SC orders enforcement of wedlock policy

ISLAMABAD:

The Supreme Court has ordered strict compliance with the Wedlock Policy in order to tackle difficulties faced by married government employees and unmarried female government employees.

"As a policy directive, the state must follow it given that this policy was designed to specifically tackle the difficulties faced by married government employees and unmarried female government employees," ruled Justice Ayesha A Malik in her 9-page judgment she authored while setting aside a Federal Services Tribunal decision wherein the transfer of an assistant health inspector was upheld.

"In such circumstances, the government cannot pick and choose as and when the policy can be followed but must ensure that it is followed in letter and spirit to remove not only hardship but also to discourage the continued practice of issuing transfer orders without thought or sensitivity to the requirements of government employees who are married. Hence, as a matter of propriety, effort should be made to follow the Policy to avoid psychological, economical and social strains on families."

A division bench of the apex court led by Justice Munib Akhtar has noted that the policy, in essence, requires that spouses posted at one station should not be disturbed without compelling reason of public interest and further that a request for extension beyond permissible limits may be considered with compassion, in the public interest.

"This encapsulates the objective of the state to promote family sensitive transfer practices which are designed to address the hardship faced by married government employees and unmarried female government employees," says the judgement.

The court notes that the state is duly bound to perform its functions in accordance with the directives set out in the Constitution.

"Chapter 2 of the Constitution delineates the Principles of Policy mandating that every organ and authority of the State as well as persons performing functions on behalf of the State, must adhere to these principles.

"While the chapter does not mandate that the Principles of Policy be followed as a matter of course, it is a constant reminder to guide the state's decision-making process.

"It places a responsibility on the State to act in consonance with the directives of the Principles of Policy and to prioritize the welfare of the people.

It sets out the priorities of the State so that it can align its decisions and actions with the Principles of Policy ensuring that the overall working 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 the marriage, the family, the mother and the child and Article 34 of the Constitution requires the State to take necessary steps to ensure the full participation of women in all spheres of national life."

The judgement notes that these Articles collectively place a burden on the state to ensure that it promotes the full participation of women in public service and also requires the State to protect the institution of marriage and the family for the benefit of men and women alike.

"Accordingly, the state is constitutionally mandated to frame policies which take into account marriage, family and the participation of women in public service which in this case translates into the Wedlock Policy.

"Such measures help to reduce hardships for women, promote family stability and foster greater participation of women in public service. Therefore, given that the State has issued a Policy to promote and protect the institution of marriage and family life, it is essential that the State, in line with its Policy, move away from creating structural and institutional barriers which keeps spouses apart for long periods, for no justifiable reason.

"Therefore, objections premised on convenience, tradition or rigid administrative practices cannot displace the constitutional obligation to facilitate marriage and family life and to bring about the full and equal participation of women in public service."

The judgement has noted that the government's common response to the policy is the fact that a civil servant does not have an absolute right to be transferred to any specific location and that civil servants agree at the time when they are appointed 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.

"This in our opinion is a one-dimensional approach to the question at hand. While we recognize the fact that a civil servant does not have a vested right to demand transfer to any specific location, the Policy requires that the genuine hardship 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 place.

"Similarly, a benefit has been given to unmarried female government employees that they be able to work at a station where their family resides. The policy by design is made to remove the hardship of separation due to transfer and posting in a marriage or within a family and places a heavy burden on the state to work in a way that facilitates government employees, their marriage and family life.

"This means that the State must make an earnest effort to abide by its own Policy and maintain its objective. Instead, we find that the intent is the exact opposite of what the Policy sets out.

"Government employees who are married are expected to live apart for the duration of their service, because transfer is an incident of service, a routine and expected aspect of civil service and civil servants are expected to adjust to these requirements. They are reminded of their duty and obligation to abide by transfer orders which does not as of policy factor in the marriage or family life of the civil servant", says the judgement.

The court said that "it goes without saying that the foundation of governance lies in the unwavering commitment to preserve and protect the welfare of the people. Every policy and administrative action must be rooted in the best interest of the public, ensuring that governance remains people centric".

"This is the core purpose of the State. Law and policies designed for the betterment of the people should be adhered to and not ignored on account of reasons which negate the objective of the law or policy itself adhered to and not ignored on account of reasons which negate the objective of the law or policy itself."

The judgement said that the policy has been issued by the government and has existed since 1998 for this very purpose, it is their responsibility to implement the Policy and its implementation cannot be left at the whims and mercy of the competent authority.

"While transfer and posting is the discretion of the competent authority it is to be made in the public interest for the benefit of all based on fairness and a lawful administrative process which 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 posting of married government employees and is grounded in public interest serving as an impartial administrative measure, that is fair, reasonable and consistent with the rights and legitimate expectation of the employees.

"The Policy was designed with the intent to protect the institution of marriage and the family based on the hardships faced by spouses and unmarried female employees when transferred to different places. There is nothing in the Policy that places a limitation on the timeframe within which a transfer can be maintained, rather it promotes welfare and family life as the underlying consideration while issuing transfer orders. Its implementation ensures that the State is able to function effectively and at the same time ensures that all government employees can work with dignity within the ambit of their family and marriage.

"As such, we find absolutely no basis in ignoring the Policy and proceeding to transfer the Petitioner in a routine manner. The transfer order dated 08.02.2021 is, therefore, against the Wedlock Policy which, being a Policy of the State, must be complied with."