MIAN ALLAH NAWAZ, J.-- This Intra-Court Appeal, under section 3 of Law Reforms Ordinance/1972, raises one primary question and two ancillary questions. Appellant No. 1 is M/s. Lever Brothers Pakistan (Pvt.) Ltd., while appellant No. 2 is Pakistan Industrial Promoters (Pvt.) Ltd. Contesting respondent is M/s. Yummy Milk Products (Pvt.) Ltd./respondent No. 4 while respondent No. 1 is Government of Punjab. Non-contesting respondents are Government of Pakistan and Pakistan Standards and Quality Control Authority/respondents Nos. 2 and 3 respectively. The questions/points, so, raised, are as follows:-
(1) Whether on the facts and circumstances of the case in hand, letter dated 17.9.1992 issued by Government of Punjab/through Secretary Health is in defiance of para 19 in Appendix-ll of West Pakistan Pure Food Rules, 1965 (shortly rules);
(2) Is Province of Punjab precluded by rule of promissory estoppel to rescind impugned letter and restrain appellants from using vegetable fat in the preparation of i.e.-cream;....
(3) Whether the Constitution Petition No. 20297/97, filed by M/s. Yummy Limited/respondent No. 4 is barred by principle of laches and estoppel by conduct.
2. in order to appreciate the rival contentions of the parties, it is necessary to set down factual as well as legal background of this litigation. M/s. Lever Brothers Pakistan Ltd./appellant No. 1 is a subsidiary of Unilever/an Anglo- Dutch Conglomerate, it manufactures/markets Ice Cream with a brand name (Wall's) in eighty six Countries. Pakistan Industrial Promoters (Pvt.) Limited/respondent No. 2 was in the same business and used to make Ice-cream under the brand (POLKA'). 0n 13.8.1984, Federal Food Board recommended use of vegetable fat in preparation of Ice cream subject to following conditions:- "As an interim arrangement the use of vegetable fat (Hydrogenated) may be allowed according to the PSI Standard for Ice-cream. However, the Ice-cream will not be prepared in combination with the vegetable fat (Hydrogenated) and milk fat. Both type of Ice-creams with milk fat and Ice- cream with vegetable fat (Hydrogenated).
Consequently, on 3rd October, 1984, concerned Section Officer sent the necessary memorandum to Governments of all the Federating Units namely, Punjab, Frontier, Baluchistan and Sindh.
Thereafter on 5th November, 1984, the Government of Sindh decided to comply with the aforesaid directive and allowed the use. of vegetable fat (Hydrogenated) in the preparation of Ice-cream subject to conditions embodied in the memo, of Federal Government, and appellant No. 2 was allowed to use vegetable fat in the preparation of its products. The Government of Punjab, too, decided to follow the aforesaid circular on 17.9.1992. Ultimately, Government of North-West Frontier followed the example of Government of Punjab on 1.9.1993. This is how, the recommendations, embodied in circular dated 13.8.1984, were given effect to by competent authorities of their Federating Units namely, Sindh, Punjab, and N.W.F.P.
3. Feeling encouraged, appellant No. 1 entered the circle of manufacturing of Ice-creams, it set up an Ice-cream manufacturing plant in the vicinity of Lahore and also purchased shares of appellant No. 2 with its brand name 'POLKA', it is necessary, at this stage to note that appellant No. 2 had been manufacturing Ice-cream both with milk fat and vegetable fat since 1984 in Karachi and marketed it in the length and breadth of Country. Feeling dis-contented, respondent No. 4 raised the issue before Pakistan Standards and Quality Control Authority established under Act VI of 1996.
Respondent No. 4 filed the representations/contending therein that item No. 19 in Appendix-ll to rules did not permit preparation of Ice-cream with the use of vegetable fat; that use of said fat was injurious to health; that a Cream manufactured with vegetable fat cannot be sold as Ice-cream.
These representations were filed on 18.4.1997 and 17.9.1998, respectively. Number of meetings were held to resolve the aforesaid issue but no decision has been taken by the institute so far. in these circumstances M/s. Yummy preferred Constitution Petition No. 20297/97 with a prayer for grant of following relief. "it is, therefore, prayed that this writ petition be accepted and:
(1) Respondent No. 1's letter dated 17.9.1992 be held to be ultra vires the Ordinance and the rules, and consequently declared to be without lawful authority and of no legal effect;
(2) Respondent No. 1 be directed to perform his duty to ensure compliance by all manufacturers with the provisions of Ordinance and the Rules relating to Ice-cream; and
(3) Respondent No. 3 be directed to perform its duty to expeditiously finalise the nomenclature (other than i.e.-cream) and standard for the product based on vegetable fat."
The aforesaid petition was allowed by learned Single Judge on 7.4.1999/holding that the impugned letter dated 17.9.1992 was totally in contravention of para 19 of Appendix-ll of Rules and so as void ab initio; that the Constitution petition filed by M/s. Yummy was not hit by rules of promissory estoppel and laches. On these conclusions writ petition was allowed in the following terms:- "The upshot of this discussion is that the letter dated 17.9.1992 is declared ultra-vires and illegal by accepting this writ petition withcosts. The C.L. 543 result is that respondent No. 1 is directed to ensure that the products of respondents Nos. 4 and 5 which are not prepared in accordance with para 19 of Appendix-ll of Rules, 1965 should not be allowed to be manufactured, marketed and sold as oer provisions of Section 6 of Ordinance, 1960. The respondent No. 1 also to ensure that the icecreams sold in the market are manufactured and marketed strictly in accordance with its definition and in a most hygienic conditions."
4. We have heard Mr. Hamid Khan, Advocate learned counsel for appellants and Mr. Zahid Hamid for M/s. Yummy respondent No. 4. Kh. Saeed-uz-Zafar, Deputy Attorney General for Federation. The latter re-iterated that was stated before the learned Single Judge by him. Mr. Ghulam Haider- Al- Ghazali, Addl. Advocate General represented the Government of Punjab/respondent No. 1. in the first instance,' he defended the impugned letter. Nevertheless at the fag end of the arguments, he received instructions from the Government of Punjab and stated that the impugned circular was in violation of para 19 of Appendix-ll of Rules and the Province of Punjab and the Government was thinking to withdraw it.
5. Stage, now, has come to deal with question/points noted in first paragraph of the judgment. As regards the first question, case of appellants is that assailed circular was issued by the authority competent to make rules under section 3 of Punjab Pure Food Ordinance, 1960; that it was expressed in precise terms and was applicable with element of generality and so it embodied all the attributes of rules. 0n the above line of reasoning, it was suggested that the questioned circular tantamounted to amendment in para 19 of Appendix-ll of Rules. The help was sought from Pakistan v. Sheikh Abdu! Hamid (PLD 1961 S.C. 21), Govt, of West Pakistan v. A.A. Aziz (PLD 1966 S.C. 188), Dr. Habib-ur- Rehman v. West Pakistan Public Service Commission (PLD 1973 S.C. 144) and Khan Faizullah Khan v. Govt, of Pakistan (PLD 1974 S.C. 291). On the contrary, learned counsel for M/s. Yummy contended that questioned circular was patently in defiance of para 19 of Appendix-ll of Rules which specifically prescribed that i.e.-cream can only be prepared with milk fat and not vegetable fat. According to him, para No. 19 specifically prescribed/prescribes that Ice cream can only be made from a combination of milk or cream or other milk products, with or without eggs, but with water, sugar and harmless flavouring and harmless colouring and with or without added stabilizer, and with or without fruit, fruit juices, nuts, coffee, coca or chocolate syrup cakes, i.e.- cream, by whatever name called, must contain not less than 10.0 percent by weight of milk fat, not less than 36 percent of total solids and not more than 0.5 percent of stabliser. Learned counsel firmly contended that any "Frozen Desert" prepared with v6getable fat cannot be labelled as i.e.- cream. On this ratiocination, it was argued that preparation of i.e.-cream by appellants with vegetable fat was totally in violation of para 19 of Rules and was punishable under section 6 of the Ordinance. He placed reliance on The United Netherlands Navigation v. The Commissioner of Income-tax South Zone West Pakistan (PLD 1965 S.C. 412). Continuing, he maintained that the impugned circular was contrary to express provision of para 19 of the Rules and so was ultra vires; that the aforesaid letter/memorandum could not be designated as a substitute for the rules.
Reliance was placed upon Govt, of West Pakistan and another v. Nasir M. Khan and others (PLD 1965 S.C. 106).
6. Before proceeding further, we deem it useful to have a rapid survey of relevant applicable law and Rules. The pertinent Statute is West Pakistan Pure Food Ordinance, 196<>(VII of 1961). This was enacted with an objective" to consolidate and amend the law relating to preparation/sale of foods in the Province of West Pakistan". Its section 2 defines various expressions used in the Statute. The first expression of relevance is "adulterated", it is as follows:- "(i) adulterated food" means an article of food which is not of the nature, substance of quality which its purports or is represented to be, or
(ii) \ which contains any such extraneous substance as ' may affect adversely the nature, substance or quality thereof, or
(iii) which is prescribed, mixed, coloured, powered or coated with any other substance in contravention of the rules, or i
(iv) any constituent of which has been wholly or in part abstracted so as to affect injuriously its nature, substance or quality, or.
(v) which contains any poisonous or other ingredient which may render it injurious to health, or
(vi) the quality of purity of which does not conform to the prescribed standards, or
(vii) which having been prepared, packed or kept under insanitary conditions, has been contaminated of become injurious to health."
Next important provision of it is section 6. it is prohibitory in nature and restrains the sale or manufacturing of adulterated food. Sections 36 and 3 of ibid pertain to delegation of powers to Governmental authorities. Section 37 confers powers upon Government to make/frame rules for the purpose of carrying into effect the provisions of Ordinance. Sub-section (2) of this section empowers delegatee to make rules with regard to different matters. Clause (f) of subsection (2) of ibid states, that the Government shall specify the conditions (which include the addition of colour) or any other substance subject to which any food, shall be manufactured, sold, kept stored offered or exposed for sale. Under this section, West Pakistan Pure Food Rules, 1965 were framed and made effective from 17th of September, 1965. it is a common ground between the parties that these rules still occupy the field. Rules were followed by Appendix and Appendix-ll. Para 19 (nineteen) in Appendix-ll, is the central rule around which the controversy revolves. This reads as under:- "Ice Cream, Fruit Ice-Cream, Malai-kj Barfi, Khoa ki Barfi, Malai ki Kulfi, Khoa ki kulfi, means the pure clean frozen product made from a combination of milk or cream or other ilk products, with or without eggs, but with water, sugar and harmless flavouring and harmless colouring, and with or without added stabilizer and with or without fruit, fruit juices, nuts, coffee coca or chocolate syrup, cakes of confections i.e.-cream by whatever name it is called shall contain nor less than 10.0 percent by weight of milk fat, not less than 36 per cent of total solids and not more than 0.5 per cent of stabiliser."
This para, very clearly, deals with the constitutive elements of the Ice-Cream, Khoa ki Barfi, Malai ki Barfi, Khoa ki kulfi, etc. it further says that Ice-Cream, by whatever name is called', it must contain not less than 10.0 percent by weight of milk fat, not less than 36 percent of total solid and not more than 0.5 per cent of stabiliser. The language of this item is clear and unambiguous, it specifically prescribes the composition of i.e.-cream and states that any deviation from above of formula shall be punishable under Section 6 of the Ordinance. The impugned circular was issued by the Province of Punjab and it permitted the manufacturing of Ice- Cream to use vegetable fat instead of milk fat for preparing Ice-Cream as an interim arrangement. The question, which now arises for answer, is whether this letter tantamount to amendment in para 19 of Appendix-ll of Rules, 1965. This question is not free from difficulty, in order to understand the competing claim of parties, we find it necessary to survey the relevant precedents. This point came up for consideration in Bashir Ahmad Khan Vs. Muhammad AH Khan Chandhary, etc, (PLD 1960 SC (Pak) 195 at 202). in this case it was held that in departmental/circular/letter was not binding upon the Court which was required to interpret relevant law and Rules in context of empowering statute, in this case it was held:- "It remains to add that these Rules of 1929 were retained in force by virtue of provisions in the Government of India Act, 1935, in the Indian Independence Act, 1947 and in the Constitution of Pakistan of 1956. in the discussion above, which is based upon the wording of the Rules as they stand, references to the "Indian* Police Service" should be understood as applicable in Pakistan today to the "Police Service of Pakistan".
The aforesaid view was followed in The United Netherlands Navigation Co. Ltd. 1/s. The Commissioner of income Tax, South Zone (W.P.) Karachi (PLD 1965 S.C. 412) and Government of West Pakistan Vs. Nasir M. Khan, etc. (PLD 1965 S.C. 106).
7. Now we reach PLD 1970 SC. 453 (Nazir Ahmad Vs. Pakistan and others), in this case, the appellant/Nazir Ahmad was serving in the Posts and Telegraphs Department of Pakistan. He competed in the clerical services examination held by the department in November, 1942, and was placed on the waiting list for appointment as a first division clerk. An offer for appointment was made to him in September, 1943. As the appellant intended to compete for the Engineering Supervisors examination of the same department, he requested the Postmaster General, by an application, to permit him to join his office after the aforesaid examination. His application was allowed on 21st October, 1943. Appellant succeeded in examination and so was selected for training as an Engineering Supervisor on the 9th of February, 1944. Unluckily, he failed to pass the medical test held on 21st of February, 1944. in appeal, he was declared fit on 1st of July, 1944 and was released by the department for his training which was to last for 15 months: but due to the outbreak of Great World War, was curtailed to six months. After undertaking the training, he was appointed as Engineering Supervisor on 15th May, 1945. Subsequently, he wa^ sent to Layallpur to complete the remaining training. Resultantly, he started to work as Engineering Supervisor on 30th of October, 1951. Respondents Nos. 2 to 12, who had also been selected for training as a result of the 1942 Examination, were appointed supervisors in September, 1944/ a few months prior to induction of appellant.
8. The department had framed rules for the recruitment and training of Engineering Supervisors, as per A. R. No. S.116-1/42, dated the 8th of June, 1943, According to these rules there were two categories pf candidates for admission to the Engineering Supervisors namely (I) departmental candidates and (2) outside candidates. Under rule 9, outside candidates were to apply to the Director General of the department for admission to the examination in prescribed from, but in the case of such candidates who were in permanent Government employment, an application had to be forwarded through proper channel to the head of the Circle of the department. For outside candidates, employed in department itself, rule 14 (ii) provided that they shall be selected by the head of the circle after scrutiny of their confidential record. Rule 28 covers the seniority of appointment to service of Engineering Supervisors. The department treated the appointment of appellant in this cadre as outside departmental candidate and he had been promoted accordingly. He was promoted as an Assistant Engineer on 15th. of October, 1^49 in preference to respondent Nos. 2 to 12. The change in seniority, however, was brought on the presentation of respondent No. 11 Sh. Manzoor Hussain. Consequently, the appellant filed a writ petition which was dismissed by the learned Division Bench of the High Court. On further appeal to Supreme Court, the appellant was successful, it was held: "The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice, in the case of the appellant, the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This, to say the least, is bound to weaken the faith of the employee in the attitude and behaviour of the department. A passage from Crawford Statutory Construction (1940 Edition at page 399) may be usefully reproduced to point out the effect of "Departmental Construction", that is to say, the construction which is placed in practice on the provisions of a Statute or rules by the administrative authorities who are charged with the execution of the Statute or the Rules. The learned author observes: "where the executive construction has been followed for a long time an element for estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustice would result should the Courts reject the construction adopted by the executive authorities."
This view taken in Nazir Ahmad's case was followed in Mukhtar Ahmad v. Govt, of W. Pakistan (PLD 1971 SC 846), Crown Bus Service v. Central B.R. (PLD 1976 Lah. 1487) and Fazai Elahrn ljaz vs. Government of the Punjab (P.L.D. 1977 Lah. 553). in the last precedent, his lordship Mr. Justice Aftab Hussain observed:- "The rule-making power under para 13 is also exercisable in a similar manner by publication in the official Gazette. The authority passing orders of appointment or reduction in rank being the same and the manner of issuing the orders or making effective rules being similar, it will amount to making of fatish of a rule to say that it cannot consists of orders. This is well-settled that executive orders or instructions issued by the appropriate Government can be regarded as being in the nature of statutory rules provided they are expressed with precision ^nd yet posses generality so as to be capable of application to a large number of persons. Province of Punjab Vs. Ch. Nazir Hussain (1) approved in appeal in PLD 1960 S^C. 130, Pakistan vs Abdul Hameed, (2), Province of West Pakistan v. Din Muhammad, (3), Government of West Pakistan v. Azra Feroze Bakht, (4)
Mukhtar Ahmad v. Government of West Pakistan, (5), Habib-ur-Rehman v. Wesj Pakistan Public Service Commission, (6) Faiz Ullah Khan v. Government of West Pakistan."
9. From the foregoing discussion, the ratio deducible, is that the executive instructions/orders, when issued by authority/state functionary competent to frame/make Rules and if are precise, certain and general in nature, such governmental/executive instruction may be treated as having force of statutory rules. This proposition of law seeks strength from section 21 of General Causes Act which enacts that whereby any Provincial Act or Regulation, a power to issue instructions/orders, rules or bye-laws is conferred then that power includes a power exercisable in the like manner arid subject to the like sanction and conditions (if any), to add to amend, vary or rescind any notifications, orders, rules or bye-laws, so, issued, in order to attain the force of statutory rules, such orders/departmental instruction must satisfy the statutory conditions which attach to exercise of authority by delegatee and must not be offensive to provisions of authorizing statute. These are the parameters of subordinate legislation which. are fully attracted to such instructions/orders. When seen, on the above touch-stones we find that challenged letter/order had been issued by the competent authority/delegatee/Government of Punjab; that it is precise in term as If permits the use of vegetable fat, in the preparation of i.e.-cream, it is general in nature. So, it satisfies the above conditions. The plain reading of this circular/letter shows that it was issued by way of interim arrangement for a period/enabling the delegatee to bring the necessary amendment after taking into consideration circumstances relevant for such exercise, it is also undisputed that this letter was not published. This being the position, we are not able to say that this impugned circular/letter has acquired the force of rules as proviso to para 19 of Appendix-ll of rules. Plainly, the impugned letter can neither be treated as a mandatory proviso to para 19 of Appendix-ll of rules nor it can be treated as consistent with the aforesaid provision, it is positively a deviational arrangement/preclude to bringing necessary amendment in the rules. Unfortunately, despite the expiry of a decade, the delegatee has not completed the exercise and amendment has not been so far made in the rules, in the aforesaid scenario we have no other option but to hold that impugned letter/order is in deviance from what is prescribed in paragraph No. 19 in Appendix-ll of the Rules. Having so hold, we are persuaded to examine its legal efficacy while dealing with concept of promissory estoppel.
10. Briefly, Mr. Hamid Khan, learned council for appellants, contended that under the impugned letter, appellant No. 1 set up i.e.-cream manufacturing plant near Lahore with a huge capital and had been manufacturing vegetable fat and Milk-fat i.e.-cream for more than 10 years and now neither Province of Punjab nor Messrs Yummy can take any exception to their right to use vegetable fat in the preparation of i.e.-cream. On the contrary, the learned counsel for respondent emphasised that the plea of estoppel cannot be taken against the legislature/any delegatee. This plea is built upon the doctrine of estoppel known as promissory estoppel. This concept is complex legal notion, in order to succeed under this plea, the person, who raises it, must show that presence of following circumstances:-
(i) That the party sought to be estoppel, or some person for whose representations such party is in law responsible, made a representation;
(ii) That the case which the party is sought to be estopped from making, setting up, or attempting to prove, contradicts in substance his original representation;
(iii) that such original representation was of a nature to induce, and was made with the intention of inducing the party raising the estoppel, to alter his position to his detriment;
(iv) that the party raising estoppel actually altered his position to his detriment on the faith of such original representation;
(v) that the original representation was made to' the party setting up the estoppel, or to some person in right of whom he claims.
This concept was examined by Supreme Court of Pakistan in Pakistan Vs. Salah-ud-Din and three others (PLD 1991 SC 546) it was held therein:- "The doctrine of promissory estoppel is subject to the following limitations, none of which is attracted in these appeals before us:-
(1) The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot. make a represtntation;
(2) Promissory estoppel cannot be invoked for directing the doing of. the thing which was against law when the representation was made or the promise held out;
(3) No Agency or Authority can be held bound by the promise or representation not lawfully extended or given;
(4) The doctrine of promissory estoppel will not apply where no step has been taken consequent of the representation or inducement so as to irrevocable 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 promise.
Again this principle was re-examined by apex Court in Messrs Army Welfare Sugar Mills Ltd. and others vs. Federation of Pakistan and others (1992 SCM R 1652); in this case, the facts were that the appellants were engaged in manufacture of sugar. Their sugar mills were situated at various places in the Province of Sindh. The Federal Government, pursuant to the power contained in Section 12- A of the Central Excises and Salt Act, 1944, issued a notification exempting pertain goods from payment of central excise duty including sugar. The exemption relating to sugar was to be determined on the excess quantity produced by a factory as per formula contained in the above notification, excise duty would be charged on the concessional rates mentioned therein. The appellants, on the concessional rates mentioned therein. The appellants, acting on the above representation, produced excess quantities but the above notification was rescinded. The matter was first agitated before the High Court without any success; then it was brought before this Court.
Reviewing the case-law of foreign jurisdiction and Pakistani Courts, the doctrine of promissory estoppel as is applied in the following terms:- "53. We are inclined to hold that the above S.R.O. 560 (1)/82 contained standing representation to the effect that if a factory would manufactured sugar in a financial year exceeding from the average production in the factory for the preceding two years, such an excess quantity of sugar shall be exempt from the payment of excise duty. The above representation could have been rescind before it was acted upon or if it was dated upon, its effect could have been nullified by a statutory provision like section 31-A of the Custom Act [ibid) and not by an executive act. in the present case, the appellants acted upon the above representation before it was rescinded to their detriment as, according to them, they went on with the production of sugar even when the recovery of sucrose from the sugar-cane was comparatively law on account of change in the climate and thus, they had acquired vested right before the issuance of one of the two impugned SROs. However, if the appellants had passed on the additional burden of the excise duty after the two impugned SROs were issued, they are not entitled to press into service the doctrine of promissory estoppel as it will be inequitable to deny the state excise duty on the excess quantity of sugar referred to therein above, in terms of Section 3-C of the Act. We may observe that doctrine of promissory estoppel have been evolved by the Courts as an equitable doctrine with the object to pre-empt suffering of any laws by a promises and was not designed or intended to provide a windfall profit to him, though Bahagwati, J. in the case of Moti Lai Padampat Sugar Mills (17) had held that it was not necessary in order to attract applicability of doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment, but this view was contrary to the Indian Supreme Court's earlier view and also to the subsequent view taken by Bhagwati as C.J., in the case of Union of india v. God Frey Phips india Ltd. (supra). "
The View taken above was reiterated in Gadoon Textile Mills Vs. Wapda (1997 S.C.M.R. 641).
Undoubtedly, this doctrine of equity is applicable to government functionaries/practices which have been adhered to for very long time. Reference to relevant portion from Crawford Construction of Statute (Ed. reprint 1989) be profitably made. Pertinent portions of paragraphs Nos. 219, 220 and 221 are as follows:- 219."Executive Constructions.- A general rule executive and administrative officers will be called upon to interpret certain statutes long before the Courts may have an occasion to construe them.
Inasmuch as the interpretation of statutes is a judicial fiction, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the Courts, except- for the most satisfactory cogent or impelling reasons, in other words, the administrative construction generally should be clearly wrong before jt is over turned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight, it is highly persuasive."
The learned author goes on to say: "And where vested rights have grown up under the departmental construction, the Courts are justified in being more reluctant than in ordinary cases in adopting a construction which will destroy or disturb such rights. A similar reluctancy is also proper where a departure from the executive interpretation will result injustice, or where contracts have been entered into with the Government in reliance on the departmental construction"..........
But under no circumstances should the interpretation placed upon a statute by an administrative or executive official alter its plain language. And where consideration is given to a departmental construction, in every instance such construction must be contemporaneous consistent or uniform, and of long duration, if this latter requirement is prescribed in addition to its being contemporaneous, or considered a ground for giving the construction greater weight. While the authorities differ as to the exact length of time essential to meet the test of long duration, a period as short as five years seems to have been sufficient."
The learned author further says that as we have already pointed out where the executive construction has been followed for a long time, an element of estoppel seems to be involved.
Naturally, many rights grow up in reliance upon the interpretation placed upon a statute by those whose duty it is to execute it. Often grave injustices will result should the courts reject the construction adopted by the executive department. But actually, in many cases of this type, that is, in those where the executive construction does not actually give the legislative intent effect, the officials who administer the law exercise legislative or judicial power, or both. Considerations of justice, however, seem of more importance in these instances than a strict adherence to the triparte theory of government.
According to this celebrated writer yet, where the legislature has met since the executive department placed its interpretation on a given statute, its failure to indicate that the executive construction is not actually in accord with the legislative intent, may well be considered as an implied ratification and especially so where the legislature has met frequently since the executive interpretation first was made an applied, in a general way, this inaction of the law-makers may be regarded as their approval of the construction adopted by the administrative officials. This silent legislation may be of a sufficient calibre to remove the objection that where the Courts adopt a construction of the executive department which does not accord with the legislative intent existing at the time the statute involved was enacted, they exercise legislative power. The principle of ratification by the legislature was recognised and applied in State v. Standard Oil Co. (190 La. 338, 182 So. 531). it was held: "The re-enactment of the statute by Congress, as well as the failure to amend it in the face of the consistent administrative construction, is at least persuasive of a legislative recognition and approval of the statute as construed."
This principle was followed in United States v. ickes (98 Fed. (2) 271, 280 in following words: "Therefore, with full knowledge of the departmental rulings and of the consequences thereof, Congress nevertheless modified that ruling in party only. If it cannot be said that by thus passing the act, Congress finally determined the law, at least it must be said that Congress gave strong evidence of approval of the Secretary's rulings to the extent that it omitted to modify the dame. The failure of Congress to amend a statute, after administrative fulling have been made construing or applying it, has been recognised as evidence, congressional approval of such rulings."
11. From the foregoing discussion, it thus emerges that the aforesaid author had propounded two views; Firstly; where legislature had met for number of times after! departmental practice/interpretation, contrary to rules, had been followed by departmental functionaries for number of years and with uniformity and consistency, such acquiescing legislature shall be deemed to have ratified such practice. Secondly; when such practice has been followed by the executive authorities and some legal rights have accrued, on such circumstance, the doctrine of promissory estoppel safeguards such accrued rights. The first principle is known as rule of ratification by legislature on the premises of acquiescence and this rule had been being followed by the, American Courts. The second rule is known as doctrine of promissory estoppel which means that if Governmental functionaries make premises/representation to any one who believes them and acts under them then these functionaries are precluded from acting to the detrimental of such persons/citizens. As regards the first principle, we have not come across any precedent/decision of our superior Courts or of India. We are accordingly not prepare to follow it due to lack of assistance. Nevertheless, there is a very interesting case with regard to applicability of the second rule. This is Director Recruits Class-II Engineering Officer's Association Vs. State of Maharashtra and others (1990) it Supreme Court case 715). in this Case, parties to litigator were Engineers who were in the employment of State o Maharashtra, in year 1937 two Services namely Bombay Engineering Service Class-I and Bombay Engineering Service Class-II, were constituted.
The first service comprised o Chief Engineers, Superintending Engineers, Executive Engineers Class- I. The second service comprised Deputy Engineers, in year 1939 rules were framed with regard to method of recruitment of the aforesaid services. These rule stated that recruitment was to be made either by nomination from the students of college of Engineering or by promotion in year 1960, again detailed rules were made. This happened on 29th April, 1960. in these rules, the nomination from successful students of college of Engineering was eliminated and it was prescribed that entry to this service will be by a competitive test to be held by Public Service Commission. Furthermore, a quota system, by fixing a ratio in appointment of direct recruits and promote, was provided. These rules were applicable to Executive Engineers and Officiating Deputy Engineers. By rule 8, the post of Deputy Engineers were recognised, it also provided that direct recruits in any year shall be senior to promote. Subsequently, the rules were again framed in 1970.
Advent of these rules led to litigation between the parties, in year 1969, since adequate number of direct recruits were not available and so a large number of promotees were appointed as Deputy Engineers, these circumstances led to wrangling on issue of seniority. Respondents Nos. 2 and 3 were shown as senior to one Patwardhan. The aforesaid person challenged the validity of rule 8(iii) of 1960 Rules and rule 3 of 1970 Rules. The writ petition was allowed. Subsequently, a new seniority list was prepared. However, again litigation started which was finally decided by the Supreme Court.
12. it will be very useful to mention that quota system/rule, embodied in 1960 Rules had not been followed by the Executive Authorities. This was pointed out that the rules were mandatory in nature and it was incumbent upon authorities to frame seniority in consonance with the above quota rules. The aforesaid contention did not find favour with apex Court and it was held that rule which had not been adhered to for very long time and on cogent reasons, cannot be enforced by the Court to the detriment of those who had acquired substantial rights, it was so held:-
(b) If the initial appointment is not made by following the procedure laid down by the rules but the appointed continues in the post on uninterruptedly till the regularization of his service in accordance with rules, the period of officiating service will be counted.
(c) When appointments are made from more than one source, it is permissible to fix a ratio for recruitment from the different sources, and if rules are framed in this regard, they must ordinarily be followed strictly.
(d) If it becomes impossible to adhere to the existing quota rules, it should be substituted by an appropriate rule to meet the needs of the situation, in case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rules had broken down.
(e) When the quota rules has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(f) Where the rules permits the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation where there is deviation from the quota rule.
(g) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
13. Applying the aforesaid principles to the facts and circumstances of the case in hand, it is quite clear that it was 13th August, 1984 when the Federal Government recommended to Provincial Governments to permit the enterprenure/manufactures of Ice-cream to use vegetable fat in the preparation of their products subject to condition embodied in the recommendations, that it was 3rd October, 1984 when the concerned Section Officer issued a necessary memorandum to Provincial Governments. Thereafter the Government of Sindh followed the above recommendations in 1984 and allowed appellant No. 2 to use vegetable fat in the preparation of Ice-cream with branded name "POLKA". Thus appellant No. 2 manufactured vegetable fat based i.e.-cream and marketed it in the length and breadth of the country including Province of Punjab, Sindh and Balushistan up to the date of filing writ petition, it was on 17,9.1992, the Province of Punjab followed the above recommendations and allowed appellant No. 1 to use vegetable fat in the preparation of its products. Since then appellant No. 1 as well as appellant No. 2 had been manufacturing/marketing both vegetable fat-based i.e.-cream as well as milk fat i.e.-cream under different names. Appellants Nos, 1 and 2 had entered into challenged commercial activities under deviational arrangement which was being followed in the Province of Sindh from 1984. We have already held that the afore-said assailed letter/permission was not void ab initio and was deviational interim arrangement. Certainly the impugned letter is in deviance from para 19 in Appendix-ll of the Rules. Nevertheless, it had been issued by the authority competent to make rules and alteration. There is no dispute that competent authority has power to amend para No. 19 in Appendix-ll of Rules on lines embodied in the impugned circular/letter. This being the position, the impugned letter cannot be tainted as having been issued without lawful authority. To the maxim, it suffers from irregular exercise of authority, in view of the above, we are not inclined to agree with the view taken by the learned Single Judge. Even this letter or permission can be presumed to have been a relaxation by subordinate legislative authority. This neither offensive to any provision of authorising Statute nor is excess of power of delegatee. Furthermore, this deviational arrangement has been in operation for more than a decade and so this cannot be upset without cogent and highly strong reasons.
14, For the afore-stated reasons, order of learned Single Judge is hereby set aside. The only question which still remains, is as to what relief Messrs Yummy/petitioner/respondent herein is entitled. From the fore-going discussions, it is quite clear that in field there exist paragraph No. 19 in the Appendix-ll of the Rules and the impugned letter. We also find that no amendment in the rules has been made. We have not treated the impugned letter as of a mandatory character, it is also one of the settled principles that the Courts are ordinarily reluctant to order legislature or subordinate legislative authority/Delegatee to perform its duties. Reference may be made to M/s. Narindar Chand Hem Raj and others v. Ltd. Governor Administrator, Union Territory H.P. and others (A.I.R. 1971 S.C. 2399). This is, however, not the rule of thumb, in Shaukat A/i Mian and another v. The Federation of Pakistan (1999 C.L.C. 607), one of us (Mian Allah Nawaz J.) took the view:- "It is well-settled proposition that judiciary always acts within the sphere of power completely enumerated in the Constitution. The task of judiciary is to interpret law, the legislature makes the law; the task is given to executive to administer law as interpreted by judiciary, it is established that judiciary finds some omission or defect in law, it has a duty to point out them to legislature so that this defect/omission can be removed by Parliament after deliberation. Our above findings are in line with the above-settled role of judiciary."
We are in full agreement with the above view. We accordingly direct the Provincial Government/Delegatee to bring amendment in the rules so as to remove the anomalies in field in view of para No. 19 in Appendix-11 of Rules and impugned letter dated 17.9.1992. However, this will not preclude the delegatee/competent authority to exercise its power without being influenced by any observation of this Court (?y taking into consideration the vested rights of the parties. This excise shall be completed as quickly as possible within a period of three months.
15. A copy of this judgment shall immediately be sent to the Chief Secretary, Government of Punjab who shall forward it to the competent authority to deal with the problem as quickly as possible within a period as ordered by us.