Maharashtra Administrative Tribunal, Mumbai: The coram of Mridula Bhatkar (Chairperson) and Medha Gadgil (Member) (A) while dealing with an application by a transgender (applicant) to allow her to apply for the post of Police Sub Inspector as a Transgender candidate, directed the State to come out with a clear policy regarding provision of the posts for other gender.
The applicant by birth has male sex. However, has opted for female sex. The applicant, therefore, has applied for the post of P.S.I pursuant to the Advertisement dated 23-06-2022 as a transgender candidate as the said option of transgender is provided by the M.P.S.C. In the application Form, the applicant has also opted to be considered as female candidate. The applicant further prayed for reservation of posts form Transgender Persons in the recruitment to the 800 posts as set out in the said advertisement.
Counsel for the applicant submitted that as per Article 16(1) & (2) of the Constitution of India, the applicant cannot be discriminated on the basis of sex or gender. He further submitted that the applicant is a Graduate in Engineering (Electrical) and Post Graduate in Technology (Electrical Power System Engineering). However, she has opted for this Government service and prays that she should not be disqualified in the physical test if at all she clears the examination.
M.P.S.C made a statement that the Application Form of the applicant is accepted by M.P.S.C and the applicant will be allowed to appear for the Preliminary Examination which is going to be held on 08-10-2022.
The Tribunal reiterated National Legal Services Authority v. Union of India, (2014) 5 SCC 438 to enable the Respondent-State to take the necessary steps while considering the candidature of transgender or candidates who are from the other sex while giving them employment in all the areas.
“135.2 Transgender persons’ right to decide their self identified 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.
We, direct the Centre and the State Government 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.”
The Tribunal thus expected from the Respondent-State that it will come out with a clear policy regarding provision of the posts for other gender within six months especially in respect of the Police Department as the candidate has to undergo specific physical test in the Police Department. The Tribunal directed the respondent 2, G.A.D and respondent 6, Social Justice and Special Assistant Department, to file affidavits in reply stating therein as to what steps are taken by the Government of Maharashtra in implementing the order of the Supreme Court in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[Vinayak B. Kashid v. Maharashtra Public Service Commission, Original Application Nos 644 of 2022, decided on 01-08-2022]
Advocates who appeared in this case :
Shri Kranti L.C, Advocate, for the Applicant;
Swati Manchekar, Chief Presenting Officer, Advocate, for the Respondents.
*Suchita Shukla, Editorial Assistant has reported this brief.