The provision in not unjust for petitioners, rather it is fair and just for excluded groups
KATHMANDU, JUNE 29
The Supreme Court has quashed a writ petition filed by four employees of Kathmandu Upatyaka Khanepani Limited seeking nullification of rule 23 of KUKL's Employees Administration Bylaw (Ninth Amendment) that allowed employees of disadvantaged groups - women, indigenous nationalities, Madhesi, Dalit, persons with disabilities and permanent residents of backward region to apply for promotion even if they have one year less experience in the current job.
KUKL employees Surendra Rawal, Rabin Khadka, Hem Bahadur Budhathoki, and Hariram Rimal had filed a writ petition against KUKL, Prime Minister's Office, and Council of Ministers, and others.
A division bench of Justices Sapana Pradhan Malla and Manoj Kumar Sharma decided to quash the writ petition saying that lowering experience years requirement by one year for excluded groups such as women, indigenous nationalities, Dalit, Madhesi, persons with disabilities and permanent residents of backward region was in essence affirmative action which the constitution allowed and it should not be taken as provisions against equality. The order passed by the division bench on 29 June 2022, the full texts of which was prepared yesterday stated this.
KUKL had amended Rule 23 of its Employees Administration Bylaw on 9 May 2019 incorporating a provision stating that an employee seeking the fifth level post should have three years' work experience and an employee seeking promotion to officer level should have four years' experience, but women, indigenous nationalities, Dalit, Madhesi, persons with disabilities and permanent resident of backward region can be eligible to apply for promotion even if they have one year less experience in the current job compared to their counterparts.
The petitioner said the amendment made to KUKL Bylaws deprived them of equal rights. They said employees who were recruited along with them had already benefited from reservation once and should not be allowed to take that benefit again. They said the amended part of the rule was also against the right to social justice and rule of law.
The petitioners said reservation could not be used more than once and reservation should not be applied in promotions. They had sought to quash the amended part of the Employees Administration Bylaw and the promotion adverts published on 15 August 2021, arguing that the amended part of the bylaw was against Article 17 (f) and 18 of the constitution.
All the petitioners are engineers (seventh level) and Surendra Rawal had completed three-and-a half years in the same post and other petitioners had completed three years. They did not apply for promotion as they were not eligible.
The court said KUKL had placed promotion adverts from fifth to 11th level posts and no other employee other than the four petitioners had sought repeal of rule 23 of the office bylaws and three petitioners except Surendra Rawal had missed court dates. Filling forms for promotion does not automatically ensures promotion, the SC observed.
The court said the precedent set in Binay Panjiyar versus Medical Education Commission and others and Hemraj Subedi versus Public Service Commission were not applicable in this case as those cases were different.
The court said Section 21 (1) of Civil Service Act, which was the mother act of government employees also had a proviso that made certain employees - women, indigenous nationalities, Madhesi, Dalit, persons with disabilities and permanent residents of backward region probable candidates for promotion even if they had one year less experience in the current post and the KUKL amended its bylaw in accordance with the same provision.
The court said that the preamble of the constitution pledged to end all types of discrimination and backwardness and the same provision did not prohibit affirmative actions for targeted groups.
Stating that Article 18 provisioned for right to equality, Article 38 guaranteed proportional inclusion of women and Article 18 (3) guaranteed proportional inclusion of excluded groups and it was under the same constitutional provision that KUKL was within its right to ensure proportional inclusion of certain classes and groups.
The court said that lowering the age of experience by one year for disadvantaged groups should not be meant for compromising the evaluation for promotion and it should not be construed as adversely impacting administrative efficiency.
Provisions incorporated within the ambit of the constitution and laws with the aim of ensuring inclusive state structure should not be construed as provisions against equality, the bench observed.
Special provisions brought to ensure inclusion should not be taken as provisions against the interests of any class or individuals but it should rather be taken as a measure to bridge the gap created due to social and geographical factors that led to backwardness of any gender, caste, language, religion and region.
The top court said: Equality is not just dejure but also a substantial right. Therefore, the provision that reduces the requirement of experience years of women, indigenous nationalities, Dalit, persons with disability and permanent residents of backward region who are backward due to social and geographical reasons should not be taken as giving opportunities to beneficiaries repeatedly. Thus rule 23 of KUKL is not unjust and unfair for the petitioners, rather it is just and fair for excluded groups, the SC observed.
This verdict of the SC is different form the verdict passed by the division bench of SC comprising Justices Ananda Mohan Bhattarai and Bishowambhar Shrestha two years ago when the bench had issued a directive to the government saying that taking the creamy layer of aspirants out of the reservation ambit and making reservation a class or poverty issue was against the constitutional guarantee of proportional inclusion.
Some lawyers and rights activists had termed the SC ruling wrong then, saying that the bench's interpretation that reservation should be a class or poverty issue was wrong.
A version of this article appears in the print on June 30, 2023, of The Himalayan Times.
