2001 PLP 342 (CLC)

CH. IJAZ AHMAD, J.‑‑‑ The brief facts giving rise to this appeal are that respondent‑Railway invited tender for Crane Handling Services at Dry Port Chaklala, Rawalpindi for a period of two years. In response to advertisement of respondent‑Railway appellant and four others participated. The respondent‑Railway did not accept the bid offer of any of the participants. Respondent No.l being aggrieved, filed Writ Petition No.829 of 1999 on the ground that action of respondents is mala fide and without lawful authority and has rejected the tender of respondent without any justification in spite of the fact that respondent No.l was the lowest bidder. The writ petition was accepted vide judgment, dated 19‑4‑1999 and further a direction was issued to the respondents Nos. l to 4 to issue letter of award in favour of petitioner regarding contract of Crane Handling Services for Dry Port Chaklala for a period of two years. Hence this appeal on behalf of one of the bidder.

2. The learned counsel for the appellant submits that respondent No. l attached forged documents Annexures "B and "C" with the writ petition as is evident from Annexures R‑1, R‑6 and R‑7 and R‑8 filed by respondents?-Railway, through C.M. No. 37 of 1999 which was accepted vide order, dated 17‑2‑1999. The learned Single Judge did not advert to the aforesaid documents. It is further argued that in exercise of Constitutional jurisdiction this Court could not direct issuance of award of contract to the writ petitioner for period of two years.

3. The learned counsel for respondent‑Railway supported the contention of learned counsel for appellant that respondent No. l attached forged documents with the writ petition i.e. Annexures "B" and "C" but the learned Single Judge did not advert to this aspect of the case; it has further argued that respondent‑Railway had lawful authority to accept or reject the tender, by virtue of clause 14 of the terms and conditions of the tender. In support of his contention he has relied upon the following judgments:‑‑

? Agricultural Development Bank of Pakistan's case 1997 SCMR 1089, Millat Tractor Employees' case PLD 1992 Lah. 68 and Messrs M.Y. Khan & Company and another's case 1987 MLD 2581.

4. Learned counsel for respondent No.l submits that learned Single Judge did not direct the respondents to award contract to respondent No. l; in fact learned Single Judge keeping in view of loss to public exchequer directed the Railway to award the contract to respondent No. l who was the lowest bidder; that appellant has not paid a. single penny to the Railway' and has got the licence to work without any justification with the connivance of official/officer of Railway Department; it has been submitted by the learned counsel for respondents that he has got no objection to acceptance of this appeal subject to the condition that respondent‑Railway is directed to finalize fresh tenders within one month.

5. We have considered the contentions of learned counsel for the parties and perused the record. It is admitted principle of law that this Court has only. jurisdiction to interpret the law and has no jurisdiction to take the role of policy‑maker as held by the Honourable Supreme Court in Zia‑ur-?Rehman's case PLD 1973 SC 49 and Mian Nawaz Sharif's case PLD 1993 SC

473. This Court has only jurisdiction to set aside the action of respondent if it is based on mala fide and in violation of Rules and Regulations of respondent‑Railway as per principle laid down in Akhtar Mir's case 1984 SCMR

433. Both the parties raised counter‑version before the learned Single judge but the learned Single Judge without adverting to these contentions qua the disputed question of fact, directed the respondent‑Railway to award contract to respondent No. l which is not in accordance with law as the principle laid down by the Honourable Supreme Court in Muhammad Younas Khan's case 1993 SCMR

618. It is also settled proposition of law that public functionaries are duty bound to act in accordance with law as is envisaged by Article 4 of the Constitution without fear, favour and nepotism. The Honourable Supreme Court has laid down guidelines for the public functionaries to act within the framework of Constitution and law in Zahid Akhtar's case PLD 1995 SC 530 and the Honourable Supreme Court has also laid down principle in Shaukat Ali's case regarding acceptance or rejection of tenders PLD 1997 SC 342 and the relevant observation is as follows:‑‑ "Since the Railways intend to grant licences in the above term in order to ensure that no one is discriminated or favoured for the reasons other than the well‑being of the, people and the country at large, no purpose will be served by granting leave. 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 fairplay 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 of discriminatory treatment or 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 part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways will be treated fairly." The judgment of learned Single Judge is not in accordance with the aforesaid judgment of Honourable Supreme Court. Otherwise also the respondent No. l approached this Court by concealing material facts, therefore, learned Single Judge has erred in law, to exercise discretion in favour of respondent No. 1, as the law laid down in the following judgments:‑‑ Nawabzada Ronaq Ali's case PLD 1973 SC 326, Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M. Malik's case 1983 SCMR

196. In view of what has been discussed above, this appeal is accepted, with no order as to costs. Respondents Nos.2 to 4 are directed to call fresh tenders and finalize the same within one month after receiving the order in accordance with law, after completing all the formalities. The respondents are directed to submit report to D.R. (J.) of this Court within the stipulated period. Since both the parties have alleged serious allegations against the public functionaries, therefore, we direct Chairman, Railway to constitute a high‑powered committee to probe into the matter whether action of respondent‑Railway is in accordance with law and if somebody is found guilty then he shall be proceeded against under Efficiency' and Discipline Rules. Q.M.H./M.A.K./N‑29/L????????????????????????????????????????????????????????????????????? Appeal allowed.