Not Practical To Appoint Transgenders, Need To Frame Policy First: State Moves Bombay HC Against MAT Order On Constable Recruitment In Police Dept

The petition pertains to recruitment of police constables, drivers and State Reserve Police Force. The window to accept online applications for recruitment ends on November 30, 2022.

"Keeping in view the overall nature of duties to be performed by persons holding the posts for which the recruitment process is undertaken demonstrate that it will not at all be practicable to make appointment of transgenders to these posts." It added that "various grassroot level difficulties that need not be spelt out herein ought to be taken into consideration before coming to any conclusion in this regard as to the appointment of transgenders as sought by the petitioner and as intended and directed by the impugned orders," the plea states.

The State claimed that the MAT failed to the appreciate that the state was yet to frame any policy regarding recruitment of transgenders, especially in the police force, and therefore the tribunal's directions couldn't be implemented.

The appeal was mentioned before a bench headed by Chief Justice Dipankar Datta by GP PP Kakade today and will be heard on November 30, 2022.

In two orders dated 14 and 18 November 2022 the MAT directed the State to accept the applicant's form under the category of transgender for a police constable's post. It also directed the state to create a third category of transgender in all Home Department recruitments.

MAT Chairperson Justice Mridula Bhatkar passed the orders on an application filed by 23-yr-old Arya Pujari seeking an opportunity to apply for the post of constable in the "other gender" category of the police force. In August, Chairperson Bhatkar had granted the Home Department six months to take a policy decision on the issue. Pujari is represented by Advocate Kranti LC.

However, when the State continued to cite administrative difficulties even after six months, the MAT observed that the State was "fully empowered to draw its own policy and take decisions in such matters."

The chairperson noted steps taken by the Governments of Bihar, Karnataka and Tamil Nadu for the inclusion of transgenders in their respective police force and other government departments. The MAT also recorded specific directions to the State in the SC judgement of National Legal Services Authority (NALSA).

Before the HC the State seeks for both the orders to be quashed and their implementation to be stayed in the interim.

It pointed out that the recently enacted Transgender Persons (Protection of Rights) Act 2019, provides a mechanism to identify a transgender person but doesn't provide for reservation in educational institutions and public appointments.

It added that there is an extreme urgency to fill up vacant posts in the police department and therefore the current process should not be hindered on any account.

According to the plea various states have treated transgenders differently, in Punjab they are taken in the category of males, whereas in Tamil Nadu they are treated as females. Therefore, merely because other states have a policy wouldn't be a reason to issue the directions.