The FCC noted that the marriage policy cannot be used as a reason for indefinite release and does not create any vested rights.
ISLAMABAD:
The Federal Constitutional Court (FCC) opposed a recent Supreme Court ruling that ordered all state departments to strictly comply with the Marriage Policy to address difficulties faced by married government employees.
In a two-page ruling, FCC Judge Aamer Farooq noted that the court could not agree with a ruling written by Supreme Court Justice Ayesha Malik regarding marriage policy.
In Mubashir Iqbal Zafar v Ministry of Defence, the Supreme Court overturned a judgment of the Federal Service Court, which allowed Mubashir Iqbal Zafar to continue serving under the marriage policy in Khanewal, where his wife worked as a government school teacher.
The FCC noted that the ruling attempted to establish that a public official who wishes to be appointed to the same position as his or her spouse may request consideration under the marriage policy.
“We reiterate that this does not constitute an absolute right. The ruling in question provides that the marriage policy could be invoked when the spouse of an official works in the private sector.
“Although in such circumstances it may be desirable for spouses to live together in the same place, a public official does not have the right to be assigned to his or her spouse’s position,” he added.
According to the FCC, the proviso to subrule 3 of Rule 20-A eliminates the five-year maximum limit for spousal duty station delegation, but it is not an absolute rule.
“Marriage policy and the desirability of spouses living in the same place must give way to the demands of civil service administration,” he added.
The FCC noted that the marriage policy cannot be used as a reason for an indefinite appointment and does not create any vested rights.
“The marriage policy does not create any vested rights at all. Rather, it is a policy and a guiding principle, which should not be strictly judged by the courts.”
He said institutions and departments must operate in accordance with this policy and must not deviate from it for capricious reasons. “But it cannot be relied upon to disrupt the civil bureaucratic structure or established jurisprudence on service laws in our country.”
The FCC also observed that the Supreme Court, in its ruling, did not take into account the rulings of the Islamabad High Court (IHC) on the same issue. Such judgments of the IHC, though not binding on the SC, had persuasive value and should have been considered, he said.
“In our view, they represent the correct legal position in holding that a public official has no vested right to be posted on deputation or otherwise in the place of his or her spouse for an indefinite period.”
The FCC stated that the SC’s interpretation appears to suggest that a public official has the absolute right to be posted wherever his or her spouse is serving.
“We reiterate that a public servant has no vested right to claim posting or transfer to any particular place of his choice, nor can he continue to hold a particular position in a particular place indefinitely.
“Transfer and shipment are at the discretion of the competent authority,” he added.
The court stated that the Mubashir Iqbal verdict imposed a standard that offered no viable way forward, could not be applied in a consistent and predictable manner and carried the potential for misuse.
“We do not understand to what extent the marriage policy can be expanded to facilitate marriage of government employees,” he added.
The FCC questioned whether such an interpretation would pave the way for public officials to serve in various positions depending on their personal preferences and happiness, potentially at the expense of public service.
“The answer obviously has to be negative. The precedent creates an imbalance in the civil bureaucratic structure, affecting other areas of law, particularly in cases like the present one, where the petitioner has already worked beyond the permissible period of five years.
“The pro-marriage political stance imposes a duty on departments not to upset couples and to continue expanding delegations despite the inherently temporary nature of such arrangements,” he said.
The FCC, while raising objections, noted that the Supreme Court’s ruling presents reasoning that is constitutionally incorrect by relying on Articles 35 and 36 of the Constitution.
“Article 35 states that ‘the State shall protect marriage, family, mother and child’, while Article 36 requires that ‘measures shall be taken to ensure the full participation of women in all spheres of national life.’
“However, it is essential to note that both provisions are part of the Policy Principles and not enforceable fundamental rights.” The judgment further emphasized that Article 29(2) assumes central importance but was overlooked in the Mubashir Iqbal case.
“Article 29(2) states that ‘to the extent that observance of any particular policy principle may depend on the availability of resources for that purpose, the principle shall be deemed to be subject to the availability of resources.’
“Article 29(2) effectively qualifies all Policy Principles by making their implementation contingent on the availability of state resources.
“Any measures taken to realize these principles must therefore be subject to practical limitations and administrative feasibility.”
The Mubashir Iqbal verdict, he claimed, departed from this constitutional framework by transforming the marriage policy into what is effectively treated as a binding directive on the State. The FCC noted that this approach risks turning non-justiciable policy principles into enforceable rights.
“Mubashir Iqbal effectively converts non-justiciable policy principles into enforceable rights, an approach that risks undermining the administrative discretion and operational needs of the State.
“The Policy Principles serve several important functions, particularly for courts. They help interpret the Constitution, understand the scope and content of fundamental rights, and, in appropriate cases, even derive implied rights within the constitutional framework.”
The FCC maintained that the marriage policy remains an important state initiative aligned with constitutional responsibilities.
“At no point does this court consider that the marriage policy should not be observed. All state institutions are expected to keep the marriage policy in mind and take positive steps to ensure its compliance. But this court remains mindful that policy should not be confused with the law.”
He stated that similar to Pakistan’s marriage policy, India has a spouse posting policy, also known as “couple case”, which requires married officials to be transferred or posted at the same station.
“However, despite the existence of such a policy, the courts hold that who should be transferred and where is a matter to be decided by the appropriate authority. Unless the transfer order is vitiated by mala fide or is issued in violation of statutory provisions, the court cannot interfere.”
He said that when ordering a transfer, the authority must take into account the guidelines issued by the government on the issue. Likewise, if a person makes any statement regarding the transfer, the competent authority must consider it in light of the administrative requirements.
“The guidelines state that, to the extent practicable, husband and wife should be stationed at the same location. However, this does not confer a legally enforceable right on a government employee,” the FCC said.
