Gender and Inclusive Justice Case: Surendra Badadur Rawal vs. Government of Nepal, Office of Prime Minister, NKP 2080 B.S, No.11 DN: 11199
Case: Certiorari
Plaintiff: Surendra Badadur Rawal
Defendant: Government of Nepal, Office of Prime Minister
Decision Number: 11199
This case relates to special measures in promotion, equality at the workplace, and the use of inclusion policies for employees from disadvantaged groups.
Facts of the Case:
The petitioners were engineers working at Kathmandu Upatyaka Khanepani Limited. They had been appointed through open competition and were working in the Civil Engineering group at the seventh level.
In 2019, the company amended its Employee Administration Regulations. The amendment added a provision concerning the minimum service period required for promotion. It allowed women, Indigenous Nationalities, Madhesi, Dalit and disabled employees, and employees permanently residing in backward regions to become eligible for promotion even if they had completed one year less than the normal service period.
The normal minimum service period was three years for assistant-level posts and four years for officer-level posts. The amendment did not automatically promote eligible employees. It only allowed them to apply and compete for promotion after completing one year less than the normal period.
On 1 August 2021, the company published a promotion notice for various posts, including engineering posts. The petitioners challenged the amended provision and the promotion notice before the Supreme Court.
Petitioners’ Claim:
The petitioners argued that they had already entered service through open competition. They said that giving another special benefit at the promotion stage created unequal treatment and harmed their promotion opportunities, seniority and career development. They asked the Court to cancel the amended provision and the promotion notice.
Government and Company’s Argument:
The company argued that the amendment only reduced the minimum period for becoming eligible to apply for promotion. It did not guarantee promotion. Promotion still depended on performance, seniority, education and training.
The company also argued that the provision followed the Constitution and the Civil Service Act. It said that the special measure was intended to support employees from socially, geographically and historically disadvantaged groups.
Legal Issues:
- Whether giving certain disadvantaged groups a one-year relaxation in the minimum service period for promotion violated the right to equality?
- Whether a special inclusion measure could be used at the promotion stage?
- Whether the amended regulation harmed the petitioners’ employment and promotion rights?
- Whether the promotion notice based on the amended regulation was unlawful?
Decision of the different courts:
Supreme Court:
There was no lower court decision in this writ case. The petition was filed directly before the Supreme Court.
The Supreme Court dismissed the petition. It held that the amended provision did not violate equality or employment rights.
The Court explained that the provision only made certain employees eligible to compete for promotion one year earlier. It did not give them automatic promotion or reduce the required standards of performance. Promotion still depended on performance marks, seniority, education and training.
The Court held that special measures for disadvantaged groups are not discrimination. They are temporary measures intended to achieve real and substantive equality. They help groups that have been left behind because of social, geographical or historical disadvantages.
The Court also held that such measures should not be understood as repeated unfair benefits. They are meant to create equal access until the relevant groups reach a fair level of participation. The amended regulation had been made after consultation with the Public Service Commission and was consistent with the constitutional policy of inclusion.
The Court therefore found no legal reason to cancel the amended regulation or the promotion notice. The writ petition was dismissed. There was no criminal punishment because this was a constitutional employment case.
Principle Established:
- Equality does not always require identical treatment.
- Special measures for disadvantaged groups may be used to achieve substantive equality.
- A temporary relaxation of the eligibility period for promotion is not automatically discrimination.
- A relaxation that only allows an employee to compete does not guarantee promotion.
- Performance, seniority, education and training may still be considered in promotion.
