2000 PLP 1543 (CLC)

Vide a notice published in the Press, respondent No.4 invited tenders from the Approved Government Contractors licensed by Pakistan Engineering Council for the work of construction of additional accommodation for students of Nishtar Medical College, Multan. The work was further sub‑divided into two groups: the estimated value of the work of group one was Rs.1,31,18,600 while that of group two was Rs.1,46,35,

300. In response to the said notice, the petitioner filed his tenders for the said work. The tenders were opened on the stipulated daze and the Committee headed by the said respondent declared that the bid of the petitioner for the said work of group two is the "lowest". Respondent No.2 forwarded the said tender to respondent No.3 who vide a letter, dated 2‑3‑2000 Annexure "B" to the amended writ petition did not approve the tenders and returned the same to respondent No.4 directing him to reinvite the tenders. Respondent. No.4 vide a letter, dated 9‑3‑2000 (Annexure "B/1" to the amended writ petition) informed the petitioner that he is reinviting the tenders for 21‑3 2000 for the said work. A pro forma Tender Notice alongwith the said decision of respondent No.3 was also sent to the petitioner. In the writ petition grievance made is that under the Rules of Business framed by the Governor of Province of Punjab in terms of Article 139 of the Constitution, in view of the value of the work, only a Chief Engineer would have taken the said decision. Notice was issued to the respondents and in response Ghulam Murtaza Malik, Advocate learned Law Officer alongwith the aforesaid officers have put in appearance.

2. Learned counsel for the petitioner with reference to Rule 3 read with Second Schedule to the Punjab Delegation of Financial Power Rules, 1990 contends that in the Communication and Works Department of respondent No. 1, in case the value of a work pertaining to the Buildings Department exceeds Rs.50,00,000 only the Chief Engineer can make a decision regarding the acceptance or rejection of the tender. The precise contention of the learned counsel is that in the present case, the tender should have been referred by the respondent No.4 straight to the said Chief Engineer and only the said Officer could have made a decision in the matter. The learned Law Officer appearing for the respondents, on the other hand, contends that according to the departmental practice and instructions a Superintending Engineer (S.E.I or even an Executive Engineer (XEN) can reject the tender. According to the Law Officer. it is only when a tender is sought to be accepted that the matter is referred to Chief Engineer who of course is the accepting Authority in the case. He relies on the Manual of Orders of the Building and Roads Department West Pakistan compiled by the then Chief Engineer (para. 6.29). I have gone through the Rules and the Manual being relied upon by the parties respectively as also the copies of the several documents placed on the record of this writ petition. I have already narrated above that the tenders were invited by XO.4 No.4. It is stated in the said notice that respondent No.4 has reserved unto himself the right to reject any or all the tenders without stating any reasons. My attention has also been drawn to the Tender Notice, copy whereof is Annexure "D" to the amended writ petition. Clause 27 of the said Notice narrates that the Engineering Incharge shall have the right of rejecting all or any of the tenders without assigning any reason therefor and that the Engineer Incharge will not be bound to award the contract to the lowest or to any other tenderer. Sub‑clause (8) of the definition clause of the general conditions of contract defines Engineer Incharge to be an XEN.

4. A reading of the said clauses of the Tender Notice Annexure "D" and the Public Notice Annexure "A" leaves do manner of doubt that so far as the petitioner is concerned, he had filed the tender on the understanding a repeated in the said documents i.e. the right to reject the tender is reserved unto the XEN i.e. respondent No.4. So far as the Delegation of Financial Power Rules, 1990 are concerned, the relevant Rules appear at pages 45 to 47 of the publication referred to by the learned counsel for the petitioner. The relevant heading is "Acceptance of Tenders" and then columns 2 and 3 of the relevant portion of the Second Schedule provides that the Chief Engineer shall have full powers in the matter of acceptance of tenders. The term "full" obviously relates to the value of the work involved. Thus, the effect of the Rules is that only a Chief Engineer shall have the power to accept a tender for work of the value exceeding Rs.50,00,000 pertaining to the Buildings Department. Present is not a case where a tender has been accepted but it is a case of rejection of a tender which was to be done by the XEN. To my mind the letter, dated 9‑3‑2000 can be reasonably read to convey the rejection of the tender by the XEN of course in the light of the advice tendered by the S.E. per instructions of the Chief Engineer contained in para. 6.29 of the P.W.D. Manual of Orders. Consequently, I find no violation of the said Rules, 1990 on the part of the respondents 3 and 4 while rejecting the tenders of the petitioner and ordering reinviting of tenders for the said Project on 21‑3‑2000.

5. There is yet another aspect of the matter. The Project is prima facie a Public Project being construction of additional accommodation for the students of Nishtar Medical College. The advice of the S.E. appears to be bonafide and in the interest of State/Public Exchequer. The commencement of the Project cannot be held at bay at the behest of the petitioner who of course is a business concern and has not been prejudiced at all as no power has been placed upon it to participate in the tenders reinvited for 21‑3‑2000.

6. For all the reasons stated above, I do not find any force in this writ petition and I certainly do not find it to be a fit case for exercise of Constitutional jurisdiction in support of the petitioner. The writ petition is accordingly dismissed leaving the parties to bear their own costs. H.B.T./A‑50/L Petition dismissed.