Kerala High Court Dismisses Public Service Commission's Plea Against KAT Order Permitting Transgender Person To Apply

The Kerala High Court recently dismissed the plea of the Kerala Public Service Commission (KPSC) challenging the interim order of the Kerala Administrative Tribunal that had permitted a transman by the name of Arjun Geetha, to apply for the post of Sub Inspector of Police (Trainee) in Armed Police Battalion.

A division bench comprising Justice S V Bhatti and Justice Basant Balaji considering the plea of the Public Service Commission stated

“we are compelled to observe that the State Government/2nd respondent examine protection granted to the transgender persons by the Act, and the needful is done without subjecting them to avoidable litigation”

The court stated that the KPSC was only looking at the ineligibility of the applicant by mechanically applying the General rules or Special rules. The court held that denial of the employment opportunity to Geetha would be in contravention of the protection granted to transgender persons under the ‘Transgender Persons (Protection of Rights) Act, 2019.

“the several grounds now urged against the interim orders by the Kerala Public Service Commission are through the prism of the Special Rules. One need not search for reasons for insisting upon adherence only to Special Rules. But the role of the Tribunal is at a higher pedestal, and in reviewing the decision or inaction of the Government and the Kerala Public Service Commission, the Tribunal, through the kaleidoscopic view, appreciated the guarantees under the Constitution of India, the protection given to the transgender by the ‘Transgender Persons (Protection of Rights) Act, 2019. The order under review before us is the interim order of the Tribunal under challenge. We do not want to restrict the case of the transgender through the prism of Special Rules on which several grounds are raised and argued before us. The view of the Tribunal is within the framework of the Constitution of India and the act of Parliament. The 2nd respondent /State of Kerala would seize the opportunity to bring its Special Rules in line with the mandate of the Act”.

The grievance of the applicant was that he was being denied employment opportunities for being a transman. The notification issued by the Commission did not prescribe the physical standards for ‘transgender persons’ making him ineligible to apply and since the applicant had obtained a transgender certificate as a ‘man’ from the District Magistrate, Idukki, he was precluded from applying to any posts set aside for women.

Adv. P C Sasidharan appearing for KPSC contended that the note appended to the position of Armed Police Sub Inspector in the Armed Police Battalion restricts the selection process to male candidates. It was argued by the counsel for the Commission that the KPSC being governed by the General and Special Rules pertaining to recruitment, cannot be directed to deviate from it and hence the order of the Tribunal was illegal.

Adv Thulasi K Raj appearing for Geetha argued that the Special Rules were enacted in 1984 and the Transgender Persons (Protection of Rights) Act came into force in 2019. The counsel made specific reference to Sections 2(k) (definition of "transgender person”), Section 3(h) (denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office) and Section 9 (Non-discrimination in employment) of the Act.

The court relied on the decision of the Supreme Court in L. Chandrakumar v. Union of India (1994) 5 SCC 539 in which it was held that the Tribunal has the jurisdiction to decide on matters of appointment to service and retirement. The court did not agree with the contentions raised by the Commission and stressed that denial of employment opportunities to transgender persons would be contrary to the protection guaranteed to them by the Act.

Case Title: Kerala Public Service Commission V. Arjun Geetha & Others

Citation: 2023 LiveLaw (Ker) 155

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