Karnataka High Court Strikes Down 100% Reservation For Women In Recruitment To Cadre Of 'Nursing Officers' In Military

The Karnataka High Court has struck down the expression "if woman" found in Section 6 of the Indian Military Nursing Services Ordinance, 1943 as unconstitutional. By this expression, 100 percent recruitment was reserved for women in the cadre of 'nursing officers'.A Single judge bench of Justice Ananth Ramanath Hegde sitting at Dharwad partly allowed the plea filed by Sanjay M Peerapur and said “Women are justifiably considered to be a separate class under the Constitution. However, it does not mean that there can be hundred 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. The Court held that the law which provided exclusive reservations without any intelligible differentia which had a nexus to the object sought to be achieved, violated the Constitutional guarantee under Article 14 and Article 16 (2) of the Constitution of India and would not fall within the ambit of Article 15(3).The petitioners had sought to strike down Section 6 of the Indian Military Nursing Services Ordinance, 1943. Section 6 reads thus: Eligibility for appointment -(1) 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, and, if she satisfies the prescribed conditions, may be appointed thereto in the manner laid down in section 5. It was contended that in a matter of public employment, Article 15(3) had no role to play and employment under the State was entirely governed by Article 16 read with Article 14 of the Constitution of India.Further, it was argued that the classification based on gender in Section 6 of the Ordinance, 1943 did not pass the twin test of reasonable classification and rational nexus between the differentia and the object sought to be achieved. Petitioners argued that Section 6 of the Ordinance, 1943 was a temporary measure to overcome the emergency prevailing then, and the same had no relevance in today's context and did not conform to part III of the Constitution of India.The respondents opposed the plea stating that exclusive reservation for women was provided to fill up the contingent temporary vacancy that may arise when male nursing officers working in hospitals (who are recruited under a separate recruitment process), would be deployed to attend to the soldiers during the war (during the 1940s).Moreover, it was submitted that an exclusive reservation was also provided for men to be employed as nursing officers under a separate recruitment process, and as such, in practice there was no discrimination based on gender, and equality was ensured. Further, it was said that the Ordinance, 1943 would be protected under Article 33 of the Constitution of India, and that in a matter concerning employees in the armed forces, there can be restriction or abrogation of any of the rights under Part III of the Constitution of India.It was added that petitioners had not questioned the law providing hundred per cent reservations for men to the similar post of nursing officers.The bench noted that Article 14 of the Constitution of India provided for equality before the law and equal protection of laws within India. Among other Articles in the Constitution, Articles 15 and 16, (relevant for discussion) are the enabling provisions to achieve the goal set out in Article 14, it observed.It was further noted that the segregation of unequals to provide protection or accommodation or to confer some advantage on the marginalised section of society was not only desirable but also a constitutional imperative. The bench cautioned that such an obligation had certain limitations as the classification must pass the well-established twin test. It added, “Under Article 15(3) of the Constitution of India, women and children are indeed treated as a separate class and the State is enabled under Article 15(3) of the Constitution of India to make special provisions for the benefit of women and children.” Referring to the Apex court judgment in the case of Indra Sawhney vs Union of India – AIR 1993 SC 477, the court said that it was evident that in a matter relating to public employment, Article 16(2) governs the field, and Article 15(3) cannot override Article 16(2).It also noted that there may be circumstances where the very nature or place of work, or the persons for whom the work is done required only women to be employed, such as while recruiting employees in girls' or ladies' hostels, or any institution exclusively meant for women.The court further said that in the case on hand, no such justification was claimed and that nursing officers appointed under Ordinance 1943, were not required to discharge the duty in a hospital exclusively meant for women and it was not anyone's case that the work is such that it can be done by only women and not by men.Rejecting the contention that similar laws were...

Karnataka High Court Strikes Down 100% Reservation For Women In Recruitment To Cadre Of 'Nursing Officers' In Military

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