The Maharashtra Government has approached the Bombay High Court against the November 26 to the state to create the third option of ‘other gender,’ after male and female in the application forms of all recruitments of the Home Department. The state has called it an “overreach of jurisdiction” and an “interference in the domain of policy making.” Interestingly, Bihar, Karnataka and Tamil Nadu have made suitable changes for inclusion of transgenders into their policies.
The Maharashtra Administrative Tribunal (MAT), Justice Mridula Bhatkar, had only on Friday, November 25, frowned at the State Government’s resistance to add the option of “other gender” to the application form for enrolment of transgenders in the state police department.
Even as the Maharashtra Government cited administrative difficulties and the need for a policy from the Central Government first, MAT Chairperson Justice Mridula Bhatkar was of the opinion that the State was “fully empowered to draw its own policy and take decisions in such matters.” The chairperson had specifically noted steps taken by the Governments of Bihar, Karnataka and Tamil Nadu for the inclusion of transgenders in their respective police force and other government departments.
The tribunal was seized with an application by 23-yr-old Arya Pujari seeking an opportunity to apply for the post of constable in the “other gender” category of the police force. In August 2022, Chairperson Bhatkar had granted the Home Department six months to take a policy decision on the issue.
Finally, on November 14, the MAT directed at least one post to be reserved for transgender persons in the selection process of constables this year. Subsequently, it directed the State to add the option of “other gender” in all online application forms and fix the criteria for physical standards and tests for transgender candidates. It was then that Pujari’s advocate informed the tribunal on Friday that the State was yet to implement any of the orders.
The lawyer for the Maharashtra government, Swati Manchekar submitted that the home department intended to challenge the order owing to administrative difficulties. She also claimed that the SC’s order in the ongoing Shanavi Ponnuswamy’s case and the National Legal Services Authority (NALSA) required the Centre to take a policy decision first.
“…till today neither the order of this Tribunal has been complied with nor it is challenged before the Hon’ble High Court. Thus, the order of the Tribunal is frustrated,” Justice Bhatkar noted at the outset.
She recorded the petitioner’s submissions who pointed out an officer memorandum from the Central Government way back in 2020 directing all Government Ministries to modify recruitment rules for inclusion of transgenders to be in conformity with the provisions of The Transgender Persons (Protection of Rights) Act, 2019.Justice Bhatkar acknowledged the State’s right to appeal but also reproduced sections of the NALSA judgement in which directions were given independently to the Central Government as well as the State Government.
ON Shanavi Ponnuswamy’s case, the tribunal observed that the Civil Aviation Ministry was the respondent in that case, therefore directions were issued accordingly. Moreover, ‘Police’ is a subject in the State List of the Constitution of India, and thus, the State Government is fully empowered to draw its own policy and take decisions in such matters.
Incidentally, it was also pointed out that Bihar had modified its recruitment rules to include transgenders. Similarly, in 2021 Karnataka modified its rules to not only allow transgenders to participate in the process of recruitment in the Police Department, but they were also provided reservation in all the services of the State of Karnataka. The Tamil Nadu Government has, in its recent advertisements created separate physical tests for transgender men and transgender women.
Accordingly, Chairperson Bhatkar extended the date of acceptance of transgenders application form to December 8 and adjourned the matter to December 23, 2022.
“Progressive” Maharashtra backs out on Transgenders
Now, challenging the Order of MAT, the state government’s petitionpetition pertains to recruitment of police constables, drivers and State Reserve Police Force. The window to accept online applications for recruitment ends on November 30, 2022.
“Keeping in view the overall nature of duties to be performed by persons holding the posts for which the recruitment process is undertaken demonstrate that it will not at all be practicable to make appointment of transgenders to these posts.” It added that “various grassroot level difficulties that need not be spelt out herein ought to be taken into consideration before coming to any conclusion in this regard as to the appointment of transgenders as sought by the petitioner and as intended and directed by the impugned orders,” the plea states.
The State claimed that the MAT failed to the appreciate that the state was yet to frame any policy regarding recruitment of transgenders, especially in the police force, and therefore the tribunal’s directions couldn’t be implemented. The appeal was mentioned before a bench headed by Chief Justice Dipankar Datta by GP PP Kakade today and will be heard on November 30, 2022.
In two orders dated November 14 and 18, 2022 the MAT directed the State to accept the applicant’s form under the category of transgender for a police constable’s post. It also directed the state to create a third category of transgender in all Home Department recruitments.
MAT Chairperson Justice Mridula Bhatkar passed the orders on an application filed by 23-yr-old Arya Pujari seeking an opportunity to apply for the post of constable in the “other gender” category of the police force. In August, Chairperson Bhatkar had granted the Home Department six months to take a policy decision on the issue. Pujari is represented by Advocate Kranti LC.
However, when the State continued to cite administrative difficulties even after six months, the MAT observed that the State was “fully empowered to draw its own policy and take decisions in such matters.”
The chairperson noted steps taken by the Governments of Bihar, Karnataka and Tamil Nadu for the inclusion of transgenders in their respective police force and other government departments. The MAT also recorded specific directions to the State in the SC judgement of National Legal Services Authority (NALSA).
Before the HC the State seeks for both the orders to be quashed and their implementation to be stayed in the interim. It pointed out that the recently enacted Transgender Persons (Protection of Rights) Act 2019, provides a mechanism to identify a transgender person but doesn’t provide for reservation in educational institutions and public appointments.
It added that there is an extreme urgency to fill up vacant posts in the police department and therefore the current process should not be hindered on any account.
According to the plea various states have treated transgenders differently, in Punjab they are taken in the category of males, whereas in Tamil Nadu they are treated as females. Therefore, merely because other states have a policy wouldn’t be a reason to issue the directions.
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