1% Transgender Reservation In Employment: Karnataka High Court Asks State Govt To Consider Issuing Directions To State-Owned Enterprises

Last month, the government had issued a notification whereby it decided to provide 1 per cent (horizontal) reservation to Transgender candidates in government jobs to be filled through the direct recruitment process. The reservation is applicable to transgender candidates in each category of General merit, SC,ST and in each of the OBC categories.

The government had made amendments to the Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2021. Through the amendment, Rule 9, sub rule (1) (d) has been incorporated to provide for 1 percent Horizontal reservation to the transgender community.

An application was filed by the intervenors seeking directions to other public authorities for providing reservation for transgenders. The state government submitted that the corporations/authorities have their own service rules and would have to be impleaded in the petition for the court to issue them directions.

Senior Advocate Jayna Kothari for the intervenors submitted that the state should consider issuing directions to the corporations for providing reservations.

Accordingly, the court said,

"The State government has taken the innovative step of providing 1 percent horizontal reservation to transgenders in employment as provided in Karnataka Civil Services (general recruitment) rules 2021. Considering the policy of the state as reflected from the said amended rules, the state government may consider issuing directions/advisory to all state-owned corporations and statutory authorities established under the state enactments to provide for similar reservations."

The notification has been issued pursuant to a petition filed by Sangama, a society working for the upliftment of sexual minorities, sex workers and people infected with HIV.

The petitioner had relied on the judgment of the apex court in the case of NALSA Vs Union of India, (2014) SSC 438, to argue that the state in its appointment notification calls for filling up of the vacancies, specifies only 'Men' and 'Women' as the genders as those can apply for the vacancies. Throughout the impugned notification, the age, weight, and other specifications are given pertaining separately only to 'Men' and 'Women', in total disregard of the 'Third Gender'.

The plea emphasized that the Supreme Court has recognized the legal rights of the third gender persons and has held that they are fully entitled to Fundamental Rights under the Constitution and under International law. However, the notifications issued by the state are in contravention of rights of Transgender persons and affects their Constitutional and Fundamental Rights under Article 14, 19 & 21 of the Constitution.

The Petitioner had therefore sought directions to the state government to include a separate category for transgender persons for the post of Special Reserve Constable Force as well as Bandsmen, and consider all the applications by the transgender at par with other two gender categories. It had also sought a scheme of reservation for the transgender community in the recruitment to post of Special Reserve Constable Force as well as Bandsmen.

The matter will be next heard on September 22, when the state government is directed to place on record the appropriate action taken in terms of this order.

Case Title; Sangama v. State of Karnataka

Case No: WP 8511/2020

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