Article by Savita Bimli - The Supreme Court's latest decision to end the dual privilege of lifetime members of the Academy will have a far-reaching impact not only on the Academy, but also on Nepal's entire judicial history, administrative deviations, and economy.
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The provision on dual benefits seems to have started for the first time in BS 2035. In the fourth amendment to the Civil Service Regulations-2021, Rule 7.5 was added to it, stating that ‘a person receiving a pension under this rule shall not receive a pension under this rule for the period during which he is appointed to a corporate body wholly or mostly owned or controlled by His Majesty’s Government and remains in such an institution.’ This provision was removed after 2046. Also, the provision on dual benefits was not included in the newly enacted Civil Service Act-2049 and Civil Service Regulations-2050.
On 2061.07.18, the Minister of General Administration in the then Prime Minister Sher Bahadur Deuba cabinet, Krishnalal Thakali, had decided not to receive dual benefits by making a ministerial decision, and this decision had even been circulated to all public bodies.
On 2061.10.19, the direct rule of the King began. At that time, the Civil Service (Second Amendment) Ordinance, 2062 was issued. This ordinance added sub-section (6) to Section 37 of the Civil Service Act, stating that ‘If a person who has retired from any government service or an institution wholly or partly owned by His Majesty’s Government and is receiving a pension is appointed to any post in a constitutional body or His Majesty’s Government or an institution wholly or partly owned by His Majesty’s Government or any body operated with a grant from His Majesty’s Government, the pension to which he would be entitled shall be deducted and the remuneration shall be paid to him for as long as he continues to hold such post.’ The said ordinance could not take the form of an Act.
The Ministry of General Administration prepared a proposal on double facilities on 2072.10.07, citing the decision and circular dated 2061.07.18, and the directive dated 2071.07.21 issued by the Commission for the Investigation of Abuse of Authority regarding the non-grant of double facilities. At that time, the Prime Minister was KP Sharma Oli, and the Minister for General Administration was Rekha Sharma. The proposal was passed by the Cabinet meeting on 2072.10.08 with some amendments.
The two-point decision passed by the Cabinet is as follows:
1. Newly appointed officials to public benefit positions or government service receiving monthly remuneration shall choose the higher of monthly remuneration and pension within one month and currently serving officials shall choose the higher of monthly remuneration and pension within one month from the date of this decision and make arrangements to keep a record of this by informing the Pension Management Office through the relevant body to which they were appointed.
2. If an official is enjoying the dual benefits of remuneration and pension while holding a public benefit position, the pension authorization letter shall be issued only after the amount received for either of these two benefits is deposited in the government treasury.
In this same Cabinet meeting, the then Prime Minister Oli had also directed the then Chief Secretary to make the necessary laws to implement this. The government had also published a notice calling on employees who were receiving dual benefits to self-declare. At that time, 19 reappointed employees had self-declared. Among those who self-declared were also special category employees.
Meanwhile, Kayodevi Yami, who was made a member of the Public Service Commission on 2065.11.05 and became the acting chairperson of the commission when her sister and son-in-law became the chairperson, and former members of LOSEA Tika Dutta Niraula and Rajendra Prasad Sah approached the Supreme Court with separate writ petitions alleging that their constitutional rights were violated by the decision of the Council of Ministers.
The situation regarding double benefits seems to have deteriorated here. The writ petitioners have claimed that they are special people with special abilities to work in the Constitutional Commission. In addition, the petitioners have argued that they cannot be compared with lower-ranking employees like Ram Bahadur Mahat, a patrol attendant of the Nepal Army, who has been found to have received double benefits and the CIAA has directed to return one of the two benefits and the Civil Service Bookstore has also withdrawn the money. The court's verdict has also confirmed this argument of the petitioners. The verdict states, 'In fact, people are all equal and in the eyes of the law, everyone should be treated equally. There is no need to dispute this matter and make detailed arguments. But if this means that all people should be treated completely equally in all situations, it will not be logical. The argument of the opponents that the same criteria adopted in relation to attendants should also be adopted in relation to constitutional officials seems unrealistic, illogical and prejudiced in itself. From every point of view of responsibility, liability, conditions of service, facilities, qualifications and abilities required for the performance of official duties, etc., there is a difference between the post of constitutional official and the post of attendant.' As explained in the
verdict, the qualifications, abilities, services and facilities of a patrol attendant and the head of a constitutional body are not the same. But shouldn't the court be a partner in the effort to establish such a policy position that the state is about to start after a long time, which will have far-reaching effects and impacts? If the petitioner wanted to speak, the decision of the Council of Ministers could have been continued by doing so. However, it was not done. Since then, a country with a small economy like ours has been forced to bear the burden of double benefits for an entire decade.
With the dismissal of the writ petition filed by the life members of the Nepal Academy who are receiving double benefits by the Supreme Court on Chaitra 1, a new precedent is going to be set regarding double benefits, and provisions related to this will definitely be included in the Civil Service Act and Regulations and other related acts and rules to be made.
This legal provision from BS 2035 was almost dead due to the greed and political interests of the bureaucracy. It is not that some political leaders in the middle did not try to do it. Sometimes party leaders and sometimes even the king himself seem to have tried to include this provision. However, there is a recent history of the judiciary and sometimes the bureaucracy being uncooperative. The last time the government's decision could not be implemented. We were ten years late. This was an attempt at long-term policy-level good governance.
The recent decision of the Supreme Court to end the dual privilege of lifelong members of the Academy will have a far-reaching impact not only on the Academy, but also on the entire judicial history, administrative deviations and economy of Nepal.
(Vimli is an advocate)
