Kerala High Court Upholds Tribunal's Order Directing PSC To Provisionally Accept Trans-Woman's Application For Post Confined To Women Candidates

The Kerala High Court recently refused to interfere with the interim order issued by the Kerala Administrative Tribunal permitting a trans-woman applicant to submit her application for the post of House Keeper (Female) that had been notified by the Kerala Public Services Commission (Kerala PSC). 

The Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran was of the view that the impugned order was only an ad interim interlocutory order, that was intended to 'preserve the subject matter of the lis'. 

The original applicant, who is a trans-woman, wanted to apply for the post of House Keeper (Female) in the Homeopathic Medical College. She was aggrieved that both the selection notification as well as the rules of recruitment had prescribed that appointment to the said post would be confined only to women candidates. It was submitted by the applicant that the PSC had devised a software accepting applications only from women candidates. The original applicant claimed that since she could legally claim only to be a trans-woman, her online application was not accepted by the software system of the PSC.

It was further contended by the applicant before the Tribunal that by virtue of Section 3(b) of the Transgender Persons Act, 2019 (hereinafter, 'TGP Act, 2019'), it has been stipulated that there shall not be any unfair treatment in or in relation to, employment or occupation. 

When the applicant approached the Tribunal in this regard, it passed an interim order directing the PSC that the applicant may submit her application in physical form, which would thereafter be accepted by the PSC for the time being.

It is on being aggrieved by the said interim order that the PSC filed the present petition before the High Court. 

It was contended by the Standing Counsel for the PSC P.C. Sasidharan that differentiation on basis of gender was made since one of the prime duties to be discharged by the incumbent in the post was to take care of the safety and other needs of the women who stay in women's hostel. It was also submitted that the incumbent would also have to be prepared for night stay in the women's hostel concerned, and that there would be serious safety issues if the concerned incumbent is not a woman.

The counsel added that in a case of this nature, the Tribunal ought to have given reasonable opportunity to the PSC to file their written response, and heard both sides and assessed the prima facie nature of the case and the balance of convenience. 

"Annexure-A2 selection notification was issued on 31.12.2022 and the last date for submission of application was on 01.02.2023 since the online application was not accepted on account of the software restrictions, the applicant has approached the Tribunal on 23.01.2023 and the ad interim order as per Ext.P2 has been rendered on 24.01.2023 which appears to be before the prescribed last date for submission of the application, namely 01.02.2023. Therefore essentially, the said ad interim order has been issued only to preserve the subject matter of the lis so as to keep the litigating claims of the petitioner in the above lis alive," the Court observed. 

However, the Court conceded that in a case of the present nature, the petitioner also ought to have been given an opportunity to present their case to defend at the interlocutory stage, so that the Tribunal could pass a reasoned order, it did not find it necessary to interfere with the present interim order. 

The Court thus directed the Tribunal to facilitate early hearing and dispose of the main matter within 3 months.

Senior Government Pleader Unnikrishna Kaimal, and Advocates Kaleeswaram Raj, Thulasi K. Raj, and Aparna Narayan Menon appeared on behalf of the respondents. 

Case Title: Kerala Public Service Commission v. Aneera C. & Ors. 

Citation: 2023 LiveLaw (Ker) 272

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