The anti-reservation brigade

A decade-long civil war, a people’s uprising, a powerful Madhes movement and the establishment of a federal republic – one would think these momentous political changes would diminish if not destroy the old, unitary, exclusionary character of the Nepali state. More than two decades on, it shows no signs of fading. Whether by gerrymandering state boundaries, ramming through a “fast-tracked” constitution, co-opting minority leaders, or killing Tharu and Madhesi protesters, the PEON, or the permanent establishment of Nepal (CK Lal’s term), has retained its vice-like grip on power.

This time the old guard has attacked one of the hard-won gains of Nepal’s civil rights movement – reservations in the civil service.

A powerful instrument

The civil service is among the largest employers in Nepal, with a workforce numbering hundreds of thousands. As entities responsible for implementing laws and policies, civil servants are in a good position to aid or impede the process of institutionalizing democracy and the newly established federalism. They have immense power over the lives of ordinary citizens, who have to knock on their doors for everything from birth registration, to citizenship, to land transfer, to earthquake relief.

Whether you’re in a Sherpa village in the mountains of Khumbu or a small town in the Madhesi heartland, the top officer in your district will most likely be a high-caste man.

Undoubtedly, then, civil service in a democracy should reflect the diversity of the population it is meant to serve. For most ordinary Nepalis, though, the very word ‘sarkari karmachari’ evokes an officious high-caste man behind a desk. Bahuns, who make up less than 13 percent of the population, occupy the majority of civil service positions. Whether you’re in a Sherpa village in the mountains of Khumbu or a small town in the Madhesi heartland, the top officer in your district will most likely be a high-caste man. In many cases, this man will have little or no understanding of your language or culture and will see you as less Nepali, and perhaps less civilized.

According to a 2009 study on representation in civil service, Nepal’s bureaucracy “favors Hindu males who belong to the upper caste and come from an agricultural background.” The authors suggest that so-called meritocracy in civil service recruitment isn’t entirely about merit after all. Though ostensibly based on merit, selection for government jobs relies on criteria that candidates from upper castes are more likely to meet than others. Their position in the social hierarchy gives them a tremendous advantage over candidates from other ethnic groups.

In the wake of the 2006 movement, when hopes for a “new Nepal” were still alive, the government took a step towards making the bureaucracy a little less exclusionary. The Civil Service Act was amended to ensure that 45 percent of open competition seats would be reserved for marginalized groups. Of these seats, 33 percent would be reserved for women, 27 percent for Janajatis, 22 percent for Madhesis, 9 percent for Dalits, 5 percent for people with disability, and 4 percent for candidates from neglected regions. This principle of inclusion is also enshrined in Article 42 of the Constitution.

Backlash against inclusion

Despite the 45 percent reservation, the largest percentage of new jobs in the civil service went to Bahuns (22.96) and Chhetris (18.67) in 2016-17. Still, the quotas helped slightly increase the number of candidates from marginalized communities. It was hoped that the continuation of the reservation policy, especially during mass recruitment in the new federal structure, would make the civil service a little more representative of Nepal’s diverse population. But the recent vacancy notice of the Public Service Commission (PSC) has dashed such hopes.

On May 29, the PSC announced 9,161 vacancies for 515 local bodies. As the largest ever recruitment drive for filling local government posts, it offered a historic opportunity to bring members of excluded communities on board. But the PSC deliberately sabotaged this opportunity. With brazen disregard for existing laws, it cut the number of reserved seats for all marginalized groups except women. According to the provisions in the Civil Service Act and the Constitution, a total of 4,122 seats should have been in the reserved category. But the PSC notice includes only 2,262 reserved seats, which is 45 percent less than the proportion guaranteed by the Constitution.

In the first place, it is not the job of the central PSC to hire staff at the local level. In federal Nepal, the responsibility for recruiting new employees in provincial and local government lies with the province. By directly recruiting local level staff, the centre has usurped provincial powers and undermined the spirit of federalism. The PSC announced vacancies at a time when provincial governments are in the process of establishing their own PSCs. The Commission should have waited for a few more months and let provincial PSCs carry out their constitutional mandate. Instead the Commission invoked the “principle of necessity” in the Employees Adjustment Act in order to bypass the Constitution.

The PSC argues that waiting for the formation of provincial PSCs would delay the recruitment process and disappoint the large numbers of job aspirants. Even if this were true, was it necessary to slash quotas allocated for marginalized groups?

It appears that the PSC’s sole intention was to dissolve the quotas. In the absence of provincial commissions, the PSC should have aggregated all vacancies within a province and placed 45 percent of the total seats in the reserved category. This is not only a correct but also a logistically simpler method. Several experts including a former PSC member had made this suggestion. But in a move that’s wholly counterintuitive and nonsensical, the PSC treated each local body as a separate unit of quota allocation. Officials now argue that in places where only one or two posts are vacant, the seats will go to applicants in open competition or those receiving promotions. Only in places with at least three vacancies will reservations apply. The PSC thus succeeded in reducing the quotas by a large percentage.

The response

The opposing responses to the PSC’s advertisement reveal the deep divide in the Nepali public sphere. Activists from marginalized groups took to the streets demanding the cancellation of the notice. Madhesi and Janajati lawmakers crossed party lines and criticized the PSC’s move as unconstitutional. After long discussions, on July 10 the parliamentary committee on state affairs directed the PSC to stop the recruitment process. Advocates Bikash Thakur and Jag Dev Chaudhary filed petitions at the Supreme Court seeking a stay order on the advertisement. Two more petitions were filed against the ad.

But the Commission ignored the House committee’s order and continued accepting applications. PSC chairman Umesh Mainali insisted on the legality of the recruitment. Acting Prime Minister Ishwor Pokhrel echoed his view and said the parliament had no business interfering in the recruitment process. Advocate Rajaram Ghimire filed a petition at the Supreme Court challenging the House committee’s directive. And a few days ago, Supreme Court judges Hari Krishna Karki and Ananda Mohan Bhattarai heard the petitions and refused to issue an interim order to halt the recruitment process. Ghimire and Mainali won. Thakur and Chaudhary lost. The recruitment process has moved on.

Hostility to reservations

Quotas alone cannot address historical injustices against marginalized populations, but they can at least serve as a starting point. The experience of recently elected Dalit ward representatives suggests that quotas are like crumbs for the starved, useful but insufficient. But the high-caste men in power are afraid to offer even crumbs to the excluded groups.

In its 2013 introductory booklet, the PSC reveals its stance on inclusion: “The growing emphasis on inclusiveness in recruitment and promotion of public servants seems to have narrowed the scope of the PSC for selection of candidates on a merit basis, besides increasing complexities in its work processes reducing efficiency in operation. To some extent, it has also posed a challenge on maintaining meritocracy in the civil service.”

One might think if it weren’t for this hindrance called inclusion, Nepal’s bureaucracy would have been a meritorious institution filled with highly efficient people. Unfortunately, decades of exclusion have proved otherwise.

An encounter with a civil servant

I’ll end with an anecdote. A few years ago I was in Rasuwa studying the impact of a hydropower project on the local communities. A small NGO that works on Janajati issues had assigned me the task. As part of the study, I spent one afternoon visiting government offices in Dhunche. Most senior officials in the district – from the local development officer to the chief district officer – were Bahun men. (The population in the district is predominantly Tamang.) Next day I found to my surprise that the district forest office was headed by a woman. I felt instinctive respect for her, for I could imagine the challenges she might have had to overcome along the way. Sadly the officer wasn’t pleased to see me. Upon realizing I represented an NGO that mainly works with Janajatis, she rudely demanded my research permit and grilled me about my project, my background and my underlying motives. I answered her questions as politely as I could. At one point I expressed my concern about the social and economic hardships faced by the Tamang community. And it led to this exchange:

Officer: Stop saying Tamang, Tamang! Say ‘janata’. Don’t you know other communities live here too?

Me: But the Tamang have long been oppressed by the state.

Officer: No one is oppressing them. If they’re lagging behind, they have only themselves to blame.

Me: I visited all the government offices. I didn’t meet a single Tamang. Isn’t it unfair that only non-Tamangs are allowed to make decisions for them?

Officer: No one has stopped them from applying for government jobs. How dare you come here and ask me such questions? You think I don’t know? All INGOs in Kathmandu are filled with you Janajatis!

Me: Have you done a survey on the ethnic composition of INGOs?

Officer: Please get out.

I left before I could begin the interview. I realized, not for the first time, that even “the elite Janajati” cannot always escape the ire of high-caste representatives of the Nepali state. One can imagine the experience of the vast majority of non-elites.