Differentiating between “reservation” and “concession”, the Madras High Court has flayed the state government for failing to provide adequate reservation to transgender candidates in employment opportunities. While allowing a batch of eight writ petitions on Wednesday, March 2, Justice MS Ramesh, observed that clubbing transgender candidates who identify themselves as ‘female’ along with women candidates and those identifying themselves as ‘male’ or ‘third gender’ under general category infringed on their ‘right of equality’.
The batch of petitions were filed by trangender candidates, to challenge a notification that imposed an age limit of 29 years on applicants for the post of Grade II Police Constable (AR), aggrieved that they were treated equal to male candidates. They had not been provided with any special reservation during the recruitments for Grade-II police constables in the period between 2017 and 2020. This was done just because they had identified themselves as male in the application, the petition said.
The government contended that these trans persons had applied under the “male” category and were therefore evaluated under the norms applicable for the male/general category candidates. “On such evaluation, none of the transgender persons had reached the minimum cut-off marks in the written examination and therefore they cannot claim appointment as a matter of right”, the defence argued.
Further, the court observed that the Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) considered trans persons who identified as ‘female’ under the 30% quota allocated for women candidates; and those identifying as ‘male’ or ‘third gender’ were clubbed under general category.
It was observed that the relaxation given for women candidates in physical measurement, endurance and physical efficiency tests were provided only to the trans persons who identify themselves as ‘female’. However, these relaxations were not given to those who identify themselves as ‘male’ or ‘third gender’.
The court, referring to the NALSA case, observed that the “failure to provide any kind of reservation for the trans persons in the male category and placing them on par with the general category candidates is not only unconstitutional, but is also illegal”. Further, those who identified as “male” or “Third Gender” “did not have the benefit of any form of reservation, though they possessed the required “Third Gender” certificate, the judge added.
Pointing out that the Supreme Court, in NALSA order, had specifically directed the state governments to provide reservation for trans persons in public employment, clubbing those who applied under the female category, along with the reservation for women candidates, “infringes their fundamental right of equality before law” and their “right of equality of opportunity in public employments”, and the judge observed that it was unconstitutional.
Further, depriving trans persons who identify as “male” or “third gender” of the relaxations and concessions offered to female candidates in the tests is “arbitrary and unreasonable”, the court observed, adding that “the selection process itself is found to be unconstitutional, illegal, irrational and unreasonable”.
While all the trans persons go by their community certificates, those without community certificates are considered in the Most Backward Class (MBC) category.
The judge also stated that the claim that trans persons were provided with ‘reservation’ of 30% and “were granted relaxation and concession in age limits” was “deplorable”, given that the age relaxation for transgender community were only up to 29 years, while it is 35 years for destitute widows and 45 years for ex-servicemen.
The court also observed that “relaxations in the upper age limit for the transgenders cannot be termed to be a “reservation”, but rather a relaxation” enabling to place them on par with the general category.
The court also distinguished between “concession” and “reservation”. While concession and relaxation are privileges extended to achieve “equality of opportunities” for a candidate to participate in a recruitment process, the term “reservation” is an accrued right of appointment among a specified number of reserved vacancies for the socially and economically backward candidates”.
Making these observations, the court quashed the disqualification of the eight petitioners and directed the The Member Secretary of TNUSRB to treat all of them as having qualified in the initial selection process, including the written examination. They should also be subjected to “physical measurement tests, endurance tests and physical efficiency tests”, in accordance with the relaxations applicable for women candidates. The court has also directed to complete this process within a period of eight weeks.
Further, the court “strongly” recommended the Government of Tamil Nadu to provide a special reservation for trans persons in future public employment opportunities. This is to be done apart from other “relaxations and concessions extended to the socially and economically backward classes”.
The judge also “strongly” recommended the government to provide relaxations in the physical measurement tests, endurance tests and physical efficiency tests for trans persons who identify themselves as “male” or “third gender”, “on par with the concessions extended to women candidates and other socially and economically backward classes”.
Observing that Karnataka has extended 1% reservation for trans persons in the matters of public employment, the judge said, “If that be so, I do not find any impediment for the Government of Tamil Nadu to adopt a specified percentage of reservation for the trans persons of this state also”.
He also said that the TNUSRB has completely “disregarded” the “declarations of the Constitutional rights of trans persons” and issued a notification for direct recruitment in 2015, pointing out that the NALSA's case was decided by the Supreme Court in 2014. This led to K Prithika Yashini to file a writ petition seeking for recruitment to the post of Sub-Inspector of Police. Subsequently, the court held that “she would be entitled for appointment to the post of Sub-Inspector of Police” and she went on to become the first transgender to be appointed to the post, the court recalled.
Questioning whether the TNUSRB had implemented the directions in NALSA “to its true intent and spirit”, the court observed that the directions in NALSA were totally ignored in its notification for 2015. Further, it stated that there were no reservations for trans persons in the 2017-18 notification; and in the 2019 and 2020 notifications, the reservation for trans persons was clubbed along with the reservation for women candidates, but no separate reservation was extended to them.
“The Government Order had totally lost sight of the findings and directions in NALSA's case for providing “all kinds of reservations to the trans persons for public appointments”, the judge said and added that this mischief resulted in tagging the transgenders, who identify themselves as “females'', along with the 30% vacancies earmarked for women. This dilutes the scope of appointment for transgenders.
Considering this, the court observed that neither the relaxation of upper age limit nor clubbing of trans persons in women quota amounts to “reservation”, these are “inadequate privileges, claimed as reservation by the TNUSRB” and “is a transgression by misconception”, the court said. It further added that the claim of the government that they have complied with the directions is “not only irrational, unreasonable, arbitrary and unfair, but also unconstitutional”.