Enable Transgender Community To Apply For The Post Of Constable: Patna High Court Asks State To Adopt A Sensitive Approach

The Bench of Chief Justice Sanjay Karol and Justice S. Kumar perused the advertisement issued by the Central Selection Board of Constable and said,

"From the Advertisement, it is not clear as to whether persons falling under the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the Act) can even apply for the post or not. The Advertisement only specifies the gender of the applicants to be Male or female."

The Court asked the state,

"Does it imply that the persons hailing from the Transgender Community are precluded from applying at all, or should not the authorities clarify that it shall also be open for such persons to apply? Significantly the candidates are required to apply online, and in the said form there is no reference of the applicants falling with the purview of the Act, enabling them even to apply."

Further, the High Court directed the Principal Secretary, Department of Home, to "immediately look into the matter and take appropriate remedial measures."

Importantly, the Court remarked

"Prima facie what we find is that the persons belonging to the Transgender Community are totally precluded from the process of applying for a post of a constable, much less, agitate their right of reservation."

The Court directed the State to take remedial measures and the last date to invite applications, for the members of the Transgender Community, was directed to be extended for such time and period, as the State determines it to be feasible and appropriate.

The State has also been asked to ensure that wider publicity be given of the action taken to reach out to the members of such community, enabling them to apply for the post in question.

The Court also directed that the process of finalization of the list of candidates to appear in the examination shall not be finalized by the Central Selection Board of Constable; however, the process of preparation has been allowed to continue.

Significantly, an affidavit was filed by the State indicating grant of benefit of reservation for certain posts, as a class to the Transgenders, in the category of OBC.

To this, the Court said,

"If that were so, then how can such a benefit accorded, unless a person applies and not precluded from applying for the post."

The matter has been listed for further hearing on 22^nd December. The Secretary, General Administration Department, Govt. of Bihar has been asked to remain present through virtual mode.

Previous orders of the Patna HC related to the PIL

It may be noted that the Patna High Court had, on 21^st September 2020, asked the State Government to explain and clarify the steps taken for affording reservation in the field of education or services to the members of the Transgender community.

The Patna High Court on Wednesday (09^th September) asked the State Government to think about enhancing the economic support to the members of the Transgender community who, "at this point in time, are suffering acute hardship, more so on account of the nature of the activity to which they are engaged."

On 27^th August, the Patna High Court had sought a report from the Central as well as the State Government, delineating the steps taken by them to implement the welfare provisions contained under Transgender Persons (Protection of Rights) Act, 2019.

Further, the Patna High Court on 20^th May had directed the Government to ensure that the persons belonging to the Transgender community are not deprived of food grains distributed under the social security schemes, solely for not possessing a ration card.

The Division Bench comprising Chief Justice Sanjay Karol and Justice S. Kumar had also asked the Government to show steps taken for compliance with the implementation of the directions issued by the Supreme Court in National Legal Services Authority v. Union of India.

Notable orders of other High Courts

In related news, the Centre recently informed the Delhi High Court that Transgender shall now be included as a separate gender category in Prison Statistics Report prepared by the National Crime Records Bureau (NCRB).

The Kerala High Court last month observed that "Person cannot be denied a legitimate right only because she is a transgender".

Justice Devan Ramachandran noted this, while hearing a plea filed by a Transwoman, challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution of India.

It may be noted that a Petition has been moved in the Kerala High Court challenging Section 6 of the National Cadet Corps Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent that it excludes the transgender community from enrolment with the National Cadet Corps.

Notably, the High Courts of Karnataka, Jharkhand and Telangana have also ordered the Government to ensure that the Transgender community is provided adequate protection and benefits during the lockdown.

In the month of May, a petition was also filed in the Kerala High Court seeking protection of the community against discrimination in the grant of relief measures during the lockdown.

In the month of June, the Bombay High Court had directed the Principal Secretary to the State Social Justice and Special Assistance Department to consider and dispose of within a fortnight, concerns expressed by an activist working for the transgender community, regarding the plight of the members especially after the lockdown and seeking directions for the formulation of a welfare scheme for the 40,000 members of the community in the State.

Recently, the Karnataka High Court has directed the State Government to take steps for implementation of the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019 and also extend all kinds of the reservation to members of the community.

In the month of July, the Karnataka High Court had sought a reply from the state government on why it has not included a separate category for the transgender community in its notification for recruitment to the post of Special Reserve Constable Force and Bandsmen.

Case title - Veera Yadav v. Government of Bihar & Ors. [CWJC No. 5627/2020]

Click Here To Download Order

[Read Order]