The high court however clarified that appointments already made under the 1943 ordinance over the decades are not void.
Nursing Graduates of Fifth Batch of College of Nursing, Army Hospital (R&R) at the Commissioning Ceremony held in New Delhi. (File photo)
The High Court of Karnataka has struck down a provision in the Indian Military Nursing Services Ordinance, 1943, which provided 100 percent reservation for women in the cadre of “nursing officers”.
While allowing a petition filed in 2011 challenging the British-era law, the court, in its judgement on 5 January, said, “The expression ‘if woman’ found in Section 6 of the Indian Military Nursing Services Ordinance, 1943, is struck down as unconstitutional.”
The high court, however, clarified that appointments already made under the 1943 ordinance over the decades are not void.
“Such an interpretation will have far-reaching, undesirable consequences and unsettle many things that have settled long back,” it said.
The 1943 ordinance providing 100 percent reservation was created to tide over the emergency situation of World War II by the British ruling India, the petitioners, Sanjay M Peerapur, Shivappa Maranabasari, and Karnataka Nurses Association submitted before the bench of Justice Anant Ramanath Hegde.
Sanjay and Shivappa had been denied the chance to participate in the 2010 recruitment of nursing officers which they had challenged before the high court.
The 1943 ordinance was adapted under The Adaptation of laws, Orders, 1950, by the President of India after independence.
The high court, however, noted: “The law adapted under Article 372(2) of the Constitution of India, cannot be equated with the law enacted by the Parliament under Article 33 of the Constitution of India.”
The high court said that though Parliament has special powers, this ordinance was not passed by the Indian Parliament.
“Whether the ordinance, 1943 is promulgated by Parliament? The answer is ‘No’,” the high court said, adding that the provision was unconstitutional.
“This court is of the view 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 as the classification,” the judgment says.
Partly allowing the petition (while rejecting the plea that the 2010 recruitment process be quashed), the HC said, “The underlying philosophy of reservation is to accommodate and include, but not to exclude.
However, if such an accommodation which is termed as a reservation, becomes exclusive and hundred 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.”
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