A division bench of the apex court headed by Justice Munib Akhtar noted 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 resolve difficulties faced by married civil servants and unmarried women government employees.
“As a policy directive, the State must follow it since this policy was designed to specifically address the difficulties faced by married civil servants and single women employees of the government,” Justice Ayesha A Malik ruled in her 9-page judgment, which she wrote while setting aside a decision of the Federal Services Tribunal in which the transfer of an assistant health inspector was upheld.
“In such circumstances, the government cannot choose when and when the policy may 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, for the sake of convenience, efforts should be made to follow the policy to avoid psychological, economic and social strain on families.”
A division bench of the apex court headed by Justice Munib Akhtar noted that the policy, in essence, requires that spouses posted on a post should not be disturbed without compelling reason in public interest and further, a request for extension beyond permissible limits may be considered compassionately, in public interest.
“This encapsulates the State’s goal of promoting family-friendly transfer practices designed to address the challenges faced by married and unmarried female government employees,” the ruling said.
The Court notes that the State is duly required to exercise its functions in accordance with the guidelines set forth in the Constitution.
“Chapter 2 of the Constitution sets out the principles of policy requiring every organ and authority of the State and persons exercising functions on behalf of the State to adhere to these principles.
“While the chapter does not require policy principles to be consistently followed, it serves as a constant reminder to guide the state’s decision-making process.
“This places a responsibility on the state to act in accordance with the directives of political principles and prioritize the welfare of the people.
It defines the priorities of the State so that it can align its decisions and actions with policy principles ensuring that the overall functioning of the State protects and promotes the lives and well-being of its citizens.
“Accordingly, 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 take necessary measures to ensure the full participation of women in all spheres of national life.”
The judgment notes that these articles collectively impose the responsibility 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 the family for the benefit of both men and women.
“Accordingly, the State is constitutionally responsible for developing policies that take into account marriage, family and women’s participation in public service, which in this case translates into marriage policy.
“Such measures contribute to reducing the hardships of women, promoting family stability and fostering greater participation of women in public service. Therefore, given that the State has adopted a policy aimed at promoting and protecting the institution of marriage and family life, it is essential that the State, in accordance with its policy, refrains from creating structural and institutional barriers that separate spouses for long periods of time, without justifiable reason.
“Therefore, objections based on convenience, tradition or rigid administrative practices cannot supersede the constitutional obligation to facilitate marriage and family life and ensure the full and equal participation of women in public service.”
The judgment noted that the common government response to this policy is that a civil servant does not have an absolute right to be transferred to a specific location and that civil servants agree at the time of their appointment that they can be transferred anywhere at any time during their service and that transfer orders are issued at the discretion of the competent authority.
“This is in our view a one-dimensional approach to the issue at hand. While we recognize the fact that a civil servant does not have the vested right to demand transfer to a specific location, the policy requires that the genuine hardships faced by the spouses be taken into account at the time of transfer and that unless absolutely necessary, in the public interest, married couples should have the advantage of being able to work at the same location.
“Similarly, a benefit has been given to unmarried women government employees, enabling them to work in a position where their family resides. The policy has been designed to eliminate difficulties of separation due to transfer and posting within marriage or within a family and places a heavy burden on the State 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.
“Married civil servants are expected to live apart for the duration of their service as transfer is an incident of service, a common and expected aspect of public service and civil servants are expected to adapt 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 said.
The court said that “it goes without saying that the bedrock of governance lies in the unwavering commitment to preserve and protect the welfare of the people. Every political and administrative action must be anchored in the best interest of the public, ensuring that governance remains people-centered.”
“This is the primary objective of the state. Laws and policies designed for the welfare of the people must be respected and not ignored for reasons that negate the objective of the law or policy itself.”
The judgment states that the policy was issued by the government and has been in existence since 1998 for this specific purpose, that it is its responsibility to implement the policy and its implementation cannot be left to the whims and mercy of the competent authority.
“Although transfer and secondment are within the discretion of the competent authority, they must be carried out in the public interest, in the interest of all, on the basis of fairness and a legal administrative procedure which not only reflects the administrative requirements of the State but also balances the needs and requirements of public servants.
“The policy is designed to guide the transfer and assignment of married civil servants and is based on the public interest and constitutes an administrative measure that is impartial, fair, reasonable and consistent with the rights and legitimate expectations of employees.
“The policy has been designed with the aim of protecting the institution of marriage and the family based on the difficulties faced by unmarried spouses and female employees when they are transferred to different locations. Nothing in the policy limits the time period for which a transfer can be maintained, but rather it promotes welfare and family life as an underlying consideration while issuing transfer orders. Its implementation ensures that the state is able to function efficiently and at the same time ensures that all civil servants can work with dignity within the framework of their family and their marriage.
“As such, we find absolutely no reason to ignore the policy and proceed with the transfer of the petitioner in a routine manner. The transfer order dated 08.02.2021 is therefore contrary to the Marriage Policy which, being a State policy, must be complied with.”
