitioner‑firm, have also taken the work, being publisher, without submitting the tenders, on basis of direct negotiation, which is to be done by the Board in view of the categorization of the publication. He contended that under these circumstances, equitable relief, cannot be awarded to petitioner. He also argued that after issuance of the impugned work orders, respondent No.2, had supplied paper, free of cost to private respondents and they have utilized it as uptil now the process of cutting the paper has been completed and almostly 50% work of printing of books, on passing them from different stages, has been completed, therefore, even if at this stage, writ is issued in terms of the prayer clause of petition, it will not advance the case of petitioner, rather it would cause loss to the public exchequer. Learned counsel referred to good number of documents, filed by parties, in order to show that no illegality has been committed in awarding the contract work to respondents. Mr. Naeem Akhtar, learned counsel for respondent No.4, adopted the argument of Mr.Tariq Mehmood, Advocate. Mr. Noor Muhammad Achakzai, learned Additional Advocate‑General, who appeared on Court notice, stated that Secretary, Education as well as the Board had engaged private counsel, who had filed counter‑affidavit, on behalf of respondent No.2, and since the Secretary, Education has not filed any counter affidavit, therefore, whatever stand has been taken by the Chairman, Textbook Board, that appears to be correct. We have heard the learned counsel for parties at length and also carefully perused the relevant documents, available on record. At this juncture, it would be appropriate to note that both the impugned Work Orders, are identical in substance, except in respect of quantum of work and description of books, therefore, the work order issued in favour of respondent No.3 New Quetta Printers, dated 29th October, 1997, is reproduced hereinbelow: "To Messrs New Quetta Printers, Wafa Road, Quetta. Subject: Printing of Textbooks for the Academic Year 1998. The undersigned has decided to offer you the work for the printing of following textbooks for the Academic Year 1998 as per rates of this office Pricing Formula:‑‑ S.No. Name of Book Class No. of copies (1) Urdu Kachi 1,80,000 (2) Mathematics Kachi 1,60,000(Free) Rs.81,97,200 (3) Mathematics. Kachi 20,000 (Sale) Please attend this office on 30‑10‑1997, during office hours for collecting of Pre‑press material from concerned Subject Specialist and for paper arrangement from Paper Incharge. The undersigned also reserved the right to increase/decrease the quantity of the abovementioned textbooks. The sale of Maths: Kachi and settlement of accounts on prescribed form on or before 31‑3‑1998 is your responsibility. (Sd.) Prof. Amanullah Mangal), Chairman. " It is the consensus of the learned counsel for respondents that for the purpose of allocating the work, the Board had acted on the decision contained in Item No.2 of the meeting, dated 10th May, 1997, therefore, same is also reproduced hereinbelow:‑‑ Revision of Publication work System of Textbooks to the Publishers. Chairman B.T.B. explained the bidding system in detail and suggested, that if the bidding system does not work then old system may be adopted with amendment that the publisher must purchase the paper from Balochistan Textbook Board at Quetta in cash before starting of printing work. He further told the members that from 1998 Board is interested to publish some books this step will increase the Revenue of the Board and Board will also be able to carry out the printing work of those books for which no tender is given by the publisher or the price quoted for the book is too high. Previously this was in practice but for some period it was in pending. After due consideration, Board of Directors authorize the Chairman, B.T.B. that he may take any action regarding choosing, printing/publication and distribution of any textbooks from any printing press." . In view of the above categoric stand of respondents, it is not necessary to dilate upon the previous practice, prevailing in the Board concerning allocation of work of publishing books. However, in our opinion it is necessary to determine; whether the Board comprising on the Chairman and two whole time Members, in terms of section 4 of the Balochistan Textbook Ordinance 1977, had lawful authority to follow the above revised Formula, without obtaining necessary sanction from the Controlling Authority, i.e. Government of Balochistan or its Nominee, as per section 7 of the said Ordinance. In this behalf, section 10 of the Ordinance, would be relevant which defines, powers and duties of the Board. Before examining this section, it would also be relevant at this stage, to note that original section 10 of the Ordinance of 1977, was amended by Ordinance VII of 1979 (The Balochistan Textbook Board (Amendment) Ordinance, 1979), and existing section 10 of the Ordinance, reads as under:‑‑ "10.‑‑‑(1) The Board may take such measures and exercise such powers, as it considers necessary or expedient for carrying out the purposes of this Ordinance. (2) Without prejudice to the generality of powers concerned by provision of subsection (1), the Board may, for carrying out the purposes of this Ordinance:‑‑ (i) Undertake any work. (ii) Incur any expenditure. (iii) procure plant, machinery and material required for its use. (iv) Acquired by purchase, lease, exchange or otherwise any material or machinery or any interest therein. (v) And, enter into and perform all such contracts as it may consider necessary or expedient. (3) The Board may prepare Scheme pertaining to any of following matters:‑‑ (a) Implementation of the educational policies of Government in respect of product and publication of textbooks, supplementary reading material and teaching aids. (b) Arrangement for publication and distribution of textbooks and supplementary material for all stages and type of education and teacher training courses and adult education. (c) Production of reference and research material relating to the problems of curricula and textbooks. (d) Maintenance of a library of reference books, textbooks, teaching aids, educational journals and periodicals. (4) Every scheme prepared by the Board shall be submitted to the Controlling Authority with full details and financial implications. The Controlling Authority may approve of disallow or remit the Scheme to the Board with its recommendation for further consideration. At this juncture it is equally important to note that by virtue of Ordinance VII of 1979, original section 19 was also amended, in pursuance whereof, following subsection (2) was added:‑‑ "(2) The regulation prepared shall be submitted to Government for approval. Government may approve or disallow and remit them to the Board with its recommendations for further consideration. " For the above discussion, we are mainly concerned with original subsection (2) of section 10 of the Ordinance, which now has been re‑numbered as subsection (4), as well as the added subsection (2) of section

19. As for as subsection (4) of section 10 is concerned, it cast obligation upon the Board that every scheme prepared by the Board shall be submitted to the Controlling Authority with full details and financial implications. The Controlling Authority may approve or disallow or remit the scheme of the Board with its recommendation for further consideration. It may be noted that any such scheme shall be framed to achieve the objects, which have been enumerated in subsections (1) to (3) of section 10 of the Ordinance, particularly with reference to the facts of the case in hand, clause (b) of subsection (3) of section 10, is relevant which speaks arrangement for publication and distribution of textbooks and supplementary material, for all stages and type of education and teachers training courses and adult education. It was accepted by Mr. W.N.Kohli learned counsel for official respondents that the revised Scheme adopted by the Board for the purpose of allocating the impugned work to respondents, has not been approved by the Government of Balochistan. He stated that in the counter‑affidavits, it has been mentioned that new steps are being taken for the purpose of framing rules and Regulation and in this behalf, approval of the same, of course will be obtained from the Controlling Authority in terms of subsection (2) of section 19 of the Ordinance. But Mr. Tariq Mehmood, learned counsel for respondent No.3, contended that Item No.2 of the minutes of meeting, dated 10th May, 1997, which is being relied upon by him as well, does not fall within the expression of Scheme' and necessarily cannot be considered as an instrument for the purpose of implementing of Education Policy of the Government. We afraid, the stand taken by learned counsel is not correct, because both the parties are unanimous on the point that the books will be printed by respondents 3 and 4 which will be supplied to the students, receiving education in the Province and some of the printed books will also be given free of cost, as this fact is indicative from the contents of the Work Orders, issued in favour of both the respondents. As far as dictionary meaning of expression 'Scheme' as per Ballentine's Law Dictionary is concerned, it means: "A plan or artifice; a plot. A combination of thoughts, theories, or the like, concerned and adjusted by design, a systematic plan; a system. An outline of article, etc." Therefore, even in view of this plain meaning, one feels no difficulty to hold that vide Item No.2, Board has framed a Scheme/plan for the purpose of getting printed/published books for the current year. However, this cannot be equated with Regulation, as it has been defined under section 19 of the Ordinance. Therefore, approval of Scheme, was necessarily to be obtained from the Controlling Authority under section 10(2) of the Ordinance. Mr. W.N. Kohli, learned counsel for the Textbook Board, candidly conceded that no such permission was obtained from the Controlling Authority, therefore, we are of the opinion that without its approval the respondent No:2, had no lawful authority to implement the same, as the Government of Balochistan, being the Controlling Authority, had no knowledge about the plan, which has been adopted by the Board for the purpose of printing books, for the supply of same to students. Be that as it may, even if this argument is ignored for the time being, yet the allocation or work has not been made to respondents 3 and 4, in accordance with this Formula, because on its recital it emerges that the Chairman, B.T.B. himself suggested that if the bidding system does not work, then old system may be adopted with amendment that the Publisher must purchase the paper from the Textbook Board at Quetta in cash before start of the printing work. This portion of the Scheme, is subject to the condition, regarding non‑working of the bidding system, which could be for any reason. No document has been placed before us, indicating the reasons recorded by the Chairman or the Board that the bidding system has failed for the year, 1998, therefore, they have to follow the second alternate, whereby Publisher is to be assigned the printing work, if they agree to purchase on cash the paper from the Board. In addition to it, respondents 3 and 4 are not the Publishers nor the paper has been supplied to them, against cash payment, because Mr. Tariq Mehmood, learned counsel appearing for respondent No.3, and whose arguments have also been adopted by Mr. Naeem Akhtar, learned counsel for respondent No.4, the paper has been supplied to them, free of cost, because they have only to print the books and they would only recover the charges of printing. Thus, we are of the opinion that by assigning the work to the Printers the respondent No.2, has clearly flouted the decision of Board, referred to hereinabove, without lawful authority and jurisdiction. At this stage, it may be noted that Mr. Tariq Mehmood, advocate, emphasised that the granting Printing work to respondents 3 and 4, the Board had saved 15 % commission, which is ordinarily to be paid to the Publishers. Suffice it to observe that in this behalf no categoric statement has been made by the Board in the counter‑affidavit, nor any such document had been placed on record. Learned counsel, however, stated that as per office printing Formula the respondents 3 and 4 would be entitled for the factual work done by them. In this behalf, he made reference to documents filed by respondent No.2. We failed to understand that how this Formula will be workable, because it is not known; whether this Formula to work out the value of books, is applicable in the current year or it pertains to some previous years. In as such, as, this document does not bear any signatures. Therefore, the contention of learned counsel on both these counts, is not acceptable. Syed Ayaz Zahoor, learned counsel for petitioner, made reference to Messrs Flying Board Paper Products Ltd. v. Messrs Lab. Aids Corporations 1996 MLD 1238. In this judgment, the Division Bench of Lahore High Court discussed the question of acceptance or rejection of tenders, pertaining to purchase of paper by the Punjab Textbook Board, with reference to paras. 23 and 24 of the Punjab Purchase Manual and held that work in respect of each tender was floated, but the Board did not accept the offers made by the Tenderers, and thereafter divided the work into three portions and awarded it to three different parties, which was not legally permissible and in such situation, if the Board was not satisfied with the offers, it was obliged under the law to reject the offers and invite fresh tenders because methodology by inviting tenders or getting contracts by open auction ensures transparency on the part of Board. Therefore, principle was laid down that the Board had no authority to adopt a procedure and at its own allocate the work to different parties, because such manner would not ensure transparency in the transaction. In this behalf, learned counsel also made reference to Messrs Farooq & Co. v. Federation of Pakistan and 3 others 1996 CLC 2030. In this judgment as well, it was held with reference to section 2(a) of Contract Act. That State Functionary had to award the contract, issue licence and so on and so forth as trustee of State with reasonableness, neutrality, without any tinge of arbitrariness. He must Act with transparency, which is required to safeguard the State largess. Mr. Tariq Mehmood, learned counsel, however, contended that the petitioner is approbating and reprobating, because 3/4 sister concerns of petitioner have obtained the work of publishing the books from the Board without tenders, therefore, it being a beneficiary, how can object on the allocation of work to respondents 3 and 4, on following the same formula. In this behalf, he placed reliance on AIR 1938 Mad. 1004. Similarly Syed Ayaz Zahoor, learned counsel stated that the respondents 3 and 4 had not only obtained the work, which have been questioned in instant petition, but they had also obtained work of publishing in respect of other books, as it is indicative from the list of allocation of Textbooks, for the current year, 1998. Since there is allegation and counter‑allegation of the parties, against each other, therefore, it is not necessary for us to dilate upon this aspect of the case, because in our opinion, if the respondent No.2, is persistently committing the wrongs, we should not perpetuate the same, for the reasons that petitioner or for sake of arguments, respondents 3 and 4 have also obtained the contract in same manner as we are required to only examine the instant petition on its own merits, without searching for the illegalities or irregularities, if have already been committed by any of the party. Learned counsel Mr. Tariq Mehmood, emphasised that now it is too late to question the allocation of printing work to petitioner, because the paper received by respondents 3 and 4, free of Lost from respondent No.2, had already been passed from the process of cutting, therefore, as per his stand, issuance of writ would not promote the ends of justice, rather it would cause irreparable loss to the Public Exchequer. Therefore, his prayer was that the present petition does not require any adjudication and that too for academic purposes. He placed reliance on following case‑laws:‑‑ (i) Zafar Iqbal and another v. I.‑G. F.C., Balochistan, Quetta and others 1990 MLD 2329. In our opinion the facts noted in this judgment are distinguishable, because in this case work was allocated to respondents on accepting of his tenders, whereas petitioner's tender was rejected, therefore, the Hon'ble Division Bench of this Court held that several disputed questions of facts relating to quantity of goods, eligibility of petitioner and respondent for being qualified as Contractor for making supplies to the Government department have been raised, which needs enquiry, therefore, petition was dismissed. (ii) Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector‑General of Police Sindh Police, Headquarters and 2 others PLD 1992 Kar.

283. In this case as well, the learned High Court declined to issue writ, because decision was made by the Government to purchase Helicopters from respondent‑Company was passed on sound judgment and valid consideration. Whereas in the instant case neither there is any sound judgment nor valid consideration. (iii) Messrs Fort Services (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Communication, Government of Pakistan PLD 1995 Kar.

374. In this report, Constitutional petition was dismissed by Honorable Karachi High Court, for the consideration, that the concerned authority had not exercised discretionary powers arbitrarily. It was also observed therein that where party proceeded against had done whatever possible could be done in fair exercise of its discretion, particularly keeping in view the prime object of the Project, for which discretion was exercised and entire transaction in exercise of discretion was transparent, Court will decline to interfere in such matter. (iv) Flying Paper Industries and others v. Punjab Textbook Board 1995 MLD

904. In this matter, petition was dismissed on account of the conduct of petitioners, as they failed to supply the quantity of paper within stipulated period. Lastly it was argued by Mr. Tariq Mehmood, learned counsel that in view of the fact that the respondent had already completed a major portion of the printing work, therefore, even if the impugned Work Orders are void, yet writ cannot be issued. In this behalf he placed reliance on PLD 1997 SC 304 (Khaili Khan v. Haji Nazir and 4 others). On the other hand, Syed Ayaz Zahoor, learned counsel, contended that the statement being made by learned counsel, is not supported by any documentary evidence. However, he explained that only the process of cutting the paper for printing of huge quantity of books, work of which has been allocated to respondents, as per the impugned Work Orders, at least will consume four to six months, if day and night the machines available with respondents 3 and 4 as per their counter‑affidavit, are put to work. It may be noted that neither the Chairman, B.T.B., nor the respondent in their counter‑affidavits have stated the percentage of work, which has been completed by them. In addition to it, as it has been explained hereinabove, the instant petition was instituted on 7th November, 1997, after the issuance of Work Order on 29th October, 1997 and 1st November, 1997, respectively and thereafter in presence of the parties, case was adjourned on subsequent dates, therefore, both the parties were fully aware about the pendency of petition and the manner in which, the work was assigned to respondents 3 and 4, therefore, in such view of the matter, they would have refrained from accelerating the completion of work and may have waited for the decision of petition, which was ordered to be heard on priority basis on the day of its admission and with the consent of parties' counsel clearly dates were fixed from time to time. In our opinion there is no legal embargo for withholding the relief enabling the respondents to perpetuate ill‑gotten gains, if the official respondents have acted illegally in granting the printing work to respondents 3 and 4, which involved huge amount, belonging to public exchequer, then they all would be responsible personally for their misdeeds and they cannot be allowed to make the benefits on account of such illegal acts. Before parting with the judgment, we would observe that in the year 1998 B.T.B. has to publish about 100 books, out of which 96 books have been allocated to different publishers against total costs of Rs.2,51,56,100, whereas four books which are the subject‑matter of instant petition have been given only for the purpose of printing to respondents 3 and 4 at the costs of Rs.1,48,05,950 therefore, from this angle as well, transparency in the transaction conspicuously is doubtful. Thus, for the foregoing reasons, we are of 'the opinion that the transaction of allocating printing work to respondents 3 and 4 by respondent No.2, vide impugned Work Orders, is not transparent, because without any legal justification or even adhering to the Scheme, approved in the meeting of Board on 10th May, 1997, the work was given to them arbitrarily on adopting the notorious method of pick and choose for promoting nepotism and favourtism, therefore, impugned Work Orders, deserve to be declared so. Consequently, writ is issued in terms of the prayer and respondent No.2, is directed to re‑allocate the work of printing of books mentioned in the impugned Work Orders, by adopting a transparent and admissible procedure. As far as the question of recovery of losses, if incurred by the Government Exchequer, on account of the misdeeds of the official respondents is concerned, this we are leaving for the Government to recover from the concerned Officer, who will be liable to pay personally. Therefore, we direct that a copy of this judgment be sent to the Chief Secretary, Government of Balochistan for action on his part, if need be. As regards cost, the petitioner is held entitled for the same, which shall i be paid jointly and severally by all respondents. A.A./684/Q Petition accepted.