1% Seats In Govt Jobs Reserved For Transgender Persons: Karnataka Govt Tells High Court

A division bench of Chief Justice Abhay Oka and Justice Suraj Govindaraj was informed by the government that a final notification dated July 6 has been issued whereby amendment has been made to Karnataka Civil Services (General Recruitment) (Amendment) Rules 2021. Through the amendment, Rule 9, sub rule (1) (d) has been incorporated to provide for 1 percent Horizontal reservation to the transgender community.

The notification has been issued pursuant to a petition filed by Sangama, a society working for the upliftment of sexual minorities, sex workers and people infected with HIV. Advocate B T Venkatesh appearing for the petitioner had relied on the judgment of the apex court in the case of NALSA vs Union of India, (2014) SSC 438, to argue that the state in its appointment notification calls for filling up of the vacancies, specifies only 'Men' and 'Women' as the genders which can apply for the vacancies; throughout the impugned notification the age, weight, and other specifications are given pertaining separately only to 'Men' and 'Women', in total disregard of the 'Third Gender'.

The plea emphasized that the Supreme Court has recognized the legal rights of the third gender persons and has held that they are fully entitled to Fundamental Rights under the Constitution and under International law. However, the notifications issued by the state are in contravention of rights of Transgender persons and affects their Constitutional and Fundamental Rights under Article 14, 19 & 21 of the Constitution.

The Petitioner had therefore sought directions to the state government to include a separate category for transgender persons for the post of Special Reserve Constable Force as well as Bandsmen, and consider all the applications by the transgender at par with other two gender categories. It had also sought a scheme of reservation for the transgender community in the recruitment to post of Special Reserve Constable Force as well as Bandsmen.

The State Government has now come out with a notification which reads thus:

​Amendment of Rule 3.- In the Karnataka Civil Services (General Recruitment) Rules, 1977 (hereinafter referred to as the said rules) in Rule 3, in sub- rule (3), after the words, "or the qualifying examination", the words and figures "subject to the maximum of 50 marks whichever is lower", shall be inserted.

Amendment of Rule 9.- In sub-rule (1) of the rule 9 of the said rules after clause (1C) the following shall be inserted namely :-

"(1D) Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:

Provided that, every Appointing Authority shall provide a separate column of "Others" along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.

Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one percent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.

Explanation : For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)."

Amendment of Rule 16.- In rule 16 of the said rules, in clause (a) in sub- clause (ii),- i. the words "by transfer or", shall be omitted; ii. the first proviso shall be omitted; and iii. in the second proviso the word "further", shall be omitted; 5. Amendment of rule 16-A.- Rule 16-A of the said rules shall be omitted.