Aftab Ahmad and others Vs Government of Khyber Pakhtunkhwa through chief Secretary, KPRA, Peshawar and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Writ Petition No. 3996-P/2025

JUDGMENT

Date of hearing...................09.09.2026.................................

Petitioners (Aftab Ahmad & 09 others) By Mr. Khalid Rehman, Advocate.

Respondents. (Khyber Pakhtunkhwa Revenue Authority through Chairperson Policy Board & another) By Mr. Muhammad Ayub Khan Shinwari, Advocate and (Government of Khyber Pakhtunkhwa through Chief Secretary & 02 others) By Mr. Waqar Orakzai, Assistant Advocate General.

MUHAMMAD FAHEEM WALI, J.- Through

this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), the petitioners have called into question the vires of Section 10 of the Khyber Pakhtunkhwa Revenue Authority Act, 2022 (KPRA Act) mainly on the ground that the said provision has deprived them of the promotional avenue to the post of Director, which was available to them under the Khyber Pakhtunkhwa Revenue Authority Rules, 2017 (Rules, 2017). The petitioners seek a declaration that Section 10 is ultra vires the Constitution and liable to be struck down.

2.The petitioners were appointed in KPRA under the Rules, 2017 against the posts of Deputy Directors and Assistant Directors and have rendered considerable service thereunder. Under Rule 4 of the Rules, 2017, appointments could be made through initial recruitment as well as promotion and the Appendix to the Rules prescribed, inter alia, the posts of Director in BPS- 19 as promotional posts. The petitioners, therefore, claim that they had a legitimate expectation that, upon fulfilling the prescribed requirements, they would remain eligible for consideration for promotion to the post of Director.

3.The core grievance of the petitioners is that, with the enactment of the KPRA Act, Section 10 provides only two modes for appointment to the post of Director i.e initial recruitment from the open market and posting of a suitable Government officer of BPS-18 or above. According to the petitioners, this provision has effectively taken away the promotional channel available under the Rules, 2017 and has created an unreasonable and discriminatory distinction between officers serving

in KPRA and officers belonging to other Government departments.

4.The respondents, on the other hand, have maintained that Section 10 of the KPRA Act, constitutes a conscious legislative policy regarding appointment to the post of Director. According to them, the earlier Rules, 2017 cannot prevail over a subsequent enactment of the Provincial Legislature and, to the extent any provision of the Rules is inconsistent with Section 10, the same cannot be given effect. It has further been contended that the statutory scheme does not authorize continuation of any rule which is inconsistent with the express provisions of the subsequently enacted law.

5.We have heard arguments of learned counsel for the parties and examined the available record with their able assistance.

6.The controversy, in essence, revolves around the legal effect of Section 10 of the KPRA Act, upon the promotional provisions contained in the Rules, 2017. Section 10 of the KPRA Act, makes a specific provision regarding appointment

of the Director. The Chief Minister may either make an appointment through initial recruitment from the open market after advertisement in the prescribed manner or post a suitable Government officer of BPS-18 or above as Director. The provision thus identifies the modes through which the appointment is to be made. The statutory scheme does not expressly include promotion of an existing KPRA employee as a separate mode of appointment. On the other hand, the Legislature has itself determined the permissible sources from which the post of Director may be filled, leaving the choice between the two prescribed modes to the competent authority. Once the statute has specifically provided these two modes of appointment, no additional mode of promotion can be read into Section 10 merely on the basis of an earlier rule or administrative practice.

7.It is a settled principle of law that subordinate legislation derives its authority from the parent statute and cannot override, enlarge or contradict the express provisions of the statute.

Consequently, where a subsequent statute makes a

specific provision regarding the manner of appointment to a particular post, an earlier rule providing an inconsistent or additional mode of appointment cannot be invoked so as to defeat the later legislative command. Reliance in this regard is placed on Khwaja Ahmad Hassan v.

Government of Punjab (2005 SCMR 186) & Ikhlaq Ahmed v. Chief Secretary Punjab Lahore

(2018 SCMR 1120).

8.In the present case, the Rules, 2017 may have provided a promotional channel for appointment to the post of Director, however, such provision cannot be treated as having an overriding effect over the subsequent statutory scheme. Once the Legislature has specifically prescribed the modes of appointment through Section 10, the earlier subordinate legislation must yield to the later enactment to the extent of any inconsistency.

9.The plea of legitimate expectation raised by the petitioners also does not advance their case.

A legitimate expectation may arise from a consistent practice, representation or existing

policy, but it does not confer an indefeasible right to the continuation of a particular statutory or service structure. A person entering Government service cannot claim a vested right that the method of appointment or promotional structure governing a particular post must remain unchanged throughout his service career. Such matters remain subject to lawful legislative alteration. Reference may be made to the cases of Govt of KPK through Chief Secretary Peshawar & others v. Hayat Hussain & others (2016 SCMR 1021) & Sikandar Hayat Maken v. Federation of Pakistan through Secretary Establishment Division (2021 PLC(CS) 1450 Islamabad).

10.Likewise, the challenge based upon Articles 25 and 27 of the Constitution is without sufficient legal foundation. The Legislature is competent to prescribe different qualifications, methods of recruitment and service structures for different categories of posts, provided the classification is founded upon a reasonable basis and bears a rational nexus with the object sought to be achieved. The distinction between a person

serving in KPRA and a Government officer posted to the Authority cannot be declared unconstitutional. Reference may be made to I.A.

Sharwani v. Government of Pakistan (1991 SCMR 1041); Government of Balochistan v.

Azizullah Memon (PLD 1993 SC 341); & Gul Zarif Khan and others v. Government of Khyber Pakhtunkhwa (2025 SCMR 415).

11.The provision enabling posting of a suitable Government officer of BPS-18 or above also cannot be equated with promotion of such officer to BPS-19. Posting on transfer and promotion are legally distinct concepts. The Legislature, in its wisdom, has chosen to provide for posting of an experienced Government officer against the post of Director while also providing for initial recruitment from the open market. The Court, exercising constitutional jurisdiction, cannot substitute its own preferred method of recruitment for the method expressly selected by the Legislature.

12.The authorities relied upon by the petitioners concerning equality, legitimate

expectation and promotional rights do not create an absolute constitutional right in favour of an employee to promotion to a particular post. At best, an employee may have a right to be considered for promotion where such promotional avenue is recognized by the applicable law. Such right of consideration cannot survive in the same form where the competent Legislature has subsequently altered the statutory framework and omitted that mode of appointment.

13.There is yet another aspect of the matter which cannot be lost sight of. The petitioners themselves are serving Government officers.

Section 10 of the KPRA Act expressly empowers the competent authority, i.e. the Chief Minister, to fill the post of Director by posting a suitable Government officer of BPS-18 or above. Thus, the petitioners are not altogether excluded from consideration under the statutory scheme. If any of the petitioners possesses the requisite qualification, experience and other criteria prescribed for the post and is otherwise found suitable, he may be considered by the competent

authority in accordance with law. Their grievance, therefore, that the enactment has completely foreclosed their prospects of appointment to the post of Director, is not wholly sustainable. The statutory scheme has merely changed the source and mode of appointment; it has not created an absolute prohibition against a Government officer being appointed/posted as Director. Consequently, no vested or enforceable right of the petitioners has been shown to have been infringed, particularly when they may themselves compete for consideration subject to fulfilment of the prescribed criteria and the discretion vested in the competent authority under Section 10.

14.It is also significant to note that the petitioners have essentially sought restoration of a promotional avenue by questioning the validity of Section 10. Such relief would require the Court not merely to interpret the statute but to add another mode of appointment to the one expressly prescribed by the Legislature. This Court, in exercise of jurisdiction under Article 199 of the Constitution, cannot legislate or rewrite the

statutory provision. Reference may be made to Aam Loeg Itehad v. The Election Commission of Pakistan (PLD 2022 SC 39). The petitioners have, therefore, failed to demonstrate that Section 10 of the KPRA Act suffers from lack of legislative competence, patent unconstitutionality, unreasonable classification or infringement of any fundamental right guaranteed by the Constitution.

Mere loss of a previously available promotional avenue, consequent upon a change in the statutory framework, does not by itself render the new provision unconstitutional. More importantly, the petitioners, being Government officers, may themselves fall within the category contemplated by Section 10 and may be considered for posting as Director, provided they fulfil the requisite criteria and are found suitable by the competent authority. Thus, the statutory amendment does not result in any absolute exclusion of the petitioners from consideration for the post in question.

15.For what has been discussed

above, Section 10 of the KPRA Act cannot be declared ultra vires the Constitution. The

provisions of the Rules, 2017, insofar as they provide a mode of promotion to the post of Director inconsistent with Section 10 of the KPRA Act cannot be enforced against the statutory scheme. The petition, being devoid of merit, is accordingly dismissed. There shall be no order as to costs.

Announced:

JUDGE

JUDGE

Hon’ble Mr. Justice Muhammad Naeem Anwar Hon’ble Mr. Justice Muhammad Faheem Wali /*Saif. SCS*/