ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit Nos. 2605, 2283, 2346, 2587, 2617,
2249 of 2014 and 14 of 2015
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Date Order with signature of Judge
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04.09.2015
Mr. Ravi R. Pinjani Advocate for the plaintiffs in Suit Nos.2605, 2617, 2587 of 2014 and 14 of 2015 and for defendant No.4 in Suit No.2346/2014 and for Intervener in suit No.2249 and 2283 of 2014.
M/s. Yawar Farooqi and Irfan Ahmed Memon Advocates for the plaintiffs in Suit Nos. 2346, 2249 and 2283 of 2014 and for defendant No.5 in Suit No.2605, 2587/2014, 14/2015 and defendant No.4 in Suit No. 2617 of 2014.
Mr. Mohammad Akhtar advocate holding brief for Mr. Malik Khushhal, Advocate for the defendant No.4 in suit No.2587 of 2014.
Mr. Qazi Majid Ali Additional A.G
Dr. Abdul Razzak O.S.D, Health Department, Government of Sindh, Karachi.
Mohammad Omer, Attorney of the Shah Dev (Plaintiff in Suit No.2249, /2014, 2283/2014 and defendant in Suit No.2617, 2587, 2605 of 2014 and 14 of 2015) is also present.
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Muhammad Ali Mazhar-J. In the aforementioned suits, the bone of contention between the parties relates to the award of tender and work orders for the supply of different pharmaceutical products/medicines and some of them have also questioned the validity of the decision of “Complaint Redressal Committee” constituted under the Sindh Public Procurement Rules 2010.
2. The brief facts of the each suit are highlighted separately as under:-
Brief Facts
1. In Suit No.2605 of 2014, M/s Popular International (Pvt) Ltd. have challenged the decision of Complaint Redressal Committee dated 02.12.2014 and also prayed for the permanent injunction against the defendants from acting upon any such minutes of meeting or the decision.
2. In Suit No.14 of 2015, M/s B. Braun Pakistan (Pvt) Ltd. have also challenged the decision of the Complaint Redressal Committee dated 02.12.2014.
3. In Suit No.2587 of 2014, M/s Saad Sales Services have impugned the same decision of the Complaint Redressal Committee and claimed that the plaintiff be declared successful bidder in respect of the item listed in para-3 of the plaint and also prayed for permanent injunction against the official defendants not to act on the minutes of meeting or the decision of the Complaint Redressal Committee.
4. In Suit No.2617 of 2014, M/s. Hospital Services & Sales and M/s Pakistan Chemists & Druggists Association have also challenged the decision of Complaint Redressal Committee with further prayer of permanent injunction against the official defendants and they have also sought directions that defendant No.1 to 3 should proceed in accordance with the result of Evaluation Committee and opening of the financial bids.
5. The plaintiff Shah Dev in suit No.2249 of 2014 has challenged the rejection of his bid by the defendant without assigning any reason which is unjust and unlawful and violation of SPPRA Rules. He further prayed that the plaintiff may be allowed to participate in the tender proceedings and also sought restraining orders against the defendants not to issue work order.
6. In suit No.2283/2014, the same plaintiff Shah Dev prayed that rejection of his technical bid was unlawful and he may be allowed to participate in the tender proceedings for the items mentioned in para-7 of the plaint and he has also sought the restraining order against the defendants not to issue work order to any other person.
7. In Suit No.2346 of 2014, the plaintiff Mohammad Arshad Awan has prayed that he is entitled for the award of contract in respect of items mentioned in para-9 of the plaint. He further prayed that the defendants should consider the rates quoted by the plaintiff’ for award of contract and he has also sought restraining order not to award contract to any other person.
3. At the very outset, the learned Additional A.G pointed out that the dispute in the aforesaid Suits germane to the tenders for the supply of some pharmaceutical products and medicines invited by the Health Department, Government of Sindh for the financial year 2014-15 and since the controversy was raised between the bidders and the department therefore no tender/work order was issued for the Pharmaceutical items for the which the present plaintiffs filled their tenders and raised a dispute.
4. The learned counsel for the plaintiffs argued that some of the plaintiffs were declared successful but work orders were not issued which assertion was denied by the learned A.A.G. However, the learned counsel for the plaintiffs fairly conceded to that the controversy/dispute pending through above suits germane to the financial year 2014-15 and during pendency, the Complaint Redressal Committee constituted under the Sindh Public Procurement Rules 2010 announced their decisions on the complaint which have also been challenged through Misc. Applications in some suits and interim orders are operating against finalization of tenders.
5. It is an uncontroverted fact that during pendency of the above Suits, the Government of Sindh again invited fresh tenders for different Pharmaceutical items/medicines for the financial year 2015-16 in which also the aforesaid plaintiffs have again participated despite pendency of their Suits in this court. The plaintiffs have submitted their bids for different items but on 16.06.2015, the learned Single Judge of this Court passed an injunctive order that till next date of hearing, the process of impugned tender shall not be finalized in respect of the item described in the application CMA No.9323 of 2015, filed in Suit No.14 of 2015.
6. The representative of Health Department as well as learned Additional A.G submit that due to interim orders except the items mentioned in the injunction application filed by the plaintiffs in their Suits, the tenders have been awarded to successful bidders and the work orders have been issued. Now the department is waiting for the decision of the above Suits so that the tender proceedings of the remaining Pharmaceutical items/medicines may be finalized and the processed in accordance with law for the financial year 2015-2016.
7. The learned Additional A.G submits that since the plaintiffs have participated in the fresh tender process and due to interim orders, the public at large is suffering, therefore, he proposed the disposal of the suits with the assurance that the bids submitted by all the plaintiffs will be considered by the Technical Committee in a transparent manner and finalized the same in accordance with the law.
8. Mr. Ravi R. Pinjani advocate on instructions agrees to the proposal and he has no objection if his suits are disposed of along with pending applications without prejudice to the rights of his clients to sue for damages as despite acceptance of the bids of his clients for previous financial year, tenders were not awarded though this claim was seriously controverted by the learned A.A.G. Mr. Yawar Farooqi advocate also conceded to that his clients have also participated in the fresh tender floated for the year 2015-2016 and he has no objection if his suits are also disposed of but without prejudice to the rights of his plaintiffs to approach this court in case of any fresh cause of action accrued due to any irregularity or violation of law committed by the defendants in relation to the tender proceedings and its finalization.
9. It an admitted fact that earlier tenders were invited for the financial year 2014-15 and it is categorically stated by the learned AAG and representative of health department that after lapse of financial year, the issue of past tenders and its award cannot be reopened or considered. So far as the previous tender is concerned the issue is over and suits have virtually become infructuous and so far as bids for the financial year 2015-2016 is concerned, this matter is still alive in which all the plaintiffs may participate. Both the learned A.A.G and Dr. Abdul Razzak O.S.D Health Department, Government of Sindh have assured that the bids submitted by the plaintiffs will be considered by Evaluation/Technical Committee in a transparent manner and after scrutiny, the matter will be referred to for financial opening in accordance with Sindh Public Procurement Rules.
10. It is an admitted fact that owing to discord and wrangle involved in the tender proceedings, previous tender to a limited extent was shelved and discarded on the close of financial year and learned A.A.G argued that budget is lapsed so the government cannot revert back to previous tenders invited for a particular year and now again for the next tenders of pharmaceutical supplies, the plaintiffs have entered into arena and submitted their bids document but finalization of tender is stayed so that the tender proceedings including award of contract and work order of some of the medicines could not be finalized. If this time again the budget is lapsed nothing will be achieved by the plaintiffs even they will get away from the chance of declaring successful bidder on merits and the tender will be shelved again like previous year but due to this tug of war, the ultimate sufferer and victim would be public at large who will be deprived. I am fully in agreement with the line of argument build up by the learned A.A.G that the interest of public at large is involved in this case which needs urgent resolution.
11. It is well settled that public interest has been considered as the core of democratic theories of government and often paired with two other concepts, convenience and necessity. It also means welfare or well-being of the general public. In the case of Abu Dhabi Medical Devices Co. LLC. vs. Federation of Pakistan & another reported in 2010 CLC 1253 = SBLR 2010 Sindh 1313, I have discussed the phrase “public importance” and “public interest”. The expression “public importance” is not capable of any précised definition. It can only be defined by process of judicial inclusion or exclusion. Each case has to be judged in the circumstances of case as to whether the question of public importance is involved but it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individual directly or widely concern. Public Interest is very wide expression & embraces public security, public order & public morality. Expression Public Interest in common parlance means an act beneficial to general public & action taken in public interest necessarily means an action taken for public purpose. It further leads general social welfare or regard for social good & predicating interest of general public in matters where regard was social good is of the first moment.
12. The dispute involved in the instant case has discernible nexus with public interest which merits an expeditious disposal to safeguard and vouch for the rights of general public but at the same time, I am also fully cognizant that procurement laws are meant to uphold and preserve the transparency so it is incumbent upon the government and its attached departments/procuring agency to implement and follow the dictates of law fair and square which is an essential component and acid test of good governance.
13. By consent, the above suits are treated to be short cause and disposed of in the following terms:-
1. The bids submitted by the plaintiffs for the financial year 2015-2016 will be considered by the Evaluation/Technical Committee in a transparent manner.
2. The plaintiffs will be informed in writing so that they may ensure their representation at the time of opening of their bids before the concerned committee/committees.
3. The tender proceedings shall be conducted by the defendants and the concerned department strictly in accordance with law without any further delay and they shall complete the process quickly.
4. If the plaintiffs are declared qualified by the Technical Committee to participate in further proceedings, their bids/tender documents will be placed for financial opening and if plaintiff are declared successful they will be issued work orders in accordance with the Sindh Public Procurement Act 2009 and Sindh Public Procurement Rules 2010.
5. In the event of any future cause of action, the plaintiffs may seek appropriate remedy in accordance with law. It is further clarified that if any plaintiff has grievance or in a frame of mind that despite declaring him as successful bidder in the previous tender proceedings, the work order was not issued due to which he has suffered or sustained any special or general damages, he may also move to avail appropriate remedy in accordance with law.
6. All pending applications are disposed of in the aforesaid suits and the interim orders are also vacated.
Judge