Labour Law Case: Pro-Public vs. Ministry of Women, Children and Social Welfare, NKP 2060 B.S, DN: 7769 , No. 9/10, P. 726.
Case: Mandamus regarding gender equality in leave provisions
Plaintiff/Applicant: Rama Pant Kharel on behalf of Pro Public
Defendant/Respondent: Ministry of Women, Children and Social Welfare and others
Decision Number: 7769
This case is related to gender equality and non discrimination under Articles 11 and 88 of the Constitution of the Kingdom of Nepal 1990.
Facts of the Case:
The petitioner filed a writ petition seeking a mandamus directing the government to amend various service rules and regulations that created disparities in “Kirya Bida” (mourning leave granted upon the death of parents for performing last rites according to religious custom). The petition raised two main grievances:
- 12 different government / public institutions service rules such as Civil Service Rules 2049, Labour Rules 2048, Police Rules 2049, Local Self Governance Act Rules etc prescribed differing and unequal durations and conditions for granting mourning leave to female employees when their husbands were observing “Kirya” and the petitioner sought uniformity across all these rules.
- Rule 29(1) of the Tribhuvan University Teachers and Staff Service Rules 2050 allowed only unmarried female teachers/staff to take mourning leave upon the death of their parents excluding married female employees from this benefit violating Article 11 of the Constitution.
The Ministry of Law, Justice and Parliamentary Affairs argued in its written reply that leave is a facility or privilege not a fundamental right and that differing provisions across different institutions based on their nature, purpose and needs are not inherently unconstitutional. The Ministry of Women, Children and Social Welfare argued that the petitioner failed to show any specific act or omission by it that violated the petitioner’s rights. Tribhuvan University was not made a party to the case though the rule challenged was its own regulation.
Legal Issues:
- Whether it is mandatory to establish uniformity in mourning leave “Kirya Bida” provisions across all government bodies and public institutions?
- Whether Rule 29(1) of the Tribhuvan University Teachers and Staff Service Rules 2050 by granting mourning leave only to unmarried female staff upon the death of their parents unlawfully deprived married female employees of that benefit?
- Whether an order should be issued as demanded in the petition?
Different Courts Decision:
Supreme Court (Special Bench):
On the first issue the Court held that granting or withholding leave and determining its type, duration and conditions relates to the nature of work, objectives, policies and needs of each government body or public institution. Hence, the Court could not agree with the petitioner’s demand that a mandamus be issued requiring uniform leave provisions across all such institutions.
On the second issue, the Court examined Rule 29 of the Tribhuvan University Rules as a whole and it found that the rule by using the terms “unmarried female” and separately “female” employee created an apparent differentiation between married and unmarried daughters regarding mourning leave for their parents’ deaths. The Court found no justification for treating a married daughter differently as she still has to perform mourning rites according to her family customs. The Court however noted that the petitioner had not proven any specific instance where a married female staff member was actually denied mourning leave.
Despite finding the provision discriminatory in principle and against the spirit of Article 11 of the Constitution, the Court held that since Tribhuvan University had not been made party to the writ petition it could not issue the order against a rule of an institution that was not made party to a case. The petition was dismissed though the Court directed that Tribhuvan University should take the matter seriously and revise its rule to be consistent with the Constitution.
Principle Established:
- A government body or public institution may prescribe differing leave provisions for its employees so long as such differences are justified by the objective, rationale and necessity of that institution’s functions.
- Distinguishing between married and unmarried female employees regarding mourning leave for their parents’ deaths lacks reasonable justification as one is obligated to perform the rites regardless of marital status and is therefore inconsistent with the constitutional guarantee of equality and non-discrimination.
- A Court cannot issue an order against an institution or authority that has not been made a party to the writ petition even if the impugned rule belongs to that institution.
- State institutions have a continuing constitutional obligation to review and revise their internal rules to ensure conformity with constitutional principles of equality.
Relevancy of the Case:
This decision is significant as it recognized that differential treatment of employees based on marital status is not justified.
