After High Court Nudge, Maharashtra Govt Permits Transgender Persons To Apply For Police Constable Post

The court directed the state to frame rules according to the Central Government's Transgender Persons (Protection of Rights) Rules, 2020 and complete the physical tests of all candidates except transgender candidates within two and a half months, i.e., by February 28, 2023. Physical examination of transgender candidates will be done in the last fortnight, said the court. Till the rules are framed and the physical tests are conducted, the state shall not proceed with the written tests for all candidates, the court stated in its order.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing state's plea against Maharashtra Administrative Tribunal's direction to include transgender persons in recruitment for all posts of the Home Department.

MAT had also directed the state to fix the criteria for physical standards and tests for transgender candidates while dealing with applications filed by two transgender candidates seeking to apply for the post of police constable.

The court on Thursday had asked Advocate General Ashutosh Kumbhakoni to seek instructions from the state about measures to include transgender persons in the recruitment.

The recruitment advertisement has three posts – a) police constable, b)police constable (driver) and c) Armed Police Constable (State Reserve Police Force).

The AG proposed on Friday that two posts from the category of police constable (driver) will be kept vacant for the two candidates who approached MAT. He said that the government will identify appropriate posts for transgender candidates and frame rules and physical standards within three months. Physical tests for the other candidates will be conducted simultaneously, he said. However, transgender candidates will have to clear the written test first and then appear for the physical exam once the rules for the same are framed.

The bench asked, "why don't you for the present selection process allow them to self-identify and the physical test can be according to that?"

The AG told the court that rules will have to be amended for this. Justice has to be done according to law, he said. "Framing rules may take time. But central government rules can be adopted within 24 hours", the bench responded.

The court directed the state to allow transgender candidates to apply for either of the first two categories, i.e., a) police constable and b) police constable (driver).

The court rejected the proposal of flipping the process to first conduct written test for transgender candidates as it will also require amendment of the current rules.

"Let us not change the rules. As you say that justice has to be done according to law. If you say written examination first, and viva voce later, or physical test later, that would amount to tinkering the rules by the court….that would be an infirmity", CJ Datta said.

The court agreed with state's contention that the MAT "travelled beyond the scope of jurisdiction" to give such directions regarding all posts of the Home Department. Therefore, the court modified the tribunal's order and clarified that it will only be applicable to the present recruitment proceedings.

The court granted liberty to the transgender candidates who had approached MAT to submit their applications offline.

The last date to submit the online form is December 15, 2022 for all candidates.

Case Title – State of Maharashtra v. Arya Pujari

Citation: 2022 LiveLaw (Bom) 487  

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