The Order was passed by a division bench consisting of Justice Alexander Thomas and Justice C. Jayachandran was of the view that the impugned order was only an ad interim interlocutory order, that was intended to ‘preserve the subject matter of the list’.

The original applicant, a trans-woman, wanted to apply for the post of House Keeper (Female) in the Homeopathic Medical College. She was aggrieved that both the selection notification as well as the rules of recruitment had prescribed that appointment to the said post would be confined only to women candidates. It was submitted by the applicant that the PSC had devised a software accepting applications only from women candidates. The original applicant claimed that since she could legally claim only to be a trans-woman, her online application was not accepted by the software system of the PSC.

The applicant further contended by the applicant before the Tribunal that by virtue of Section 3(b) of the Transgender Persons Act, 2019 (hereinafter, ‘TGP Act, 2019’), it has been stipulated that there shall not be any unfair treatment in or in relation to, employment or occupation.

At the point when the applicant approached the Tribunal in this regard, it passed an interim order directing the PSC that the applicant may submit her application in physical form, which would thereafter be accepted by the PSC for the time being.

It is on in appeal, being aggrieved by the said interim order that the PSC filed the present petition before the High Court.

The PSC, represented by Standing Counsel for the PSC P.C. Sasidharan contended that differentiation on basis of gender was made since one of the prime duties to be discharged by the incumbent in the post was to take care of the safety and other needs of the women who stay in women’s hostel. It was also submitted that the incumbent would also have to be prepared for night stay in the women’s hostel concerned, and that there would be serious safety issues if the concerned incumbent is not a woman.

The counsel for PSC further added that in a case of this nature, the Tribunal ought to have given reasonable opportunity to the PSC to file their written response, and heard both sides and assessed the prima facie nature of the case and the balance of convenience.

“Annexure-A2 selection notification was issued on 31.12.2022 and the last date for submission of application was on 01.02.2023 since the online application was not accepted on account of the software restrictions, the applicant has approached the Tribunal on 23.01.2023 and the ad interim order as per Ext.P2 has been rendered on 24.01.2023 which appears to be before the prescribed last date for submission of the application, namely 01.02.2023. Therefore essentially, the said ad interim order has been issued only to preserve the subject matter of the lis so as to keep the litigating claims of the petitioner in the above lis alive,” the Court observed.

However, the Court conceded that in a case of the present nature, the petitioner also ought to have been given an opportunity to present their case to defend at the interlocutory stage, so that the Tribunal could pass a reasoned order, it did not find it necessary to interfere with the present interim order.

Thereafter Court directed the Tribunal to facilitate early hearing and dispose of the main matter within 3 months. Senior Government Pleader Unnikrishna Kaimal, and Advocates Kaleeswaram Raj, Thulasi K. Raj, and Aparna Narayan Menon appeared on behalf of the respondents.

Case Title: Kerala Public Service Commission v. Aneera C. & Ors.

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The post Kerala High Court Upholds Tribunal’s Order Directing PSC To Provisionally Accept Trans-Woman’s Application For Post Confined To Women Candidates appeared first on SabrangIndia.

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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The post M’tra Govt moves HC against MAT Order directing inclusion of Transgenders in police recruitment appeared first on SabrangIndia.

On September 8, the Supreme Court issued an interim order directing the Centre to make an appropriate policy framework to provide reasonable accommodation to transgender people in employment in the establishments covered under the Transgender Persons (Protection of Rights) Act, 2019. According to the directions issued, the Central government has to do the same in consultation with the National Council for Transgender Persons within a period of three months.

The Bench comprising Justices DY Chandrachud and Hima Kohli asked the Department of Personnel Training (DoPT), Government of India and Ministry of Social Justice and Empowerment to consult all stakeholders in the process of formulating the policy. The top court said the Act, which was brought into force with effect from January 10, 2020, was formulated with the aim of protecting the rights of transgender people, their welfare and other connected matters.

Section 3(b) of the Act categorically stipulates that no person or establishment shall discriminate against a transgender person by giving unfair treatment in, or in relation to, employment or occupation or denying, or terminating them from, employment or occupation. In terms of Section 8 an obligation is cast on the appropriate Government to secure full and effective participation and their inclusion in society. Section 9 provides that no establishment shall discriminate against transgender persons in employment and other related issues.

This comes after a plea was filed by a transgender woman, named Shanavi Ponnuswamy, challenging the national carrier Air India’s decision to deny her a job as a cabin crew member owing to her gender identity.

While senior advocate, K.V. Viswanathan, representing Air India, submitted that the petitioner’s application was rejected as she could not score the minimum qualifying marks in the Scheduled Caste category, the petitioner’s counsel contended there was no separate category for transgender people as authorities said the advertisements were issued for female cabin crew.

The petitioner further claimed that the airline’s norms say that cabin crew members should possess blemish free complexion, and if she did not meet this, then this is discrimination and a disregard to the rights guaranteed to her under the Indian Constitution. Advocate Viswanathan then assured the top court that petitioner’s application was not rejected because she is a transgender woman, reported LiveLaw.

The petitioner, Shanavi, graduated engineering from Dr. Aditanar College of Engineering, Tamil Nadu, in 2010. She underwent a gender reaffirming surgery in April, 2014. She thereafter worked with Sutherland Global Services (airline sector) for over a year to gain experience in the field. Shanavi then went on to work with Air India customer support (domestic and international) in Chennai. She applied for a job in response to an advertisement published by Air India in the year 2017 for female cabin crew members. However, her candidature was not accepted.

She later filed a petition, claiming that the positions in the cabin crew were exclusively intended for (cis)women, and that the only reason she did not get the job was because she is a transgender woman. She has challenged the rejection of her candidature based on the basic rights protected by Articles 14, 15, 16, and 21 of the Constitution of India.

The petitioner said that she eventually heard back from Air India in September 2017 and was informed that the company had no policies in place to engage trans women. Transgender people were not given a separate category in the recruitment policy, according to the response from the Prime Minister’s office, according to the petitioner’s attorney, Mr. R. Prabhakaran. The petitioner was informed that if a category for transgender person is introduced in the future, the same would be advertised.

The top court then asked whether there was a chance that Air India might reconsider its representation. The attorney for Air India stated that it was not possible to consider her representation at this time and that a new notification of the position would be required if her case were to be taken back into consideration. He beseeched the Bench to consider the maintainability of the petition as a preliminary issue. He further stated that in order for all transgender people to benefit from a different category, the petitioner should have challenged the advertising in this respect. Instead, she waited until her application was turned down before criticizing the decision.

When questioned if the government had a policy in this area, ASG Mr. Sanjay Jain said that the 2019 Act was in effect. The Bench issued instructions to guarantee that the 2019 Act’s requirements are carried out by the Government and the enterprises it covers, noting that the petition’s difficulties go beyond the petitioner’s allegations about employment. According to LiveLaw, the bench said that “…it raises wider issues on formulation of appropriate policy by the government and implementation of the provision of the Act by all establishments to give effect to the guarantee of non-discrimination embodied in Sections 3 and 9. Positive obligation has been cast on the appropriate Govt in Section 8(1) and on all establishments under Section 10.”

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