Sanjay M Peerapur and others Vs The Union of India and others.

Writ Petition 62966 of 2011 decided on 5 January 2024.

Justice Anant Ramanath Hegde.

2. Be that as it may, the Constitution of India which embodies egalitarian principles at its core recognises both men and women as equal. At the same time, the framers of the Constitution being conscious of historical oppression and exploitation suffered by women devised constitutional measures to achieve the constitutional goal of equality by enabling the State to make special provisions for women, under Article 15(3) of the Constitution of India.

3. Yes, we agree that the State is enabled to make special provisions treating women as a ‘separate class’. Yet Article 15 (3) cannot override constitutional guarantee under Article 16(2), in the matter of employment under the State. Assuming that Article 15(3) controls Article 16(2), the State cannot provide a hundred percent reservation for women in employment under the State, is the contention of the petitioners. Thus, the challenge to the vires of Section 6 of the Indian Military Nursing Services Ordinance, 1943 (for short ‘Ordinance, 1943’) in so far as providing hundred percent reservation for women in the cadre of ‘nursing officers’.

4. Section 6 of the Ordinance 1943 reads as under.

6. 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.

9. The questions that need to be answered are;

(a) Whether Section 6 of the Indian Military, Nursing Services Ordinance, 1943, reserving the post of ‘nursing officers’ en bloc for women, violates the rights guaranteed under Articles 14,16,19 and 21 of the Constitution of India

(b) Whether the impugned provision is protected under Articles 15(3) and 33 of the Constitution of India. 

15. The scope of Articles 15 (3) and 16 (2) was also considered in Indra Sawhney supra. At this juncture, it is relevant to quote para No.514 in Indra Sawhney.

“514. It is necessary to add here a word about reservations for women. Clause (2) of Article 16 bars reservation in services on the ground of sex. Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such, and whatever the percentage limit on the reservations under Article 16, need not be exceeded.”

16. On a reading of the above-mentioned paragraph, it is evident that in a matter relating to public employment, Article 16(2) governs the field, and Article 15(3) cannot override Article 16(2).

17. In addition, in Indra Sawhney, the Apex Court has held that reservation in public employment cannot exceed more than 50%. Though, said judgment is delivered interpreting Article 16(4) of the Constitution of India, the principle emanating from the said judgment in so far percentage of reservation has to be applied in the matters relating to employment under the State.

18. At this juncture, it is also relevant to state that there may be circumstances where the very nature or place of work, or the persons for whom the work is done require only women to be employed. For example, while recruiting employees in girls’ or ladies’ hostel, or any institution exclusively meant for women, then exclusive reservations in favour of women may find justification.

19. In the case on hand, no such justification is claimed. It is not the defence that the nursing officers appointed under Ordinance 1943, are required to discharge the duty in a hospital exclusively meant for omen or that the nature of work is such that it can be done by only women and not by men.

20. To the pointed question by the Court, whether the nursing officers recruited under Ordinance 1943 are made to work in hospitals where male nursing officers are not allowed, the learned Counsel on instructions submitted that women nursing officers employed under the Ordinance, 1943 are employed in the same or similar hospitals or where male nursing officers recruited under different recruitment provision are also working.

21. Validity of Section 6 of Ordinance, 1943 is also defended on the premise that there is one more law that exclusively provides reservation for men while recruiting nursing officers working under the armed forces, where women are not allowed to apply for the post. It is urged that because of the exclusive reservation provided for men, in practice gender equality is ensured. This contention is untenable. While recruiting under the Ordinance, 1943 where the employment is reserved exclusively for women, and in recruitment under any other Act which provides exclusive reservation for men, there is no guarantee that the recruitment will take place simultaneously. Not going for recruitment under one Ordinance or law, when the recruitment takes place under another Ordinance or law, and if a particular sex is a disqualification to apply for the post, then it results in denial of an equal opportunity in employment guaranteed under Article 16 of the Constitution. Thus, the contention that the violation complained in view of exclusive reservation for women in Ordinance, 1943 is compensated by exclusive reservations provided for men in another law, in practice, will not ensure equality under Article 14 as there is no mandate that the recruitments should take place simultaneously for both men and women.

29. 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 law providing for exclusive reservations without any intelligible differentia having nexus to the object sought to be achieved violates the Constitutional guarantee under Article 14 and Article 16 (2) of the Constitution of India and is not saved by Article 15(3) of the Constitution.

30. In a recent judgement in ABHAY KUMAR KISPOTTA and others vs STATE OF CHHATTISGARH and others in Writ Petition No.7183/2021, the Division Bench of the Chhattisgarh High Court relying on Indra Sawhney’s case has held that hundred percent reservation for women in employment under the State is unconstitutional.

31. The next question that requires consideration is; whether the impugned Section 6 of Ordinance, 1943 is saved by Article 33 of the Constitution of India.

32. On a reading of Article 33, the following will emerge:

(a) The power is conferred only on the Parliament to make law, and to determine to what extent the rights conferred under Part III can be restricted; (b) The power to make law under Article 33 of the Constitution of India is confined to the subjects specified in the said Article.

(c) The law under Article 33 can be made only to ensure the proper discharge of the duties and maintenance of the discipline among the persons named in said Article. 

34. As already noticed Article 33 empowers the Parliament to make special provisions affecting rights conferred under Part–III. The power is given only to the Parliament and none other. Thus the question is,

“Whether the Ordinance, 1943 is promulgated by the Parliament”? The answer is “No”. 

Admittedly, the Ordinance, 1943 was promulgated by the then British Crown, and later, it was adapted under the adaptation laws, Orders 1950. The adaptation of laws, Orders 1950 is by the President in exercise of the power conferred under Clause-2 of Article 372 of the Constitution of India. 

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. This question was settled as early as 1962 in DALBIR SINGH AND OTHERS vs STATE OF PUNJAB (AIR 1962 SC 1106). 

36. It is necessary to refer to the judgments cited by the learned counsel for the respondents. In Hansraj Moolji, the Apex Court dealt with the effect of the Ordinance passed before the independence. The said judgment has no application to the present petition as the petitioners admit that the Ordinance was adapted in 1950 as provided under Article 372 (2) of the Constitution of India.

37. Much emphasis is laid on the judgment of the Apex Court in Jasbir Kaur vs. Union of India to contend that the Ordinance, 1943 is already declared as constitutional. In the said case, the validity of the Regulations made in exercise of the powers conferred under Section 10 of the Ordinance, prescribing different kinds of uniforms to the employees was called into question. The said judgment cannot be said to be a judgment upholding the constitutional validity of impugned Section 6 of Ordinance, 1943. The Apex Court in the said judgment has only held that there is no scope for the application of Article 14 in a matter relating to uniforms prescribed for the employees of the Indian Military Nursing Service.

44. For the reasons already recorded, 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 does not qualify the twin test referred to above.

45. Though it is urged by respondents that the Ordinance, 1943 has been in force for over eight decades and several recruitments have taken place under the said Ordinance, 1943 and holding the said Ordinance as unconstitutional at this point in time leads to several complications in the matters concerning cadre, promotion, and hierarchy of officers, such a contention cannot have any place when the vires of a provision is questioned. The length of time for which the provision remained unchallenged and the rights and liabilities created under such provision is no defence to uphold the validity of a provision if it is otherwise ultra vires. Hence, the petition succeeds.

46. When the law is declared ultra vires, it is void from its inception. However, the Court cannot turn a blind eye to the fact that appointments have been made under the said provisions since 1943 and even during the pendency of this writ petition. The consequences that follow after declaring the expression “if a woman” in Section 6 of the Ordinance, 1943 as unconstitutional needs to be clarified to ensure complete justice to those who are not parties to the proceeding.

47. In a situation like the one on hand, a Court that declares a law as ultra-vires, in exercise of its plenary power under Article 226 of the Constitution, can save the rights accrued to the persons under the law which is now declared ultra-vires. Both justice and equity warrant the Court to exercise its plenary jurisdiction, to pass such order.

48. For the reasons recorded supra, this Judgment cannot be construed to hold a view that all appointments made under Ordinance, 1943 as void. Such an interpretation will have far-reaching, undesirable consequences and unsettle many things that have settled long back.

49. Since there is no challenge to the appointments made earlier and to the appointments which have taken place during the pendency of the petition, this Court is of the view that notwithstanding that provision is held to be ultra-vires, all appointments made hitherto under Ordinance, 1943 and consequences flowing from such appointments are required to be saved and hence saved.

ORDER

(i) The writ petition is allowed-in-part.
(ii) The expression “if woman” found in Section 6 of the Indian Military Nursing Services Ordinance, 1943 is struck down as unconstitutional.
(iii) Since, appointments have already taken place under the impugned notification dated 13.02.2010 at Annexure- B, during the pendency of the writ petition, the prayer to quash Annexure – B, the notification for recruiting ‘nursing officers’ is rejected.
(iv) In case petitioners No.1 and 2 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 shall be excluded