Bombay High Court Issues Notice On PIL Seeking Reservation In Public Employments For Transgender Persons

"The State of Maharashtra has failed to fulfill its Constitutional obligation under Article 14 and Article 21 towards the members of Transgender community in Maharashtra," the PIL read.

The petitioners are NGO Sampada Grameen Mahila Sanstha and Community Based Organisation Muskan Sanstha, - along with transpersons Vinayak Kashid (29) and Arya (22).

It questions the non-implementation of Supreme Court's directions in the 2014 landmark judgement in NALSA vs UoI through which, members of the transgender community were recognized as the "third gender" and were extended all Fundamental Rights guaranteed to every person under Part III of the Constitution of India.

The judgement mandated the inclusion of transgender persons in public sector employment under the Socially and Educationally Backward Classes of Citizens (SEBC) as being their fundamental right under Articles 14 and 15 of the Constitution.

However, the petitioner organisations stated that they have faced numerous challenges in securing employment for the transgender persons in the State.

"All efforts to represent the challenges of the community both from members of the community and also through the collective did not garner a response from the relevant Departments and Ministers of the State of Maharashtra," the PIL reads.

After brief arguments by the petitioners, the division bench led by Justice AA Sayed directed the respondents to file their replies within two weeks and listed the case for hearing after 4 weeks.

The bench also directed the petitioners to add the Transgender Welfare Board of Maharashtra as a party to the PIL.

Represented by Advocate Vijay Hiremath, the petitioners argued that Arya is qualified to apply for the post of a police constable having completed training with the Mumbai Police, while Kashid sought to apply to the electricity department. However, in the absence of a "third gender" option, they were unable to apply.

"The non-inclusion of the 'third-gender' category in government Employment and institution establishments managed by the GoM as per the NALSA judgement…. amounts to violation of fundamental rights under Article 14, 19(1)(a) and 21 which guarantee right to equality, freedom of speech and expression, and right to life and dignity," the plea states.

Specifically, the plea seeks inclusion of the "third gender" under Section 2 (m) of the Maharashtra State Public Services Act.

The petition states that RTI applications have received no concrete response except for saying "things are in progress." Letters to MP Supriya Sule (Transgender Welfare Board of Maharashtra), Former State Home Minister Anil Deshmukh, and CM Uddhav Thackarey also received no reply.

"…deprived of their right to livelihood which is a fundamental right guaranteed under Article 21 as they are denied employment in public sector due to their gender identity," the plea read.

The plea adds that non-compliance be the State violates Article 14, as it is the duty of the State to take affirmative action to create a level playing field for all oppressed and marginalized classes as held by the Hon'ble Supreme Court in M. Nagaraj v. Union of India.

The petition adds that while there have been discussions on the subject, "no concrete action has been taken by the Govt of Maharashtra in the last 7 years. This demonstrates gross negligence on the part of the State in reaching out to the affected communities…"

Also Read: Delhi High Court Issues Notice On Plea Seeking Reservation For Transgender Persons In All Public Appointments In Delhi