Syed Rooh ul Hasnain Gillani etc Vs The Secretary Local Govt. etc.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P. No.252-P/2025 Syed Rooh Ul Hasnain Gillani, Senior Accountant Peshawar Development Authority, Complex, Hayatabad, Peshawar and others Vs.

The Secretary Local Government, Khyber Pakhtunkhwa, Civil Secretariat, Peshawar and other

Date of hearing 29.09.2026 For Petitioner(s): M/s Sawal Nazir & Noor Muhammad Khattak Advocates.

For Respondent(s): M/s Saba Uddin Khattak, Asad Ullah Yousafzai & Syed Qaiser Ali Shah Advocates.

For State: Mr. Taskeen Uddin Khattak AAG & Ms. Sehrish Munawar AAG along with Mr. Rooh Ul Hasnain, Secretary Local Government & Omer Hayat, Record Keeper PDA.

For Applicant(s): Mr. Shumail Ahmad Butt Advocate.

JUDGMENT

WIQAR AHMAD, J. Instant petition has been filed by petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:

“It is, therefore, most humbly prayed that on acceptance of this Writ Petition, this Honorable Court may kindly be pleased to declare the impugned Peshawar Development Authority Employees (Appointment and terms and conditions of Service) Regulation, 2024 dated 04/11/2024 to the extent of Regulation 39 as ultra vires to the Constitution, being illegal, unlawful, ineffective upon the fundamental rights of the petitioners. The respondents department may kindly be directed to amend/rectify the impugned Peshawar Development Authority

Employees (Appointment and terms and conditions of Service) Regulation, 2024 dated 04/11/2024 to the extent of Regulation 39. The respondents may further please be directed to restrain the respondents department for absorption of other local authority i.e. Urban Areas Development Authority (UADA). Any other remedy which this august Court deems fit that may also be awarded in favor of the petitioners.

2.Brief facts of the case are that petitioners are employees of the Peshawar Development Authority (PDA) and contend that PDA and Khyber Pakhtunkhwa Urban Areas

Development Authority (UADA) are separate statutory bodies governed by their respective laws. Their grievance initially arose from the absorption of employees of UADA in PDA and their inclusion in the PDA seniority list, which led to filing of WP No.4727-P/2023 before this Court. During pendency of said petition, Peshawar Development Authority Employees (Appointment and Terms and Conditions of Service) Regulations, 2024 were framed and notified on 04.11.2024. The petitioners are particularly aggrieved of para No.39 thereof, whereby employees of the erstwhile Provincial Urban Development Board/UADA serving in PDA were given an option of absorption in PDA, while those not opting for absorption were provided to be continuing their services in PDA W.P. No.252-P/2025

on deputation basis (without deputation allowance) until their repatriations. The petitioners raised their grievances against the mechanism incorporated in said para by filing representation (departmental appeal) before the respondents, but same did not yield any relief.

Feeling aggrieved, petitioners have invoked constitutional jurisdiction of this Court through instant writ petition.

3.Learned counsel for petitioners mainly contended that services of the petitioners had been regularized under the Peshawar Development Authority Act, 2017 (hereinafter referred to as the “PDA Act”), whereas services of the private respondents had been regularized under the Khyber Pakhtunkhwa Urban Areas Development Authorities Act, 2020 (hereinafter referred to as the “UADA Act”). He added that Board of Governors of Peshawar Development Authority (PDA Board) had subsequently promulgated the PDA Regulations, 2024, whereby, services of the private respondents had been absorbed in PDA under para No.39, which not only adversely affected the promotion prospects of petitioners but was also ultra vires W.P. No.252-P/2025

the law and Constitution. He added that said Regulation was in conflict with the main statute and, therefore, was liable to be declared ultra vires, null and void. He contended that through subordinate legislation, services of employees of one authority could not be absorbed in another authority and, therefore, the impugned absorption of the private respondents was unlawful. The learned counsel also raised an objection regarding procedural impropriety and denied that para No.39 had ever been duly approved by the Board of PDA. In this regard, he contended that the regulation placed before the Board did not contain para No.39 in its present form. He also raised a plea that the matter had finally been referred to the Secretary Local Government and that the subsequent proceedings were presided over by the Special Secretary Local Government, which was illegal for the reason that a delegated authority could not be further sub-delegated.

4.Learned counsel representing PDA, submitted in rebuttal that Regulations had lawfully been passed by the Board in its 11th meeting held on 22.05.2024 and that said W.P. No.252-P/2025

Regulations, besides containing a number of provisions dealing with the employees of PDA, also contained para No.39, with the only difference being its numbering, as it had been numbered as para No.40 in the original draft.

Learned counsel representing the private respondents referred to the appointment orders of the private respondents annexed with C.M.

No.2765-P of 2026 and stated that the advertisement had been issued by then City Development Municipal Department, (predecessor of PDA), and that the entire process of appointment had been conducted by the Director General thereof, whereafter most of the officers had been posted in PDA while some had also been posted in other local area authorities. In this regard, he referred to the consolidated appointment order dated 07.08.2017. He added that history of the organization bore testimony to the fact that employees of PDA and Urban Areas

Development Authorities had been posted interchangeably in the past and that the law’s applicable to their services had also remained in flux. Regarding the private respondents, he W.P. No.252-P/2025

stated that their services had not been regularized under the UADA Act; rather, their fate had been left to be determined subsequently in accordance with section 46 of the UADA Act, and their services were thereafter regularized by the PDA Board, which was fully competent to take such decision. Learned AAG also supported the arguments advanced by learned counsel representing PDA and the private respondents.

5.Arguments heard and available record perused.

6.Perusal of record reveals that the petitioners have been serving in PDA, and their services have been regularized under the PDA Act. The services of the private respondents have subsequently been regularized in PDA under para No.39 of the Peshawar Development Authority Employees (Appointment and Terms and Conditions of Service) Regulation, 2024, (hereinafter referred to as the “PDA Regulations”). The petitioners are aggrieved of the regularization of the private respondents and have also raised objection as to the vires of para No.39 of said Regulations. Main thrust of W.P. No.252-P/2025

the arguments of learned counsel for petitioners, (as mentioned above) was that the PDA Act, provided for regularization of services of persons serving in PDA, and the UADA Act, provided for regularization of services of persons serving in UADA, and both the acts were aiming to regularize the respective employees in their own authorities. None of the acts were statedly, permitting services of the private respondents to be regularized in PDA.

Regularizing their services through a piece of subordinate legislation, i.e. para No.39 of the PDA Regulations were therefore unlawful. In his opinion, para No.39 of the PDA Regulations was also in conflict with the main statutes, i.e. PDA Act and the UADA Act. To analyse the submissions of learned counsel representing the competing parties, this Court deems it appropriate to reproduce section 49 of the PDA Act as well as sections 45 and 46 of the UADA Act.

49.Regularization of employees.

(1)All employees, serving with the affairs of the Authority, who are holding various posts till the enactment of this Act, shall be deemed to have been validly appointed to these posts on regular basis on the commencement of this Act, having the same qualification and experience for the said posts.

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(2)The seniority of the employees regularized under sub-section (1) shall be determined in the prescribed manner.

45.Regularization of employees.

(1)All employees, serving with the affairs of the Authority, who are holding various posts till the promulgation of this Act, shall be deemed to have been validly appointed to these posts on regular basis on the promulgation of this Act, having the same qualification and experience for the said posts.

(2)The seniority of the employees, regularized under sub-section (1), shall be determined in the prescribed manner.

46.Service matters of PUDB employees.

(1)All employees, serving with the affairs of the PUDB, recruitment, promotion, seniority and service rules shall not be affected by the promulgation of this Act.

(2)The Department shall constitute a special Committee, to be chaired by the Secretary to Government, Local Government, Elections and Rural Development Department, for the service matters of the existing PUDB employees under the Khyber Pakhtunkhwa Urban Development Board (Dissolution) Ordinance,

7.The PDA Act was promulgated in 2017, while the UADA Act was promulgated in the year 2020. Before promulgation of these Acts, the employees of PDA were governed under section 6 of the Provincial Urban Development Board (Dissolution) Ordinance, 2002, which provided that the employees of the PUDB Board would be dealt with in accordance with terms and conditions of their appointments under the Board. Said repealing Ordinance had the effect of repealing the Khyber Pakhtunkhwa Urban W.P. No.252-P/2025

Planning Ordinance, 1978, and dissolving the PUDB Board established under the repealed Ordinance, as provided under section 3 of the repealing Ordinance. In other words, services of employees of the Provincial Urban Development Board, including those serving in PDA, continued to be governed under provisions of the repealed Ordinance of 1978, as well as the rules and regulations framed thereunder. Same legal regime remained applicable to them till promulgation of the PDA Act in 2017. The PDA Act had the object of establishing PDA for the development, management and development of the Authority area, as well as for establishing an integrated metropolitan and regional development approach for the development and optimum utilization of resources, as provided in preamble of the PDA Act. Section 3 provided for establishment of the Authority, i.e. Peshawar Development Authority (PDA), while section 4 provided for constitution of the Authority. The powers and functions of the Authority were provided in section 6, while section 8 provided for appointment of officers and employees.

Section 48 provide for rule-making powers of W.P. No.252-P/2025

the Provincial Government and, in its sub- section (2), it provided for power of the Authority to make regulations for carrying out purposes of the Act. Section 49 provided for regularization of employees, whereby it was mandated that all employees serving with the affairs of the Authority and holding various posts in the Authority till the enactment of the Act, would be deemed to have been validly appointed on regular basis on commencement of the Act. The services of petitioners have been regularized under this provision of law.

8.The UADA Act was promulgated on 15.09.2020 with the avowed object of re- establishing local area development authorities, as earlier established under the Khyber Pakhtunkhwa Urban Planning Ordinance, 1978. For the purpose of the present discourse, sections 45 and 46 of the UADA Act are relevant, which have already been reproduced above. Section 45 of the Act provided for regularization of the employees who had been serving with the affairs of the Authority and holding various posts therein at the time of promulgation of the Act. Section 46, however, W.P. No.252-P/2025

provided that the employees serving with affairs of PUDB would continue to be governed under their respective rules and regulations and that their services would not be affected by promulgation of the Act. It was also provided under sub-section (2) of section 46 that the Department would constitute a special committee, to be chaired by the Secretary Local Government Department, for looking into the service matters of existing PUDB employees who had been continuing their services under the Khyber Pakhtunkhwa Urban Development Board (Dissolution) Ordinance, 2002. The Act was also given an overriding effect under section 47.

9.The services of private respondents would fall in the category of employees for whom section 46 of UADA Act was promulgated. It is important to be noted that their services had not been regularized as employees of the Urban Areas Development Authority in accordance with section 45 of the Act. Their terms and conditions had rather been left under section 46, as they were, i.e. governed under the Khyber Pakhtunkhwa Urban Development Board W.P. No.252-P/2025

(Dissolution) Ordinance, 2002. It was also provided that a special committee would be constituted for looking into their service matters. In other words, the uncertainty regarding their service continued and did not come to an end under section 46 of the Act.

They were left to be governed under the provisions of the repealed Ordinance by virtue of section 3 of the repealing Ordinance of 2002.

Such uncertainty of their service came to an end when the PDA Board recognized them as employees serving in the PDA on deputation basis and continuing under the repealed PUDB Ordinance. With the promulgation of para No.39 of the PDA Regulations, 2024, the private respondents were further extended an option of absorption as employees of PDA.

10.The PDA Board was vested with the power to appoint officers to the Authority under section 8 of the PDA Act, besides having the domain of regulatory powers not only for the activities of PDA but also for controlling and regulating the services of its employees, subject to the directions of the Provincial Government, where provided under the Act. The power of the W.P. No.252-P/2025

Authority to appoint its officers could not be denied. When the Authority was vested with the power of appointment, it could not be deemed divested of the power to regularize the services of those employees who had already been serving in the Authority. Arguments of the learned counsel for petitioners that, for such regularization, a primary statutory instrument was required, holds no water. Such an argument may be raised in case of

regularization of provincial or federal civil servants, but such an argument cannot be raised for appointment to or regularization of the services of PDA. Such statutory intervention is required in the case of federal and provincial civil servants for the reason that Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973, requires the terms and conditions of service of federal civil servants to be determined by or under an Act of Parliament and those of provincial civil servants by or under an Act of the Provincial Assembly. No such requirement exists for dealing with the employees of PDA. The mere fact that services of other employees had been regularized under W.P. No.252-P/2025

section 49 of the PDA Act does not mean that power of the Board to regularize services of its employees in future remained abridged, limited or extinct. The power of the Authority to appoint new officers under section 8 continued under the PDA Act, and said power included regularization of the employees by the Board through promulgation of a proper regulation.

No conflict is visible between the PDA Act and the Regulations framed thereunder. Similarly, UADA Act had left the fate of employees open to be dealt with under the repealed law, as provided under section 46 thereof. Dealing with services of the private respondents under the repealed Khyber Pakhtunkhwa Urban Planning Ordinance, 1978, was a temporary mechanism, notwithstanding the fact that same continued for almost two decades. Despite its long duration, the mechanism provided under section 3 of the repealing Ordinance of 2002 was temporary in nature and same could not be deemed to be a bar in the way of regularizing services of the private respondents. The plea of learned counsel for petitioners that para No.39 of the PDA Regulations was in conflict with the W.P. No.252-P/2025

UADA Act and the PDA Act, 2017, was, therefore, found to be untenable.

11.Another argument of learned counsel for petitioners was related to procedural impropriety. The main plea of learned counsel for petitioners was that para No.39 was not contained in the draft of the PDA Regulations submitted before the Board. On this plea, the case was adjourned on 28.09.2026 with a direction to the Record Keeper of PDA to appear in person and produce the original file. Today, Mr. Omar Hayat, Record Keeper, appeared and also submitted an authority letter in his favour.

He produced the original file of the Regulations.

The Regulations were found to have been put up before the Board. The only difference was that the provision corresponding to para No.39 had been numbered as para 40 (forty) instead of 39. In the Gazette notification, the relevant provision of the Regulations has been numbered as 39. Learned counsel representing PDA, however, explained that after the Regulations had been passed by the Board and were being sent for publication in the official Gazette, certain changes in the numbering of W.P. No.252-P/2025

the paragraphs had occurred, but same would not vitiate the Regulation or the provision corresponding to para No.39. We found that the Board had agreed to regularizing the services of the employees serving in PDA and had given them an option under para 39, as published in the Gazette notification of the Regulations. Said para 39 was numbered as para 40 in the original draft submitted before the Board, but same was having the same wording and content. Under said para, services of a number of employees had already been regularized, including the private respondents, and this Court is of the opinion that a mere change in the paragraph number does not vitiate decision of the Board finally approved in the 11th meeting of the PDA Board held on 22.05.2024. The agenda item had duly been reflected in minutes of the Board as Agenda Item No.3, and decision of the Board unanimously approving the agenda item, including the relevant para, is also available in minutes of the meeting. As such, no procedural impropriety was observed, sufficient to discard the provision providing for W.P. No.252-P/2025

regularization of services of the private respondents.

12.Regarding the argument of learned counsel for petitioners that the Secretary Local Government had delegated the authority to preside over meeting to the Special Secretary Local Government, it is apparent that the PDA Board, being chaired by the Worthy Chief Minister, Khyber Pakhtunkhwa, and having the Secretary Local Government as its member, had approved the Regulations. The fact that a subsequent meeting relating to the leftover work was presided over by the Special Secretary Local Government does not create any legal flaw in the process.

13.In light of what has been discussed above, the instant constitutional petition was found to be lacking in substance and is accordingly dismissed.

Announced

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JUDGE

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JUDGE

W.P. No.252-P/2025

(DB)Hon’ble Mr. Justice Wiqar Ahmad, J. Hon’ble Ms. Justice Farah Jamshed, J.

*Atif Zafar JSS*

W.P. No.252-P/2025