Relief For Another Transgender Candidate As MAT Directs State To Provide 'Third Gender' Option For Constable Post By Dec 4

The tribunal directed the state to provide a third option as 'other gender' apart from Male and Female in the recruitment application form by December 4, 2022 and extended the application form submission deadline from November 30, 2022 to December 8, 2022.

A bench of Chairperson Justice (Retd.) Mridula Bhatkar and Member Medha Gadgil stated that it has made the legal position regarding this 'explicitly clear' in a similar order on November 25, 2022.

The original application was filed by a transgender person, Nikita Mukhyadal, who is seeking to apply for the post of Police Constable as per recruitment advertisement dated November 9, 2022.

However, the online application form only allows the candidates to opt for Male or Female, and does not have an option for transgender persons. The recruitment notice does not provide reservation for transgender persons.

The MAT, in an application filed by another transgender candidate, had on November 14 directed that at least one post be reserved for transgender persons in the selection process of constables this year. On November 18, it directed the State to add the option of "other gender" in all online application forms and fix the criteria for physical standards and tests for transgender candidates.

When this didn't materialize, the tribunal on November 25 frowned upon the State Government's resistance observing that it is fully empowered to draw its own policy as 'Police' is a state subject and extended the deadline for submission of application forms of transgender persons to December 8, 2022.

In its November 25 order, the tribunal relied on National Legal Services Authority of India v. Union of India and Others in which the Supreme Court gave directions the Central Government as well as the State Government to safeguard the constitutional rights of transgender persons.

It also pointed out measures taken by the Bihar, Karnataka and Tamil Nadu governments to include (and provide reservations, in case of Karnataka) for transgender persons in recruitment.

The state government has challenged the MAT orders dated November 14, 2022 and November 18, 2022 claiming that they cannot be implemented as the state is yet to frame any policy regarding recruitment of transgender persons, especially in the police force.

According to the present application, the applicant, aggrieved by the exclusion of transgender persons from the recruitment process, wrote to the Chief Minister and Deputy Chief Minister about this issue but her representations were not answered.

The original application contends that not allowing transgender persons to apply for the post of police constable and not providing reservations for the same is illegal, arbitrary, and violates Articles 14, 19, and 21 of the Constitution of India.

Not providing reservations for transgender persons also violates the obligation of the state under Article 16 of the Constitution to make enabling provisions for weaker sections of society, the application contends.

The state has not yet notified physical standards for transgender persons. This is a blatant disregard for the directions of the Supreme Court in NALSA v. UoI, the petition submits.

The applicant prays that the tribunal direct the state government to issue corrigendum to the recruitment advertisement dated November 9, 2022 to – i) allow transgender candidates to apply for the post of police constable as transgender candidates, ii) reserve posts for transgender persons in the recruitment to the post of police constable and, iii) to notify physical standards for transgender candidates.

The application also sought directions to the state government to notify the necessary physical parameters for transgender candidates at the upcoming physical examinations for the post of police constable.

The matter was mentioned on Monday in the High Court before the bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja by Advocate Shreyas Barsawade. The bench asked the petitioner to approach the MAT first.

Case no. – Original Application No. 1203 of 2022

Case title – Nikita Narayan Mukhyadal v. The State of Maharashtra