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Once a Right Accrued in favor of a person, it cannot be taken away arbitrarily by an Executive Authority --- Lahore High Court, Lahore

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Once a Right Accrued in favor of a person, it cannot be taken away arbitrarily by an Executive Authority --- Lahore High Court, Lahore

Islamabad 24-09-2024: In a landmark ruling, the Lahore High Court has set aside the termination of a widow’s employment, declaring her dismissal on account of remarriage as unconstitutional and in violation of both Shariah law and fundamental rights guaranteed under the Constitution of Pakistan, 1973. The judgment came in the case of Zoya Islam Vs. Government of Pakistan, with the Court allowing the widow’s appeal against her termination from a government job.

The case centered around Zoya Islam, who was employed as a Naib Qasid (BS-01) at Pakistan Mint under the Assistance Package for Families of Government Employees who Die in Service after her husband passed away during his employment. However, following her remarriage, her employment was terminated based on a notification issued on 15.12.2015 by the Establishment Division. This notification stated that widows who remarry after receiving employment under the assistance package would no longer be eligible to retain their positions.

Islam challenged her dismissal through a writ petition, which was dismissed by a single judge on the grounds that she was a contract employee. On appeal, a division bench of the Lahore High Court overturned this decision, ruling that her termination was not only unconstitutional but also contrary to Islamic principles.

The Court underscored the Constitution’s Articles 31 and 35, which protect marriage and family while ensuring that citizens can order their lives according to the principles of Islam. Citing relevant verses from the Holy Quran, the Court emphasized that Islam encourages widows to remarry and that such marriages should not result in social or legal disadvantages.

The Court noted that the Office Memorandum dated 15.12.2015 was previously declared ultra vires and illegal by the Islamabad High Court in Mst. Samia Tabassum Vs. Federation of Pakistan (W.P. No. 389 of 2016). This ruling was upheld by the Supreme Court of Pakistan in [Civil Petition No. 2666 of 2016], which found that the memorandum was in violation of Articles 34 and 35 of the Constitution, which ensure the protection of women’s participation in national life and the preservation of family units.

The Lahore High Court reiterated the locus poenitentiae doctrine, stressing that once a right is vested, it cannot be arbitrarily withdrawn. The Court further observed that the appellant had gained her employment under the assistance package after fulfilling all formalities, and her remarriage did not nullify her right to the job.

In its judgment, the Court cited the Supreme Court’s ruling in Mst. Basharat Jehan Vs. Director General, Federal Government Education (2015 SCMR 1418), which held that accrued rights cannot be taken away arbitrarily by an executive authority. The Court also highlighted that the Supreme Court’s decisions are binding on all state organs, as mandated by Article 189 of the Constitution.

The Court concluded that the appellant’s termination on the basis of remarriage was arbitrary and unlawful. The bench set aside the termination order dated 30.09.2021 and reinstated the appellant to her position, while also declaring her dismissal order and the rejection of her reinstatement request as null and void.