KATHMANDU, FEBRUARY 7
The Supreme Court has directed the government to make changes or enact new laws to allocate seats for all clusters that qualify for reservation in government jobs, including the Tharu community, within nine months from the date of releasing the full text of the verdict, which is awaited.
The apex court refused to cancel government job advertisements as demanded by petitioners, but ordered defendants, including the Public Service Commission, provincial public service commissions, the Office of the Prime Minister and Council of Ministers, the Nepali Army, and Nepal Police to allocate seats for Tharus next year, adding seats in government bodies that they would lose this fiscal year.
A division bench of justices Bishowambhar Prasad Shrestha and Ananda Mohan Bhat-tarai issued the directive in response to a writ petition filed by Tharu activists, including office bearers of Tharu Kalyankarini Sabha.
The court said that the government's argument that Tharu applicants could apply for jobs under other categories was not in consonance with the constitutional provision.
Necessary laws should be enacted immediately to allocate seats for all groups and communities that qualify for such benefits, the SC observed.
The SC said that the legislature could fix criteria to exclude those people of clusters qualifying for reservation who have already achieved progress and who do not need reservation in government jobs as that would be in consonance with the constitutional spirit.
Stating that Article 47 of the constitution had mandated the government to make necessary laws within three years,the court observed that progress on this issue should be made at the earliest.
The apex court said since none of the petitioners were from among the applicants, there was no need to annul those vacancies mentioned by the petitioners. It added thatin some cases concerned bodies had already completed written examinations and interviews and had recruited selected candidates. The SC observed that halting government vacancies would not be appropriate as recruitment was necessary to run the government.
The court observed that since the government and legislature would have to fix quota for the Tharu community in accordance with the spirit and provisions of the constitution, it was not desirable for the court to tell the government to fix percentage of reservationfor Tharus solely on the basis of their population.
The court observed that the goal of democracy was to guarantee equality, equity, and participation of all communities.
"Proportional inclusion has been adopted in the constitution as a constitutional vision.
The new constitutionrecognises Tharus as a community that is entitled to benefits offered by affirmative action," the SC observed.
The court said it had ordered the government four years ago to enact laws to ensure proportional inclusion of Tharus, but the government had not yet enacted laws to implement that order.
"Security bodies, authorities, and banks have embraced the scheme and design of reservation incorporated in the Civil Service Act. Reservation related provisions incorporated in the Civil Service Act have been implemented for the past 15 years, but do not cover new clusters identified by the current constitution. The constitution stipulates that there should be special provisions for socially, economically, and culturally backward groups in employment and education and should also be taken into account while framing laws," the SC observed.
The court cited the case filed by Shanti Kumari Modi against the government in which the SC had ordered the government to include new groups in reservation related laws.
"But even after four years of the passing of order, the government has not amended the relevant laws," the SC observed.
Petitioners had demanded that all job advertisements announced by the Public Service Commission and other government and semi-government bodies be cancelled and fresh advertisements be placed after allocating seats for Tharus.
Defendants had argued that Tharu applicants were free to compete for the advertised jobs under other clusters and since relevant bodies' service acts had no separate provisions for Tharu, they were not in a position to allocate seats under the Tharu cluster.
Laws should be enacted to allocate seats for those who qualify for such benefits
A version of this article appears in the print on February 8, 2023, of The Himalayan Times.
