The FCC noted that the marriage policy cannot be used as a basis for indefinite posting and does not create any vested right
ISLAMABAD:
The Federal Constitutional Court (FCC) has taken exception to a recent Supreme Court ruling that ordered all government departments to strictly adhere to the marriage policy to address issues faced by married government employees.
In a 2-page ruling, FCC Judge Aamer Farooq noted that the court could not agree with a ruling authored by Supreme Court Justice Ayesha Malik regarding the marriage policy.
In Mubashir Iqbal Zafar v Ministry of Defence, the SC set aside a Federal Service Tribunal judgment that allowed Mubashir Iqbal Zafar to continue serving under the matrimonial policy in Khanewal, where his wife was employed as a government school teacher.
The FCC noted that the ruling sought to establish that an officer who wishes to be posted to the same station as their spouse may seek consideration under the marriage policy.
“We reiterate that this does not constitute an absolute right. The judgment in question provides that the matrimonial policy can be invoked where the spouse of a civil servant works in the private sector.
“Though in such circumstances it may be desirable for spouses to live together in one place, no right accrues to an officer to be posted at his or her spouse’s station,” it added.
According to the FCC, the proviso to subrule 3 of Rule 20-A removes the maximum five-year posting limit for deputation at the site of a spouse’s posting, but it is not an absolute rule.
“The policy of marriage and the desirability of spouses living at the same station must give way to the demands placed on the public administration,” it added.
The FCC noted that the marriage policy cannot be used as a basis for indefinite posting and does not create any vested right.
“The marriage policy does not create any vested right. Rather, it is a policy and a guiding principle that should not be strictly enforced by the courts.”
It said institutions and departments should operate in accordance with this policy and should not deviate from it on frivolous grounds. “But it cannot be relied upon to disturb the civil bureaucratic structure or the settled jurisprudence of service law in our country.”
The FCC also noted that the SC in its ruling did not take into account the Islamabad High Court (IHC) judgments on the same issue. The said judgments of the IHC, though not binding on the SC, had persuasive value and should have been considered, it said.
“In our view, they depict the correct legal position in holding that an officer is not entitled to be deputized or otherwise in his spouse’s place indefinitely.”
The FCC stated that the SC’s interpretation seems to imply that an official has an absolute right to be posted regardless of where his or her spouse is serving.
“We reiterate that a civil servant has no right to demand posting or transfer to a particular polling station, nor can he or she continue to hold a particular post at a particular place indefinitely.
“Transfer and posting remain at the discretion of the competent authority,” it added.
The court stated that the Mubashir Iqbal judgment imposed a rule that provided no workable way forward, could not be applied consistently and predictably, and held the potential for abuse.
“We do not understand to what extent the marriage policy can be stretched to facilitate married government employees,” it added.
The FCC questioned whether such an interpretation would pave the way for officials to serve in different stations depending on personal preference and happiness, potentially at the expense of public service.
“The answer, of course, must be negative. The precedent creates an imbalance in the civil bureaucratic structure that affects other areas of law, especially in cases like the present one where the petitioner has already served beyond the five-year period allowed.
“The pro-marriage policy stance imposes a duty on departments not to disturb couples and to continue to extend deputations despite the inherently temporary nature of such arrangements,” it said.
While raising objections, the FCC noted that the SC judgment promotes reasoning that is constitutionally unsound by relying on Articles 35 and 36 of the Constitution.
“Article 35 provides that ‘the State shall protect marriage, the family, the mother and the child’, while Article 36 requires that ‘steps shall be taken to ensure the full participation of women in all spheres of national life.’
“However, it is significant to note that both provisions form part of principles of policy rather than enforceable fundamental rights.” The judgment further emphasized that Article 29, subsection 2, is of central importance but was overlooked in Mubashir Iqbal.
“Article 29(2) provides that “to the extent that the observance of a particular political principle may be dependent on the availability of resources for the purpose, the principle shall be deemed to be conditional on the availability of resources.”
“Article 29(2) effectively qualifies all principles of policy by making their implementation conditional on the availability of state resources.
“Any measure taken to realize these principles must therefore remain subject to practical constraints and administrative feasibility.”
The Mubashir Iqbal judgment, it said, departed from this constitutional framework by transforming the marriage policy into what is effectively treated as a binding directive for the state. The FCC noted that this approach risks converting non-judicial principles of policy into enforceable rights.
“Mubashir Iqbal effectively converts non-judicial principles of politics into enforceable rights, an approach that risks undermining administrative discretion and the operational needs of the state.
“The political principles serve several important functions, especially for the courts. They help interpret the Constitution, understand the scope and content of fundamental rights, and, in appropriate cases, even infer implied rights within the constitutional framework.”
The FCC held that marriage policy remains an important state initiative aligned with constitutional responsibilities.
“At no time has this court taken the view that the marriage policy should not be complied with. Every state institution is expected to keep the marriage policy under review and take positive action to ensure compliance. But this court remains mindful that policy must not be confused with legislation.”
It stated that similar to Pakistan’s marriage policy, India has a spouse posting policy, also known as the ‘couple case’, which requires married officers to be transferred or posted to the same station.
“Yet, despite the existence of such a policy, the courts there maintain that who should be transferred where is a matter for the appropriate authority to decide. Unless the transfer order is tainted with ulterior motives or is made in violation of statutory provisions, the court cannot interfere.”
It said while ordering a transfer, the authority must keep in mind the guidelines issued by the government on the subject. Similarly, if a person makes a declaration regarding transfer, the relevant authority must consider it in the light of administrative requirements.
“The guidelines state that husband and wife should be stationed at the same location whenever possible. However, this does not make a government employee a legal enforcer,” the FCC said.
