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Petitioner: SAEED ISMAIL BURERO VS Respondent: PROVINCE OF SINDH through Secretary Education, JUDGMENT
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Aziz-ur-Rehman Title:SAEED ISMAIL BURERO vs PROVINCE OF SINDH through Secretary Education,
JUDGMENT
Reported As: 2014 YLR 825 Result: Petition dismissed Judgment JUDGMENT ' AZIZ-UR-REHMAN, J.---By this common judgment we propose to decide both these constitutional petitions bearing Constitutional Petition No.D-2395 of 2013 and Constitutional Petition No.D-2396 of 2013, through which Mr. Saeed Ismail Burero, [petitioner in both C.Ps.] has questioned the two impugned tender notices of 24-4-2013 and 9-5-2013 whereby sealed tenders were invited, from the interested contractors/suppliers/bidders meeting the [SPPRA] required eligibility criteria under the Sindh Public Procurement Regularity Authority Rules, 2010, for procurement of Furniture, Articles/Science Equipment/ Books and Computers with accessories for Education Institutions of Larkana and Sukkar Regions. The prayers sought in both the petitions are common except the dates of tender notices [i.e. 24-4-2013 and 9-5-2013]. The common prayers sought read as follows:- (1) The impugned tender notice dated 24-4-2013 is issued without any lawful authority and is contrary to the directions issued by caretaker Chief Minister and is liable to be declared as illegal/void. (2) Restrain the respondents from .Proceedings under the impugned tender notice by awarding any contract for the supply of the articles as contained in the tender notice/documents. (3) The respondent be directed to follow the SPPRA Rules while reissuing the tender notice/bid for the procurement/supply of the goods. (4) Any other relief as this Hon'ble Court may be deemed fit and proper may be passed. 2. Succinctly the relevant facts leading to the above prayers are:--
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3. That the petitioner in both the petitions, is a registered contractor/supplier with Govt. Of Sindh and per assertion made, is doing business under the name and style of Khalid Scientific Store. Per averments, the contracts previously awarded by Govt. Of Sindh for and regarding supply of different kinds of equipment, goods etc. Have been satisfactorily performed by the petitioner. 4. According to petitioner on 29-3-2013, the Section Officer, Govt. Of Sindh, SGA & Co-ordination Department issued a letter to Addl., Chief Secretary/Home Department, Senior Member BoR, Sindh, all Administrating Secretaries including Member BoR, Secretary Provincial Assembly, Sindh, Karachi, Chairman Enquiries and Anticorruption Establishment, Sindh and other designatories, whereby the directions issued by the Hon'ble Caretaker Chief Minister regarding imposing of a ban on the purchase of new physical assets, [Movable and Immovable] was circulated. In terms of the aforesaid letter, per averments, a request was made to the effect that directions issued by Hon'ble caretaker Chief Minister be implemented immediately in letter and spirit. 5. Pursuant to the above, on 12-4-2013, Account Officer B&F, Govt. Of Sindh, Education and Literacy Deptt., Karachi also issued letter informing amongst others, Chairman Chartered Inspection and Evaluation Committee, Karachi, Director General College, Sindh, Karachi, Director School Education about the imposition of a ban on purchase of all new physical assets [Movable and Immovable] and a request for immediate strict compliance thereof was also made. 6. Per petitioner's version, in utter disregard to the directions of the Hon'ble Caretaker Chief Minister, Sindh, the Director of Schools Education Larkana and Sukkur Regions published the impugned tender notices in daily Newspapers of 21-4-2013 and 9-5-2013 inviting thereby the contractor/supplier/ bidders for the supply of furniture articles, science equipment, computers with accessories, books etc. Accordingly, as claimed in response thereof, on 3-5-2013 tender documents were obtained by the petitioners. On perusal of the tender documents, per petitioner's assertion, the same were found against the SPPRA Rules, therefore, objections were filed by the petitioners. 7. Subsequently, the petitioners approached the Secretary Education, Govt. Of Sindh through letter dated 7-5-2013 which letter, per averments, was received on 14-5-2013. In the said letter it was mentioned/highlighted that the tender documents are defective and also do not depict the true picture/information. The alleged defects as stated were to the following effect:-- (i) No quantity has been mentioned in IT Science and Furniture items, also they did not mention budget amount, so how we calculate the earnest money. (ii) There were no space for financial proposal, how we put our quotation as the financial documents are not available in tender. (iii) In evaluation criteria of computer and other equipment Sr. No.1, they have given highest marks for HP/Dell/Fujisto, this is against SPPRA Rule No.13 8. Apart from the above, per petitioners version, SPPRA Rule 13 which pertains to specifications has also been violated. 9. Notwithstanding of petitioners seeking clarification and/or lodging objections, the respondents without permission from the Secretaries/Committee and/or obtaining any relaxation of the ban imposed, published the tender notices and also bids were received in response thereof. The bids so received were opened on 30th May, 2013 at the respondent No.2's office. 10. Per assertions of the petitioner, such hasty and illegal action on part of the respondent No.2 smacks mala fide as, the budget for the current financial year is going to be lapsed by 30th June, 2013. Per petitioner averments, with a view to utilize such budget before lapsing by 30th June, 2013, tenders have been issued/published, in colourful manner. The tender documents, according to the petitioner, show no specifications/quantity as material/BOQ items. Thus there is every likelihood of accepting the bids and awarding of the tenders to blue-eyed boys/person of their own choice which indeed would cause huge losses to the Govt. Exchequer/public money.
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11. The petitioners thus are affected persons because of aforesaid illegalities being committed by respondents. The process of inviting the tenders besides against the directives of the caretaker Chief Minister is also in violation of SPPRA Rules, 2010. Hence these petitions. 12. On 30-5-2013, when Constitutional Petition No.D-2395 of 2013, came up before the court, the following order was passed:-- "30-5-2013 ' Mr. Jawed Ahmed Siddiqui, Advocate for Petitioner -x- (1) Granted. (2) Granted for the time being subject to all just exceptions. (3&4) Notice to the respondents as well as learned Advocate-General, Sindh for 10-6-2013, to be issued instantly through all possible modes along with the relevant copies. The contract with regard to the subject tenders shall not be granted till 10-6-2013. It may, however, be noted that the petitioner shall not cause/attempt to delay the matter or else the ad-interim order shall not be extended." 13. Thereafter, record reflects that the 'interim order' passed on 30-5-2013 was never extended. However, an understanding by Additional AG to the effect that no further action shall be taken till next date of hearing was given and recorded. Order dated 10-6-2013 passed in Constitutional Petition No.D-2395 of 2013 whereby undertaking of A.A.-G. Was recorded reads as follows:-- "10-6-2013 ' Mr. Jawaid Ahmed Siddiqui, Advocate for petitioner ' Mr. Qurban Ali, Advocate Mr. Sarwar Khan, Addl. A.G. Mr. Saifullah, A.A.G. ' Copy of comments has been supplied to learned counsel for the petitioner. By consent, matter is adjourned to 13-6-2013. Let this petition be fixed and heard along with Constitutional Petition No.D- 2475 of 2013. Learned Additional A.G. Undertakes that no further action shall be taken till next date of hearing." 14. Upon service, in both Constitutional Petitions, comments were filed on behalf of respondent No.2 wherein the assertions/allegations levelled by the petitioners were vehemently denied. Inter alia, it was submitted that various districts of Sindh affected by natural calamity/flood in previous years has resulted in/caused heavy damage/loss to furniture articles, computers, scientific material and books. Under the aforesaid scenario, Govt. Of Sindh considered various schemes under Annual Development Program [ADP] for which funds/budget is/being released by Finance Department for the purchase of furniture, articles, computers with accessories, scientific material and books etc. In financial year 2012-2013. 15. In comments it was specifically denied that there are any restrictions and/or any ban on purchase/procurement of such articles etc. Under development schemes where funds are provided by Finance Department. The bids, therefore, invited by the Directorate of Schools Education, Sukkur and Larkana regions are quite in accordance with SPPRA Rules 2010. [The Sindh Public Procurement Rules, 2010]. Tenders, so invited having been published in widely circulated leading daily newspapers strictly in accordance with SPPRA Rules and no violation of any rule has been committed. The newspapers in which the impugned tender notices have been published are widely circulated newspapers. The details of the newspapers are given below : (a) Daily The News (English) dated 21 April, 2013 (b) Daily Jang (Urdu) dated 22 April, 2013 (c) Daily Kawish and Sobh (Sindhi) dated 21 April, 2013 and 11 May, 2013 (d) Daily DAWN (English) dated 12 May, 2013. 16. Besides, Tenders and NIT were also hoisted on SPPRA Website, SPPRA ID No.1575211756/2013 S.No.16143. Thus, no illegality and/or irregularity has been committed by respondents in floating/
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publishing the tenders in newspapers. 17. Per SPPRA Rules No.18, response time from the date of publication of tenders is 15 days, but the DSE NIT provides 17 days' response time. Last date of purchase of bids was 7th May, 2013 and the date of submission of bids was 8th May, 2013 where Technical Proposals per respondent's assertions were opened on same day in presence of bidders and Procurement Committee's Members. In the case of National Competitive bidding the response time per SPPRA Rule 18 is not less than 45 days from the date of publication notice inviting tender in the newspaper or hoisting on the website as provided in Rule 18(2) of SPPRA Rules, 2010. 18. Even specifications of items were given/mentioned and prepared quite in conformity of Rule 13 of SPPRA Rules 2010. Bidders, were not restricted and space was also provided for submitting specifications of their offered items. Likewise, the legally provided method of procurement in terms of Rule 46(2) of SPPRA Rules, 2010 was followed and bids according to respondent were evaluated per evaluation criteria mentioned in bid documents as given below:-- (a) Bidding Firm's Evaluation (Tax payment behavior, experience and financial capability etc.). (b) Evaluation of the 'proposals' which were offered in response to the Requirement'. 19. Various bidders per respondent's assertions, participated in tendering process. Financial bids were opened publicly in presence of bidders and purchase committee is members. 20. All bidders who participated in tendering process as above were well aware about the required 'earnest money' mentioned in the bidding documents. Accordingly, all the above bidders submitted their bids along with required 'earnest money'. The petitioners' allegations to this effect were also emphatically denied. 21. The details of bids in tendering process which is subject-matter of Constitutional Petition No.D- 2395 of 2013 is given in the table below:-- BID DESCRIP-TION Furniture ItemsScience Equipment Total Bids received 11 7 Total Bids Rejected 2 1 Bidders Qualified in Technical Evaluation9 6 Reason RejectionOne Bidders NTN and GST Registration was suspendedbyFBRand2 Bidders did not meetthe required evaluation criteria. Computer and other EquipmentsBooks for LibraryTotal 6 3 27 0 0 03 6 3 24 19. Likewise, details of bids in tendering process which is subject-matter of Constitutional Petition No.D-2396 of 2013 is given in the table below:-- BID DESCRIPITION Furniture ItemsScience Equip-mentComputer Accessories Total Bids received 14 9 6 Total Bids Rejected 3 1 1 Bidders Qualified in Technical Evaluation11 8 5 Reason of Rejection The rejected bidders could not obtain required 70 marks as already communicated in bidding
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documents. Sports MaterialMaps and ChartsBooks for LibraryTOTAL 9 10 7 55 1 2 1 9 8 8 6 46 20. Per respondents' stand, either the petitioner did not purchase the tender documents or if, purchased did not submit and/or participate in the process of bidding. Per respondents' version, since the petitioner did not participate in bidding process thus not aggrieved persons. Otherwise, besides, per SPPRA Rule No.31, the aggrieved bidders (if any), may apply to the Procuring Agency's Complaint Redressal Committee which is bound to announce its decision within prescribed time i.e. 07 days. In the event of being unsatisfied with the decision of CRC, an appeal, can be lodged to the Chief Secretary for redressal of the grievance. The alternate remedy so available under SPPRA Rules besides efficacious is time bound. Such remedy available, per respondents' versions, cannot be bypassed at the whims of petitioners and that too on the basis of mere apprehension, flimsy grounds and/or without pinpointing any illegality in the bid process. 24. Per respondent's averments, the funds on the basis of which tenders were floated since coming from Annual Development Program (ADP) inter alia for various schemes of Directorate of Schools Education Larkana and Sukkur Regions thus are exempted from any ban's restrictions. In case the procurement is not made/completed on or before 30th June, 2013, the funds would indeed be lapsed and consequently thousands of students of about 177 schools [in both regions of Larkana and Sukkur] will be deprived from having necessary materials/furniture etc. During the current fiscal year, which, of course, would enhance the miseries of the students manifolds. 25. The status of the petitioners as a registered contractor/supplier as well as petitioners' so-called claim of having satisfactorily performed contracts with the Govt. Of Sindh for supplying different kind of goods, has been vehemently denied as being incorrect by respondents. 26. Regarding directives, issued by SO CTC G&GAD Department through letter dated 29-3-2013 regarding placing ban by the then Hon'ble caretaker Chief Minister Sindh visa-vis purchase of new physical assets, movable and immovable, respondent No.2 has forcefully submitted that ban, if any, imposed by the then Hon'ble caretaker Chief Minister may cover/extend to the procurement of furniture, computers etc. Through non-development budget only. Per averments, the ban is not applicable to the purchase of articles etc. Under ADPs schemes, where funds are released by Finance Department. Such position is also crystal clear from the Letter No.FD/B&E1/2(360)/I/BAN/2012-13 dated 17th May, 2013. [Annexure 'C' to the comments filed by respondent No.2]. 27. The floating of tenders by the respondents, no doubt, is well authorized and absolutely proper. According to the respondents', education of thousands of students is at stakes if the procurement process is not completed within the target period i.e. By 30th June, 2013. Otherwise, the budget would lapse without any purchase of necessary materials/furniture, science equipment etc. For the benefit of students. 28. Per respondents, the petitioner have manipulated the receipt dated 3-5-2013 [Annexure 'P-4' to Constitutional Petition No.D-2395 of 2013] by removing the name of the person/firm who had actually deposited Rs.2000 for obtaining of tender forms/documents. The real applicant of the receipt [Annexure P-4], is Messrs Science and Computer Link, Karachi. The petitioners, besides committing forgery has thus misguided the court for achieving their nefarious designs including disturbing and disrupting the smooth working of Government Departments by obtaining restraining order in the above proceedings.
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29. The receipt of alleged letter dated 7-5-2013 addressed to the respondent has been emphatically denied by the respondents. The floating of tenders is lawful, bona fide and also covered by legal and financial proprietary. No doubt, the funds shall stand lapse if, not utilized within the stipulated time which lapse of funds, indeed, would deprive thousands of students, of requisite furniture, computers, science equipment and books etc., of about 177 schools. 30. The petitioners, according to respondents' stand have no locus standi to seek any relief much less by invoking Constitutional jurisdiction under disputed facts and circumstances involved. Per averments, the award of tenders will be subject to scrutiny by the 'Audit Department 'and that too after completion of all 'codal formalities' 'before making payment to the suppliers from Treasury Department of Govt. Of Sindh, According to the respondents, the instant petitions having been filed with ulterior motives are incompetent in law thus liable to be dismissed with cost. 31. We have heard Mr. Jawaid Ahmed Siddiqui along with Mr. Rizwan Nadeem, learned counsel for petitioners, Mr. Qurban Ali Malano, learned counsel for respondent No.3 and Mr. Saifullah, learned A.A.-G. And have also perused the available record with the able assistance of the learned counsel for the parties. 32. Mr. Jawaid Ahmed Siddiqui, learned counsel for petitioners submitted that the petitioner is a registered contractor and supplier with Govt. Of Sindh and have satisfactorily performed previous contracts entered into between the Govt. Of Sindh and the petitioners regarding supply of different kinds of goods etc. Arguing the case, learned counsel further submitted that as is evident from Letter No.CTC(SGA&CD) 3(27)/09 dated 29th March, 2013, [Annexure 'P-1' to Constitutional Petition No. D-2395 of 2013] the Hon'ble caretaker Chief Minister Sindh had imposed a ban on purchase of all new physical assets (Movable and Immovable) with immediate effect. According to the learned counsel, such directions issued by the Hon'ble Caretaker Chief Minister were also circulated. However, notwithstanding such ban, tenders were invited from the contractors/suppliers/bidders for supply of fuiniture/ articles/ science equipment/ computer with accessories books etc. Such tenders were published and notified in newspapers as provided for in Rule 17 of Sindh Public Procurement Rules, 2010. According to the learned counsel, though the petitioners had obtained tender documents but could not participate in bidding process because the tenders documents were against the SPPRA Rules. Learned counsel for petitioners further contended that the tender documents besides being defective contained incomplete information. Mr. Jawaid Ahmed Siddiqui, learned counsel for petitioners further urged that SPPRA Rule 13 was also violated. Per learned counsel, the petitioners, no doubt, had sought clarification/lodged objections inter alia about imposing ban but never responded positively. 33. Respondent No.2, per learned counsel, without seeking permission from the Secretary/Committee and/or obtaining relaxation regarding ban imposed, published tender notices, inviting the bids. Tenders so published/issued, indeed, in hasty manner smacks/shows mala fide on the part of respondent particularly when schools/educational institutions are closed for summer vacations. Mr. Jawaid Ahmed Siddiqui, Advocate further contended that respondents are quite in hurry to utilize the budge before lapse by 30th June, 2013 ex-facie in a colourful manner and/or in violation of the SPPRA Rules. Per learned counsel despite petitioner's letter dated 7-5-2013, the petitioner did not receive any response instead bids were opened at the office of respondent No.2. Learned counsel finally submitted that if, the process of bidding goes on and contract (s) is/are awarded in such hasty manner then, of course, there would be serious apprehension of corruption on the part of respondents. Thus to avoid such corruption, petitions deserve to be allowed. 34. Mr. Rizwan Nadeem, learned counsel appearing for the petitioners re-contempt application under sections 3-4 of Contempt of Court Act read with section 151, C.P.C. [M.A. No.19445 of 2013] while, adopting the arguments advanced by Mr. Jawaid Ahmed Siddiqui, Advocate, briefly
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submitted that Mr. J. Ram Das, Director Education, Sukkur has deliberately committed contempt by violating and/or ignoring order dated 30-5-2013 passed by this court. 35. In response to contempt application [C.M.A. No.19445 of 2013] a detailed 'counter-affidavit' has been filed by Mr. J. Ram Das Director Education Sukkur wherein the allegations of contempt have been emphatically denied. In response thereto, it is worth to note, no 'affidavit-in-rejoinder' has been filed on behalf of the petitioners. The averments/assertions, made it the 'counter affidavit' have thus gone unrebutted/unchallenged. 36. Mr. Qurban Ali Malano, learned counsel for respondent No.3 [viz. Insaf Education Trading in Constitutional Petition No.D-2396 of 2013] has seriously opposed the maintainability of the petitions. He forcefully,submitted that respondent No.3 duly participated in the bid process and also stands qualified. Per learned counsel, the petitioners have no lotus standi to file the above petitions as they have neither obtained tender documents nor participated in the bid process. Mr. Qurban Ali Malano, Advocate further contended that despite having knowledge that Insaf Education Trading/respondent No.3 appeared and participated in the bid process and stood qualified but the petitioners seemingly, with 'mala fide intention' avoided and/or ignored to join respondent No.3/Insaf Education Trading as party in Constitutional Petition No.D-2396 of 2013. Insaf Education Trading under circumstances, was compelled to file an application under Order I, Rule 10, C.P.C. [M.A. No.13003 of 2013] for becoming party in the above proceedings and on granting of the application vide order dated 13-6-2013 amended title impleading therein Insaf Education Trading as respondent No.3 was filed in Constitutional Petition No.D-2396 of 2013. Mr. Qurban Ali Malano, Advocate further urged that the petitioner is neither aggrieved person or otherwise, has any vested right to file above petitions. Further the petitioners have not approached this court with clean hands inter alia on account of manipulating the documents annexed with petitions. The petitions besides misconceived and/or misleading are incompetent in law thus liable to be dismissed with heavy cost. 37. Learned A.A.-G., Mr. Saifullah, also vehemently opposed the maintainability of the instant petitions. Per learned A.A.-G. There is no ban as alleged by the petitioners on procuring/purchasing the new physical assets [Movable and Immovable]. By the respondents. Per learned A.A.-G., the ban, obviously, has nothing to do with the procurement of movable and immovable equipment etc. Under the Annual Development Scheme [ADP]. In this regard learned A.A.-G. Focused our attention towards Letter No.FD/B&E-1/2(360)/BAN/ 2012-13 dated 17-5-2013 issued by Govt. Of Sindh, Finance Department [Annexure 'C' to respondent No.2 comments] and forcefully argued that in terms of the aforesaid letter even the so-called ban, if any, imposed by the then Hon'ble caretaker Chief Minister Sindh evidently is not applicable to the process of procurement/purchasing of new physical assets [Movable and Immovable] that being purchased under development scheme and for which funds are released by Finance Department. Besides, per learned A.A.-G., the above petitions having been filed merely on the basis of apprehension of corruption are without any foundation as such are liable to be dismissed, Per learned A.A.-G., the petitioners have failed to pinpoint any illegality and/or irregularity in the process of bidding. The purpose of the petitioners ex-facie is aimed at to get the release of funds lapsed by obtaining injunctive orders. Per learned A.A.-G., the tenders have properly and validly invited and the NIT has also got to be published on the authority's website. Learned A.A.-G. Further submitted that all necessary requisite information have been given in the tender documents, of course, strictly in accordance with SPPRA Rules, 2010. The petitioner being not aggrieved persons have no locus standi to invoke the constitutional jurisdiction of this court on the basis of false and pseudo pleas. Learned A.A.-G. Further contended that since the petitioners have not approached this court with clean hands thus not entitled for any equitable relief.
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38. Learned A.A.-G. Further submitted that the financial proposal is always included in the bidding documents separately and not as desired by the…
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