It is ‘obligatory’ on States to prepare welfare schemes and invent opportunities for transgender persons in public employment, the Maharashtra Administrative Tribunal said while relaxing the eligibility criteria for three trans persons in the police department and State administration.
Justice (Retd) Mridula Bhatkar, Chairperson of MAT and member Medha Gadgil noted that nearly nine years after the landmark NALSA judgement, not a single transgender person is part of the 5.5 lakhs Government employees in Maharashtra.
“This fact itself speaks in volume. The transgenders are humans, are citizens of our great Country are waiting for their inclusion in the main stream…The Transgenders are people in minority. Majority forms the Government, but majority cannot suppress or ignore the rights of marginalized section. The caliber and morality of the Democracy is tested on these yardsticks,” the Tribunal said.
“Combine reading of Sections 3 & 8 of the Transgenders Act makes it clear that the State not only has the power, but also it is obligatory on the part of the State to prepare the welfare schemes or to invent different methods and modes to provide the opportunity to transgenders of public employment,” it added.
Moreover, transgender persons are running a handicapped race in public employment as their growth paralyzed by the negative approach of society, the MAT panel added.
The MAT panel held it couldn’t direct the State to grant reservation for transgender persons in employment but it relaxed the criteria for the applicants as follows;
- Applicants are to be given the necessary grace marks to reach the cut-off marks or applicants who’ve reached 50% to be considered for the concerned posts.
- Age relaxation for applicant who has scored minimum 45% marks.
The applicants, three trans persons, approached MAT seeking directions to the State government for the option of ‘third gender’ in the application. They also sought reservation for trans persons citing the NALSA judgement wherein the SC directed for transpersons to the considered in the Social and Economically Backward Section (SEBC) for reservation.
Last year, in an interim order MAT directed the State to provide a third option in the application form. The order was subsequently upheld by the High Court. Following additional directions by the High Court the State issued a GR with the “other gender” option for public employment. Therefore, reservation was the only issue left for consideration.
Chief Presenting Officer for the State Swati Manchekar opposed the plea for reservation and submitted that the Transgenders Act 2019 enacted pursuant to the NALSA judgement did not have any provision for reservation. And since the state follows the policy of the Centre, it couldn’t provide reservation. Plus, Maharashtra at present has 62% vertical reservation and 72% horizontal reservation.
Advocate Kranti LC highlighted the State’s contradictory stand and pointed out how the Maharashtra Government provides reservation for denotified or nomadic tribes despite no such reservation in the Central Government. Even the Maratha community was granted reservation, he said. Moreover, states of Tamil Nadu, Chhattisgarh, Karnataka, Jharkhand and Bihar have already granted reservation to transpersons, he added.
MAT observed the State had crossed its vertical reservation cap of 50%.
MAT drew parallels between the struggle for equal right for women and transgenders.
“The case of transgenders is worse than the women,” MAT panel said noting transgenders are ridiculed or subjected to misplaced abnormal curiosity. “The mere identification and acknowledgment of their existence in the Society is not sufficient inclusion but to facilitate their appointments in Government and Public sector is inclusion in true sense,” it added.
The Tribunal noted Section 8 of the TA requires the Government to take measures for the inclusion of transgender persons in society as it is bound by the 2019 Act.
“…the stand taken by the Respondent-State that they cannot provide reservation more than 62%, though is consistent with the law about 50% cap laid down by the Hon’ble Supreme Court in the case of Indra Sawhney (supra), the Transgenders Act itself has opened the other doors of inclusion and participation of transgenders in the public employment.”
MAT rejected the State’s apprehension that if reservation is provided to trans persons in the public sector, then it will increase the tendency of more people coming out of closet falsely as transgenders and opting for a surgery. “This fear is absolutely misplaced. Getting in Government job depends on number of factors like education, fitness, vacancies etc.”
MAT gave illustrations of policy decisions expected by the State to positively discriminate transgenders in public employment. The tribunal recommended 1) a separate lower benchmark for transgenders as a class in Preliminary and Main Examination, 2) To give grace marks to reach the cut-off marks and/or 3) To give more chances to appear for the examination by giving age relaxation. and/or 4) To offer concession in educational qualification and experience.
