IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)
PRESENT:

MR. JUSTICE SARDAR TARIQ MASOOD

MR. JUSTICE AMIN-UD-DIN KHAN
MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL PETITIONS NO.596 TO 598 OF 2021

(Against Judgment dated 01.12.2020 passed by the
Peshawar High Court, Mingora Bench (Dar-ul-Qaza),
Swat in W.P.Nos.1043-M to 1045-M/2018)

National Database and Registration …Petitioners

Authority (NADRA) through its Chairman, (in all cases)
Islamabad and others
Versus

Jawad Khan (In CP.596/2021)

Ghulam Saddiq (In CP.597/2021)
Amjad Ali (In CP.598/2021)
...Respondents

For the Petitioner : Hafiz S.A. Rehman, Sr. ASC

For the Respondents : N.R.

Date of Hearing : 08.05.2023

JUDGMENT

MUHAMMAD ALI MAZHAR, J:- These Civil Petitions for leave to appeal
are directed against the consolidated judgment dated 01.12.2020,
passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza),
Swat in W.P.Nos.1043-M to 1045-M/2018 whereby the writ petitions
were allowed with certain directions to the petitioner No.1, the National
Database and Registration Authority (“NADRA”).

2. The transitory ins and outs of the case are that the petitioners invited
applications through advertisement for the vacant posts of Customer
Service Executive (“CSE(s)”) for the newly established Call Center at
Swat with the eligibility criteria of graduation with one year experience.
The respondents applied for the post and were short listed for the test
and interview, however, despite qualifying the test and interview the
respondents were appointed as Data Entry Operators (“DEO(s)”) on
daily wages basis for a period of one month on Job training. The offer
letters were issued to the respondents for appointment as DEOs which
were accepted by the respondents. As per the relevant policy, the
employment status of short term employees was changed into contract
basis for a period of three (03) years. To make a long story short, the
respondents were aggrieved that they qualified for the post of CSE but
C.Ps.No.596-598/2021 -2-

they were appointed as DEOs, therefore the respondents filed Writ

Petitions in the High Court with this cause of distress and the learned
High Court allowed the Writ Petitions with directions to NADRA to treat
the present respondents/petitioners at par with the petitioner in W.P.
No.549-M/2012 and to appoint them to the posts of CSE with effect
from the date from which the petitioner in W.P. No.549-M/2012 was
ordered to be appointed.

3. The learned counsel for the petitioners argued that the respondents
are contract employees and NADRA has no statutory rules of service,
hence the Writ Petitions under Article 199 of the Constitution were not
maintainable. He further averred that the respondents invoked the
jurisdiction of the High Court with unclean hands, therefore equity did
not lie in their favour. The writ is an extraordinary and discretionary
relief which could not have been extended to the respondents who are
contractual employees and opted for appointment as DEOs of their own
free-will and volition. The learned counsel relied on the dictums laid
down by this Court 2017 SCMR 1979 and 2019 SCMR 984 in support
of these arguments.

4. Heard the arguments. It is unequivocally reflected from the record

that applications were invited by NADRA through newspapers for the
post of CSE. The respondents participated in the recruitment process
and qualified the test and interview but they were appointed as DEOs
rather than CSEs which was the originally advertised post. The
respondents took the plea before High Court that they had accepted the
said offer on the promise made to them that they would be appointed to
the advertised posts on completion of one month on-job training,
however despite the successful completion of training and achieving
qualifying scores, NADRA failed to appoint them on the posts applied for
and continued to employ them as DEOs. In a similar situation, another
employee filed a Writ Petition No. 549-M/2012 which was allowed by
the High Court vide judgment dated 28.03.2018 and the impugned
judgment is concentrated on alike equilibrium.

5. The matter under deliberation and determination signposts to the

appointment process which was triggered by NADRA through
advertisements in the vernacular newspapers. The foremost aspiration
of inviting job applications through advertisements with required
academic qualifications, skills and experience is to acquaint and allow
potential candidates to apply for vacant positions and appear for test
C.Ps.No.596-598/2021 -3-

and interview according to the recruitment policy or dossier for the

advertised posts. A job advertisement is a descriptive text in order to
visualize the nature of the job with certain terms and conditions,
including perks and benefits, to invite applications from candidates who
themselves considered eligible to apply for the advertised posts and
contest in the competitive process of recruitment initiated by the hiring
department or agency for the selection of best candidates in view of the
nature of job and the required skills.

6. In the present case the respondents had applied for the position of
CSE and qualified the test and interview but they were offered the post
of DEO without any rhyme or reason, which is a violation of the terms
and conditions of the recruitment process formulated for the
appointment of CSEs. The respondents applied for the aforesaid posts
and, after qualifying the prerequisites, they legitimately expected their
appointment on the applied posts unless their credentials are rejected
which is not the case here. Neither their applications were rejected after
due diligence, nor the recruitment process was scrapped for any reason.
The doctrine of legitimate expectation connotes that a person may have
a reasonable expectation of being treated in a certain way by
administrative authorities owing to some uniform practice or an explicit
promise made by the concerned authority. In fact, a legitimate
expectation ascends in consequence of a promise, assurance, practice
or policy made, adopted or announced by or on behalf of government or
a public authority. When such a legitimate expectation is obliterated, it
affords a locus standi to challenge the administrative action and even,
in the absence of a substantive right, a legitimate expectation may allow
an individual to seek judicial review of a wrongdoing; and in deciding
whether the expectation was legitimate or not, the Court may consider
that the decision of the public authority has breached a legitimate
expectation and, if it is proved, then the Court may annul the decision
and direct the concerned authority/person to live up to the legitimate
expectation. This doctrine is basically applied as a tool to watch over
the actions of administrative authorities and in essence imposes
obligations on all public authorities to act fair and square in all matters
encompassing legitimate expectation [Ref: Uzma Manzoor v. Vice
Chancellor, Khushal Khan Khattak University (2022 SCMR 694)]. The
doctrine of legitimate expectation is equated with “fairness” and “equity”
which is a legitimate attribute of a public functionary. The justification
for treating “legitimate expectation” and “promissory estoppel” together
as grounds for judicial review is (i) that they both fall under the general
C.Ps.No.596-598/2021 -4-

head of “fairness”; and (ii) that “legitimate expectation” is akin to an

estoppel [Ref: Judicial Review of Public Actions by Justice (Rtd.) Fazal
Karim, page 1365].

7. In the present set of circumstances the doctrine of promissory

estoppel is also reminiscent and reverberating which is a well-known
legal principle whereby a promise is enforceable by law, even if made
without formal consideration, as when a promisor has made a promise
to a promisee who then relies on that promise to his subsequent
disadvantage and impairment. This tenet precludes the promisor from
repudiating the promise. The essential prerequisites for lodging a right
and entitlement under the doctrine of promissory estoppel are that
there must be a promisor and a promisee, and the promisee suffered a
loss due to renunciation of promise. In such a situation, the Courts
may put into operation this doctrine for administering justice to an
aggrieved person. The doctrine of promissory estoppel cannot be
repressed in line with equivalent constriction as estoppel in the stricto
sensu, rather it is an equitable course of therapy developed by the
Courts for doing justice against a valid cause of action. It is not
necessary in all circumstances for the attraction of this doctrine that
the promisee who placed trust and dependence on the promise should
sustain harm, but what actually necessary is that the promisee should
have changed his position in reliance on the promise and was caused
prejudice. This doctrine has been dealt with by this Court in the
following dictums:

1. National Saving Central Directorate, Islamabad and another v.

Muhammad Farooq Raja (PLD 2021 SC 320). The contention of the
learned counsel for the respondent that the doctrine of promissory
estoppel is squarely applicable has force. It is well settled that where the
Government control functionaries make promise which ensues a right to
anyone who believes them and acts under them, then those
functionaries are precluded from acting detrimental to the rights of such
person/citizen.

2. Azra Riffat Rana v. Secretary, Ministry of Housing and Works,

Islamabad and others (PLD 2008 SC 476). The doctrine of promissory
estoppel was discussed in detail in the case of Pakistan through
Ministry of Finance Economic Affairs and another v. Fecto Belarus
Tractors Limited PLD 2002 SC 208 and its applicability. It was held that
the appellants having believed the representation made by the State and
having further acted thereon could not have been defeated of their
hopes which had crystallized into rights. It was further held that it was
not open to the State according to the law laid down by the Supreme
Court of India to backtrack. Needless to point out that though the
doctrine of promissory estoppel does not extend to legislative and
sovereign functions yet, executive orders are not excluded from lis
operation. Reference in this regard may be made to the cases reported
as Pakistan through Secretary, Ministry of Commerce and others v.
Salahud Din and others PLD 1991 SC 546, Federation of Pakistan v.
C.Ps.No.596-598/2021 -5-

Ch. Muhammad Aslam 1986 SCMR 916, Union of India and others v.
Godfrey Philips India Limited AIR 1986 SC 806, Messrs lit Ram Shiv
Kumar and others AIR 1980 SC 1285, M.P. Sugar Mills v. State of U.P.
AIR 1979 SC 621, Ram Niwas Gupta and others v. State of Haryana
through Secretary, Local Self-Government, Chandigarh and another AIR
1970 Punj. And. Har. 462.

3. Federation of Pakistan and others v. Ammar Textile Mills (Pvt.)

Limited and others (2002 SCMR 510). This Court in the case of
Pakistan through Secretary, Ministry of Commerce and 2 others v.
Salahuddin and 3 others PLD 1991 SC 546 has laid down following
limitations for invoking doctrine of Promissory Estoppel: (1) The doctrine
of Promissory Estoppel cannot be invoked against the Legislature or the
laws framed by it because the Legislature cannot make a
representation. (2) Promissory Estoppel cannot be invoked for directing
the doing of the thing which was against law when the representation
was trade or the promise held out. (3) No agency or authority can be
held bound by a promise or representation not lawfully extended or
given. (4) The doctrine of Promissory Estoppel will not apply where no
steps have been taken consequent to the representation or inducement
so as to irrevocably commit the property or the reputation of the party
invoking it; and (5) The party which has indulged in fraud or collusion
for obtaining some benefits under the representation cannot be
rewarded by the enforcement of the promise."

8. Whereas in the foreign jurisdiction, the aforesaid doctrine has been

delineated in the following manner:

Words and Phrases (Permanent Edition), Volume 34

(At page 533-534)
"Promissory estoppel" differs from equitable estoppel in that it rests on a
promise to do something in the future, whereas the latter rests on a
statement of present fact. Waugh v. Lennard, 211 P.2d 806, 812, 69
Ariz. 214.

"Promissory estoppel" arises when an innocent promisee relies, to his

disadvantage, upon promise intended or reasonably calculated to
induce action by him. Miller v. Lawlor, 66 N.W.2d 267, 272, 274, 245
Iowa 1144, 48 A.L.R.2d 1058.

To bring case within doctrine of "promissory estoppel", it is essential

that promissory could and would have performed the condition or would
not have allowed the defense to arise, but for promisor's waiver. Panno
v. Russo, 186 P.2d 452, 455, 82 Cal.App.2d 408.
The elements prerequisite to application of doctrine of "promissory
estoppel" are a promise which promisor should reasonably expect to and
does cause promisee to change his position in justifiable reliance
thereon in such manner that injustice could be avoided only by
enforcement of promise. Hill v. Corbett, 204 P.2d 845, 847, 33 Wash.2d
219.

A "promissory estoppel" is a promise which promisor should reasonably

expect to induce action or forbearance of a definite and substantial
character on part of promisee and which does induce such action or
forbearance and is binding if injustice can be avoided only by
enforcement of promise. West v. Hunt Foods, 225 P.2d 978, 983, 101
Cal.App.2d 597.

Wharton’s Concise Law Dictionary (15th Edition)

(At page 834)
In order to invoke the doctrine of promissory estoppel it is enough to
show that the promisee has, acting in reliance on the promise, altered
C.Ps.No.596-598/2021 -6-

his position and it is not necessary for him to further show that he has
acted to his detriment, Motilal Padampat Sugar Mills Co. Ltd. v. State of
Uttar Pradesh, AIR 1979 SC 621: (1979) 2 SCC 409: (1979) 2 SCR 641;
Ashok Kumar Maheshwari v. State of Uttar Pradesh, (1998) 2 SCC 502.

Halsbury’s Laws of England (Fifth Edition), Volume 47

(At page 355)
Promissory estoppel is an extension by equity of common law estoppel
by representation. The principle of promissory estoppel is that, when
one party has, by his words or conduct, made to the other a clear and
unequivocal promise or assurance which was intended to affect the legal
relations between them and to be acted on accordingly, then, once the
other party has taken him at his word and acted on it, the one who gave
the promise or assurance cannot afterwards be allowed to revert to their
previous legal relations as if no such promise or assurance had been
made by him, but must accept their legal relations subject to the
qualification which he himself has so introduced. This principle was
developed in a line of authority from 1877 onwards but first clearly
enunciated in 1944. The term 'promissory estoppel' was not, however,
used in the 1944 judgment generally taken as the basis of the doctrine.
Promissory estoppel may prevent a party to a contract from going back
on a concession he has made to the other party and so may modify
contracts in the sense of suspending or even extinguishing contractual
rights but it cannot stand alone as giving a cause of action in itself and
has not therefore made any general inroads into the doctrine of
consideration.

9. Article 3 of the Constitution of the Islamic Republic of Pakistan, 1973

(“Constitution”) casts an unavoidable and inescapable obligation upon
the State to ensure the elimination of all forms of exploitation, and the
gradual fulfilment of fundamental principles from each according to
their ability, to each according to their work. Whereas under Article 38
it is provided that the State shall secure the wellbeing of the people,
irrespective of sex, caste, creed, or race by raising their standard of
living, by preventing concentration of wealth and the means of
production and distribution in the hands of a few to the detriment of
general interest, and by ensuring equitable adjustment of rights
between employers and employees, and landlords and tenants. The
objective of good governance cannot be achieved by exercising
discretionary powers unreasonably or arbitrarily without rhyme or
reason, and/or without compos mentis, rather such objective can only
be met by adhering to the rules of justness, fairness and openness as
enshrined under Articles 4 and 25 of the Constitution. In the case of
Ikram Bari Vs National Bank of Pakistan (2005 SCMR 100), this Court
held that an Islamic Welfare State is under an obligation to establish a
society which is free from exploitation and wherein social and economic
justice is guaranteed to its citizens. By Article 2-A of the Constitution,
which has been made its substantive part, it is unequivocally enjoined
that in the State of Pakistan the principles of equality, and social and
economic justice as enunciated by Islam shall be fully observed which
shall be guaranteed as fundamental rights.
C.Ps.No.596-598/2021 -7-

10. The learned counsel for the petitioners vigorously argued that the
respondents, being contractual employees, could not invoke writ
jurisdiction against the petitioner No.1 which has no statutory rules of
service and relied on the judgment rendered by this Court in the case of
Chairman NADRA versus Muhammad Ali Shah & others (2017 SCMR
1979) wherein the Court considered Regulation 4 and 35 of the NADRA
Employees (Service) Regulations, 2002 and held that contractual
employees of statutory organizations could not invoke the constitutional
jurisdiction of High Court and the High Court could not renegotiate,
alter and amend the terms of regularization that were offered by the
Authority to its contractual employees. Next, the learned counsel
referred to the case of Maj. (Retd.) Syed Muhammad Tanveer Abbas
versus Federation of Pakistan & another (2019 SCMR 984), in which it
was held that contractual employees cannot challenge their termination
through writ jurisdiction. Both the aforesaid precedents are
distinguishable to the facts and circumstances of the present case.
Neither the respondents were terminated employees, nor did they
challenge any dismissal or termination order from service, nor did they
seek any relief from the High Court for regularization of their
contractual services into permanency, rather they only invoked the writ
jurisdiction for the appointment as CSEs for which they applied and
fulfilled the criteria and not as DEOs, for which the learned High Court
not only justly entertained the petition, but also rightfully granted relief
to redress the grievance of the respondents.

11. In the wake of the above discussion, we do not find any irregularity
or perversity in the impugned judgment passed by the learned High
Court. Consequently, these petitions are dismissed and leave to appeal
is refused.

Judge

Judge

Islamabad Judge
08.05.2023
Khalid
Approved for reporting.