If Society Is Progressing, Why Can't Laws Also Progress? Bombay High Court Pulls Up Govt For Not Complying With SC Ruling On Transgender Rights

"For seven years your government has not done anything despite there being an order of the Supreme Court. Why do we have to do it? You do not perform your functions and citizens are forced to come to court," the bench said.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing the State's appeal against directions issued by the Maharashtra Administrative Tribunal for adding 'other gender' option in all recruitment applications of the Home Department.

The MAT had also directed the State to fix the criteria for physical standards and tests for transgender candidates.

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.

Advocate General Ashutosh Kumbhakoni for the state objected to the MAT giving such directions in an interim order. He said that the recruitment rules do not contemplate transgender candidates and need to be amended before provisions can be made for all posts of the home department. He told the court that the State Reserve Police Force only allows male candidates to apply.

The court noted that the government is not amending the rules. It also noted that 11 other states have provisions for employment of transgender persons. "If society is progressing then why can't the laws also progress? It is because of such things that courts and Tribunal intervene. Why not welcome that?," the court said.

The AG said that the government was not against transgenders. However, there are some legal difficulties in implementing the MAT orders, he said.

Two transgender candidates, who wanted to apply for the post of Police Constable advertised by the State, had earlier approached the MAT. The tribunal had given the aforementioned directions in their applications.

The court said that two posts can be kept vacant for these candidates and the government can frame rules for future recruitments. The bench asked Kumbhakoni to seek instructions regarding the same and kept the matter for Friday, December 9 2022.

The court noted that the state is neither framing the rules nor including transgender persons in the recruitment. The bench said that it will halt the entire recruitment. The government will then be forced to frame the rules, the court said.

Case title – State of Maharashtra v. Arya Pujari