The High Court of Karnataka has struck down a provision of the Indian Military Nursing Services Ordinance, 1943, a law enacted during British era and adopted by India post independence, which gives 100% reservation for woman in the posts of ‘nursing officer.’
“This court is of the view that the exclusive reservation conferred on women while recruiting ‘nursing officers’ under the Ordinance, 1943, does violate the rights guaranteed under Articles 14, 16(2) and 21 of the Constitution of India as the classification does not qualify the twin tests prescribed by the apex court,” the High Court said.
Justice Anant Ramanth Hegde delivered the verdict while partly allowing a petition filed in 2011 by Sanjay M. Peerapur and Shivappa Maranabasari of Hubballi, who were aspiring for the posts of ‘nursing officers’. They had questioned the constitutionality of the expression ‘if woman’ in the Section 6 of the Ordinance when the applications were invited for the posts in 2010.
Pointing out that women are justifiably considered to be a separate class under Article 15(3) of the Constitution, the court said that it, however, “does not mean that there can be hundred per cent 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.”
Only in some circumstances
The court pointed out that exclusive reservation in favour of women can be justified in certain circumstances where the very nature or place of work, or the persons for whom the work is done, require only women to be employed like in girls’ or ladies’ hostels’, or any institution exclusively meant for women.
In the case of Indian military nursing service, women nursing officers are not exclusively required to discharge duty in a hospital exclusively meant for women or the nature of work is such that it can be done by only women and not by men.
The court also said that existence of another law for exclusive recruitment of male nursing officer cannot validate the Ordinance of 1943 as there is no guarantee that recruitments happen simultaneously in equal proportion under both the laws. The proper course open is to make law for women in such a way that it does not violate guarantee under Article 16(2), the court said.
Pointing out that the 1943 Ordinance was promulgated by British Crown during Second World War to fill up temporary vacancies created due to deputation of male nurses to battlefield, the court said that though this Ordinance was adopted under Article 372(2) by the President it cannot be equated to the law enacted by the Indian Parliament.
Pointing out that it is women who are preferred for nursing both during olden days and now, the court said that women in 1940s may be were reluctant to join as nursing officers in military establishments but no such circumstance cited to justify exclusive reservation for women even now.
