A division bench of the apex court headed by Justice Munib Akhtar has observed that the policy
Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ordered strict adherence to the marriage policy to tackle difficulties faced by married government employees and unmarried women government employees.
“As a policy directive, the state must follow it as this policy is designed to specifically address the difficulties faced by married government employees and unmarried female government employees,” Justice Ayesha A Malik ruled in her 9-page judgment she wrote while setting aside a decision of the Federal Services Tribunal upholding the transfer of an Assistant Health Inspector.
“Under such circumstances, the government cannot pick and choose as and when the policy can be followed, but must ensure that it is followed in letter and spirit to remove not only hardship but also to discourage the continued practice of issuing transfer orders without consideration or sensitivity to the demands of government employees who are married. Therefore, as a matter of propriety, efforts should be made to follow the policy to avoid psychological and social strain on the family.”
A division bench of the apex court headed by Justice Munib Akhtar observed that the policy essentially requires that spouses posted at one station should not be disturbed without compelling reason of public interest and further that a request for extension beyond the permissible limits may be considered sympathetically in public interest.
“This encapsulates the state’s goal of promoting family-sensitive transfer practices designed to address the difficulties faced by married government employees and unmarried female government employees,” the ruling said.
The court observes that the state is duly bound to perform its functions in accordance with the directives laid down in the constitution.
“Chapter 2 of the constitution delineates the principles of policy, mandating that every body and authority of the state as well as persons performing functions on behalf of the state must adhere to these principles.
“While the chapter does not mandate that the principles of policy be followed as a matter of course, it is a constant reminder to guide the state’s decision-making process.
“It imposes a responsibility on the state to act in accordance with the guidelines in the political principles and to prioritize the welfare of the population.
It determines the state’s priorities so that it can adapt its decisions and actions to the political principles that ensure that the state’s overall work protects and promotes the lives and welfare of citizens.
“Accordingly, Article 35 of the Constitution requires the State to protect marriage, the family, the mother and the child, and Article 34 of the Constitution requires the State to take the necessary steps to ensure the full participation of women in all areas of national life.”
The judgment notes that these articles together place a burden on the state to ensure that it promotes the full participation of women in public service and that it also requires the state to protect the institution of marriage and the family for the benefit of both men and women.
“Accordingly, the state is constitutionally mandated to formulate policies that take into account marriage, family and women’s participation in public service, which in this case translates into marriage policy.
“Such measures help to reduce hardship for women, promote family stability and promote greater participation of women in public service. Therefore, since the State has issued a policy to promote and protect the institution of marriage and family life, it is important that the State, in accordance with its policy, moves away from creating structural and institutional barriers that keep spouses separated for long periods without reasonable cause.
“Therefore, objections based on convenience, tradition, or rigid administrative practice cannot displace the constitutional obligation to facilitate marriage and family life and to bring about the full and equal participation of women in public service.”
The judgment noted that the common response of the government to the policy is that a civil servant does not have an absolute right to be transferred to a particular place and that civil servants at the time of appointment agree that they can be transferred to any place at any time during their service and that transfer orders are issued at the discretion of the competent authority.
“This, in our view, is a one-dimensional approach to the issue at hand. While we recognize that a civil servant does not have a right to demand transfer to a particular location, the policy requires that the spouses’ real hardships be taken into account at the time of the transfer and that married couples, unless absolutely necessary in the public interest, be given the benefit of being able to work in the same location.
“Similarly, an allowance has been given to unmarried female government employees to work at a station where their family resides. The policy is designed to remove the difficulties of separation due to transfer and posting within a marriage or within a family and places a heavy burden on the government to work in a manner that facilitates government employees, their marriage and family life.
“This means that the state must make a serious effort to comply with its own policy and maintain its objective. Instead, we find that the intention is the exact opposite of what the policy states.
“Government employees who are married are expected to live separately during service because transfer is an incident of service, a routine and expected aspect of the civil service, and civil servants are expected to conform to these requirements. They are reminded of their duty and obligation to comply with transfer orders, which is not a political factor in the civil servant’s marriage or family life,” the judgment states.
The court said that “it goes without saying that the foundation of governance lies in the unwavering commitment to preserve and protect the welfare of the people. Every policy and administrative action must be rooted in the best interest of the public, ensuring that governance remains people-centred”.
“This is the core purpose of the state. Laws and policies designed for the betterment of the people should be obeyed and not ignored for reasons that defeat the purpose of the law or policy itself being obeyed and not ignored for reasons that defeat the purpose of the law or policy itself.”
The judgment said that the policy has been issued by the government and has been in existence since 1998 for this very purpose, it is their responsibility to implement the policy and its implementation cannot be left at the whim and mercy of the competent authority.
“Although transfer and posting is at the discretion of the competent authority, it must be done in the public interest for the benefit of all based on fairness and a lawful administrative process which not only reflects the administrative requirements of the State but also balances the needs and requirements of the State employees.
“The policy is designed to guide the transfer and posting of married government employees and is based on the public interest in serving as an impartial administrative measure that is fair, reasonable and consistent with employee rights and legitimate expectations.
“The policy is framed with the objective of protecting the institution of marriage and the family in view of the difficulties faced by spouses and unmarried women employees when they are transferred to different locations. There is nothing in the policy that places a limit on the time frame within which a transfer can be sustained, but it promotes welfare and family life as the underlying consideration, while issuing transfer orders to ensure that it is able to function effectively and efficiently. all government employees can work with dignity within the framework of their family and marriage.
“As such, we find absolutely no basis to ignore the policy and continue to transfer the petitioner in a routine manner. The transfer order dated 08.02.2021 is therefore contrary to the marriage policy which, being a policy of the State, must be observed.”
