A division bench of the apex court headed by Justice Munib Akhtar has noted that the policy
Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ordered strict compliance with the Marriage Policy to address the difficulties faced by married government employees and unmarried female government employees.
“As a policy directive, the State must follow it as this policy was designed to specifically address the difficulties faced by married government employees and unmarried female government employees,” Justice Ayesha A Malik ruled in her nine-page judgment, which she authored, while overturning a Federal Services Court decision upholding the transfer of an assistant health inspector.
“In such circumstances, the Government cannot choose how and when the Policy can be followed, but must ensure that it is followed in letter and spirit to eliminate not only difficulties but also to discourage the continued practice of issuing transfer orders without thought or sensitivity to the requirements of government employees who are married. Therefore, as a matter of decorum, an effort should be made to follow the Policy to avoid psychological, economic and social strain on the families.”
A division bench of the apex court headed by Justice Munib Akhtar has noted that the policy, in essence, mandates that spouses posted at a station should not be disturbed without compelling reasons of public interest and further that a request for extension beyond the permissible limits can be considered compassionately, in the public interest.
“This summarizes the State’s goal of promoting family-friendly transfer practices that are designed to address the difficulties faced by married government employees and single female government employees,” the ruling says.
The court notes that the State is duly obliged to perform its functions in accordance with the guidelines established in the Constitution.
“Chapter 2 of the Constitution outlines the policy principles that require that all organs and authorities of the State, as well as persons performing functions on behalf of the State, must adhere to these principles.
“Although the chapter does not mandate that the Policy Principles be followed naturally, it is a constant reminder to guide the State’s decision-making process.
“It achieves the responsibility of the State to act in line with the guidelines of the Policy Principles and to prioritize the well-being of the people.
It establishes the priorities of the State so that it can align its decisions and actions with the Policy Principles, ensuring that the general functioning of the State protects and promotes the life and well-being of its citizens.
“Consequently, Article 35 of the Constitution requires the State to protect marriage, family, mother and child and Article 34 of the Constitution requires the State to adopt the necessary measures to ensure the full participation of women in all spheres of national life.”
The ruling notes that these articles together place the burden on the State to ensure that it promotes the full participation of women in public service and also require the State to protect the institution of marriage and family for the benefit of men and women alike.
“Consequently, the State has the constitutional mandate to formulate policies that take into account marriage, family and the participation of women in public service, which in this case translates into the Marriage Policy.
“Such measures help reduce the difficulties of women, promote family stability and encourage 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 essential that the State, in accordance with its Policy, stops creating structural and institutional barriers that keep spouses separated for long periods, without justifiable reason.
“Therefore, objections based on convenience, tradition or rigid administrative practices cannot displace the constitutional obligation to facilitate marriage and family life and achieve the full and equal participation of women in public service.”
The judgment has noted that the government’s common response to this policy is the fact that a public servant does not have an absolute right to be transferred to any specific place and that public servants agree at the time of their appointment 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.
“In our view, this is a one-dimensional approach to the issue at hand. While we recognize the fact that a public servant does not have the vested right to require transfer to any specific location, the Policy requires that genuine difficulties faced by spouses be considered at the time of transfer and that, unless absolutely necessary, in the public interest, married couples should be given the benefit of being able to work at the same location.
“Similarly, a benefit has been given to single female government employees to enable them to work at a station where their family resides. The policy designed is designed to remove the difficulties of separation due to transfer and posting in a marriage or within a family and imposes a heavy burden on the state to work in a manner that facilitates the 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 exactly the opposite of what the Policy states.
“Married public employees are expected to live apart during their service, because transfer is an incident of service, a routine and expected aspect of the civil service and public servants are expected to conform to these requirements. They are reminded of their duty and obligation to comply with transfer orders which, as a policy, do not influence the marriage or family life of the public servant,” the ruling reads.
The court said that “it goes without saying that the foundation of governance lies in the unwavering commitment to preserving and protecting the well-being of the people. Every policy and administrative action must be based on the best interest of the public, ensuring that governance remains people-centered.”
“This is the central purpose of the State. Laws and policies designed for the betterment of the people must be respected and not ignored for reasons that negate the objective of the law or policy itself. They must be respected and not ignored for reasons that negate the objective of the law or policy itself.”
The judgment said that the policy has been issued by the government and has existed since 1998 for this very purpose, it is its responsibility to implement the Policy and its implementation cannot be left to the whims and mercy of the competent authority.
“While transfer and posting are at the discretion of the competent authority, they must be carried out in the public interest for the benefit of all, based on equity and a lawful administrative process that reflects not only the administrative requirements of the State but also balances the needs and requirements of government employees.
“The Policy is designed to guide the transfer and assignment of married government employees and is based on the public interest and serves as an administrative measure that is impartial, fair, reasonable and consistent with the legitimate rights and expectations of employees.
“The Policy was designed with the intention of protecting the institution of marriage and family based on the difficulties faced by spouses and single employees when they are transferred to different locations. There is nothing in the Policy that imposes a limitation on the period within which a transfer can be maintained, but instead promotes well-being and family life as an underlying consideration when issuing transfer orders. Its implementation ensures that the State can function effectively while ensuring that all government employees can work with dignity within the scope of their family and marriage.
“As such, we do not find any basis to ignore the Policy and proceed to transfer the petitioner in a routine manner. The transfer order dated 08.02.2021 is, therefore, against the Marriage Policy which, being a State Policy, must be complied with.”
