ISLAMABAD:
The Supreme Court of Pakistan and the Federal Constitutional Court (FCC) have expressed divergent views on the government’s marriage policy.
The SC held that the policy creates a legitimate expectation for married civil servants that they will be accommodated, rather than being subjected to arbitrary deviation from policy without any rhyme or reason.
The FCC, however, ruled in a recent ruling that the marriage policy cannot be used as a reason for indefinite secondment and does not create any vested rights.
According to a recent SC order, the interpretation of beneficial rules, circulars and policies follows the doctrine of beneficial interpretation, with the sole purpose that when a law or rule is intended to bring benefit to a specific class, it should be liberally interpreted to achieve its intended purpose.
“The policy creates a legitimate expectation for married public servants that they will be accommodated rather than subjected to arbitrary deviations from policy without any rhyme or reason.
“Any ambiguity must be resolved in the best interest of the intended beneficiaries,” said a 16-page judgment written by SC judge Muhammad Ali Mazhar.
Justice Mazhar was part of a division bench which set aside the Federal Service Tribunal’s decision to dismiss the petition filed by a Punjab Finance Department official regarding her transfer on the basis of the marriage policy.
The court ordered the SC Registrar’s office to send a copy of the judgment to the Punjab Chief Minister for execution.
Hafiz Ahsaan Ahmed Khokhar said three important court rulings were recently issued on the interpretation and legal status of the marriage policy: two by the SC and one by the FCC.
He observed that a difference of judicial opinion has emerged between the SC and FCC on important questions of law and policy.
He noted that the SC, in its judgments, expressly considered that the marriage policy is not a simple guideline but one which gives rise to a legitimate expectation in favor of the employees concerned.
The SC said the policy is binding on the executive authorities unless it is lawfully withdrawn or amended in accordance with constitutional requirements.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 believes that the policy does not create an enforceable right to claim a permanent position at a particular station,” he said.
According to this view, he said, the policy cannot be elevated to the status of vested right and must remain subject to the lawful exercise of transfer and secondment powers by the competent authority.
He observed that this divergence has resulted in notable jurisprudential tension between the two constitutional forums regarding the legal character and applicability of the policy framework.
Khokhar said that in view of the conflicting interpretations, the issue now calls for consideration under the amended Article 189 of the Constitution.
This article governs the binding nature and precedential power of judicial decisions in the restructured constitutional hierarchy.
He noted that the interpretation adopted by the FCC introduces a significantly distinct legal perspective from that articulated by the SC, thereby raising important questions of judicial consistency, constitutional harmony, and institutional coherence.
It concluded that until such constitutional ambiguity is authoritatively resolved within the constitutional system, the legal status of marriage policy will likely remain subject to competing interpretations between legitimate expectation and administrative facilitation.
Lawyers believe that after the 27th Amendment, FCC case law binds the SC.
Recent SC ruling
The SC noted that the current controversy is limited to the implementation of the marriage policy issued under the directives of the Punjab CM.
As part of this policy, it proved appropriate to reunite spouses by transferring them to the same place of service, taking into account the impact of psychological and economic tensions.
“The learned Additional Advocate General of Punjab has also not pleaded before us that the above directions or circulars of the CM were time-limited or not currently in vogue, nor has any other logical reason been adduced as to why the clear directions of the CM were circumvented while rejecting the transfer application of the petitioner.
