FCC questions Supreme Court ruling on wedlock policy

ISLAMABAD: The Federal Constitutional Court (FCC) has expressed disagreement with a recent Supreme Court judgment that directed state institutions to strictly follow the wedlock policy in order to address difficulties faced by married government employees.

In a two-page judgment, FCC Justice Aamer Farooq said the court was unable to agree with the ruling authored by Supreme Court Justice Ayesha Malik in the Mubashir Iqbal Zafar v Ministry of Defence case.

In that case, the Supreme Court had set aside a Federal Service Tribunal judgment and allowed Mubashir Iqbal Zafar to continue serving in Khanewal under the wedlock policy, where his wife was working as a government schoolteacher.

The FCC said the Supreme Court judgment sought to establish that a civil servant wishing to be posted at the same station as a spouse could seek consideration under the wedlock policy. However, it stressed that such consideration did not amount to an absolute right.

The court noted that the judgment under discussion allowed the wedlock policy to be invoked even where the spouse of a civil servant was employed in the private sector. It observed that while it may be preferable for spouses to live together in one place, this does not create a vested right for a civil servant to be posted where his or her spouse is serving.

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 where a spouse is posted, but this too is not absolute. The wedlock policy and the desirability of spouses serving at the same station must remain subject to the exigencies of civil service administration.

The judgment said the wedlock policy could not be used to justify indefinite posting and did not create any vested right. It described the policy as a guiding principle rather than a rule to be enforced strictly through adjudication by courts. At the same time, institutions and departments should act in accordance with the policy and should not depart from it on whimsical grounds.

The FCC further said the Supreme Court had not considered Islamabad High Court judgments on the same issue. It observed that although those judgments were not binding on the Supreme Court, they had persuasive value and should have been taken into account. In the FCC’s view, those rulings reflected the correct legal position that a civil servant does not have a vested right to remain posted, whether on deputation or otherwise, at the place of a spouse for an indefinite period.

The court said the Supreme Court’s interpretation appeared to suggest that a civil servant had an absolute right to be posted wherever a spouse was serving. It reiterated that no civil servant has a vested right to claim posting or transfer to a place of choice, or to continue holding a particular post at a particular station indefinitely. Transfer and posting remain within the discretion of the competent authority.

The FCC also said the Mubashir Iqbal ruling imposed a standard that offered no workable way forward, could not be applied consistently or predictably, and carried the possibility of misuse. It questioned how far the wedlock policy could be extended to accommodate married government employees and said such an interpretation could open the door for civil servants to seek postings based on personal preference and happiness at the expense of public service.

Referring to the case before it, the court said the precedent created an imbalance in the civil bureaucratic structure, particularly where the petitioner had already served beyond the permissible five-year period. A pro-wedlock policy approach imposed a duty on departments not to disturb couples and to keep extending deputations despite the temporary nature of such arrangements.

The FCC also objected to the constitutional reasoning adopted in the Supreme Court judgment, saying it relied on Articles 35 and 36 of the Constitution in a manner that was constitutionally unsound. Article 35 states that the State shall protect marriage, the family, the mother and the child, while Article 36 requires that steps be taken to ensure full participation of women in all spheres of national life. However, the court said both provisions fall under the Principles of Policy and are not enforceable fundamental rights.

The judgment said Article 29(2) was of central importance but had been overlooked in Mubashir Iqbal. It quoted the provision as stating that insofar as observance of any particular Principle of Policy depends on available resources, that principle shall be regarded as subject to the availability of resources. The FCC said this means implementation of such principles remains contingent on state resources, practical constraints and administrative feasibility.

According to the court, the Mubashir Iqbal ruling departed from this constitutional framework by effectively turning the wedlock policy into a binding directive on the state. It warned that this approach risked converting non-justiciable Principles of Policy into enforceable entitlements, thereby undermining administrative discretion and the operational needs of the state.

The FCC said the wedlock policy remained an important state initiative aligned with constitutional responsibilities. That, similar to Pakistan’s wedlock policy, India also has a spouse-posting policy, known as the couple case, under which married civil servants may be transferred or posted to the same station. However, courts there also maintain that transfer decisions are for the appropriate authority to make, and that judicial interference is not warranted unless a transfer order is tainted by mala fide intent or violates statutory provisions.

The court said the relevant authority must keep government guidelines in mind while ordering transfers and must consider any representation made by an employee in light of administrative exigencies. Such guidelines may state that, as far as possible, husband and wife should be posted at the same place, but they do not confer a legally enforceable right on a government employee.