Transparency

2024 SCMR 2034 SUPREME-COURT Judicial Precedent

Arts. 4, 9, 25 & 27Public sector postsAppointmentTransparency

Appointments against posts in the public sector are to be made strictly in accordance with applicable rules/regulations and without any discrimination and in a transparent manner

It is essential that all appointments in the public sector are based on the process that is palpably and tangibly fair and within the parameters of its applicable rules

Appointment made in a nontransparent manner and in violation of the law offends the fundamental rights of the general public and the citizens under Articles 4, 9, 25 and 27 of the Constitution

Due diligence must be exercised while making appointments and in doing so a fair and transparent selection process ought to be adhered to

Adherence to a credible and transparent selection process with due diligence is the pre-requisite in order to ensure good governance

It is inevitable to observe highest standards of diligence, transparency and probity in selecting a person for a post

Public authority possessed with powers under the relevant laws can only use them for and to advance the public good

Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public

Individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer and not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had the inherent right to be served by the best.

2024 PLD 515 SUPREME-COURT Judicial Precedent

Art. 175AAppointment of judges in the superior CourtsTransparency

Importance of internal and institutional independence in the matter of judicial appointments explained.

2024 PLC(CS) 1437 SUPREME-COURT Judicial Precedent

Arts. 4, 9, 25 & 27Public sector postsAppointmentTransparency

Appointments against posts in the public sector are to be made strictly in accordance with applicable rules/regulations and without any discrimination and in a transparent manner

It is essential that all appointments in the public sector are based on the process that is palpably and tangibly fair and within the parameters of its applicable rules

Appointment made in a nontransparent manner and in violation of the law offends the fundamental rights of the general public and the citizens under Articles 4, 9, 25 and 27 of the Constitution

Due diligence must be exercised while making appointments and in doing so a fair and transparent selection process ought to be adhered to

Adherence to a credible and transparent selection process with due diligence is the pre-requisite in order to ensure good governance

It is inevitable to observe highest standards of diligence, transparency and probity in selecting a person for a post

Public authority possessed with powers under the relevant laws can only use them for and to advance the public good

Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public

Individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer and not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had the inherent right to be served by the best.

2024 CLD 212 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 16 & 23Punjab Procurement Rules, 2014, Rr. 4 & 62Constitution of Pakistan, Arts. 4, 18, 24 & 25Public procurementTransparencyFinal paymentNon-clearanceCoercive measures to seek unlawful demand of rebatesPetitioner supplied computers to respondent/ authorities after competing in open bidding tenders

Grievance of petitioners was that despite supply of goods, their final payments were not released by respondent/authorities who were forcing them to give rebates in prices

Validity

There was no legal justification to force petitioners to give rebates to the tune of 15% to 20% with respect to fully executed and duly performed contracts at the time of making payments to them

This was an arbitrary, unreasonable and capricious act in colorable exercise of authority and offended R. 62 of Punjab Procurement Rules, 2014 and express contractual stipulations and this was also against principle of transparency enshrined in R. 4 of Punjab Procurement Rules, 2014

Transparency in procurement process not only envisages that procurement should be made through transparent, open and competitive processes at the lowest price but also equally safeguards and protects right of technically qualified lowest bidder to receive timely payment against successfully performed contract

Mere fact that payments were not made to petitioners within thirty days with respect to Second Contract, Third Contract and Fourth Contract was sufficient to establish that petitioners were being pressurized, coerced and blackmailed to satisfy unlawful demand of rebates of respondents/ authorities

Rights of petitioners after successful performance of their respective contracts awarded after due process of law were fully protected in terms of Arts. 4, 18, 24 & 25 of the Constitution and Ss. 16 & 23 of Contract Act, 1872

High Court directed the respondents to forthwith release complete contract prices to petitioners

High Court further directed Competent Authority to take appropriate steps to ensure transparency in public procurements

Constitutional petition was allowed, in circumstances.

2024 PLD 41 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Rr. 4 & 62Contract Act (IX of 1872), Ss. 16 & 23Constitution of Pakistan, Arts. 4, 18, 24 & 25Public procurementTransparencyFinal paymentNon-clearanceCoercive measures to seek unlawful demand of rebatesPetitioner supplied computers to respondent/ authorities after competing in open bidding tenders

Grievance of petitioners was that despite supply of goods, their final payments were not released by respondent/authorities who were forcing them to give rebates in prices

Validity

There was no legal justification to force petitioners to give rebates to the tune of 15% to 20% with respect to fully executed and duly performed contracts at the time of making payments to them

This was an arbitrary, unreasonable and capricious act in colorable exercise of authority and offended R. 62 of Punjab Procurement Rules, 2014 and express contractual stipulations and this was also against principle of transparency enshrined in R. 4 of Punjab Procurement Rules, 2014

Transparency in procurement process not only envisages that procurement should be made through transparent, open and competitive processes at the lowest price but also equally safeguards and protects right of technically qualified lowest bidder to receive timely payment against successfully performed contract

Mere fact that payments were not made to petitioners within thirty days with respect to Second Contract, Third Contract and Fourth Contract was sufficient to establish that petitioners were being pressurized, coerced and blackmailed to satisfy unlawful demand of rebates of respondents/ authorities

Rights of petitioners after successful performance of their respective contracts awarded after due process of law were fully protected in terms of Arts. 4, 18, 24 & 25 of the Constitution and Ss. 16 & 23 of Contract Act, 1872

High Court directed the respondents to forthwith release complete contract prices to petitioners

High Court further directed Competent Authority to take appropriate steps to ensure transparency in public procurements

Constitutional petition was allowed, in circumstances.

2023 CLD 44 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 19Civil Procedure Code (V of 1908), O. XXI, Rr. 65, 66, 67, 84 & 85Sale through public auctionTransparencySigning of attendance and bidding sheetsObject, purpose and scope

Signing of attendance sheet and bidding sheet is for the purpose to establish that sale is conducted in fair and transparent manner at site in terms of proclamation of auction approved by Court; it further establishes that auction proceedings and auction report are not bogus or sham

Presence of attendance and bidding sheets on record shows number of parties present on auction date at site, and who were the persons who submitted their pay orders and participated in auction

Presence of greater number of persons on attendance and bidding sheet also proves that due publicity of auction sale of property was given and full opportunity was furnished to intending bidders to participate in auction proceedings

For the purposes of maintaining transparency in auction proceedings, it is duty of Court to check whether criteria for public auction of property as envisaged under O. XXI, C.P.C. has been complied with, and whether at the time of drawing up proclamation of sale, Court Auctioneer kept in his mind requirements under O XXI, Rr. 66, 67, 84 & 85, C.P.C.

Court was to apply its judicial mind before confirmation of auction sale in favour of purchaser, even in absence of objection petition

Failure of Court Auctioneers to adhere to such rules could vitiate auction proceedings on account of material irregularity resulting in lack of transparency and render proclamation of sale illegal.

2022 PLC(CS) 492 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Good governanceRecruitmentTransparencyObject, purpose and scope

Transparency is a tool, not only for ensuring but for showing that procedure adopted is unbiased, provides equality of status and opportunity to each eligible candidate for achieving goal of recruiting the most suitable person.

2020 MLD 185 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Rr. 31 & 32Public procurementTransparencyResolution of disputesFinancial soundnessProof

Petitioner was aggrieved of award of tender to respondent by Complaint Redressal Committee for supply of medical equipment

Validity

Successful bidder did not confirm to requirement of financial soundness and Complaint Redressal Committee accepted bid of a non-compliant party, despite such non-compliance having been confirmed thereto by Central Procurement Committee upon express directions of Complaint Redressal Committee itself

Authorities failed to substantiate rationale for having accepted a bid from a party that was found to have failed upon criteria of financial soundness and was also unable to justify their abject disregard of such fact in arriving at decision in question

Acceptance of bid in manifest non-conformity with prescription of tender itself from a participant admittedly disqualified upon anvil of financial soundness criteria could not be sustained

Subsequent interpretation of tender criteria in derogation of express provisions thereof despite same respondent having found participant and its products non-responsive earlier in respect to same tender was unjustifiable

Award of tender to procure products deemed hazardous to public health by authorities and same could not be justified upon anvil of public interest

High Court set aside decision made by authorities in favour of respondent as same was neither transparent nor in public interest

High Court declared that tender process whereby bid of respondent was accepted in respect of goods in question was in violation of law and same was declared void

Constitutional petition was allowed accordingly.

2018 CLC 1818 ISLAMABAD Judicial Precedent

ScopeTransparency cannot be compromised in any manner while dealing with assets which vest in the State

Law envisages strict liability in the case of disposal of State properties in the context of ensuring transparency.

2017 CLC 979 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2Suit or declaration, injunction and recovery of damagesInterim injunction, grant ofAuction proceedingsTransparencyRequirementsPetitioner was aggrieved of handing over the rights for collection of royalty on coal mines to defendantPlea raised by petitioner was that auction proceedings were not transparentValidity

Not incumbent upon government to always accept the highest bid but then it was responsibility of government to come and satisfy that award to person other than the highest bidder had been done in a fair and diaphanous manner

In absence of such satisfaction acceptance of such offer and sought to be substantiated could amount to arbitrariness and exercise of discretion unfairly

Act of fixing three different dates for open auction in question was bewildering in nature and the same should not have been done as it had gone against the mandate of open auction

Reason assigned for postponing auction for two dates did not find any mention in auction notice and could not have been done

Alleged award of contract to defendant was an attempt to frustrate status quo order passed earlier as record did not justify that any award was made in reality

High Court set aside the auction proceedings as well as award of contract allegedly given to defendant

High Court directed the authorities to re-auction rights for collection of royalty on coal and to take back possession if handed over to defendant

Application was disposed of accordingly.

2017 PLD 81 ISLAMABAD Judicial Precedent

"Transparency"

Definition.

2017 PLD 81 ISLAMABAD Judicial Precedent

S. 14DIslamabad Land Disposal Regulations, 2005, Regln. 6Disposal of commercial and business plotsPublic auctionTransparencyPrinciplesCommercial or business plot could not be disposed of otherwise than through public auction

Openness and transparency in the disposal of land falling under the category of commercial and business plot was mandatory otherwise the entire proceedings would be void and thus vitiated

Transparency was mandatory at every stage i.e. planning disposal, inviting interested persons, bidding process, evaluation of bids, declaring a successful bidder and the execution of the lease or contract pursuant thereto

At the first stage the plot and its category must be clearly described in the sanctioned Scheme; second, the terms and conditions for pre-qualification or eligibility must be intelligible and free from any ambiguity and provided to the interested persons in writing; third, advertisements published in daily newspapers ought to unambiguously mention the category and description of the plot being offered and the terms and conditions; fourth, the timings, dates and venue for the bidding must be open and transparent; lastly, the terms and conditions of the proposed lease or contract must not only be strictly in conformity with the description mentioned in the published advertisements but should also have been in the knowledge of the participants prior to the submission of bids

Any deviation, at any stage, from the terms and conditions published in the advertisements would vitiate the process and render the disposal as opaque

Any doubt about whether the person who was ultimately allotted a plot had participated in the bidding process would render the disposal non-transparent unless such a person could give a plausible explanation to the satisfaction of the Capital Development Authority ("Authority") that it had actually participated in the bidding process and was declared as the successful bidder

Principles of transparency were not restricted to the description given in the advertisements

Transparency would extend to the pre-bidding process i.e. the preparation of the specifications, the approval mechanism, methods of advertisements and the entire process till the contract had been concluded with the successful bidder

Opening and evaluation of bids and formulating evaluation of the criteria were an integral part of the disposal of land under the Islamabad Land Disposal Regulations, 2005

Test of transparency was to allow the widest possible competition, which was not favourable to a selected class of bidders nor put any person, who may have been interested, at a disadvantage

Transparency was the key to ensuring that the widest possible competition was made possible so that the maximum price for the land being disposed of could be fetched

Non-transparent process in the disposal of land was not sustainable in law.

2015 PCrLJ 1 SPECIAL-COURT-ISLAMABAD Judicial Precedent

InvestigationTransparencySelective or inconclusive investigationNecessary for court to interfereChoice as to which of the accused was to be tried, did not lie with the officers investigating a crime

Where selective investigation was allowed to be made the basis of a criminal trial, it would be against the public interest

Ultimate decision of a Court, whichever way it might go, would lose its credibility in the public eye if a trial proceeded on the basis of selection of the accused by the investigator

Though the courts were not to interfere with the manner in which investigation was carried out, but when selective or inconclusive investigation was pointed out to a Court, it became necessary for it to interfere to correct the wrong

Criminal investigation should not leave an impression that it was intended to find incriminating evidence only against a particular person or had deliberately excluded others who might be involved in the commission of the crime

Only such investigation would be looked upon as transparent which did not have any semblance of partiality and was conducted purely to identify involvement of all persons who may have been involved in the commission of the reported offence.

2014 PLD 47 SUPREME-COURT Judicial Precedent

Art. 199Constitutional petition before High CourtLease of Power Plant (public asset)Public ProcurementTransparencyAward of contract for lease of a public assetProcedure

Appellants impugned order of High Court whereby their constitutional petitions challenging the legality of the transaction vide which a 20-year lease of a Power Generation Company was granted by WAPDA to the respondent; were dismissed

Contention of the appellants was, inter alia, that no specific advertisement was issued inviting bids for the lease of the said Power Plant, and in absence of such an advertisement, the entire process was liable to be set aside

Appellants further contended that respondent had easy and exclusive access to persons involved in the decision-making process; and that respondent's offer to obtain lease of the Power Plant was unsolicited; and it had obtained the lease through unfair means

Validity

Examination of the transaction in question revealed that the original process initiated through an advertisement was for appointment of an "Operator" of the plant; and such process was subsequently formally terminated, and thereafter the disputed contract for lease was initiated as a result of an independent process undertaken by WAPDA, unrelated to the procedure for the appointment of the "Operator"

No fresh public advertisement was issued and issuing of such an advertisement was universally accepted as a condition precedent for ensuring a free, fair, open, competitive, and transparent process for the transfer of public assets or rights therein

No compelling reasons had been pleaded by WAPDA for not issuing such an advertisement, and absence of the same, alone, was fatal for the transaction in question

Respondent was unilaterally given prior access to the Power Plant evidencing the availability of an unfair advantage and was also given access to the decision-making authorities at the highest level not only in WAPDA but also in the Presidency

Decision, in principle, to award the contract for lease to the respondent was taken at the highest level by the President, Prime Minister and Chairman WAPDA, and thereafter without issuing of any advertisement for the information of the public-at-large, only some such firms which had originally showed their Expression-of-Interest for being appointment as a "operator" of the Plant, were contacted

Such procedure was not only illegal but in fact was a farcical and mala fide attempt to clothe the transaction with some semblance of legality and the process appeared to be a infertile attempt to paper over illegalities

Such omissions and commissions made it clear that by no stretch of the imagination the impugned transaction was legal, transparent, fair, open or the result of a competitive and fair process

Power Plant was a public asset and those entrusted therewith were sadly found wanting, in the present case

Impugned transaction had not only been disowned by the Federal Government of which WAPDA was an instrumentality but also a categorical stand was taken by the Federal Government to the effect that the transaction was beset with irregularities and serious lapses

Supreme Court set aside impugned order of High Court and the transaction for grant of lease to the respondent was declared as not sustainable and direction was issued to Federal Government to fix civil and criminal liabilities in such regard

Appeals were allowed by Supreme Court, accordingly.

2013 PLC(CS) 502 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Arts. 18, 25, 27 & 199Constitutional petitionCivil serviceRecruitmentTransparencyDiscriminationPetitioners assailed appointments

Plea raised by petitioners was that appointments were made on the basis of nepotism and political influence by disregarding merit

Validity

Appointments were made to posts in question by contravening applicable rules, through non-transparent process by resorting to nepotism and by unduly, unjustly and unfairly favouring candidates of a particular area

Appointments were made by violating fundamental rights of all other applicants as it infringed equal opportunity to compete guaranteed to them by Arts.18 & 25 of the Constitution and they were discriminated against

Such appointments were illegal and unconstitutional and the same were of no legal effect and created no right title, interest, benefit and or privilege in the appointees

Chairman and members of Departmental Selection Board did not check whether those selected by them had stipulated skills

Failure to prepare merit lists, preparing a 'Resultant' list and appointing persons thereon, by not conducting tests in respect of certain posts and also by not preparing any merit list in respect of them demonstrated that they were not fit to serve on Departmental Selection Committee

High Court set aside appointments made by Departmental Selection Committee and also directed the authorities to pay cost in respect of each petition

Balochistan Service Tribunal, under the circumstances, did not have any jurisdiction, therefore, appointees could not assail their termination from service before Service Tribunal

Constitutional petition was allowed in circumstances.