Bombay High Court Seeks State's Response On Plea Alleging Discrimination Against Transgender Persons In Police Constable Recruitment

A Division Bench of the Bombay High Court has sought the response of the State Government within two weeks, in a Writ Petition filed seeking directions to classify the third-gender community as a socially and educationally backward class and extend reservation benefits in education, public employment, and housing.

The Petitioner alleged discrimination against her in the recruitment to the post of Police Constable under the Maharashtra Police Act and Recruitment Rules, 2011.

The Bench of Justice GS Kulkarni and Justice Advait M. Sethna ordered, "Let reply affidavit to the petition be placed on record without any further delay, within two weeks from today. Copy of the same be served on the advocate for the petitioner well in advance."

The petition also calls for strict compliance with the Supreme Court’s landmark judgment in National Legal Services Authority (NALSA) v. Union of India (2014) and the provisions of the Transgender Persons (Protection of Rights) Act, 2019.

"Direction against the Central Government and the State Governments to take steps to treat the 'Third-Gender' as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public employments and appointments as per direction and also in respect of the housing as per the provisions of the Transgender Persons (Protection of Rights) Act, 2019 and rules framed thereunder and to comply with the directions given by the Hon'ble Apex Court in the matter of National legal services authority (NALSA) v. Union of India (2014), 5 c.c. 438, and to take action under the provision of The Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, against the officers who are responsible for act of Negligent in respect of non- compliance of order passed by the Hon;ble Supreme court, High court and also towards compliance of provision of the said act and regulations," the petition reads.

Key Directions Sought

The petition filed through Advocates Hemant Ghadigaonkar has urged the Court to:

- Direct the government to implement the Supreme Court’s ruling in NALSA v. Union of India by ensuring adequate reservations for transgender individuals.

- Extend reservation benefits in educational institutions, government jobs, and housing under the Transgender Persons (Protection of Rights) Act, 2019.

- Take action against negligent government officials under the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, for failing to implement relevant laws and judicial directions.

Points of Argument

The petitioner has raised the following concerns:

A. Upper Age Relaxation for Transgender Individuals

The plea highlights the need for upper age limit relaxation in public employment for transgender individuals. It contends that due to the government's failure to implement reservations in a timely manner, many transgender candidates have crossed the eligible age limit for government jobs.

B. Lack of Inclusive Policies

The petition argues that transgender persons have been unfairly deprived of opportunities due to the absence of well-defined, inclusive policies. The government’s delay in framing necessary guidelines has resulted in continued discrimination and exclusion.

C. Need for a Separate Transgender Category

The petitioner urges that the government must establish a standalone category for transgender individuals in reservation policies. Currently, transgender individuals are classified under two categories:

1. Male/Transgender: For those identifying as male.

2. Female/Transgender: For those identifying as female or third gender.

The petition asserts that such classifications are insufficient and that a separate category should be created to ensure fair representation and protection of rights.

Background

The Supreme Court, in NALSA v. Union of India (2014), had recognized transgender persons as the ‘third gender’ and directed the government to ensure their equal rights, including reservations in education and employment. Despite this, the implementation of these directions has been inconsistent, prompting legal intervention.

The matter has been adjourned to April 16, 2025.

Cause Title: Nikita Narayan Mukhyadal v. The Union of India Through Ministry of Social Justice and Empowerment & Ors.

Appearance:

Petitioner: Advocates Hemant Ghadigaonkar, S.More and Ajay Gaikwad

Respondents: AGP P. J. Gavhane