Military nursing services: HC strikes down 100% reservation for women

The Karnataka high court has held that the exclusive reservation conferred on women while recruiting ‘nursing officers’ under the Indian Military Nursing Services Ordinance, 1943 violates the rights guaranteed under Articles 14, 16 (2), and 21 of the Constitution of India. Justice Anant Ramanath Hegde has quashed the expression ‘if woman’, found in Section 6 of the Ordinance holding it as unconstitutional.

Section 6 states the eligibility for appointment as “...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...”

Sanjay M Peerapur and Shivappa Maranabarasi, who were working as the principal and the lecturer of KLE Institute of Nursing, Hubballi, along with Karnataka Nurses Association had challenged the February 13, 2010 notification regarding female candidates and Section 6 of the Ordinance in so far as expression, ‘If a woman’, citing discrimination.

The Ministry of Defence contended that exclusive reservation for women is being provided to fill up the contingent temporary vacancy that may arise when the male nursing officers working in hospitals, who are recruited under a separate recruitment process, will be deployed to attend the soldiers during the war. It was further claimed that Article 15 (3) enables the State to make a special provision for women and the Ordinance, 1943 is protected under the said Article.

The court said that though the Ordinance was adapted to encourage women to join the Armed Forces during the Second World War, no grounds were made out to justify 100% reservation for women.

“It is not out of place to mention in olden days and even today, it is women who are preferred for nursing jobs. If the women in the 1940s were reluctant to join as nursing officers under the military establishments, no case is made out to suggest that such a situation still prevails to justify exclusive reservation for women,” the court said.

The court further said, “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 nursing officers will be deployed on the battlefield, the course open is to make law for women in such a way that it does not violate guarantee under Article 16(2) of the Constitution of India. One of the ways probably is to provide reservation for both men and women in both units where as of now the reservation is exclusively provided either for men or women.”

The court, however, rejected the prayer to quash the February 13, 2010 notification, since recruitments have already taken place during the pendency of the petition.

If the two petitioners apply for any posts under the Ordinance, 1943 in the future, while computing their age prescribed for applying to the post, the time spent in prosecuting the petition should be excluded, the court said.