Karnataka High Court Invalidates Ordinance that Gives Women 100% Reservation in Military Nursing Jobs

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’.

In its ruling on January 5, 2024, the HC stated, “The expression ‘if woman’ found in Section 6 of the Indian Military Nursing Services Ordinance, 1943 is struck down as unconstitutional,” while admitting a petition that was filed in 2011 contesting the British-era law.

Nonetheless, the HC made it clear that appointments made in accordance with the 1943 ordinance over the years are valid.

“Such an interpretation will have far-reaching, undesirable consequences and unsettle many things that have settled long back,” said the statement.

The petitioners, Sanjay M. Peerapur, Shivappa Maranabasari, and the Karnataka Nurses Association, presented their case to Justice Anant Ramanath Hegde’s bench in 1943. The ordinance, which provided 100% reservation, was enacted to alleviate the emergency situation caused by the British Crown ruling India during World War II.

Following their denial of entry into the 2010 nursing officer recruitment, Sanjay and Shivappa filed a high court challenge.

The President modified the 1943 ordinance in accordance with The Adaptation of Laws, Orders 1950, following independence. Nonetheless, the High Court stated that “the law enacted by the Parliament under Article 33 of the Constitution of India, cannot be equated with the law adapted under Article 372(2) of the Constitution of India.”

Despite Parliament’s unique powers, the HC ruled that the Indian Parliament did not pass this ordinance. “Is Parliament responsible for promulgating the 1943 ordinance? The HC stated that the clause was unconstitutional and that the answer to its question was “No.”

“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. But, such an accommodation—which the Constitution refers to as a reservation—becomes exclusive and unconditional without any valid reason. In that case, the reservation loses all of its original meaning and becomes an exclusion that the Constitution does not even contemplate.”

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