ORDER :

1. Men are from Mars and Women are from Venus- thus goes the title of one of the popular nonfictions. Both men and women may agree or disagree with the author’s view who also said, one cannot live with them, and cannot live without them.

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.”

(Emphasis supplied)

5. When the petition is listed for final hearing, the Union of India has raised a contention that the petition has become infructuous. In support, it is urged that:

(a) The cause of action does not survive as the recruitment process vide impugned notification of the year 2010 has concluded.

(b) Petitioners No. 1 and 2, during the pendency of the petition have crossed the maximum age limit of 35 years prescribed for the post; as such they cannot be recruited as ‘nursing officers’.

(c) Petitioner No. 3 being an Association has no locus to challenge the vires of the provision.

6. After having considered the submissions on the merits as well as on the objection that the petition by petitioners No. 1 and 2 does not survive for consideration on merit, for the following combined reasons, the technical objection is overruled and the petition is decided on merits:

(a) The maxim actus curiae neminem gravabit, which means that an act of the court shall prejudice none, applies in full measure. Petitioners No. 1 and 2 had a cause of action to challenge the vires of Section 6 of the Ordinance, 1943, when the petition was filed in the year 2011. Then petitioners No. 1 and 2 were within the prescribed age limit to apply for the post. For the reasons, not attributable to the petitioners, the petition was not listed and heard on merits. In such a scenario, the petition should not be dismissed as having become infructuous, more so in a situation where the vires of a provision of law is questioned and a case is made out on merits.

(b) This Court issued Rule vide order dated 10.12.2019 even after petitioners No. 1 and 2 crossed 35 years. Then, the respondents did not raise the plea that the petition has become infructuous.

(c) Though petitioners No. 1 and 2 have crossed the age of 35 years, the relief can be appropriately moulded, and petitioners No. 1 and 2 can be permitted to apply for the post, in future, by directing the authority to exclude the time spent in prosecuting this petition while computing the eligibility vis-à-vis the prescribed age.

(d) The dismissal of the petition without answering the question on the vires of the impugned provision will keep the issue open and likely to give a cause of action to one or many more petitions in future.

For the reasons assigned abo