Supreme Court, FCC at odds over wedlock policy

SC affirms 'legitimate expectation' for married civil servants

ISLAMABAD:

The Supreme Court of Pakistan and the Federal Constitutional Court (FCC) have expressed conflicting views on the government's wedlock policy.

The SC has 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 the policy without any rhyme or reason.

The FCC, however, has held in a recent judgment that the wedlock policy cannot be used as grounds for indefinite posting and does not create any vested right.

According to a recent order of the SC, the interpretation of beneficial rules, circulars, and policies follows the doctrine of beneficial construction, with the sole aim that when a law or rule is intended to provide a benefit to a specific class, it should be interpreted liberally to achieve its intended purpose

"The policy creates a legitimate expectation for married civil servants that they will be accommodated rather than subjected to arbitrary deviation from the policy without any rhyme or reason.

"Any ambiguity should be resolved in the best interest of the intended beneficiaries," said a 16-page judgment authored by SC Justice Muhammad Ali Mazhar.

Justice Mazhar was part of a division bench which set aside the Federal Service Tribunal's decision to reject the petition filed by a female official of the Punjab Revenue Department regarding her transfer on the basis of the wedlock policy.

The bench ordered the SC Registrar's Office to send a copy of the judgment to the Punjab chief minister for its implementation.

Hafiz Ahsaan Ahmed Khokhar said three significant judicial pronouncements have recently been issued on the interpretation and legal status of the wedlock policy—two by the SC and one by the FCC.

He observed that a divergence of judicial opinion has emerged between the SC and the FCC on important questions of law and policy.

He noted that the SC, in its judgments, expressly held that the wedlock policy is not a mere guideline but one that gives rise to a legitimate expectation in favour of affected employees.

The SC stated that the policy is binding upon the executive authorities unless lawfully withdrawn or modified in accordance with constitutional requirements.

"In contrast, the FCC has adopted a different interpretative approach, holding that the wedlock policy is essentially a facilitative administrative arrangement designed for operational convenience and workforce management.

"It holds that the policy does not create an enforceable right to claim permanent posting at any particular station," he said.

According to this view, he said, the policy cannot be elevated to the status of a vested right and must remain subject to the lawful exercise of transfer and posting powers by the competent authority.

He observed that this divergence has resulted in a noticeable jurisprudential tension between the two constitutional fora regarding the legal character and enforceability of the policy framework.

Khokhar stated that, in view of the conflicting interpretations, the matter now calls for consideration within the framework of the amended Article 189 of the Constitution.

This article governs the binding nature and precedential authority of judicial decisions in the restructured constitutional hierarchy.

He noted that the interpretation adopted by the FCC introduces a materially distinct legal perspective from that articulated by the SC, thereby giving rise to important questions of judicial consistency, constitutional harmony, and institutional coherence.

He concluded that until such constitutional ambiguity is authoritatively resolved within the constitutional scheme, the legal status of the wedlock policy is likely to remain subject to competing interpretations between legitimate expectation and administrative facilitation.

Lawyers believe that after the 27th Amendment, the FCC jurisprudence is binding on the SC.

SC recent judgment

The SC noted that the present controversy is confined to the implementation of the wedlock policy issued under the directives of the Punjab CM.

Under the policy, it was found conducive to bring spouses together by transferring them to one station of duty considering the impact of psychological and economic strains.

"Neither was it pleaded before us by the learned Additional Advocate General, Punjab, that the above directives or circular of the CM were time-bound or presently not in vogue, nor was any other logical reason placed as to why the clear directives of the CM were sidestepped while rejecting the transfer application of the petitioner.