ISLAMABAD:

The Federal Constitutional Court (FCC) has taken exception to a recent Supreme Court judgment that directed all state departments to strictly comply with the Wedlock Policy to address difficulties faced by married government employees.

In a 2-page judgment, FCC Justice Aamer Farooq noted that the court could not agree with a judgement authored by Supreme Court Justice Ayesha Malik regarding the Wedlock Policy.

In the Mubashir Iqbal Zafar v Ministry of Defence case, the SC set aside a judgment of the Federal Service Tribunal, allowing Mubashir Iqbal Zafar to continue serving under the wedlock policy in Khanewal, where his wife was employed as a government schoolteacher.

The FCC noted that the judgment attempted to state that a civil servant who wishes to be posted at the same station as their spouse may seek consideration under the wedlock policy.

“We reiterate that this does not constitute an absolute right. The judgment in question provides that the wedlock policy could be invoked where the spouse of a civil servant is working in the private sector.

“While it may be desirable in such circumstances for marital partners to live together at one place, no vested right accrues in favour of a civil servant to be posted at the station of his or her spouse,” it added.

According to the FCC, the proviso to sub-rule 3 of Rule 20-A removes the maximum five-year posting limit on deputation at the place of a spouse’s posting, but it is not an absolute rule.

“The wedlock policy and the desirability of spouses living at the same station must give way to the exigencies of civil service administration,” it added.

The FCC noted that the wedlock policy cannot be used as grounds for indefinite posting and does not create any vested right.

“The wedlock policy does not create any vested right whatsoever. Rather, it is a policy and guiding principle, not one to be adjudicated upon strictly by the courts.”

It said institutions and departments should operate in line with this policy and should not deviate from it on whimsical grounds. “But it cannot be relied upon to disturb the civil bureaucratic structure or the settled jurisprudence on service laws in our country.”

The FCC also observed that the SC, in its ruling, did not take into account Islamabad High Court (IHC) judgments on the same issue. The said judgments of the IHC, though not binding on the SC, carried persuasive value and ought to have been considered, it said.

“In our opinion they depict the correct legal position by holding that a civil servant does not have a vested right to be posted on deputation or otherwise at the place of his or her spouse for an indefinite period.”

The FCC stated that the SC’s interpretation appears to suggest that a civil servant has an absolute right to be posted wherever his or her spouse is serving.

“We reiterate that a civil servant has no vested right to claim posting or transfer to any particular place of choice, nor can he or she continue to hold a particular post at a particular place indefinitely.

“Transfer and posting remain at the discretion of the competent authority,” it added.

The court stated that the Mubashir Iqbal verdict imposed a rule that offered no workable way forward, could not be applied consistently and predictably, and carries the potential for misuse.

“We fail to understand to what extent the wedlock policy can be stretched to facilitate married government employees,” it added.

The FCC questioned if such an interpretation would pave the way for civil servants to serve at various stations depending on personal preference and happiness, potentially at the expense of public service.

“The answer obviously has to be in the negative. The precedent creates an imbalance in the civil bureaucratic structure, affecting other areas of law, particularly in cases like the present one, where the petitioner has already served beyond the permissible five-year period.

“The pro-wedlock policy stance imposes a duty on departments not to disturb couples and to keep extending deputations despite the inherently temporary nature of such arrangements,” it said.

The FCC, while raising objections, observed that the SC judgment advances reasoning that is constitutionally unsound by relying on Articles 35 and 36 of the Constitution.

“Article 35 provides that ‘the State shall protect marriage, the family, the mother and the child,’ while Article 36 requires that ‘steps shall be taken to ensure full participation of women in all spheres of national life.’

“However, it is essential to note that both provisions form part of the Principles of Policy rather than enforceable fundamental rights.” The judgment further emphasized that Article 29(2) assumes central importance but was overlooked in Mubashir Iqbal.

“Article 29(2) provides that ‘insofar as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the principle shall be regarded as being subject to the availability of resources.’

“Article 29(2) effectively qualifies all Principles of Policy by making their implementation contingent upon the availability of state resources.

“Any measure undertaken to realize these principles must therefore remain subject to practical constraints and administrative feasibility.”

Mubashir Iqbal verdict, it said, departed from this constitutional framework by transforming the wedlock policy into what is effectively treated as a binding directive on the state. The FCC observed that this approach risks converting non-justiciable Principles of Policy into enforceable entitlements.

“Mubashir Iqbal effectively converts non-justiciable Principles of Policy into enforceable entitlements, an approach that risks undermining administrative discretion and the operational needs of the State.

“The Principles of Policy serve several important functions, particularly for courts. They assist in interpreting the Constitution, understanding the scope and content of fundamental rights, and, in appropriate cases, even deriving rights implicit within the constitutional framework.”

The FCC held that the wedlock policy remains an important state initiative aligned with constitutional responsibilities.

“At no point does this court take the view that the wedlock policy should not be observed. Every state institution is expected to keep the wedlock policy under consideration and take positive measures to secure compliance. But this court remains mindful that policy must not be conflated with law.”

It stated that similar to Pakistan’s wedlock policy, India has a spouse-posting policy, also known as the ‘couple case,’ which requires that married civil servants be transferred or posted to the same station.

“Yet, despite the existence of such a policy, courts there maintain that who should be transferred where is a matter for the appropriate authority to decide. Unless the transfer order is vitiated by mala fide intent or is made in violation of statutory provisions, the court cannot interfere.”

It said while ordering a transfer, the authority must keep in mind the guidelines issued by the government on the subject. Similarly, if a person makes any representation regarding transfer, the appropriate authority must consider it in light of administrative exigencies.

“The guidelines state that, as far as possible, husband and wife should be posted at the same place. However, this does not confer upon a government employee a legally enforceable right,” the FCC said.