Matam Gangabhavani, vs State Of Andhra Pradesh
2022 Latest Caselaw 267 AP

      THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                       WRIT PETTION NO.16770 OF 2019

ORDER:

One Matam Gangabhavani, claiming to be transgender filed

this writ petition under Article 226 of the Constitution of India, to

declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated

01.11.2018, as it did not make any provision for reservation of

appointment of transgender persons as illegal, arbitrary, violative

of Articles 14, 15, 19, 21 of the Constitution of India, contrary to

the law declared by the Hon‟ble Apex Court in Hon'ble Supreme

Court of India in National Legal Services Authority v. Union of

India and others1 and consequently issue a direction to the

respondents to make appropriate provision for transgender persons

and further direct the respondents to appoint the petitioner in Post

Code No.11 - Stipendiary Cadet Trainee Sub-Inspector of Police in

the Police Department in the vacant post, kept apart for the

petitioner in terms of the order of the Court in W.P.No.1575 of

2019 dated 13.02.2018.

The petitioner was male by birth, underwent Sexual

Reassignment Surgery in the year 2003. After the judgment of the

Apex Court in National Legal Services Authority v. Union of

India and others (referred supra), the petitioner changed gender

identity from male to transgender in Aadhar, PAN, Voter ID,

Passport in the year 2017. The petitioner also received official

certificate as transgender from the Government of Andhra Pradesh.

The petitioner came across Notification bearing

Rc.No.216/R&T/Rect.1/2018 dated 01.11.2018 for recruitment to

2014 (5) SCC 438 MSM,J WP_16770_2019

the post of Post Code No.11 - Stipendiary Cadet Trainee Sub

Inspector of Police in Police Department. Though the petitioner was

keen on appearing for the said examination through official portal,

she realized that there are only two categories provided for the

disclosure of gender namely „Male‟ and „Female‟. This act of non-

inclusion of the transgender is violative of the direction of the

Hon‟ble Supreme Court in National Legal Services Authority v.

Union of India and others (referred supra). Further, due to non-

availability of an option to register as transgender, the petitioner

was forced to mention identity as female while registering for the

examination as per the said notification and the same was

accepted and provided with Registration No.1012386. The

petitioner appeared for the first round of recruitment process i.e

Preliminary Written Test held on 16.12.2018 and scored 28% in

Paper-I and 21% in Paper-II, thereby, the petitioner was declared

„not qualified‟ for the next round of recruitment process. The

petitioner is a member of BC community, the qualifying score for

both papers is 35% respectively.

It is contended that the notification issued by the second

respondent suffers from inherent flaw and it is contrary to the

judgment of the Apex Court in National Legal Services Authority

v. Union of India and others (referred supra), where certain

directions were issued for providing reservations to transgenders.

Contrary to the law, the second respondent did not provide any

column for disclosure of transgender identity and reservation for

transgenders in the notification. The specific column regarding

gender identity is only for identification of male or female, but there

is no column for transgenders. Though, there is reservation for MSM,J WP_16770_2019

various categories of castes, no reservation is provided for

transgenders category. Despite it, transgenders are most

disadvantaged class and cannot compete with male or female

genders.

The petitioner contended that, she was born 25 years ago,

when acceptance levels of transgenders in the society was not as it

is today and transgenders could not attend even educational

institutions where male/female gender children attend. The

petitioner filed O.A.No.23 of 2019 before Andhra Pradesh

Administrative Tribunal challenging the Notification dated

01.11.2019. O.A.No.23 of 2019 was dismissed by the Tribunal on

the following grounds:

a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.

Aggrieved by the order in O.A.No.23 of 2019 dated

29.01.2019, the petitioner filed W.P.No.1575 of 2019 before the

Division Bench of this Court. This Court allowed the writ petition,

setting aside the orders in O.A.No.23 of 2019 and remitted the

matter to the Tribunal. Due to abolition of Tribunal, the petitioner

filed the present writ petition and sought the relief as claimed.

MSM,J WP_16770_2019

The main contention of the petitioner is that, the second

respondent failed to comply with the directions issued by the Apex

Court in National Legal Services Authority v. Union of India

and others (referred supra).

In K. Prithikayashini (transgender) v. Chairman, Tamil

Nadu Uniformed Services Recruitment Board2, directed the

respondents that, by the next recruitment process is carried out,

the respondent would have to take corrective measures for

including the third gender as a category. Further, it is also stated

that the social impact of such recruitment cannot be lost sight of,

which would benefit the strength to the case of transgenders. The

petitioner must reach the finishing line and not be stopped and

disqualified in the middle. It is contended that, the Tribunal erred

in not considering the observations made in K. Prithikayashini

(transgender) v. Chairman, Tamil Nadu Uniformed Services

Recruitment Board (referred supra), which facilitates just social

standing of a person from a third gender.

In Swapna v. The Chief Secretary3, the Division Bench of

the Madras High Court directed the State Government to look into

the question of a post or percentage based reservation in

educational institutions and public employment for transgender

persons in furtherance to NALSA judgment.

It is contended that the Tribunal is erred in making an

observation that the said notification is gender specific and that, as

2 (2015) 8 MLJ 734

MSM,J WP_16770_2019

the petitioner is a transgender person, is not entitled to compete

with the given post as per the said Notification.

It is contended that, the petitioner worked with different

departments in Government of Andhra Pradesh during different

periods as Village Accountant of Velugu Department at Yadiki

Primary Health Centre and presently working as Research

Assistant at National Institute of Rural Development & Panchayat

Raj. But, the petitioner was denied an opportunity for selection in

pursuance of the notification. Hence, the action of the second

respondent in not providing reservation is contrary to the

directions issued by the Apex Court in National Legal Services

Authority v. Union of India and others (referred supra) and

sought a direction as stated above.

The second respondent - Chairman, State Level Police

Recruitment Board, Andhra Pradesh, Mangalagiri filed detailed

counter affidavit on behalf of the first respondent, admitting the

facts narrated in the affidavit filed by the writ petitioner, while

contending that the Tribunal in its judgment dated 29.01.2019,

while quoting the judgment of the Apex Court in National Legal

Services Authority v. Union of India and others (referred

supra), concluded that the principle cannot be applied relating to

particular recruitment notification to the public services and

dismissed O.A.No.23 of 2019. The respondents also admitted

about filing of W.P.No.1575 of 2019 and setting-aside the order

passed by the Tribunal in O.A.No.23 of 2019, while remanding the

matter to the Tribunal.

MSM,J WP_16770_2019

It is specifically submitted that the office of the second

respondent herein has addressed letter to the first respondent

stating that there is no provision in the recruitment rules for

consideration of case of transgender person in the matter of

recruitment and requested to take policy decision in the matter of

employment, keeping in view of the said recruitment rules and

judgment of the Apex Court in National Legal Services Authority

v. Union of India and others (referred supra), the High Court

issued an interim direction on 18.11.2019 in W.P.No.16770 of

2019 directing to keep one post reserve unfilled under Code No.11,

SCT SI (Civil) until further orders. After issuing provisional

selection list of the candidates on 22.07.2019, High Court passed

interim order on 18.11.2019 in W.P.No.16770 of 2019. It is

contended that the State Level Police Recruitment Board followed

the procedural norms for issuance of provisional selection list

before the issue of orders of High Court in the matter and no

vacancies are available as on 18.11.2019, the petitioner has not

approached in time to seek appropriate relief from the High Court.

Hence, the petitioner invoked the jurisdiction of the Court at

belated stage.

The Government vide Memo No.830231/Legal-II/A1/2020

dated 29.09.2020 informed that vide G.O.Ms.No.20 WCDA & SC

(Prog.2) dated 30.12.2017, Government approved „Transgender

Policy‟ in order to include Transgender in society, provide social

protection to the Transgender and provide them with proper

educational facilities, health facilities and basic amenities such as

water supply, sanitation, housing facilities and provision of

employment. Further, the Transgender Persons (Protection of MSM,J WP_16770_2019

Rights) Act, 2019 states that, the appropriate Government shall

take steps to secure full and effective participation of Transgender

persons and their inclusion in society. Hence, there is no

reservation. However, the Transgenders are eligible to apply and

get selected on merit. Currently there is no reservation for

Transgenders in Government appointments. The Government

further informed the Chairman, State Level Police Recruitment

Board, Mangalagiri that there is no objection if the Police

Recrutiment Board decides to appoint a meritorious, eligible

Transgender person against a Woman or Men vacancy as

appropriate, in Police Recruitment, as per Rules in force and

requested to dismiss the writ petition.

The petitioner filed reply to the counter affidavit, reiterating

the contentions urged in the affidavit, while contending that, till

date the respondents did not establish Grievance Redressal

Mechanism as required under Section 11 of the Transgender

Persons (Protection of Rights) Act, 2019. Section 9 of the Act

comes into play and prohibits discrimination in respect of the

petitioner employment and that, in the present notification, there

are no transgenders to compete with the petitioners and in all

possibility, the petitioner is only candidate who applied and was

permitted to appear to written test and physical test also, the

petitioner was not allowed. Thus, the selection process of the

petitioner is pending and requested this Court to protect the

petitioner‟s interest, directing the respondents to reserve one post

Code No.11, Stipendiary Cadre Trainee (SCT) Sub-Inspector of

Police (Civil).

MSM,J WP_16770_2019

It is also contended that, the respondents did not implement

G.O.Ms.No.20 Department for Women, Children, Differently Abled

& Senior Citizens (Prog.II) dated 30.12.2017 and did not comply

with the directions of the Apex Court issued in National Legal

Services Authority v. Union of India and others (referred

supra). This itself is sufficient to conclude that the respondents did

not act in conformity with the law laid down by the Apex Court and

therefore, the Notification dated 01.11.2018 is illegal, arbitrary and

requested to grant relief as claimed.

During hearing, Sri M. Solomon Raju, learned counsel for

the petitioner raised serious contentions about the rights of

transgenders or transsexuals, based on various judgments which

will be discussed at appropriate stage, more particularly,

demonstrated about the negligence of the State to implement the

directions issued by the Apex Court in NALSA judgment and failure

to provide reservation to transgenders or transsexuals is utter

violation of the directions of the Apex Court. Hence, failure to

provide necessary column in the application form for disclosing

identity of transgenders or transsexuals to identity the sex, while

providing column for male and female is clear deviation of the

guidelines issued by the Apex Court in NALSA judgment. It is

further contended that, though reservation is directed to be

provided, it is not specific whether the reservation is based on

social reservation or based on physical appearance. But, it is for

the State to provide other social and educationally backward class

reservations or otherwise frame guidelines by constituting

necessary committees on the rights of transgenders and

transsexuals to claim reservation in the public employment.

MSM,J WP_16770_2019

Finally, it is contended that, when the petitioner was the sole

transgender appeared for the examination, though identifying the

petitioner as female, the petitioner must be selected by providing

reservation in Stipendiary Cadet Trainee Sub-Inspector and issue a

direction to implement "The Transgender Persons (Protection of

Rights) Act, 2019" and provide reservation to the transgenders and

transsexuals in all public employment.

Sri Vivekananda, Learned Special Government Pleader for

Respondent No.2 contended that, the Government is ready to

implement the directions issued by this Court in accordance with

law. It is contended that the petitioner was male by birth and

converted into transfemale, therefore, by birth the petitioner was

not entitled to claim the benefit, but subsequent to transformation

from male to transfemale, the petitioner cannot be claim such

reservations in the public employment as per the judgment of the

Apex Court in NALSA case. Moreover, the petitioner cannot be

selected being a sole transfemale appeared in the selection process

in Stipendiary Cadet Trainee Sub-Inspector, since the petitioner

did not secure minimum marks prescribed under different

categories in the notification, as minimum marks were not

prescribed based on gender identity. Hence, unless the petitioner

secures the minimum qualifying mark in the selection process, the

petitioner is not entitled to claim selection after permitting to

undergo physical test i.e. second round in the process of selection.

Sri Vivekananda, Learned Special Government Pleader also

reportedly agreed to implement various directions issued by the

Supreme Court and the provisions of The Transgender MSM,J WP_16770_2019

Persons (Protection of Rights) Act, 2019, so also the directions if

any issued by this Court in accordance with law, while requesting

to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the points need to be answered are as follows:

1. Whether the petitioner is entitled to claim reservation either horizontal or vertical reservation, based on socially and educational backwardness or based on gender identity. If so, whether the petitioner be selected as Stipendiary Cadet Trainee Sub-Inspector though the petitioner did not secure minimum mark prescribed in the notification based on reservations if any?

2. Whether the State - respondents failed to follow the directions issued by the Apex Court in NALSA judgment. If so, whether the Notification bearing Rc.No.216/R&T/Rect.1/2018 dated 01.11.2018 be declared as illegal and arbitrary? Whether this Court can issue a direction, while exercising power under Article 226 of the Constitution of India to provide reservations to transgenders/transsexuals?

P O I N T Nos.1 & 2:

As both points are interconnected, I find that it is expedient

to decide both the points by common discussion.

It is an undisputed fact that the petitioner was male by birth,

as admitted in the second paragraph of the affidavit. Subsequently,

underwent Sex Reassignment Surgery or Gender Reassignment

Surgery in the year 2003. However, after the judgment of NALSA,

the petitioner changed her identity from male to transgender in

Aadhar, PAN in the year 2017. Thus, the petitioner was treated as MSM,J WP_16770_2019

male till 2017, but changed her identity as transgender only in the

year 2017. The notification impugned in the writ petition was

issued on 01.11.2018 i.e subsequent to change of her gender

identity from male to transgender in the year 2017. The State is

unconscious of the directions issued by NALSA and failed to

provide a specific column meant for gender identity for transgender

in the proforma of application in the Notification dated 01.11.2018

and did not provide any reservation to transgenders, as they are

socially and educationally backward and not in a position to

compete with ordinary men and women.

The petitioner is claiming to be a transgender. The word

„transgender person‟ is defined under Section 2(k) of The

Transgender Persons (Protection of Rights) Act, 2019 (for short „the

Act‟) as follows:

"(k) "transgender person" means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta."

The petitioner though born as male by birth, he underwent

Sex Reassignment Surgery and became a transwoman, fall within

the definition of transgender as defined under Section 2(k) of the

Act.

In Mrs. S. Sushma & another v. Director General of

Police, State of Tamil Nadu4, the learned single had made an

attempt to define the words and expressions viz Sex, Gender,

Sexual Orientation/attraction, Sexual Behaviour, Sexual Identity,

W.P.No.7284 of 2021 dated 23.12.2021 MSM,J WP_16770_2019

Heterosexuality, Homosexuality, Gay, Lesbian, Bisexuality,

Bisexuals, Transgender, Trans woman/Transfeminine, Trans

man/Transmasculine, Transexual, LGBT or Queer, Pansexuality,

Gay Pride, Pride Parade, Coming Out, Cross-dressers, Gender

Dysphoria, Gender Transition, Sex Reassignment Surgery. In the

judgment, the word „transgender‟ is defined as Transgender refers

to individuals whose sense of. their own gender (i.e.gender identity)

differs from their sex assigned at birth. For example, it could refer

to individuals assigned male at birth, who identify themselves as

women or as not men, or to individuals assigned female at birth,

who identify themselves as men or as not-women. A transgender

person may or may not desire gender-affirmation surgery (formerly

sex- reassignment surgery) or other procedures, and could have

any sexual orientation.

When compared to the meaning of transgender referred

above with the definition of „transgender‟ in the Act, there is slight

difference. The definition of transgender in the Act is wider than

the meaning explained by the Madras High Court in

Mrs. S. Sushma & another v. Director General of Police, State

of Tamil Nadu (referred supra). The term „transsexual‟ refers to

individuals who have opted, or plan to opt, through gender

affirmation surgery (formerly sex reassignment surgery) or other

procedures, to align their external sexual characteristics with their

gender identity. Transexual(ity) is primarily a medical term.

Though the petitioner underwent Sex Reassignment Surgery,

as admitted by her, she would fall within the definition of

transgender as defined under Section 2(k) of the Act, as such there MSM,J WP_16770_2019

is no dispute with regard to her identity as transgender. Even the

respondent-State also did not dispute her identity, but contended

that, as the petitioner herself disclosed her identity as female in

the application, she was treated as female for the purpose of

recruitment. Thus, the petitioner is undoubtedly a transgender.

She also produced certificate issued by competent authority for her

identity to claim that she is a transgender. Therefore, the petitioner

is a transgender and hence the Court has to examine the issue

treating the petitioner as a transfemale/transgender for the limited

purpose of deciding the present petition only.

The main endeavour of the petitioner is that, she is entitled

to claim reservation under socially and educationally backward

classes. In view of the enactments or rules existing as on date, only

mean and women are recognized by almost all States including

Central Government. The transgender was not identified for the

purpose of creating reservation. Constitution of India is also silent

as to providing reservation, social justice to third gender, but only

limited to men and women.

The Preamble of the Constitution guarantees, social,

economic and political JUSTICE to all Citizens of India; LIBERTY of

though, expression, belief, faith and worship; and also guarantees

EQUALITY of status and opportunity; and to promote among them

all FRATERNITY assuring the dignity of the individual and the

unity and integrity of the Nation.

At the same time, the word „Citizenship‟ under Article 5 of

the Constitution of India, made it clear that, every person who has

his domicile in the territory of India; and -

MSM,J WP_16770_2019

(a) Who was born in the territory of India; or

(b) Either of whose parents was born in the territory of India; or

(c) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

Thus, the word „Citizen‟ is wider term and according to

Article 5, every person who was born in the Indian Territory

became the citizen of India. Therefore, the transgenders who were

born in the territory of India are the citizens of Indian Territory,

entitled to equal opportunity.

Article 14 of the Constitution of India prohibits

discrimination of persons from one another while providing

equality before law or equal protection of laws within the territory

of India. Social justice is one of the sub-divisions of the concept of

justice. It is concerned with the distribution of benefits and

burdens throughout a society as it results from social institutions:

property systems, public organizations. There are three criteria to

judge the basis of distribution, namely, rights, deserts or need.

These three criteria can be put under two concepts of equality:

"formal equality" and "proportional equality". There is a difference

between formal equality and egalitarian equality. "Formal equality"

means that law treats everyone equal and does not favour anyone

either because he belongs to the advantaged section of the society

or to the disadvantaged section of the society. Concept of

"proportional equality" expects the States to take affirmative action

in favour of disadvantaged sections of the society within the legal

framework of liberal democracy. Proportional equality is equality

"in fact" whereas formal equality is equality "in law". Egalitarian MSM,J WP_16770_2019

equality is proportional equality. (vide M. Nagaraj v. Union of

India5).

The petitioner is a transgender and she is entitled for

proportional equality. The State is expected to take affirmative

action in favour of disadvantaged section of the society, as the

transgenders are cursed by everyone in the society; living in

distressed condition and most of them are living by begging or

engaging in menial work and they are being put to harassment in

different ways, both physically, mentally and sexually by different

persons. Therefore, transgender are most disadvantaged persons in

the society. More so, their number is minimum in the State, but

they are not being provided proportional equality in the

employment and they are totally neglected by the State without

providing even a column in the application form for gender identity

of transgender, thereby, it amounts to denial of an opportunity in

employment treating them unequals with men and women.

Though Article 14 of the Constitution of India prohibits

discrimination of any person with others, while providing equal

opportunity in employment, the State is limiting such prohibition

only to men and women, though the language employed in various

provisions of the Constitution reflects to „a person‟, but not men

and women or third gender. Failure to provide sufficient

opportunity to third gender, as the word „person‟ includes

transgender also, since the word „person‟ is a wider term which

includes men, women and third gender also.

The word „any person‟ means -

(2006) 8 SCC 212 MSM,J WP_16770_2019

1. Any person, natural or artificial - whether he is a citizen or an alien - is entitled to the protection of Article 14.

2. The use of the word "any person" in Article 14 in the context of legislation in general or executive action affecting group rights is construed to mean persons who are similarly situated. The classification of such persons for the purposes of testing the differential treatment, of course, be intelligible and reasonable - reasonableness being determined with reference to the object for which the action is taken. (vide T.M.A. Pai Foundation v. State of Karnataka6)

Only a person who is aggrieved by the alleged discrimination,

can challenge the validity of a law on the ground of violation of

Article 14. Again the word „person‟ assumes importance, since

transgender is also a person, though a third gender is not

recognized by the State till passing of the Act. As on date, there is

no reasonable classification of men, women and transgender for

denial of an opportunity in employment to transgenders, though

they are socially and educationally disadvantaged persons in the

society. Therefore, such discrimination of transgender from men

and women can be said to be arbitrariness, being opposed to

reasonableness, is an antithesis to law. There cannot, however, be

any exact definition of arbitrariness neither can there be any strait-

jacket formula evolved therfor, since the same is dependent on the

varying facts and circumstances of each case. Arbitrariness is an

antithesis of rule of law, equality, fair play and justice. (vide

Lakshmi Precision Screws Limited v. Ram Bhagat7). Therefore,

the arbitrary action is described as one that is irrational and not

based on sound reason or as one that is unreasonable. Any

decision, be it a simple administrative decision or a policy decision,

6 (2002) 8 SCC 481, 655 (para 346) 7 (2002) 6 SCC 552, 561 (para 16) MSM,J WP_16770_2019

if taken without considering the relevant facts, can only be termed

as an arbitrary decision and violative of the mandate of Article 14

of the Constitution. In the absence of any classficiation of

transgender from men and women thereby denial of opportunity is

nothing but an antithesis of rule of law and equality. Hence, failure

to provide sufficient opportunity in the employment by providing a

specific column for identity of third gender in all employment

notifications, treating them as equals with men and women and

failure to provide employment to them, though they are eligible is

nothing but arbitrariness in the State‟s action.

Article 15 prohibits discrimination of any citizen on grounds

only of religion, race, caste, sex, place of birth or any of them. For

better appreciation of facts, I find that it is apposite to extract

Article 15, accordingly it is extracted hereunder:

"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public (3) Nothing in this article shall prevent the State from making any special provision for women and children (4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

On close analysis of Article 15, it prohibits discrimination of

citizens of Indian Territory only on the basis of religion, race, caste,

sex or place of birth or any of them. But, still, Clause (3) of

Article 15 identified only women and children for making special MSM,J WP_16770_2019

provision and not to the transgender or trans woman or binary

gender. Unless Clause (3) of Article 15 is appropriately amended, it

is difficult to issue any direction to the State to make special

provision for transgenders. Similarly Clause (4) of Article 15

permits the State to make special provision for the advancement of

any socially and educationally backward classes of citizens or for

the Scheduled Castes and the Scheduled Tribes. Though Clause (4)

of Article 14 permits making special provision to socially and

educationally backward classes for admission into educational

institutions, the State did not take any steps to recognize their

transgender to provide any special provision to them till passing

the Act and taken a policy decision by the State of Andhra

Pradesh, known as „Transgender Policy‟ vide G.O.Ms.No.20

Department for Women, Children, Differently Abled & Senior

Citizens (Prog.II) dated 30.12.2017. Though the Transgender

Persons (Protection of Rights) Act, 2019 is passed, as on date, not

being effectively implemented.

In almost all the decisions rendered by the Courts, prior to

NALSA Judgment by the Hon‟ble Apex Court, third gender was not

recognized, but the Courts dealt with discrimination of men and

women or based on social status i.e. caste. Discrimination of

transgender against men and women only on the ground of sex

would be violative of Article 15(1). Third gender was not taken into

consideration by the Courts till NALSA judgment, while

discriminating the transgenders from men and women.

Article 16 deals with equality of opportunity for all citizens in

matters of public employment. As the question raised by this MSM,J WP_16770_2019

petitioner is relating to employment i.e. providing employment to

the transgender by creating reservations as socially and

educationally backward classes who are living in distressed

condition, it is appropriate to extract Article 16 of the Constitution

of India for deciding the issue effectively and it is extracted

hereunder:

"16. Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."

Article 16 guarantees equality of opportunity to all citizens in

the matters of appointment to any office or of any other

employment, under the State. Clauses (3) to (5), however, lay down

several exceptions to the above rule of equal opportunity. These

are:

(i) Though any citizen of India, irrespective of his residence, is eligible for any office or employment under the Government of India [(Clause (2)], residence may be laid down as a condition for particular classes of employment under a State or any local authority therein, by an Act of Parliament in that behalf [Cl. (3)].

(ii) The State (as defined in Art.12) may reserve any post or appointment in favour of any backward class of citizens who, in MSM,J WP_16770_2019

the opinion of the State, are not adequately represented in the services under the State [Cl. (4)].

(iii) Offices connected with religious or denominational institutions may be reserved for members professing any particular religion or belonging to a particular denomination [Cl. (5)].

Article 16 is applicable in cases of appointments in public

employment only. Clause (4) only permits reservation for „backward

classes of citizens‟ who are not, in the opinion of the State,

adequately represented in the services of the State. It does not

permit reservation for any person who does not belong to the

category of „backward classes‟, nor does it enable the State to

reserve posts on communal lines. A distribution of offices amongst

communities according to a fixed ratio or quota‟ or a provision for

direct recruitment of persons „to remove community disparity‟

infringes Clauses (1) and (2) of Article 16. Thus, the discrimination

in equal opportunity of employment to citizens is recognized by

Article 16 under Clauses (1) and (2) prohibits discrimination on the

basis of religion, race, caste, sex, descent, place of birth, residence

etc. But, the word „sex‟ is not defined, it relates to the biological

make up of a person. Sex refers to the biological and physiological

characteristics that define humans as female or male and

Transfemale or Transmale. These sets of biological characteristics

are not mutually exclusive, as there are individuals who possess

both, but these characteristics tend to differentiate humans as

females or males and transgender

A person, an animal or a flower that has both male and

female sexual organs and characteristics is referred as

hermaphrodite (which is now a derogatory term). The biological

make up is assessed from (a) body parts (b) sex organs. Thus, MSM,J WP_16770_2019

discrimination based on biological mechanism or body parts or sex

organs is prohibited. When every citizen is entitled to equal

opportunity of employment, the transgender being Citizen of India

are also entitled to claim benefit on par with others who belong to

different communities.

Though the Constitution provides reservation based on sex

and social and educational backwardness in the appointments and

admission into educational institutions as per Articles 15 & 16,

but, the third gender is not recognized in the Constitution.

Similarly, other laws including the General Clauses Act, 1977, did

not recognize the third gender. Section 13(1) of the General

Clauses Act, 1977, says that, in all Acts and Regulations unless

there is anything repugnant in the subject or context, words

importing the masculine gender shall be taken to include females.

Similarly, Section 34 of Andhra Pradesh General Clauses Act,

1891, defined the word "Gender" importing the masculine gender

shall include females. Even if the principles under the General

Clauses Act, 1977 and Andhra Pradesh General Clauses Act, 1891

are applied, it excludes the third gender, as both the Acts refer to

male and female only, but not third gender.

Though, transgender is a person recognized in the epics, the

lawmakers, including the Constitutional framers did not take note

of their existence and treatment of transgenders on par with

others.

"Shikhandi" who is said to have played a major role in killing

Bishmacharya during Kurukshethra war is an epic character

transgender in Mahabharatha, which itself would show that it is MSM,J WP_16770_2019

not as if for the first time, the third gender has been part of the

society. Therefore, the existence of "Hijras" or "Eunuchs" has been

recognized even during the epic period. However, the stigma,

harassment, mockery and other problems being faced by them

have not been looked into and addressed properly. Therefore, the

Hon'ble Supreme Court of India in National Legal Services

Authority v. Union of India and others (referred supra) issued

series of directions, conferring certain benefits including

classification as third gender. The operative portion of the

judgment is extracted as follows:

"135.We, therefore, declare:

135.1.Hijras, enuchs, apart from binary genders, be treated as "third gender" for the purpose of safeguarding their rights under Part III of out Constitution and the laws made by Parliament and the State Legislature.

135.2.Transgender persons right to decide their selfidentified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

135.3.We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

135.4.The Centre and State Governments are directed to operate separate HIV serosurveilance centres since hijras/transgender face several sexual health issues.

135.5.The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.

135.6.The Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

135.7.The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

135.8.The Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

135.9.The Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

MSM,J WP_16770_2019

136.We are informed an expert committee has already been constituted to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with the recommendations within three months of its constitution. Let the recommendations be examined based on the legal declaration made in this judgment and implemented within six months"

But, the directions issued by the Hon‟ble Supreme Court in

National Legal Services Authority v. Union of India and

others (referred supra) are not being implemented by the State and

its instrumentalities.

The policy of protective discrimination is an endeavor to

achieve social justice in India. It aims at granting special privileges

to the socially backward and underprivileged section of the

society, most commonly the scheduled castes, scheduled tribes,

other backward classes, and women. These are the sections of

people who often face racial or caste-based discrimination through

centuries by the privileged classes on account of their differences

based on sex, religion, place of birth, race, and most prominently

based on the institution called the caste system. Efforts had been

made by the founding fathers of the Constitution to address the

malady through affirmative action. These actions are justifiably

enshrined in the Constitution of India as "Protective

Discrimination". In India, the Constitution through its various

provisions guarantees the rights of the downtrodden and

underprivileged by way of reservations or quota in educational

institutions, employment, and parliamentary privileges as well as

command the legislatures to legislate special provisions for their

overall advancement. Article 14 of the Constitution does not speak

of mere formal equality but embodies real and substantive MSM,J WP_16770_2019

equality. The essence of equality as a facet of the Constitutional

tenets adopted to strike out inequalities arising on account of vast

social and economic disparities among the citizens and is thus

consequently an indispensable element of social and economic

justice. However, absolute equality is impossible. The right to

equality under part III of the Constitution therefore is not absolute

and is subject to reasonable exceptions. Equality does not

essentially mean that all laws should be universal and general in

application neither all laws can be applicable in all circumstances.

Explaining the concept of equality, the Supreme Court in "Marri

Chandra Sekhar Rao v. Dean, Seth G.S Medical College8",

observed that, equality must be a living reality for the people.

Those who are unequal in status and opportunity cannot be

treated by identical standards. Article 14 permits reasonable

classification between potential underprivileged and privileged

sections of citizens based on definite schemes but strikes out class

legislation. Reasonable classification explains that classification or

segregation must not be artificial, evasive, and arbitrary. Such

classifications must be based on the rule of intelligible differentia

which differentiates between different classes or group of persons

from those left out of the group. Most importantly, there must be

rational nexus between the differentia and the object sought to be

achieved. (Vide:K.Thimmappa v. Chairman, Central Board of

Directors, SBI9")

When the issue is examined in the Human Rights

perspective, the petitioner being a transgender is entitled for

1990 (3) SCC 130

AIR 2001 SC 467 MSM,J WP_16770_2019

protection of her human rights from the State. The Yogyakarta

Principles of 2007 & 2017 are revolutionary as the first

international comprehensive enumeration of Lesbian, Gay,

Bisexual, Transgender, Queer, and Intersex Life (LGBTQI) +

specific universal human rights standards. Endorsed by the courts

of Nepal, India & Brazil, they also find routine mention regional

and international human rights reports but are yet to be formally

accepted by the United Nations. Similarly, the United Nations has

passed several resolutions that recognize that transgender persons

should be guaranteed the right to recognition along with the full

range of rights and freedoms by the State, that they suffer

aggravated forms of violence and are targets of extrajudicial

killings because of their gender identity, and require special

protections against torture. However, the above resolutions and

principles remain just that i.e. declarations and statements of a

commitment to addressing LGBTQI + rights in general but holding

little statutory or authoritative value. The International Human

Rights Conventions that do create obligations for States make no

explicit mention of LGBTQI + persons and these identities have

been subsequently interpreted into the original texts by the United

Nations Human Rights Council through General Comments. While

this increases the scope of protections offered by the Conventions,

the evolution of jurisprudence is extremely slow and creates

limited, specific obligations.

Article 26 of the International Covenant on Civil and Political

Rights (ICCPR) prohibits discrimination and gives equal protection

to all persons before the law has been interpreted to include

transgender persons under the category of "sex". Article 9 of the MSM,J WP_16770_2019

International Covenant on Civil and Political Rights has interpreted

that the right to liberty is available to "everyone" which includes all

persons of LGBTQ identity. Article 12 of the International Covenant

on Economic, Social and Cultural Rights has been interpreted to

recognize the right to health of transgender persons as a

vulnerable group that requires positive State protections. Similarly,

the Committee on the Anti-Torture Convention requires special

measures to protect transgender persons from torture under

Article 2, as well as provide effective redressal mechanisms

for transgender victims of torture under Article 14 of the

Convention. Most of these interpretations were made in response

to petitions made under the (optional) Individual Complaint

Mechanism of the respective human rights treaties or a voluntary

reference to trans issues. The International Covenant on Economic,

Social and Cultural Rights Committee has reinforced transgender

rights but consistently cites the lack of comprehensive studies and

information to make any conclusive recommendations.

Albeit progressive, these obligations are also not broad

enough to cover the systematic discrimination faced by

transgender persons in access to justice, healthcare, employment,

housing, travel, and education or offer comprehensive protection

from gender-based violence, police abuse or physical and

psychological torture. In 2017, the United Nations High

Commissioner for Human Rights (OHCHR) released

a statement insisting that LGBTQI+ persons are protected under

the UN Charter, Universal Declaration on Human Rights and did

not require the creation of new specific obligations. Nevertheless,

putting the fate of LGBTQI+ rights at the mercy of a notoriously MSM,J WP_16770_2019

inaccessible and slow treaty interpretation system denies sexual

and gender minorities the unequivocal recognition of their rights

and dignity. It consequently robs them of their voice in the

international law-making process, being consistently dismissed

with the question: but are LGBTQI rights human rights under

international law.

From the above proposition of law laid down by the Apex

Court in number of decisions, it is established that Articles 14, 15

and 16 forms part of the same scheme of equality enshrined under

the Constitution and any enabling provision made in favour of

weaker section under Articles 15 and 16 must be in consonance

with the principles of equality under Article 14. The limit upon the

reservation is an empathetic approach of protecting the equality

principles. It aims at the formation of an egalitarian order, free

from exploitation, the fundamental equality of humans and to

provide support to the weaker sections of the society and where

from there is a disparity to make them equal by providing

protective discrimination.

On analysis of the law, it is clear that various international

and other regional conventions, including Yogyakarta Principles of

2007 & 2017, transgender rights are recognized by India along

with other countries and expressed their willing to protect the

rights of transgender, but it remains on paper and no progress had

taken place. Therefore, it is the duty of the State to protect the

rights of transgenders under the international covenants. But, so

far no action was taken till passing the judgment by the Apex MSM,J WP_16770_2019

Court in National Legal Services Authority v. Union of India

and others (referred supra).

Admittedly, the petitioner identified as female, since no

column is provided for disclosing the identity of the petitioner as

transgender in the proforma of the application published by the

Police Recruitment Board - respondent herein. It only provides two

columns i.e. male and female, but not third gender. Thus, the

petitioner was forced to disclose her identity as female under those

circumstances and despite the direction issued by the Apex Court

in National Legal Services Authority v. Union of India and

others (referred supra), the respondents violated the directions

issued by the Apex Court in the judgments referred supra.

However, it is an undisputed fact that the petitioner is a

transgender, as discussed in the earlier paragraphs.

One of the contentions of the petitioner is that, when the

petitioner is a transgender and the Hon‟ble Supreme Court issued

guidelines in National Legal Services Authority v. Union of

India and others (referred supra) to take steps to provide

reservations to transgenders in employment directing the Centre

and State Governments to take steps to treat the transgenders as

Socially and Educationally backward Classes of citizens and

extend all kinds of reservation in cases of admission in educational

institutions and for public appointments. Thus, the direction is

only to take steps to provide all kinds of reservation in case of

admission in educational institutions and in public appointments,

treating them as Socially and Educationally backward Classes of

citizens. But, social reservations are vertical, whereas, reservations MSM,J WP_16770_2019

based on gender are horizontal. If, the reservations are provided

treating this petitioner as socially and educationally backward, the

present reservations if taken together, it exceeds more than 50%.

In India, the extent of reservation to be made is primarily a matter

for the State to decide, subject, of course, to judicial review of

equality in Article 16(1) or Article 335 meaningless. Thus, the

reservation of more than 50 per cent of the vacancies as they arise

in any year or a „carry forward‟ rule which has the same effect, will

be outside the protection of Article 16(4). The normal rule is that

the reservation under Article 16(4) should not exceed 50 per cent of

the appointments or posts to be made in a particular year. Taking

consideration of the fact situation prevailing in the State on the

reservations, it is for the State to take appropriate action in terms

of the directions issued by the Hon‟ble Apex Court in Para 135.3 of

National Legal Services Authority v. Union of India and

others (referred supra).

In K. Pritika Yashini v. The Chairman, Tamil Nadu

Uniformed Services Recruitment Board10, a minor relaxation is

given to the transgender woman who has qualified in all the tests.

But, the same has no application to the present facts of the case,

for the reason that the petitioner did not qualify herself even in the

preliminary examination, having secured 28% in Paper-I and 21%

in Paper-II.

In the above judgment, the Court held that the petitioner

should be considered for the purpose of Sub-Inspector while

highlighting the discrimination faced by the transgender

MSM,J WP_16770_2019

community which can limit opportunities for employment. It also

noted the significance of public employment opportunities for

transgender persons, not only for their individual benefit but for

the community representation.

In J. Arun Kumar v. Inspector General11, the Madras High

Court considered the right of transgender woman, who was refused

to get her marriage registered. In the facts of the case, the

petitioner was a transwoman, whose marriage is sought to be

registered, but the authorities refused to register the same. Hence,

the Court held that, it amounts to discrimination of transgenders

in violation of Articles 14, 19, 21 and 25 of the Constitution of

India. Right to marry under Article 21 of the Constitution of India

has been affirmed for transgender persons by holding that „bride‟

under Section 5 of Hindu Marriage Act would cover transgender

who is identified as women and directed the Registrar to register

the marriage of the petitioner.

The intellectual levels of men, women and transgender may

vary to a little extent. But, the Rules did not permit appointment of

transgender without securing minimum qualifying mark. If, for any

reason, the petitioner secured marks and got through the

preliminary examination and if there is any variation in the

physical tests, the principle laid down in the above judgments can

be applied. Therefore, it is difficult to apply the same principle to

the present facts of the case, relaxing more than 50% marks in the

preliminary examination and issue a direction to the respondents.

Therefore, the principle in K. Pritika Yashini v. The Chairman,

11 WP(MD)No.4125 of 2019 and WMP(MD)No.3220 of 2019 dated 22.04.2019 MSM,J WP_16770_2019

Tamil Nadu Uniformed Services Recruitment Board (referred

supra), has no direct application to the present case, except to the

extent of discriminating a transgender from men and woman.

In H.K. Annapoornam v. The Secretary to Government,

Government of Tamil Nadu12, the Madras High Court decided the

issue of denying appointment to a transgender to the post of

constable and directed to consider her candidature, as she was

qualified in all the tests without discriminating transgender from

men and women; but the Court did not lay down any specific law.

In G. Veera Yadav v. The Chief Secretary, Government of

Bihar13, the issue before the Patna High Court was that, six

transgender persons were not supplied food grain only for the

reason that they were not possessing ration cards even during the

tough times of Covid-19 pandemic was under consideration in

Patna High Court. The High Court observed that the policies of

Centre and state shall be implemented and no member of the

transgender community shall be deprived of his/her ration only on

account of such status or not possessing the ration card. As such,

both the judgments i.e. H.K. Annapoornam v. The Secretary to

Government, Government of Tamil Nadu and G. Veera Yadav v.

The Chief Secretary, Government of Bihar (referred supra) have

no direct application to the present facts of the case, except to the

extent of alleged discrimination.

W.A(MD)No.792 of 2016 and C.M.P(MD)No.4797 of 2016 dated 05.07.2016 13 Civil Writ Jurisdiction Case No.5627 of 2020 14.12.2020 MSM,J WP_16770_2019

In B. Navtej Singh Johar v. Union of India14, the Supreme

Court while deciding a serious issue regarding constitutional

validity of Section 357 of Indian Penal Code, i.e criminalizing

homosexual acts as „unnatural offence‟, the Court held that,

criminalising consensual sexual acts of adults in private is violative

of Articles14, 15, 19 and 21 of the Constitution of India.

In S. Subramaniam Balaji v. Government of Tamil

Nadu15, the case relates to distribution of free gifts by the political

parties (popularly known as „freebies‟) during Assembly Elections

2006 in Tamil Nadu. The political party announced a scheme of

free distribution of colour television sets to each and every

household which did not possess the same, if the said party/its

alliance were elected to power. This scheme was challenged by the

appellant herein on the ground that the expenditure to be incurred

by the State Government for its implementation out of the State

Exchequer is unauthorized, impermissible and ultravires of the

Constitutional mandate. The Apex Court opined that, in case there

are any transgender residing in the Village Panchayat, who are

otherwise eligible as per the criteria, they will also be considered to

be eligible for the scheme.

Therefore, the principles laid down in the above judgments

highlighted the discrimination of men and women from

transgenders. But, here, the question is with regard to reservation.

In fact, in Para 135.3 mentioned in NALSA judgment, the Apex

Court directed both the Central and State Governments to take

steps to provide reservations treating the transgenders a socially

AIR 2018 SC 4321

(2013) 9 SCC 659 MSM,J WP_16770_2019

and educational backward classes. But the question is, if the

reservation is based on social and educational backwardness, it

must be a vertical reservation. If, such vertical reservation is

provided, which is exceeding 50% ceiling limit, it is the maximum

limit of reservation. If it is horizontal reservation based on gender

among the socially and educationally backward classes, then, there

will not be any difficulty to implement such reservations.

In similar circumstances, in Jeeva Intervention in

Sangama v. State16, the Karnataka High Court based on the

judgment of the Supreme Court in National Legal Services

Authority v. Union of India (referred supra), the Court directed

the Centre and State to provide reservations based on gender

identity, but not on social and educational backwardness. So, the

reservation is only a horizontal reservation. But, this principle is

contrary to the judgment of the Apex Court in National Legal

Services Authority v. Union of India (referred supra). The

Karnataka High Court also noted the principle laid down in Anil

Kumar Gupta v. State of Uttar Pradesh17 regarding horizontal

and vertical reservations. Therefore, on the basis of gender identity,

the High Court of Karnataka directed to provide appropriate

reservation to transgenders and observed that reservation is to be

provided based on gender identity. The Karnataka State already

passed Karnataka Civil Services (General Recruitment)

(Amendment) Rules, 2021 and after an obligatory period inviting

objections, the Amendment was notified on 06.07.2021 and this

W.P.No.8511 of 2020 dated 11.06.2020

17 (1995) 5 SCC 173 MSM,J WP_16770_2019

Amendment provides 1% horizontal reservation for transgender

persons under sub-rule (1D) of Rule 9.

In Swapna and others v. The Chief Secretary,

Government of Tamil Nadu18 the Division Bench of Madras High

Court directed the respondents to look into the issue based on the

judgment of the Apex Court in National Legal Services Authority

v. Union of India (referred supra) in consultation with all relevant

departments and a decision be taken within six months from the

date of the judgment. In the facts of the above judgment,

transgenders claimed reservation as most backward classes and

minorities. Since the direction of the Apex Court was not

implemented, the Division Bench issued such directions. In the

above judgment, the Court directed to implement horizontal

reservation to transgenders based on gender. But, the judgment of

the Apex Court in National Legal Services Authority v. Union of

India (referred supra) is in its unambiguous terms, directed both

the Centre and State Governments to take steps, treating the

transgenders as socially and educationally backward communities

and provide reservation i.e. vertical reservation. Though,

Karnataka High Court granted horizontal reservation only to avoid

the legal blocks in implementation of such direction, the Supreme

Court did not visualize the bar contained in the upper limit of

reservations in Centre and State Governments. However, it is

difficult for me to come to any different conclusion than the

direction issued by the Apex Court in National Legal Services

Authority v. Union of India (referred supra). Therefore, I find

that, in view of the judgment of the Apex Court in National Legal

MSM,J WP_16770_2019

Services Authority v. Union of India (referred supra), the State is

under obligation to provide only vertical reservations, but the

percentage of reservations is not specified in the judgment.

Therefore, it is appropriate to issue direction to the State to

undertake study on the problems faced by transgenders, while

holding that the reservation as directed by the Supreme Court is

only vertical and making provision for horizontal reservation based

on sex or gender is contrary to the principles laid down by the Apex

Court in the judgment of the Apex Court in National Legal

Services Authority v. Union of India (referred supra) ex facie.

Therefore, I am unable to agree with the principle laid down by the

Karnataka High Court and Madras High Courts in the judgments

referred supra to provide horizontal reservations to transgenders,

in strict adherence to the directions issued by the Apex Court in

National Legal Services Authority v. Union of India (referred

supra). In case, the State failed to take steps to provide

reservations to transgenders, it amounts to violation of the

direction issued by the Apex Court, knowing the consequences,

thereby, it may attract contempt. When once a direction was

issued, it is for the State to take appropriate action and implement

the same. But, so far, except framing transgender policy, nothing is

provided except providing reservations for Socially and to extend all

kinds of reservation in cases of admission in educational

institutions and for public appointments.

The State Government issued Transgender Policy vide

G.O.Ms.No.20 Department for Women, Children, Differently Abled

& Senior Citizens (Prog.II) dated 30.12.2017.

Memo.No.830231/Legal.II/A1/2020 dated 29.09.2020 Home MSM,J WP_16770_2019

(Legal.II) Department, Government of Andhra Pradesh was

addressed to the Chairman, State Level Police Recruitment Board,

A.P. Mangalagiri by the Principal Secretary to the Government

clarified as follows:

3. However, the Transgenders are eligible to apply and get selected on merit. Currently there is no Reservation for Transgender in Government appointments.

4. The Chairman, State Level Police Recruitment Board, A.P., Mangalagiri is therefore requested that there is no objection, if the Police Recruitment Board decides to appoint a meritorious, eligible Transgender person against a Woman vacancy or Man vacancy as appropriate, in Police recruitment, as per rules in force.

Though clarification was issued by the Principal Secretary to

Government, Home (Legal.II) Department vide

Memo.No.830231/Legal.II/A1/2020 dated 29.09.2020, for

appointment of meritorious, eligible transgender person either

against a woman vacancy or man vacancy, based on merit, since

there are no reservations for transgenders, Memo dated

29.09.2020 would not extend any such benefit to the transgender

persons in terms of the judgment of the Hon‟ble Supreme Court in

National Legal Services Authority v. Union of India and

others (referred supra). Therefore, it is explicitly clear that the

State failed to provide reservations, as directed by the Hon‟ble Apex

Court to transgenders in public employment.

After the advent of the judgment in National Legal Services

Authority v. Union of India and others (referred supra), the

Central Government passed The Transgender Persons (Protection

of Rights) Act, 2019. Chapter II of the Act deals with prohibition

against discrimination. Section 3 prohibits discrimination against

transgender person on any of the following grounds, namely:-

MSM,J WP_16770_2019

"(a) the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof;

(b) the unfair treatment in, or in relation to, employment or occupation;

(c) the denial of, or termination from, employment or occupation;

(d) the denial or discontinuation of, or unfair treatment in, healthcare services;

(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public;

(f) the denial or discontinuation of, or unfair treatment with regard to the right of movement;

(g) the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property;

(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and

(i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a transgender person may be."

At the same time, Chapter IV of the Act No.40 of 2019 deals

with Welfare Measures by Government and obligation of

appropriate Government. Section 9 prohibits discrimination

against any transgender person in any matter relating to

employment including, but not limited to, recruitment, promotion

and other related issues. Therefore, the State is under obligation to

implement Act No.40 of 2019 and provide access to public

employment in any government establishment. The Central

Government framed The Transgender Persons (Protection of Rights)

Rules, 2020 in pursuance of Act No.40 of 2019. But, Act No.40 of

2019 is silent regarding provision for reservation in public

employment or any government establishments to transgender

persons, despite the direction issued by the Apex Court in

National Legal Services Authority v. Union of India and

others (referred supra).

MSM,J WP_16770_2019

As discussed above, it is the State Policy to provide

reservation to all citizens either social reservation or reservation

based on sex or otherwise. Here, the petitioner is claiming

reservation based on sex, but whereas, the Apex Court in National

Legal Services Authority v. Union of India and others (referred

supra), issued a direction to treat transgenders as socially and

educationally backward classes and extend all kinds of reservation

in cases of admission in educational institutions and for public

appointments. Social status of an individual is different from sex.

Though the word „person‟ is used in Article 16, most of the

provisions dealt with men, women and reservations based on social

status. Therefore, the provisions of Act No.40 of 2019 are not

totally in consonance with the judgment of the Apex Court in

National Legal Services Authority v. Union of India and

others (referred supra). However, the issue before this Court is

limited. In any view of the matter, when Act No.40 of 2019 is silent

about providing reservation to transgenders, this Court cannot

issue any direction to provide reservation to this petitioner based

on sex or social status, more so, when a direction was issued by

the Apex Court to extend all kinds of reservation in cases of

admission in educational institutions and for public appointments.

The direction issued by the Apex Court is suffice to provide

reservation in cases of admission in educational institutions and

for public appointments and this Court need not issue any

direction to the State to provide reservations to transgender.

However, it is appropriate to direct the State to study the

representation of transgenders for public employment, their

number in the State, benefits extended to them without MSM,J WP_16770_2019

discriminating from men and women and provide necessary

reservations if they are not represented adequately in the public

employment and the State is bound to follow the directions issued

by the Hon‟ble Apex Court in National Legal Services Authority

v. Union of India and others (referred supra).

Since the directions issued by the Apex Court to treat the

transgenders as Socially and Educationally backward Classes of

citizens and extend all kinds of reservation in cases of admission in

educational institutions and for public appointments. Hence, I

need not record any findings as to the nature of reservations.

One of the major contention of the petitioner is that, in view

of the judgment of the Hon‟ble Apex Court in National Legal

Services Authority v. Union of India and others (referred

supra), the petitioner is entitled to claim reservation, as the

petitioner is the only transgender person applied for selection as

Stipendiary Cadet Trainee Sub-Inspector of Police and secured

28% in Paper-I and 21% in Paper-II in the Preliminary Written

Test.

Notification vide Rc.No.216/R&T/Rect.1/2018 dated

01.11.2018 was issued by State Level Police Recruitment Board,

Andhra Pradesh, Mangalagiri, Andhra Pradesh for the post of

Stipendiary Cadet Trainee Sub-Inspector of Police in Police

Department. The recruitment is governed by the provisions of

Andhra Pradesh Police (Stipendiary Cadet Trainee) Rules issued by

the Government of Andhra Pradesh vide G.O.Ms.No.315 Home

(Police-C) dated 13.10.1999. The Rules are silent as to reservations

to transgenders, but fixed minimum marks to qualify for the MSM,J WP_16770_2019

physical efficiency test. But, the notification for recruitment was

issued in terms of the Rules by providing minimum qualifying

marks for both men and women, OC, BC, SC & ST. As per

selection procedure/scheme under Clause 17, the selection

procedure is at preliminary written test. Candidates shall be

required to appear for Preliminary Written Test in two papers (each

three hours duration) which will be qualifying. The minimum

marks to be secured by the candidates in order to qualify in the

Preliminary Written Test in both the papers is 40% for OCs; 35%

for BCs; and 30% for SCs/STs/Ex-servicemen. If a candidate fails

to secure qualifying marks even in one paper, he will be

disqualified. Total marks for these two papers will not be counted

for the purpose of qualification. Thus, as per the Rules framed for

recruitment of Stipendiary Cadet Trainee Sub-Inspector, minimum

mark is prescribed and in the absence of any reservation to the

transgenders provided in the Rules and in Act No.40 of 2019, the

petitioner secured 28% in Paper-I and 21% in Paper-II in the

Preliminary Written Test, is ineligible for being selected, though the

petitioner is the only candidate who appeared for examination in

Paper-I and Paper-II in Preliminary Written Test. As the marks

were fixed not on minimum marks, as prescribed in the notification

and Rules, but not based on sex, only on social status, so as to

enable the transgenders to represent adequately in the Police

Department as Stipendiary Cadet Trainee for their adequate

representation in the public employment. Therefore, it is difficult to

issue a direction in favour of the respondents for selection of the

petitioner as Stipendiary Cadet Trainee Sub-Inspector, since she is

the only candidate at present who appeared for the examination MSM,J WP_16770_2019

and secured 28% in Paper-I and 21% in Paper-II in the Preliminary

Written Test. Since the minimum marks were not fixed based on

gender, but based on social status, more particularly, their

backwardness and inadequacy of their representation in the public

employment. Hence, I find it difficult to issue a direction as sought

by the petitioner to select her as Stipendiary Cadet Trainee Sub-

Inspector.

One of the claims made before this Court is that, the

Notification bearing Rc.No.216/R&T/Rect.1/2018 dated

01.11.2018 issued by the second respondent is contrary to the

directions issued by the Hon‟ble Apex Court in National Legal

Services Authority v. Union of India and others (referred

supra), thereby, it is to be declared as illegal and arbitrary, since

no reservation is provided to transgenders for the post of

Stipendiary Cadet Trainee Sub-Inspector.

No doubt, no reservation is provided to transgenders/

transmale/transfemale, but direction was issued by the Hon‟ble

Apex Court in National Legal Services Authority v. Union of

India and others (referred supra) to both Centre and the State

Governments to take steps to treat them as Socially and

Educationally backward Classes of citizens and extend all kinds of

reservation in cases of admission in educational institutions and

for public appointments. Therefore, the direction issued by the

Hon‟ble Supreme Court is only to the extent of taking steps to treat

transgenders as socially and educationally backward classes of

citizens, but not for creating reserving particular percentage of

posts to transgenders. Therefore, as on date, no steps were taken MSM,J WP_16770_2019

by the State Government for creating reservation to transgenders

on the basis of their social and educational backwardness (vertical

reservation), but, based on the subsisting rules of reservation in

the State services, the notification impugned in the writ petition

was issued. When the Notification was issued strictly adhering to

the subsisting rules, the notification cannot be declared as illegal

and arbitrary. Even to construe that the second respondent

violated the direction issued by the Hon‟ble Apex Court in

National Legal Services Authority v. Union of India (referred

supra), the direction is only to take steps for providing reservation

to transgenders based on their social and educational

backwardness. Though, it appears to be in the nature of directions,

the State is under the obligation to implement it, they did not take

any steps till date. After the judgment of Hon‟ble Apex Court in

National Legal Services Authority v. Union of India (referred

supra), the Transgender Persons (Protection of Rights) Act, 2019

was enacted by the Central Government and Rules were framed

thereunder, but, none of these Acts provided any reservation to

transgenders, except providing access to employment. Therefore, in

the absence of any steps taken by the State, failure of its

instrumentalities to provide reservation to transgenders does not

make the notification impugned in this writ petition invalid. Hence,

I find no ground to declare the notification impugned in this writ

petition as illegal or arbitrary, in view of the judgment of the Apex

Court in National Legal Services Authority v. Union of India

(referred supra) to take steps to provide reservation to

transgenders, more particularly, no steps were taken till date. At

best, such failure may attract contempt being filed before the MSM,J WP_16770_2019

competent court, but this Court cannot declare such Notification

as illegal and arbitrary, on the basis of such contention. Hence, I

find no ground to grant the above relief, while rejecting the

contention of this petitioner. Accordingly, Point Nos. 1 & 2 are

answered.

In the result, writ petition is dismissed. However, the State

Government is directed to undertake study on the problems being

faced by transgenders, as directed by the Apex Court in National

Legal Services Authority v. Union of India (referred supra), and

implement the direction strictly within three months from the date

of the order. No costs.

Consequently, miscellaneous applications pending if any,

shall stand closed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.01.2022

SP