New Delhi: Two Hubli-based educators have secured a win in the Karnataka High Court, which has struck down a provision in the 1943 Ordinance that provided for 100 percent reservation for women in Military Nursing Services.
The court was hearing a petition filed in 2011 by Sanjay M. Peerapur and Shivappa Maranabasari, along with the Karnataka Nurses Association, challenging the validity of Section 6 of the Indian Military Nursing Services Ordinance.
This provision, providing eligibility for the service, says that “any citizen of India, if a woman and above the age of 21, shall be eligible for appointment as an officer in the Indian Military Nursing Services”.
In a judgment delivered 5 January, Justice Anant Ramanath Hegde observed: “Women are justifiably considered to be a separate class under the Constitution. However, it does not mean that there can be 100 percent reservations in employment for women to the exclusion of all others when the classification is solely based on the sex without having any rational nexus to the object sought to be achieved.”
According to the judgment, Peerapur is the principal at the KLE Institute of Nursing Science, and Maranabasari is a lecturer there. The petition was filed after a 2010 notification called for applications from female candidates for appointments as nursing officers in the Indian military.
Both the petitioners was denied the chance to participate in the 2010 recruitment of nursing officers.
Talking about reservation, the ruling asserted that the underlying philosophy is “to accommodate and include, but not to exclude”.
“However, if such an accommodation, which is termed as a reservation, becomes exclusive and 100 percent, without justifiable grounds, then such exclusive reservation ceases to be a reservation in its true sense and it amounts to an exclusion which is not envisaged under the Constitution at all,” the Karnataka HC said.
It also said that if the two petitioners apply for the posts under the Ordinance in the future, the time spent by them in court would be excluded to decide if they are eligible for the post, age-wise. The petitioners were within the age limit of 35 years when they filed the petition but had since crossed the maximum age limit.
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‘Men are from Mars’
The order begins with: “Men are from Mars and women are from Venus”.
It then noted that the Ordinance was enacted in 1943, and was adopted post-Independence as well. The preamble to the Ordinance talks about an “Emergency”. The government explained in court that in 1943, on account of the Second World War, there was an urgent need to recruit nurses as male nursing officers were deployed on the battlefield.
However, the court noted that this condition doesn’t exist anymore, and observed: “Though, it is urged that the exclusive reservation for women is also provided to encourage women to join the services under the Armed Forces as the women in those days were reluctant to join the Armed Forces, the emergency that was prevailing then in 1943 is no longer there.”
The court also asserted that if the requirement is to ensure that enough women nursing officers are available to deploy them on duty in hospitals to make up for the temporary vacancies arising in a war situation where male officers will be deployed on the battlefield, the correct course of action would be to make a law for women in such a way that it does not violate guarantee under Article 16(2).
The government had also pointed out that there was one more law that exclusively provided reservation for men while recruiting nursing officers working under the armed forces and where women were not allowed to apply for the post. However, the court rejected this contention, observing that there is no guarantee that the recruitment under both laws will take place simultaneously.
It then ruled that “exclusive reservation conferred on women while recruiting ‘nursing officers’ under Ordinance, 1943 does violate the rights guaranteed under Articles 14, 16(2), and 21 of the Constitution of India”.
The court struck down the expression “if a woman” in Section 6 of the Ordinance as unconstitutional. However, it clarified that since the petitioners have not challenged the appointments made under the provision while the petition was pending, all the appointments would remain as is.
It asserted that declaring these appointments void “will have far-reaching, undesirable consequences and unsettle many things that have settled long back”.
The law on reservation
During the final hearing, the Union government contended that the petition become infructuous because the recruitment under the 2010 notification had concluded, and also that the petitioners, during the pendency of the petition, crossed the maximum age limit of 35 years prescribed for the post.
However, the court did not agree with these contentions and went on to decide the petition on merits. It asserted that when the petitioners filed the petition in 2011, they were within the prescribed age limit for the post.
Explaining the Constitutional provisions on the subject, the court noted that Article 14 of the Constitution provides for equality before the law and equal protection of laws within India. However, under Article 15(3) allows the State to make any special provision for women and children.
Further, Article 16(2) says that no citizen shall be ineligible for, or discriminated against in respect of any government job, solely on the grounds of religion, race, caste, sex, descent, place of birth, or residence, it said.
Referring to precedents, the court then asserted that in matters related to public employment, Article 16(2) governs the field, and Article 15(3) cannot override Article 16(2). In addition, the court noted that the landmark Indra Sawhney judgment held that reservation in public employment cannot exceed more than 50 percent.
In Indra Sawhney & Others v. Union of India in 1992, a nine-judge bench of the Supreme Court held that reservations should not exceed 50 percent of the total seats.
The high court explained that there may be circumstances where the very nature or place of work, or the persons for whom the work is done require only women employment. For example, while recruiting employees in girls’ or ladies’ hostels, or any institution exclusively meant for women, exclusive reservations in favour of women may be justified, it said, adding that no such justification was provided in this case.
“It is not the defence that the nursing officers appointed under the 1943 Ordinance are required to discharge the duty in a hospital exclusively meant for women, or that the nature of work is such that it can be done by only women and not by men,” the high court observed.
(Edited by Uttara Ramaswamy)
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