30, Nov 2023 | CJP Team
‘Transgender [people] are humans and are citizens of our great country’
Justice Mridula Bhatkar, Chairperson, MAT
On November 29, the Maharashtra Administrative Tribunal (MAT) pronounced its judgment on the issue of transgender reservation in government employment and including the option of “third gender” in online application forms. In its judgment, the tribunal observed that it cannot pass any directions to the state directing them to make reservation for transgender persons in public employment and education, but highlighted that the government ought to take more steps towards ensuring inclusion of the transgender community in mainstream society.
It is ‘obligatory’ on States to prepare welfare schemes and invent opportunities for transgender persons in public employment, the MAT said while relaxing the eligibility criteria for three transgender persons in the police department and State administration.
“The State not only has the power, but also it is obligatory on the part of the State to prepare the welfare schemes or to invent different methods and modes to provide the opportunity to transgenders of public employment.” (Para 32)
Justice (Retd) Mridula Bhatkar, Chairperson of MAT and member Medha Gadgil noted in the judgment that mere identification and acknowledgment of the existence of transgender persons in the society was not sufficient inclusion but to facilitate their appointments in Government and Public sector is inclusion in true sense.
In the judgment, MAT further stated “The Legislature with visionary approach has used the umbrella terminology ‘effective participation’ and ‘inclusion’ in Section 8 of The Rights of Persons with Disabilities Act, 2016 and is akin to Article 21 of the Constitution of India enabling the appropriate Government to make various provisions and keep the welfare avenues feasible for the transgenders to live with dignity.” (Para 26)
The judgment of the Tribunal in the said case had been reserved on October 26, 2023.
The applicants were three transgender persons, namely Arya Pujari, Vinayak Kashid and Yashwant Bhise, who had approached the MAT seeking directions to the State government for the option of ‘third gender’ in the application. They also sought reservation for trans persons citing the NALSA judgement wherein the SC directed for transpersons to the considered in the Social and Economically Backward Section (SEBC) for reservation. Notably, Pujari and Kashid had applied for the post of police constables whereas Bhise had applied for the post of talathi.
Through the petition, the applicants had highlighted that while the Maharashtra government had recognized transgender applicants subsequent to the enactment of the Transgender Persons (Protection of Rights) Act, 2019, no provisions for reservation for the community in state employment had been formulated by them. They had sought reservation based on the Supreme Court’s verdict in the NALSA case (National Legal Services Authority vs Union of India & Ors) in which the apex court had held that transgender persons should be treated as socially and economically backward and hence given reservation.
It is crucial to highlight that in November 22, an interim order had been passed by MAT directing the state of Maharashtra to provide a third option in the application form. The order was subsequently upheld by the Bombay High Court in December 2022. Additional directions where also issued by the High Court, urging the State to frame appropriate rules under the statutory mandate. Following this, in March 2023, the State had issued a Government Resolution identifying the third gender and providing the “other gender” option for public employment. Therefore, reservation was the only issue left for consideration.
The contentions put forth by both the parties:
During the hearings, it had been highlighted by advocate Kranti LC, counsel for the petitioners that states like Tamil Nadu, Chhattisgarh, Karnataka, Jharkhand and Bihar, have provided the benefit of reservations to the transgender community. The counsel had further informed the tribunal that the state of Karnataka provides 1% horizontal reservation for transgender people and out of the five aforementioned states, four have given reservation for transgenders in SEBC.
It is crucial to note that the main argument put forth by the state while opposing reservation to the transgender community is based on the silence of the law makers on this point in the Transgender Act, 2019. During the hearing, the tribunal noted that it had been vehemently pointed out by the state that since no provision for providing reservation to the community had been specified in the Act, the State Government cannot provide reservation for transgenders. It had been contended that the State Government follows the policy of the Central Government on this issue as it is a Central Legislation and, thus, to provide separate reservation to transgender is just not possible. Chief Presenting Officer for the State Swati Manchekar further highlighted that at present, Maharashtra has 62% vertical reservation and 72% horizontal reservation.
Responding to this, advocate Kranti LC highlighted the State’s contradictory stand on reservations, pointing to how the Maharashtra Government provided reservation for denotified or nomadic tribes despite no such reservation in the Central Government. The counsel also referred to the recent decision of granting reservation to the Maratha community.
Referring to this, MAT observed the State had crossed its vertical reservation cap of 50%.
Observations by the Court:
In its 24-pages long judgments, the most important observation made by the Tribunal is that even nearly nine years after the passing of the landmark NALSA judgement, not a single open transgender person is part of the 5.5 lakhs Government employees in Maharashtra.
“As on today in State of Maharashtra approximately 5.5 lakh Government servants are working on various posts in various Departments. But not a single transgender who has come out of closet has got a job in the Government sector.” (Para 27)
The Tribunal further emphasised its disappointment on the lack of inclusion and representation of the transgender community and stated, “This fact itself speaks in volume. The transgenders are humans, are citizens of our great Country are waiting for their inclusion in the main stream”. (Para 27)
Referring to Article 16 of the Indian Constitution, which prohibits discrimination in public employment on the basis of religion, race, caste, sex, etc., the Tribunal provides “The Transgenders are people in minority. Majority forms the Government, but majority cannot suppress or ignore the rights of marginalized section. The calibre and morality of the Democracy is tested on these yardsticks.” (Para 32)
MAT also drew parallels between the struggle for equal right for women and transgender people, noting that the transgender community is at a position worse than women in our society as they are ridiculed or subjected to misplaced abnormal curiosity.
“The case of transgenders is worse than the women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted. Therefore, mere acknowledgement of their separate identity is not enough to provide them opportunity in public employment.” (Para 32)
Referring to the argument of the state for not providing more reservation, the Tribunal highlights that the Transgenders Act had opened various methods of ensuring inclusion of the transgender community, “The stand taken by the Respondent-State that they cannot provide reservation more than 62%, though is consistent with the law about 50% cap laid down by the Hon’ble Supreme Court in the case of Indra Sawhney (supra), the Transgender Act itself has opened the other doors of inclusion and participation of transgenders in the public employment.” (Para 32)
The Tribunal further stressed upon the obligation of the state to prepare welfare schemes for providing employment opportunity to the transgender community and added that “Combine reading of Sections 3 & 8 of the Transgender Act makes it clear that the State not only has the power, but also it is obligatory on the part of the State to prepare the welfare schemes or to invent different methods and modes to provide the opportunity to transgenders of public employment.” (Para 32)
Calling public employment to be a “handicapped race for the transgender persons” the MAT panel shed light upon the paralyzed of the transgender community owing to the negative approach of society.
Particularly, MAT also rejected the State’s “misplaced” apprehension that if reservation is provided to transgender persons in the public sector, it will lead to an increase the tendency of people “falsely” coming out of closet as transgenders and opting for a surgery. In its judgment, the Tribunal provided “This fear is absolutely misplaced. Getting in Government job depends on number of factors like education, fitness, vacancies etc.” (Para 33)
Lastly, the MAT emphasised upon the need for concrete affirmative action and rejected the argument put forth by the State that was consistent with the Transgender Act as it allowed the applicants to compete as a transgender person in public employment. “Only by acknowledging the third gender, the Government has not made adequate opportunity available to the transgenders. More steps are required to be taken by the Respondent-State for effective participation and meaningful inclusion of the transgenders in the mainstream.” (Para 36)
The Tribunal noted Section 8 of the Transgender Act required the Government to take measures for the inclusion of transgender persons in society as it is bound by the 2019 Act.
MAT gave illustrations of policy decisions expected by the State to positively discriminate transgenders in public employment. The tribunal recommended
- a separate lower benchmark for transgenders as a class in Preliminary and Main Examination
- To give grace marks to reach the cut-off marks and/or
- To give more chances to appear for the examination by giving age relaxation. and/or
- To offer concession in educational qualification and experience.
Decision of the Tribunal:
Through the judgment, the MAT panel held that it could not direct the State to grant reservation for transgender persons in employment, but decided to relax the criteria for the applicants in the following manner:
- Applicants are to be given the necessary grace marks to reach the cut-off marks or applicants who have reached 50% to be considered for the concerned posts.
- Age relaxation for applicant who has scored minimum 45% marks.
The complete judgment can be read here:
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