ISLAMABAD:
The Supreme Court of Pakistan and the Federal Constitutional Court (FCC) have expressed conflicting views on the government’s marriage policy.
The SC has held that the policy creates a legitimate expectation for married officers that they will be accommodated, rather than being subject to arbitrary deviation from the policy without rhyme or reason.
However, the FCC has ruled in a recent ruling that the marriage policy cannot be used as a justification for indefinite posting and does not create any vested right.
According to a recent SC ruling, the interpretation of beneficial rules, circulars and policies follows the doctrine of beneficial construction, with the sole purpose that when a law or rule is intended to confer a benefit on a particular class, it must be liberally construed to achieve the intended purpose.
“The policy creates a legitimate expectation for married officials that they will be accommodated rather than subject to arbitrary deviation from the policy without rhyme or reason.
“Any ambiguity should be resolved in the interest of the intended beneficiaries,” said a 16-page judgment authored by SC Justice Muhammad Ali Mazhar.
Justice Mazhar was part of a bench which set aside the Federal Service Tribunal’s decision to dismiss the petition filed by a woman officer of the Punjab Revenue Department regarding her transfer on the basis of the marriage policy.
The bench ordered the SC Registrar’s Office to send a copy of the judgment to the Punjab Chief Minister for its implementation.
Hafiz Ahsaan Ahmed Khokhar said that three significant judicial pronouncements have been made recently on the interpretation and legal status of the marriage policy – two by the SC and one by the FCC.
He noted that a divergence of legal opinion has arisen between the SC and the FCC on important issues of law and policy.
He noted that the SC in its judgments expressly held that the marriage policy is not merely a guideline but one that gives rise to a legitimate expectation in favor of concerned employees.
The SC stated that the policy is binding on the executive authorities unless legally withdrawn or amended in accordance with constitutional requirements.
“In contrast, the FCC has adopted a different interpretive approach, holding that the marriage policy is essentially a facilitative administrative arrangement designed for operational convenience and workforce management.
“The point is that the policy does not create an enforcer’s right to require permanent posting at a particular station,” he said.
According to this view, he said, the policy cannot be elevated to the status of an acquired right and must remain subject to the lawful exercise of transfer and posting powers by the competent authority.
He noted that this divergence has resulted in a noticeable legal tension between the two constitutional forums regarding the legal nature and enforcement of the policy framework.
Khokhar stated that in view of the conflicting interpretations, the matter now requires consideration within the ambit of the amended Article 189 of the Constitution.
This article regulates the binding nature and precedential authority of judicial decisions in the restructured constitutional hierarchy.
He noted that the interpretation adopted by the FCC introduces a significantly different legal perspective from that articulated by the SC, thereby raising important questions of legal consistency, constitutional harmony and institutional coherence.
He concluded that until such constitutional ambiguity is authoritatively resolved within the constitutional scheme, the legal status of marriage policy is likely to remain subject to competing interpretations between legitimate expectation and administrative relief.
Lawyers believe that after the 27th amendment, FCC jurisprudence is binding on the SC.
SC recent judgment
The monitoring committee noted that the current controversy is limited to the implementation of the marriage policy issued as per the directives of the Punjab CM.
As per the policy, it was found conducive to bring spouses together by transferring them to one duty station considering the impact of psychological and financial strains.
“Neither was it pleaded before us by the learned Additional Solicitor General, Punjab that the above directives or circulars of the CM were time-bound or presently not in vogue nor was any other logical reason given as to why the clear directives of the CM were bypassed while the petitioner’s application for transfer was rejected.
