In a recent ruling, the Kerala High Court upheld an interim order issued by the Kerala Administrative Tribunal, directing the Kerala Public Service Commission (“PSC”) to provisionally accept a job application submitted by a transgender person for the post of House Keeper (Female).
The Division Bench, consisting of Justices Alexander Thomas and C. Jayachandran, decided not to interfere with the Tribunal's order, stating that it was intended to preserve the subject matter of the case.
Brief Facts:
The case revolved around Aneera Kabeer, a transwoman who had applied for the position of House Keeper (Female) in the department of Homeopathic Medical College. While the notification specified that only female candidates could apply, it did not explicitly mention transwomen.
It was argued that the exclusion of transwomen from the post was arbitrary and violated her fundamental rights, as well as the Transgender Persons (Protection of Rights) Act, 2019, and various Supreme Court judgments.
In January of this year, the Tribunal granted Kabeer's request to submit her application to the PSC and directed the Commission to process it provisionally, subject to further orders. The Tribunal also allowed her to submit a physical application since there was no option for selecting “transgender woman” on the online application page. However, the PSC challenged the interim order in the High Court.
Contentions of the Appellant:
It was asserted that due to the Appellant’s legal status as a transwoman, the online application she submitted was rejected by the PSC's software system. It was further contended that Section 3(b) of the Transgender Persons Act, 2019 (hereinafter referred to as the “TGP Act, 2019”), explicitly prohibits any form of unfair treatment in relation to employment or occupation.
Contentions of the Respondent:
It was argued that the differentiation based on gender was justified due to the incumbent's primary responsibilities, which involved ensuring safety and attending to the needs of women residing in the women's hostel. It was emphasized that the incumbent would be required to stay overnight in the women's hostel, and the absence of a female candidate could give rise to significant safety concerns.
Observations by the Court:
The High Court acknowledged that the Tribunal's interim order was meant to preserve the subject matter of the case, but it agreed with the PSC that the Tribunal should have given the PSC an opportunity to present its case at the interim stage.
Despite this, the Court decided not to interfere with the interim order and instead directed the Tribunal to expedite the hearing and dispose of the matter within three months.
While the PSC argued that the post of House Keeper (Female) required the incumbent to take care of the safety and other needs of women in the hostel, the Bench did not find it necessary to overturn the interim order. It noted that the order was issued before the last date for submission of applications and was intended to keep Kabeer's claims alive.
Although it was acknowledged that the PSC should have been given an opportunity to present its case at the interim stage, it did not consider it essential to intervene in the present situation. Instead, the High Court emphasized the importance of an early hearing and directed the Tribunal to dispose of the main matter within three months.
The decision of the Court:
Based on the aforementioned findings, the original Petition was accordingly disposed of.
Case Title: Kerala Public Service Commission v Aneera Kabeer
Coram: Hon’ble Justice Alexander Thomas, Hon’ble Justice C Jayachandran
Case No.: OP(KAT) NO. 228 OF 2023
Advocate of the Appellant: Adv. PC Sasidharan.
Advocates of the Respondent: Advs. Kaleeswaram Raj, Thulasi K Raj, and Aparna Narayan Menon
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