Courts have nothing to do with policy decisions until violation of rights is seen: SC

ISLAMABAD: The Supreme Court declared it is not the role of the Courts to interfere into policy decisions, unless it is manifest that such policy decisions are the outcome of arbitrary exercise of power, malafides, patently illegal or manifestly unreasonable.

A three-judge bench, headed by Chief Justice Gulzar Ahmed, held this on an appeal of Syed Azam Shah, a civil servant and working as a Principal (BPS-20) in the Federal Government Education C&G Institution.

The appellant was extended monetization allowance under the Monetization of Transport Facility Policy dated 12 December 2011 meant for Civil Servants in BS20 to BS-22. The federal government in October 2015 decided that the principals, professors and teachers are not entitled for grant of Monetization Allowance.

The monetization allowance; therefore, was discontinued to the appellant vide letter dated 29 January 2016. The appellant challenged this action before the Federal Service Tribunal, Islamabad, which dismissed it. Therefore, the appellant approached the apex court against the Tribunal’s judgment.

The judgment authored by Justice Muhammad Ali Mazhar stated that the duty of the Court is to confine itself to the question of legality, whether a decision making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached or abused its powers.

The SC has dismissed the appeal.

The extensiveness of judicial review of a policy is to test out whether it violates the fundamental rights of the citizens or is at variance to the provisions of the Constitution, or opposed to any statutory provision or demonstrably arbitrary or discriminately.

The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance.

This can be sought on the grounds that a decision arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of constitutional structure.

The judgment said that the appellant counsel had emphasized upon that the monetization allowance was continued to be paid to the appellant at least for four years; therefore, the same could not be withdrawn and the action of the respondents was contrary to the doctrine of locus poenitentiae, which means a point at which it is not too late for one to change one’s legal position.

The judgment said there is no hard and fast rule that if some benefit was wrongly extended due to some misunderstanding, error, misconception of law or without sanction of competent authority, that act should be treated so sacred and sacrosanct which could not be withdrawn to retrace or redo the wrong decision or action under the guise of locus poenitentiae principle. A wrong benefit extended beyond the scope of law and rules/ policy cannot be claimed in perpetuity or eternity; hence the applicability of this doctrine depends on the circumstances of each and every case and cannot apply universally or randomly without adverting to the merits of each case in its peculiar circumstances.

Copyright Business Recorder, 2021