P L D 1983 Supreme Court 268 (PLP)

ZAFFAR HUSSAIN MIRZA, J.-This petition for special leave to appeal is directed against the judgment dated 30-11-1982 passed by the High Court of Sind at Karachi, whereby the Constitutional Petition filed by the petitioners 'was dismissed.

2. The Director of Industries and Mineral Development, Government of Sind, respondent No. 1 herein, invited quotations on behalf of the Health Department, inter alia, for the supply of intravenous fluids comprising 1,25,000+35,600 bags of Dextrose 5% in water with complete set and 1,25,000+2,000 bags of Dextrose Saline 5 % with complete set. The tenders were submitted by various parties including the petitioners and respondent No. 3 who are registered suppliers of such stores. On the opening of tenders on 20-7-1982, it was found that the rates quoted by the, petitioners were the lowest. Before the acceptance of their tender could be communicated to the petitioners, however, it appears some development took place, as per clarification made by the petitioners in their letter dated 15-8-1982, whereby according to the department the petitioners could not ensure -that the supply would be completed within time. On the, other hand, respondent No. 3 offered to supply the stores at reduced rates. In these circumstances, according .to the department, the matter was referred to the Finance Department with a suggestion to enter into negotiation with all the participating firms including the petitioners so as to obtain a deduction in price. The Finance Department, however, declined to approve the suggestion and decided that fresh tenders be invited.

3. Accordingly fresh tenders were invited in which, it seems, the petitioners also participated without demur. On the opening of the fresh tenders it was revealed that the lowest offer was made by Messrs Shakeel Enterprises while that of respondent No. 3 was the next lowest offer. The offers tendered by the petitioners were admittedly higher than both the above tenders.

4. On 3-11-1982, the petitioners filed Constitutional Petition No. D-931 of 1982 in the High Court of Sind at Karachi, seeking to challenge the action of the department to call fresh tenders for the supply of stores in question and claiming that they had the right to be granted the contract for the supply of the same at the rates quoted by them in their tenders first submitted. The position taken by the petitioners before the High Court was that in consequence to the first invitation for tenders, their tender was accepted and a concluded contract had accordingly come into existence, from which the Government Authorities could not resile. This contention was controverted on behalf of the Government department and it was asserted that no acceptance of the petitioners' tender had taken place nor communicated to them but, as already stated, the matter having been referred to the Finance Department on a proposal for negotiation, the decision for inviting fresh tenders was taken. The learned Judges of the Division Bench of the High Court, who heard the Constitutional Petition, in view of this factual controversy, took the view that the matter of adjudication of such a disputed question of fact lay beyond the ambit of the Constitutional jurisdiction and pertained more appropriately within the jurisdiction of the ordinary Civil Court. The contention of the petitioners that the impugned action was in violation of clause 38 of the Sind Purchase Manual, 1977 was also found to be devoid of substance and it was held that the aforesaid Manual is a compilation consisting of Government instructions for the guidance of the officers of the department and has no statutory force. The learned Judges, therefore, came to the conclusion that these administrative instructions, admittedly lacking statutory or Constitutional backing, were not justiceable in a Court of law. Finally the learned Judges taking into consideration clause 9 of the conditions attached to the invitation for tenders, whereby the right to reject any tender including the lowest was reserved by the department, took the view that by giving the lowest bid which was not accepted, the petitioners had acquired no legal right to the grant of the contract. On this view of the matter the learned Judges dismissed the Constitutional Petition filed by the petitioners as per their impugned judgment dated 30-11-1982. The petitioners now seek leave to appeal from the aforesaid judgment.

5. In support of the petition, the main contention of Mr. Khalid Ishaque,, the learned counsel for the petitioners, was that the impugned decision; to call for fresh tenders and award the contract on the result of such freshly called tenders, being Violative of the provisions of clause 38 of the Sind Purchase Manual, 1977 (hereinafter to be referred to as the Manual), were liable to be struck down as actions taken without lawful authority and of no legal effect. He emphatically argued that the rules contained in the aforesaid Manual were binding on the concerned functionaries of the Provincial Government. He further contended that the aforesaid actions, after the acceptance of the petitioners' tender, were patently in violation of the law and the petitioners' right to be treated in accordance with the law and law only, had been invaded thereby.

6. In support of the first contention Mr. Khalid Ishaque strongly relied upon the following portion of clause 38; "It is not permissible to pass the lowest tender and to place order with one of the other tendering firms at the rate quoted by the tenderer by special arrangement. Such a procedure is contrary to the principles which govern the system of competitive tender and should not be adopted by any officer of the Directorate of Industries (Supply Wing). If the lowest tender is passed over, the order should ordinarily be placed with the lowest acceptable tender at the price originally quoted by him, the 'reasons for rejecting the lowest tender being recorded. Should circumstances arise to make this course undesirable for any cause, a full explanation of the reasons and actions taken should be recorded and, if necessary, the matter should be referred to the higher authority for orders. If the lowest satisfactory tender is considered to be too high, all tenders should be rejected and fresh tenders called for, if time permits." His submission was that the impugned decisions and actions of the department were contrary to the procedure laid down in the quoted portion of this clause, inasmuch as no reasons were assigned for rejecting the lowest tender submitted by the petitioners and that there was nothing on the record to indicate that the lowest satisfactory tender was considered to be too high, so that fresh tenders could be ligitimately called for. The learned Judges of the High Court repelled this contention on the ground that clause 38 of the Manual "provides for a situation where it is decided to accept a tender other than the lowest satisfactory tender' and that it was in such eventuality that the purchasing officer was required to record his reasons for passing over the lower tender. We do not propose to go into this question as this matter can be determined only after an enquiry into facts and the material available in the official files. On the material placed before us it is not possible to come to a proper conclusion as to whether any tender was considered satisfactory or whether the competent authority considered such lowest satisfactory tender to be too high, before coming to the conclusion that fresh tenders be called for. Be that as it may, it is not necessary to go into this question in view of the argument advanced on behalf of the Government and accepted by the learned Judges of the High Court, that the rules contained in the Manual were merely departmental instructions and, therefore, the petitioners were not entitled to base any right on such instructions.

7. Mr. Khalid Ishaque placed strong reliance on the cases of The Majlis-e-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan Communication Works Department, Lahore (PLD1975SC355), Arsalla Khan v. Bashir Ahmed Blour and 3 others (PLD1976SC581) and Anjumane-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha (P L D 1966 S C 639) to support his first submission and further argued that there was no question of enforcing contractual rights in this case. He also .relied on the case of Miss Naseem Kausar v. Government of Pakistan (P L D 1972 Kar. 563), in which it was held, on the basis of previous binding decisions that the rules contained in the prospectus of a Government Medical College had the force of law.

8. After hearing the learned counsel we are, however, unable to agree with him that the rules contained in the Sind Purchase Manual, 1977, for which no Constitutional or statutory authority has been cited, could be given the force of law. We agree with the High Court that they are A departmental instructions only intended to regulate and facilitate the working of the Government Department concerned with the procurement of Government stores and cannot, therefore, operate to create legal rights and . be enforced in the Court of law, in absence of any right created under the existing law. The case of Miss Naseem Kausar - relied any right by Mr. Khalid Ishaque does not support iris contention. The case of Arsalla Khan was a case of the contravention 'of statutory rules viz. the West Pakistan Municipal Committee Octroi Rules, 1954 and the direction to lease the Octroi rights to the appellant was held to be in breach of statutory provisions. In the case of Majlis-intizamia, the question was whether a lease of Government land executed by the Governor in favour of the grantee could be cancelled otherwise than as provided in the terms of the lease-deed and it was held that writ jurisdiction was properly invoked, as the act of cancellation of the lease which was regulated by the provisions of the Government Grants Act, 1895, was without lawful authority. The decision of Anjuman-e-Ahmadiya has no bearing on the question raised before us. In Muhammad Sharif v. Secretary to Government of Punjab (PLD1973SC497) this Court refused to give effect to the conditions laid down for promotion to a higher grade of post in an educational institution governed by the Punjab Municipal Act, 1911, on the ground that these conditions for promotion laid down by the College Governing Council could not be regarded as being in the nature of statutory rules, as the governing council "could only make regulations for the internal management of the college, and such regulations could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its extraordinary jurisdiction under Article 98 of the 1962 Constitution." In Estate Office Government of Pakistan v. Tahir Hussain (PLD1962SC75) this Court held that the Karachi Allocation Rules, 1953 were not statutory rules, but they were internal regulations for the guidance of Estate Office and, therefore, they were mere rules of convenience for the better working of the department. No claim of a vested right could arise out of such rules. In the light of these decisions, it is clear that the rules contained in the Sind Purchase Manual, 1977 were similarly intended for the internal management of the Government department and, therefore, have no force of law as statutory rules, so that any violation thereof could furnish a cause of action to the petitioners. Mr. Khalid Ishaque had very fairly conceded before us that no official acceptance was communicated in writing to the petitioners. His allegation that orally he was communicated the acceptance has been controverted on behalf of the respondents and, therefore, it has become a disputed question of fact, which was rightly declined to be gone into by the High. Court in the Constitutional jurisdiction.

9. As already pointed out the Government had unequivocally reserved the right to reject any tender and, therefore, the petitioners cannot claim the grant of the contract on the basis of their tender being the lowest if the concerned authority in the Government choose to reject their tender in its discretion. In Rehmat All v: Revenue Board West Pakistan, Lahore (1973 S C M R 342) in a somewhat similar situation, this Court held that where the conditions of auction, gave discretion to the Government authority to confirm or not to confirm the auction, and the authorities concerned came to the conclusion that the auction in favour of the petitioners should not be confirmed, the mere fact. of giving highest bid did not create any legal title in favour of the petitioners in the property subjected to auction and no right to file a Writ Petition arose in such a case.

10. Finally we also find that the petitioners did not seek redress of his alleged grievance when the Government decided to invite fresh tenders, and not only stood by and allowed the authorities to proceed further in that matter, but also participated in the fresh tenders. It does not now fairly lie in his mouth to challenge the proceedings of the fresh invitation to tender when the result of these proceedings has gone against him. .

11. For the aforesaid reasons there is no merit in this petition which is accordingly dismissed. Petition dismissed.