DOCTRINE OF LEGITIMATE EXPECTATIONS: PROSPECTS AND PROBLEMS IN
By:
QAISAR
ABBAS*
The ‘Doctrine of Legitimate
Expectations’ originated in United Kingdom and later on followed in various
other common law jurisdictions. It is said to be the latest recruit to a long
list of concepts/grounds fashioned by the courts for the review of
administrative action.[1]
Generally, these grounds[2]
question the procedural irregularities and the impugned decision of public
authority in the circumstances stands quashed. However, the administrative
authorities remain free to take the matter afresh in accordance with law. The
doctrine of legitimate expectation[3] is
different from vested right,[4]
locus poenitentiae[5] and
promissory estoppel.[6]
The principle of ‘estoppel’ protects an already created right,[7]
whereas legitimate expectation is not a right[8]
but a potential or expected benefit (in between ‘no claim’ and ‘legal claim’)
which can be translated into right and the courts in review process protect
these expectations/benefits. Further, these expectations/benefits may either be
of procedural or substantive nature.[9]
The importance of the doctrine can be illustrated by the fact that it has been
incorporated in the Constitution of South Africa,[10]
the most modern Constitution of the world. In
Halsbury’s Laws of England[11] explains the
"doctrine of legitimate expectations” is the following words:
“Legitimate expectations: A person may have a legitimate expectation
of being treated in a certain way by an administrative authority even though he
has no legal right in private law to receive such treatment. The expectation may arise either from a
representation or promise made by the authority, including an implied
representation, or from consistent past practice. The existence of a
legitimate expectation may have a number of different consequences'; it may
give locus standi to seek leave to apply for `judicial review; it may mean that
the authority ought not to act so as to defeat the expectation without some
overriding reason of public policy to justify its doing so; or it may mean
that, if the authority proposes to defeat a person's legitimate expectations,
it must afford him an opportunity to make representation on the matter. The courts
also distinguish, for example in licensing cases, between original applications, to renew and revocations; a party who has been granted
a licence may have legitimate expectation that it will be renewed unless there is some good
reason not to do so, and may therefore be entitled to greater procedural
protection than a mere applicant for a grant." (emphasis
added)
There are divergent opinions
regarding the jurisprudential basis of the doctrine, whether the doctrine is
based on the principles of reasonableness and fairness,[12]
or it flows from the principle of ‘estoppel’. In this regard Gabriele Ganz after examining the views
expressed in the cases decided by eminent judges concludes that different
interpretations of the doctrine lead to conflicting judgments, or sometimes
conflicting views in the same decision.[13]
The concept of legitimate
expectation first stepped into the English Law in Schmidt v. Secretary, of State for Home Affairs[14]
wherein Lord Denning observed that an alien who had been given leave’ to enter
the United Kingdom for a limited period had a legitimate expectation of being
allowed to stay for the permitted time and if that permission was revoked
before the time expires, that alien ought to be given an opportunity of making
representations.
Sine then, slow but steadily
the concept has been considered in a number of cases.[15]
In A.G. of Hong Kong v. Ng Yeun shiu,[16]
Lord Fraser said that the principle that public authority was bound by its
undertakings as to the procedure it
would follow, provided they did not conflict with its duty, was applicable to
the undertaking given by the government. Later on in Council of Civil Service Unions and others v. Minister for the Civil
Service (GCHQ case),[17] a
question arose whether the decision of the Minister withdrawing the right to
trade union membership without consulting the staff which according to the appellant was his legitimate
expectation arising from the existence of a regular practice of consultation
was valid. It was contended that the
Minister had a duty to consult the staff as per the existing practice and that
though the employee did not have a legal right; he had a legitimate expectation
that the existing practice would be followed. On behalf of the Minister on the
basis of the evidence produced, it was contended that the decision not to
consult was taken for reasons of national security. The Court held that an
aggrieved person(s) has right to peruse judicial recourse when a public body
changes its past and consisting practice detrimental to the interest of such a
person. Therefore, prior to taking any decision consultation with the aggrieved
person(s) was held necessary.
The role of the doctrine up to
the GCHQ case[18]
appears to provide opportunity of hearing before taking adverse decision.
However, the scope of the doctrine found further expansion in R v. Secretary of State for the Home
Department. ex parte Ruddock and others,[19]
Taylor, J. after referring to the ratio laid down in some of the above cases
came to the conclusion that the application of the doctrine can not be only to
the extent of ‘Right to be heard’ and substantive relief, particular to the
facts of the case may also be granted.
After analysing some of the
above discussed cases H.W.R. Wade,
observes:
"These are revealing decisions. They show that
the courts now expect government departments to honour their published
statements or else to treat the citizen with the fullest personal consideration. Unfairness in the form of
unreasonableness here comes close to unfairness in the form of violation of
natural justice, and the doctrine of legitimate expectation can operate in both
contexts. It is obvious, furthermore, that this principle of substantive, as
opposed to procedural, fairness may undermine some of the established rules about
estoppel and misleading advice, which tend to operate unfairly. Lord Scarman
has stated emphatically that unfairness in the purported exercise of a power
can amount to an abuse or excess of power, and this seems likely to develop
into an important general doctrine."[20]
It may be said that the
doctrine has its roots in rule of law, natural justice and estoppel,
simultaneously. The doctrine is much focused on the principle of ‘legal
certainty’[21] rather
than on ‘principle of legality’. It is used against statutory bodies and
government authorities on whose representations or promises, parties or
citizens act and some detrimental consequences ensue because of refusal of
authorities to fulfil their promises or honour their commitments. In this
context, Supreme Court of India in the case Chanchal
Goyal (Dr) v. State of
Procedural and Substantive Legitimate Expectations:
The doctrine has remained in
baffling and bewildering position in the past, since the jurisprudential
footings have become crystallised, the Courts acknowledge it as an important
doctrine in developing the law of judicial review. Legitimate expectation can
provide a sufficient interest to enable one who cannot point to the existence
of a substantive/procedural right to
obtain the leave of the court to apply for judicial review. In R v North and
1. Whether it was necessary for the public
authority to bear in mind its previous policy? Here the court will be confined
to determine the rationality of the
decision.[24]
2. When the court considers that promise or
practice of such authority induced legitimate expectation the court will, by
itself presume that ‘right to be heard’ is there, until overriding public interest is established by said authority.
3. When the court considers that a lawful promise
or practice has induced a legitimate expectation of a benefit which is
substantive, not simply procedural, authority now establishes that here too the
court will in a proper case decide whether to frustrate the expectation is so
unfair that to take a new and different course will amount to an abuse of
power. Here, once the legitimacy of the expectation is established, the court
will have the task of weighing the requirements of fairness against any
overriding interest relied upon for the change of policy.
The Court of Appeal also
considered the aforementioned concept in R
(on the application of Bibi) v
"In all legitimate expectation cases, whether
substantive or procedural, three practical questions arise. The first question
is to what has the public authority, whether by
practice or by promise, committed itself; the second is whether the authority
has acted or proposes to act
unlawfully in relation to its commitment; the third is what the court should
do." (emphasis
added)
In M/s. Motilal Padampat Sugar Mills Co.Ltd. v. State of
Legitimate Expectations---Grounds of Refusal
1. Overriding Public Interest
In public law in certain
situations, relief to the parties aggrieved by action or promises of public
authorities can be granted on the doctrine of 'legitimate expectations' but
when grant of such relief is likely to harm larger public interest; the
doctrine cannot be allowed to be pressed into service.[28]
2. Change in Statutory Law
The doctrine of legitimate
expectation being a concept of equity can not outweigh the statutory law; hence
the change in statute can extinguish such expectations. In the case of Madras City Wine Merchant Association V/s
State of Tamil Nadu,[29]
the matter related to the renewal of liquor licenses rule which were
statutorily altered. It was therefore held that the repeal being a result of a
change in the policy by legislation, the principle of non-arbitrariness was not
invokable.
3. Ultra Vires
There has been established rule
that an authority can not do more than its statutory power. The competence of
the authority is always a key factor in the determination of legitimacy of
expectations and valid ground for the same refusal of the same. . According to
Peter Gibson L.J., in Rowland v.
Environmental Agency,[30]
the action must fail as legitimate expectations could only be granted against
lawful claims.
However, in
4. Legislative Instruments
The other important and settled
limitation on the doctrine is that it being the principles of equity can not be
invoked against legislative instruments.[33]
5.
Doctrine of Balancing
When the expectations pleaded
are legitimate then the ‘balancing test’ is applied and the consequences of
grant and refusal of the relief are assessed, and overriding public interest
can out weigh the relief sought, no matter being legitimate. In
this context, in Rowland v. Environmental
Agency[34]
involved a part of the
“This Court in E.P. Royappa v. State of
Doctrine of Legitimate Expectations in
It is quite clear from the
above discussion that the doctrine is so broad and nebulous that its
application has been very much puzzling and uncertain until Coughlan case.[37]
However in Pakistan, the situation is more ambiguous as the courts have been
blending vested right with legitimate expectations,[38]
sometimes misconceived the very basic concept of the doctrine and used phrases
like ‘unreasonable legitimate expectations’ or ‘legitimate expectations have no
backing of law’[39] or
sometimes equating legitimate expectations with vested right.[40]
An oft cited passage from the ratio decidendi of the case Shafique Ahmed and others v. Government of Punjab and others[41]
is worth quoting:--
"The legitimate
expectation set up by the petitioners is neither reasonable nor has the backing of any law. It also cannot
be based on any rule or the prospectus of the Government Medical Colleges in
the Punjab because the same is revised yearly to update the changes and
contains in-built provisions to the effect that the students of the medical
colleges shall be bound to abide by the rules and regulations laid down therein
and the changes issued by the Government of the Punjab from time to time and
the Government of the Punjab reserves the right of additions and alterations of
any rule in the prospectus at any stage."[[42] emphasis added]
Firstly, expectations can be
legitimate/reasonable or illegitimate/unreasonable,[43]
and when according to the Court expectations
are legitimate then, what we have
learnt from the above discussed cases, can only be denied on the ground of
overwhelming public interest, by analysing the given proposition, using
‘balancing test’. Secondly, when the expectations
are legitimate then why they are
unreasonable---has not been explained anywhere in the judgment. According to Wade,[44]
policy statements can create as well as extinguish the legitimate expectations.
Therefore, in effect when an express provision in the prospectus itself
declares that it is subject to change---it ends to legitimately expect that it
will never be changed. Thirdly, the grounds for the pleading legitimate
expectations are available in some cases where the expectant has an interest in
the matter prayed for but such interest is short of right. Therefore, to say
that expectations have no backing of law (rather than representation, promise
or consistent past practice of the public authority) has no relevance to the
application of doctrine of legitimate/reasonable expectations.[45]
On other occasions, once again
the difference between expectations and vested right became meaningless and it
might give rise to detrimental effects.[46]
Sabihuddin Ahmad J. (Chief Justice Karachi High Court) in Miss Farzana Qadir v. Province
of Sindh[47] somewhat overlooked the difference between
legitimate expectations and vested right, as he held:--
“[The referred] judgments clearly indicate that when
posts, under statutory rules, are required to be filled on the recommendation
of the Public Service Commission, the advice of the commission confers a vested right upon the
nominated candidate. Moreover, even if the commission be authorized to recall
its advice, such authority can only be exercised for a valid reason.” [emphasis added]
However,
there are certain decisions that give healthy and optimistic gesture about the
future and further development of the doctrine. The case Muhammad Shakeel v. Vice-Chancellor, University Of Agriculture Faisalabad,[48] wherein
promotion criteria to the next class was altered when the student had already
appeared in the examinations, in this case
Saqib Nisar J. was of the view that
the petitioner had acquired a vested right and also the legitimate expectation
for his promotion to the next semester, on the basis of previous notification
which was in vogue at the time of his appearing in the examination and passing
the same and any subsequent change in the criteria would not affect the right
of the petitioner which has earned by obtaining the required marks.
The classical application of
the doctrine appears in the case Khan M. Mutiur Rahman and Others v.
Government of Pakistan through Secretary, Ministry of Finance (Revenue
Division), Government of Pakistan, Islamabad and others[49] where
the decision of the Service Tribunal was not implemented by the public
authority, Sabihuddin Ahmed J. while
delivering the opinion of Division Bench observed:--
“It cannot be overlooked that even in the absence of strict legal right there
is always a legitimate expectancy on the part of a senior, competent and
honest career civil servant to be promoted to a higher position which can only
be denied for good and proper reasons. As held by the Honourable Supreme Court
in Independent Newspaper Corporation v. Chairman, Fourth Wage Board and
Implementation Tribunal (1993 SCMR 1533), conferment of statutory power on a
public functionary itself implies a restraint in operating that power and excessive
use of lawful power is itself unlawful.” [emphasis
added]
In this case doctrine was
applied to its spirit justly and properly as opposed to their previous
judgments.[50] On
another occasion the same Court emphatically applied the doctrine in the case Salman
Adil Siddiqui v.
“With profound respects, we are unable to uphold the
view that the recommendations of the Public Service Commission are meant to be
utterly meaningless unless approval is accorded by the appointing authority at
his sweet will and pleasure in his own time. Though such recommendations may not create the strict vested right at
least they give rise to a legitimate expectation and it is well-settled
that the commendations of such a body ordained by the Constitution cannot be
brushed aside except for very good reasons as repeatedly held by the superior
Courts.” [emphasis added]
On the other hand the most oblivious application of
doctrine can be depicted in a recent case Amir Gul v.University Of Health Sciecnes,
It is only in 2007, Zahid Hussain Bukhari J. (now the
Chief Justice Lahore High Court) has made a informal attempt to explore the spirit
of the doctrine in a case where the Chief Minister approved a ‘Road widening
Scheme,’ included it in Annual Development Programme, budget allocations was
made and orders were issued to this effect.
Therefore, it was held that the scheme in the circumstances was not to
be dropped, cancelled or substituted. Convenience, public good and welfare of
people being the main objective of democratic set-up and any such scheme aimed
at development of area was to be implemented and carried out. Approval of scheme
had given rise to hopes and expectation
not only to petitioner but to the local population about its implementation.[54]
The doctrine was applied to save the ‘public interest’ whereas its proper
domain is to ‘save individual’s interest’ that is short of right and not in
conflict with the overriding public welfare. In another case, Federation
of
There other important issue is the refusal of legitimate expectations, in
such cases in
In another case where
Government had expressly granted exemption from certain import duties for a
definite period but later on withdrew. The Court upheld such withdrawal and
refused to grant legitimate expectations of the petitioner.[58]
Further, change in the statute can extinguish any legitimate expectations
because it being the doctrine of equity can not work against the statute.[59] In a
recent case, Aatir Mahmood v. Federation
of
Conclusion:
The brief survey of the Pakistani case law shows, although the courts have
been granting both procedural and substantive legitimate expectations yet
unlike India, where a cognisant attempt has been made to place the doctrine on
constitutional footing, no such development appears in Pakistani context and
most of the cases have been decided on factual basis rather than on the
doctrinal exploration of the pleaded expectations. The doctrine, so far appears
to be in crude and nebulous form in our jurisdiction with reference to nature,
grant and refusal of such expectations. The superior Courts must give due
regard to the conceptual development of the doctrine to protect and preserve
the invaluable rights of the citizen. Moreover, causal, ambiguous and flexible
selection of the legal terminology might lead to unexpected
consequences---ultimately, injustice; therefore the use of vocabulary must
reflect the mind of the judge and nothing less. It may further be submitted
that the “Doctrine of Proportionality”[61]---
a civil law doctrine (that has been followed by the European Court of Human
Rights and indicators show its adoptability in United Kingdom too) must be
borne in mind while balancing the equation, because the doctrine is simple,
clearer and equitable. The foremost duty of the court is to preserve, protect
and defend the rights of the public and to hand round as a shield against
administrative transgression of the government.
* Currently student of LL.M. at
[1]
[2]Broadly speaking, the grounds
available for judicial review of administrative actions are:
Illegality:
where the decision making authority has been guilty of an error of law, e g by
purporting to exercise a power it does not possess (commonly known as defects
of jurisdiction).
Irrationality:
where the decision-making authority has acted so unreasonably that no
reasonable authority, would have made the decision (commonly known as defects
of adjudication).
Procedural impropriety: where the decision making authority
has failed in its duty to act fairly (commonly known as defects of procedure).
[3]The doctrine can provide locus standi
for judicial review (Union of India v.
Hindustan Development Corporation (1993) 3 SCC 499) and the relief that may
be of procedural or substantive nature.
[4]
The rights which have been recognized by law or based on law, thus the
scope is wider than legitimate expectation---being equitable relief.
[5] “a point at
which it is not too late for one to change one’s position ; the possibility of
withdrawing from a contemplated course of action, especially a wrong , before
being committed to it.” Garner, Bryan A. (editor), Black’s Law Dictionary, eighth edition, (
[6] "The doctrine of promissory estoppel is
applicable where an entrepreneur alters his position pursuant to/in furtherance
of a promise made by state to grant inter alia tax exemption. Even a right can
be preserved by invoking the doctrine of promissory estoppel. Said doctrine
gives rise to cause of action. It indisputably creates a right and also acts on
equity." Southern
Petrochemical Industries Co. Ltd. V. Electricity Inspector E.T.I.O. (2007) 4 MLJ 723 (SC). See further, Lewis, Clive.
“Fairness, Legitimate Expectations and Estoppel” The Modern Law Review,
Vol. 49, No. 2. (Mar., 1986), pp. 251-258.
[7] Cartwright, John. “Protecting Legitimate Expectations and
Estoppel in English Law,” Electronic
Journal of Comparative Law, Vol. 10.3
(December 2006), Available at,
http://www.ejcl.org/103/art103-6.pdf Retrieved:
[8] Ram Pravesh Singh and Others v. State of
[9] For detail see nn. 23-27 infra.
[10] Section 24 of the Interim
Constitution provides that:
"[E]very
person shall have the right to:
(a) lawful
administrative action where any of his or her rights or interests is affected
or threatened;
(b) procedurally
fair administrative action where any of his or her rights or interests or legitimate
expectations is affected or threatened;
(c) be
furnished with reasons in writing for administrative action which affects any
of his or her rights or interests unless the reasons for such have been made
public; and
(d)
administrative action which is justifiable in relation to the reasons given for
it where any of his or her rights is affected or threatened" (emphasis
added)
[11] Halsbury's
Laws of
[12] See e.g. R v
Secretary of State of
[13] Ganz, G. "Legitimate
Expectation: A Confusion of Concepts", in C. Harlow (ed.), Public Law and Politics,
[14]
(1969) 2
[15] For example, Breen v. Amalgamated Engineering Union and Others 1971] 2 Law
Reports Queen Bench Division 175.
[16] [1983]
[17] (1984) Vol. 3 All
E.R. 359.
[18] Ibid.
[19] [1987] 2 All E R
518.
[20] Wade, H.W.R., Administrative Law, Sixth Edition,
[21] See nn. 32,61 infra.
[22] (2003) 3 SCC 485.
[23] [2001] 1 QB 213
[24]In
Union of India & Others v. M/s Graphic Industries Co. & Others,[24]
it has been held that the letter written by an authority to the private persons
cannot give rise to a legitimate expectation.
[25]
[2001] EWCA Civ 607
[26] See n 23 supra
[27] [(1979) 2 SCC 409]; Southern Petrochemical Industries Co. Ltd.
V. Electricity Inspector E.T.I.O. (2007)
4 MLJ 723 (SC)
[28] Kuldeep
Singh v. Govt. of NCT of
[29] (1994) 5 SCC 509.
[30] [(2003) EWCA Civ. 1885]
[31] Compare Indian Supreme Court’s view
n. 27 supra
[32] Stretch
v. U. K. [(2004) 38 EHRR 12]
[33] 2000 SCMR 112
[34]
[(2003) EWCA Civ. 1885]
[35] [ (2006) 8 SCC 702]
[36] [(1974) 4 SCC 3].
See also, J.P. Bansal v. State of
[37] See n. 23 supra
[38] Mian
Farooq Ahmad v. Privatization Commission
[39] Shafique Ahmed and others v. Government of
[40] Mian Farooq Ahmad v. Privatization Commission
[41] PLD 2004 SC 168; Rashid Nawaz and 7 others v. University of
the Punjab through Vice-Chancellor, Lahore and 3 others; PLD 2007 Lahore
78; Adnan Tariq v. Vice-Chancellor of the
University of Punjab, PLD 1993 Lahore 341.
[42] Compare, Lord Scarman’s view that
the controlling factor in determining whether the exercise of prerogative power
is subject to judicial review is not its source but its subject matter'. In re:
[43] Lord Diplock attempted to
differentiate legitimate expectation from reasonable expectations in GCHQ(n. 17 supra) at pp. 408-409.
[44] See n. 20 supra.
[45] The doctrine only comes into play
when expectant expects some sort of benefit or interest short of ‘Right’, see
n. 11 supra.
[46] All power is in
[47] 2000 P L C (C.S.) 225; Compare
Khan M. Mutiur Rahman and Others v. Government of Pakistan through Secretary,
Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and
others, 2006 P L C (C.S) 564.
[48]
[49] 2006 P L C (C.S) 564; Rana Saqlain
Mahmood v. Secretary Local Government And 2 Others, 2006
P L C (C.S) 596.
[50] Miss Farzana Qadir v.
[51] 2008 P L C (C.S.) 220.
[52] P L D 2008
[53] See n. 39 supra.
[54]Makhdoom Muhammad Mukhtar, Member Provincial
Assembly, Punjab v. Province Of Punjab Through Principal Secretary To Chief
Minister, Punjab, Lahore and 2 Others, P L D 2007 Lahore 61.
[55] 2008 SCMR
544.
[56] Exceptions are only few cases, Muhammad Ilyas v. Baha-ud-Din Zikria
University, Multan and another 2005 SCMR 961; Rashid Nawaz and 7 others v. University of the Punjab through
Vice-Chancellor, Lahore and 3 others, PLD 2007 Lahore 78; Miss Sarah Malik v. Federation of Pakistan
through Ministry of Education, Islamabad and others, 2001 MLD 1026 and Muhammad Iqbal Rafi and 2 others v. Province
of Punjab, 1986 SCMR 680
[57]
See n. 27 supra. See also Shand
Vijay & Co. v. Princess Fatima Fouzia, (1980) 1 SCR 459: (AIR 1980 SC
17)
[58] Government of
[59] Zaman
Cement Company (Pvt.) Ltd. V.
Central Board of Revenue,
2002 S C M R 312
[60] 2008 P L C (C.S.) 127; see also, Dr.
Mrs. Chanchal Goyal V/s State of Rajasthan (2003) 102 RJR 788, Indian
Supreme Court observed that in a service matter unless there was specific
waiver of conditions attached to the original appointment order, mere
continuance in service did not imply such waiver. No legitimate expectation
could be founded on such unfounded impressions.
[61] The Doctrine of proportionality
originated in