ISLAMABAD:
The Supreme Court of Pakistan and the Federal Constitutional Court (FCC) have expressed conflicting opinions on the government’s marriage policy.
The SC has held that the policy creates a legitimate expectation for married officials that they will be accommodated, rather than being subjected to arbitrary deviation from the policy without rhyme or reason.
However, the FCC has held in a recent ruling that the marriage policy cannot be used as a reason for indefinite displacement and does not create any vested rights.
According to a recent order of the SC, the interpretation of beneficial rules, circulars and policies follows the doctrine of beneficial construction, with the sole objective that when a law or rule is intended to provide a benefit to a specific class, it must be interpreted liberally 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 must be resolved in the best interest of the intended beneficiaries,” said a 16-page ruling written by Supreme Court Justice Muhammad Ali Mazhar.
Justice Mazhar was part of a division bench that set aside the decision of the Federal Service Court to reject the petition filed by a Punjab Revenue Department official regarding her transfer on the basis of marriage policy.
The court directed the Office of the Registrar of the Supreme Court to send a copy of the judgment to the Punjab chief minister for execution.
Hafiz Ahsaan Ahmed Khokhar said three important judicial pronouncements have been issued recently on the interpretation and legal status of the marriage policy: two from the SC and one from the FCC.
He noted that a divergence of judicial opinions has emerged between the SC and the FCC on important questions of law and policy.
He pointed out that the TS, in its rulings, expressly maintained that the marriage policy is not a mere guideline but rather generates a legitimate expectation in favor of the affected workers.
The SC stated that the policy is binding on the executive authorities unless it is legally withdrawn or modified in accordance with constitutional requirements.
“In contrast, the FCC has taken a different interpretive approach, holding that the marriage policy is essentially a facilitative administrative arrangement designed for operational convenience and workforce management.
“He maintains that the policy does not create an enforceable right to claim a permanent position at any particular station,” he said.
Under this view, he said, the policy cannot be elevated to the status of vested right and must remain subject to the legal exercise of powers of transfer and publication by the competent authority.
He noted that this divergence has resulted in notable jurisprudential tension between the two constitutional forums with respect to the legal character and applicability of the policy framework.
Khokhar stated that in view of the conflicting interpretations, the matter now requires consideration under the amended Article 189 of the Constitution.
This article regulates the binding nature and precedent authority of judicial decisions in the restructured constitutional hierarchy.
It noted that the interpretation adopted by the FCC introduces a materially different legal perspective from that articulated by the SC, thus giving rise to important questions of judicial coherence, constitutional harmony, and institutional coherence.
He concluded that until such constitutional ambiguity is authoritatively resolved within the constitutional scheme, the legal status of the marriage policy is likely to remain subject to competing interpretations between legitimate expectation and administrative facilitation.
Lawyers believe that after the 27th Amendment, FCC case law is binding on the SC.
Recent SC ruling
The SC noted that the present controversy is limited to the implementation of the marriage policy issued under the directives of the CM of Punjab.
Under that policy, it was considered advisable to unite spouses by transferring them to the same place of service, taking into account the impact of psychological and economic strains.
“The learned Additional Advocate General of Punjab also did not plead to us that the above-mentioned directives or circular of the CM were time-bound or not currently in vogue, nor was any other logical reason raised as to why the clear directives of the CM were circumvented by rejecting the transfer application of the petitioner.
