Paridhi Prisha Saikia vs The State Of Assam And 2 Ors
2022 Latest Caselaw 415 Gua

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GAHC010059942020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2373/2020

         PARIDHI PRISHA SAIKIA
         D/O- SRI JATINDRA KUMAR SAIKIA, PERMANENT R/O- 71 MAIN ROAD,
         SUBARNAREKHA ROAD, KUMAR CHUBURI, P.S. TEZPUR (SADAR), DIST.-
         SONITPUR, ASSAM- 784001



         VERSUS

         THE STATE OF ASSAM AND 2 ORS.
         REP. BY SECY., SECONDARY EDUCATION, GOVT. OF ASSAM

         2:CONTROLLER OF EXAMINATION
          BOARD OF SECONDARY EDUCATION ASSAM
          RAILWAY COLONY RD
          RAILWAY COLONY
          BAMUNIMAIDAN
          GUWAHATI
         ASSAM
          781021

         3:THE SECRETARY
         ASSAM HIGHER SECONDARY EDUCATION COUNCIL. BHUBAN BHUYAN
         PATH
          RAILWAY COLONY
          BAMUNIMAIDAN
          GHY
         ASSAM
          781021

         4:DON BOSCO HIGH SCHOOL
          REPRESENTED BY ITS HEAD MASTER
          NEAR PARUWA CHARIALI
         TEZPUR
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             ASSAM - 784501

Advocate for the Petitioner   : MS. D GHOSH

Advocate for the Respondent : SC, EDU




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                         ORDER

Date : 08/02/2022

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned counsel for the respondent in the SEBA and AHSEC as well as Mr. R. Mazumder, learned counsel for the Secondary Education Department of the Govt. of Assam.

Issue notice, returnable on 15.02.2022. Extra copies be furnished within three days.

The petitioner by this petition has sought for a direction that in the certificates issued by the SEBA and AHSEC the gender to be changed from male to female. For the purpose, the petitioner relies upon the Adhar card and Pan card which were issued in the name of the petitioner and shows the petitioner to be of female gender. For the purpose, the petitioner relies upon the provision laid down by the Supreme Court in paragraph 22 and 135(2) of the National Legal Services Authority -vs- Union of India and Others reported in (2014) 5 SCC 438. According to the learned counsel for the petitioner, the Supreme Court vested a legal right to decide their self identified gender for determining the gender of the person concerned.

Mr. T.C. Chutia, learned senior counsel appearing for the SEBA and AHSEC refers to the provision of Transgender Persons (Protection of Rights) Rules, 2020 (in short Rule of 2020) and The Transgender Persons (Protection of Rights) Act, Page No.# 3/3

2019 ( in short Act of 2019) to submit that for the SEBA and AHSEC to change the gender of the petitioner the procedure under the Act of 2019 and Rules of 2020 are required to be followed.

Ms. D. Ghosh, learned counsel for the petitioner submits that the gender of the petitioner in the Adhar card and Pan card were incorporated prior to the enactment of the Act of 2019 and framing of Rules of 2020 and therefore would be governed solely by the provision of paragraph 22 and 135.2 of the judgment of National Legal Services Authority (supra).

Accordingly, it is the submission that the petitioner having self determined the gender to be female, such self determination would prevail irrespective of any other provision.

The respondents in the SEBA and AHSEC and Secondary Education Department to file their affidavits making the stand clear on the aforesaid legal aspect raised by the petitioner.

The affidavit be filed before the next returnable date.

List on 15.02.2022.

JUDGE

Comparing Assistant