Transgender Reservation Can’t Be Reduced To Mere OBC Inclusion; State Must Ensure Substantive Equality: Rajasthan High Court

The Court was hearing a writ petition challenging the notification whereby the State of Rajasthan classified transgender persons as OBC without carving out a separate reservation framework in compliance with the judgment in National Legal Services Authority v. Union of India (2014) 5 SCC 438.

A Division Bench of Justice Arun Monga and Justice Yogendra Kumar Purohit observed: “… by bringing all transgender persons within Entry No. 92 of the OBC category, the notification effectively subsumes and extinguishes their pre-existing reservation entitlements, without even affording them an option to choose. This results in a manifestly anomalous and adverse consequence, whereby individuals lose more beneficial protections previously available to them belonging to SC or ST or SEBC category, as the case may be”.

Further, while stating that “the impugned circular is a mere facade and an eyewash, as it seems to be an exercise in form without substance”, the Bench stressed that “the State of Rajasthan was under a clear constitutional obligation to translate the mandate of the Supreme Court into tangible policy by carving out a distinct and effective reservation framework for transgender persons”.

Advocates Vivek Mathur appeared for the petitioner, while Additional Advocate General B.L. Bhati represented the respondents.

Background

The petitioner, a transgender individual, challenged the State notification dated 12.01.2023, which included transgender persons in the OBC category without providing horizontal reservation as envisaged in the NALSA judgment. It was contended that such classification deprived transgender persons of meaningful reservation and created anomalies, particularly for those already belonging to SC/ST/SEBC categories.

The petitioner argued that the notification compelled transgender individuals to choose between their birth-based reservation and transgender identity, thereby diluting pre-existing benefits and rendering the policy ineffective. It was further submitted that despite the notification, no transgender person had actually benefited from it.

The State contended that reservation structuring is a matter of policy and that transgender persons had already been classified as socially and educationally backward classes in line with NALSA. It was argued that no empirical data justified separate horizontal reservation and that judicial intervention in such matters was impermissible.

Court’s Observation

The Court commenced its analysis by placing the issue within the broader constitutional and social context, recalling that transgender persons have historically faced deep-rooted discrimination and exclusion, despite their recognition in Indian civilisational and cultural traditions. It noted that the Supreme Court in NALSA had unequivocally recognised transgender persons as a distinct class entitled to constitutional protection and affirmative measures.

Adverting to the statutory framework, the Court referred to the Transgender Persons (Protection of Rights) Act, 2019, particularly Section 8, which mandates the State to ensure full and effective participation of transgender persons and to implement welfare measures for their inclusion. It emphasised that the constitutional obligation is not merely symbolic but requires concrete and effective action.

The Court then examined the nature of reservations, particularly horizontal reservations sought by the petitioner, observing that proportionality to population share is a foundational requirement. It held that any reservation must bear a rational nexus to the size of the beneficiary class, noting that the transgender population is extremely small.

In this context, the Court observed that creation of a separate horizontal reservation, though desirable in principle, may have limited operational efficacy, as “reserved roster points for transgender candidates would arise only at long and irregular intervals,” leading to systemic frustration rather than meaningful benefit.

The Court further highlighted the administrative complexities inherent in implementing such a reservation, particularly in maintaining accurate rosters across multiple vertical and horizontal categories, observing that such an exercise may lead to inconsistencies and operational challenges.

At the same time, the Court unequivocally recognised that transgender persons constitute a vulnerable and marginalised class, often facing compounded disadvantage where they belong to SC/ST/SEBC backgrounds. It noted that “if such a reservation were to be carved out, given the extremely low proportion, its operational impact would be virtually illusory, reserved roster points for transgender candidates would arise only at long and irregular intervals. The consequence would be systemic frustration as the eligible candidates would be compelled to wait for inordinate periods before a single opportunity arises”.

The Court observed that even if a choice were to be provided between existing category-based reservation and OBC classification, such an arrangement would not confer any additional benefit and would merely force individuals to choose between two regimes, thereby creating an artificial and inequitable dichotomy.

Critically, the Court held that the impugned notification failed to translate the mandate of the Supreme Court into effective policy, observing: “it confers no real reservation whatsoever; it simply parrots what already stands declared by the Supreme Court in NALSA, namely, the recognition of transgender persons within the fold of socially and educationally backward classes. Such reiteration, devoid of any concrete affirmative action, is merely illusory and falls short of the reservation mandated by the Supreme Court”.

However, the Court also accepted the contention of the State that the creation of a specific reservation framework, including horizontal reservation, is a matter of policy and falls outside the scope of judicial review under Article 226. It held that while the Court can test the legality of State action, it cannot itself design or impose a reservation structure.

Balancing these considerations, the Court held that a calibrated and evidence-based approach is necessary, particularly in light of the State’s admission that the impugned notification had resulted in no tangible benefit to transgender persons.

Conclusion

The Court disposed of the petition with directions to the State Government to “constitute a Committee, as indicated above, to conduct a detailed inquiry and recommend measures to address the aggravated marginalisation of transgender persons from all backgrounds, be it any category. The Government shall, thereafter, take an appropriate policy decision based on such recommendations”.

Pending such policy decision, the Court issued an interim direction granting transgender persons an additional 3% weightage in marks for purposes of selection and admission in public employment and educational institutions under the State.

Cause Title: Ganga Kumari v. State of Rajasthan & Ors. (Neutral Citation: 2026:RJ-JD:14683-DB)

Appearances

Petitioner: Vivek Mathur, Prakash Kumar Balout, Dhirendra Singh Sodha, Advocates

Respondents: B.L. Bhati, AAG; Deepak Chandak; Piyush Bhandari; Mahesh Thanvi; Pragya Thanvi

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