The FCC noted that the marriage policy cannot be used as a reason for publication for an indefinite period of time and does not create any vested rights.
ISLAMABAD:
The Federal Constitutional Court (FCC) has opposed a recent Supreme Court ruling that ordered all state departments to strictly adhere to the marriage policy to resolve difficulties faced by married civil servants.
In a two-page ruling, FCC Judge Aamer Farooq noted that the court could not agree with a judgment written by Supreme Court Justice Ayesha Malik regarding the marriage policy.
In the case of Mubashir Iqbal Zafar v Ministry of Defence, the SC set aside a judgment of the Federal Service Tribunal, allowing Mubashir Iqbal Zafar to continue serving under the marriage policy in Khanewal, where his wife was employed as a government school teacher.
The FCC noted that the ruling attempted to indicate that a civil servant who wishes to be assigned to the same position as his or her spouse can request consideration under the marriage policy.
“We reiterate that this does not constitute an absolute right. The judgment in question provides that the marriage policy could be invoked when the spouse of a civil servant works in the private sector.
“Although it may be desirable in such circumstances for spouses to live together in the same place, there is no vested right for a civil servant to be assigned to his or her spouse’s post,” the text adds.
According to the FCC, the proviso to subrule 3 of rule 20-A removes the five-year maximum limit for deputation to a spouse’s duty station, but it is not an absolute rule.
“Marriage policy and the opportunity for spouses to live in the same neighborhood must give way to the demands of civil service administration,” he adds.
The FCC noted that the marriage policy cannot be used as a reason for posting for an indefinite period of time and does not create any vested rights.
“The Marriage Policy does not create any vested rights. Rather, it is a policy and guiding principle that should not be judged strictly by the courts.”
He said institutions and departments should operate in accordance with this policy and should not deviate from it for fanciful reasons. “But this cannot be counted on to disrupt the civilian bureaucratic structure or established jurisprudence on military laws in our country.”
The FCC also observed that the SC, in its decision, had not taken into account the judgments of the Islamabad High Court (IHC) on the same issue. The said judgments of the IHC, although not binding on the SC, had compelling value and should have been taken into account, he said.
“In our view, they describe the correct legal situation by asserting that a civil servant has no vested right to be posted on deputation or otherwise in place of his or her spouse for an indefinite period.”
The FCC said the SC’s interpretation appears to suggest that a public servant has an absolute right to be assigned to where his or her spouse is stationed.
“We reiterate that a civil servant has no vested right to claim posting or transfer to a particular location of his choice, nor can he continue to occupy a particular post at a particular location indefinitely.
“Transfer and secondment remain at the discretion of the competent authority,” he adds.
The court said Mubashir Iqbal’s verdict imposed a rule that offered no practical solution, could not be applied consistently and predictably, and risked being misused.
“We fail to understand the extent to which the marriage policy can be extended to facilitate the marriage of government employees,” it added.
The FCC questioned whether such an interpretation would open the door to public officials filling different positions based on their personal preferences and happiness, potentially to the detriment of public service.
“The answer must obviously be no. The precedent creates an imbalance in the civil bureaucratic structure, affecting other areas of law, particularly in cases like this, where the petitioner has already served beyond the five-year period allowed.
“The pro-marriage policy position places a duty on departments not to disrupt couples and to continue to extend deputations despite the inherently temporary nature of such arrangements,” he said.
The FCC, while raising objections, observed that the SC ruling advances constitutionally flawed reasoning in reliance on Sections 35 and 36 of the Constitution.
“Article 35 provides that “the State shall protect marriage, family, mother and child,” while Article 36 requires that “measures 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 policy principles rather than enforceable fundamental rights.” The judgment further highlights that Article 29(2) is of central importance but was neglected in the Mubashir Iqbal case.
“Section 29(2) provides that “to the extent that compliance with a particular policy principle may be dependent 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 principles of policy by making their implementation subject to the availability of state resources.
“Any measures taken to implement these principles must therefore remain subject to practical constraints and administrative feasibility.”
Mubashir Iqbal’s verdict, according to the text, deviated from this constitutional framework by transforming the marriage policy into what is effectively treated as a binding directive for the state. The FCC observed that this approach risks transforming non-justiciable policy principles into enforceable rights.
“Mubashir Iqbal effectively converts non-justiciable political principles into enforceable rights, an approach that risks undermining administrative discretion and the operational needs of the state.
“Policy principles serve several important functions, particularly for the courts. They help interpret the Constitution, understand the scope and content of fundamental rights, and, in appropriate cases, even infer rights implied within the constitutional framework.”
The FCC found that marriage policy remains an important state initiative consistent with constitutional responsibilities.
“At no time does this court consider that the marriage policy should not be followed. Every public institution is expected to keep the marriage policy under review and take positive steps to ensure its compliance. But this court remains aware that this policy should not be confused with the law.”
He said that like Pakistan’s marriage policy, India has a spousal secondment policy, also known as “couple case”, which requires married civil servants to be transferred or posted to the same post.
“Yet, despite the existence of such a policy, the courts hold that it is for the competent authority to decide who should be transferred and where. Unless the transfer order is tainted with malicious intent or is made in violation of statutory provisions, the court cannot intervene.”
While ordering a transfer, the authority must keep in mind the guidelines issued by the government in this matter. Similarly, if a person makes a declaration regarding a transfer, the competent authority must consider it in light of administrative requirements.
“The guidelines state that, wherever possible, husband and wife should be displayed in the same location. However, this does not give a government employee a legally enforceable right,” the FCC said.
