The Supreme Court said, “Maintaining different conditions for promotion based on origin, such as adjusted and newly recruited employees working in the same provincial service and position, creates a class within a class.”
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The Supreme Court has ruled that employees who are adjusted from the union to the provinces must abide by the legal conditions of the province. The full bench comprising Acting Chief Justice Sapana Pradhan Malla, Justices Sunil Kumar Pokharel and Shantisingh Thapa has given a new interpretation on administrative federalism.
The full bench has reversed the previous interpretation given by the bench of Justices Hari Prasad Phuyal and Bal Krishna Dhakal in the dispute of an employee of the Sudurpaschim Province. The previous verdict had said that the civil service cannot be considered as the sole right of the province as per the Employees Adjustment Act.
The full text of the verdict delivered by the three-judge (full) bench on 22 Magh has recently been made public. The full bench has also drawn the government's attention to the issue of issuing a federal civil service act.
In a writ petition filed by Naresh Kumar Yadav, a family planning supervisor from Rupani, Saptari, regarding promotion, the full bench has explained that the law of that state will be applicable after the adjustment is made. ‘After the adjustment to the provincial or local level as per the Employees Adjustment Act, the employee does not continue to have a legal relationship with the previous service group but is completely subject to the laws and conditions of the provincial service to which he has been adjusted,’ the full text of the judgment states.
Since the adjustment is not just a physical transfer but a complete legal merger, challenging the legal conditions of the province to apply the previous federal law is not in line with the spirit of federalism and the legal purpose of adjustment, the full bench of the Supreme Court has said.
The previous precedent has been made ineffective, saying that different legal systems cannot be applied within the same province, that two types of qualifications should be included in the same advertisement, and that such disputes between employees of all provinces will continue indefinitely.
‘Maintaining different conditions for promotion based on origin for employees working in the same provincial service and post, such as those who have been adjusted and those who have been newly recruited, creates a class within a class,’ the full text says, ‘Since such a discriminatory system violates the right to equality, it is mandatory for the same provincial law to be applied to all employees of the same cadre.’ The full bench also said that the provinces will be completely free and autonomous to prescribe additional qualification conditions that are different or different from the federal law to improve the quality of their services.
The Supreme Court also said that a new constitution with a federal structure has been promulgated in the country, but administrative federalism has not taken shape due to the lack of promulgation of the Federal Civil Service Act for a long time. "Despite repeated orders from the Supreme Court to enact a Federal Civil Service Act, it appears that there is uncertainty in the service conditions of adjusted employees as it has not been enacted yet," the judgment said. "To address this, an order has been issued to once again draw the attention of the Federal Parliament and the Government of Nepal to enact a Federal Civil Service Act as soon as possible."
