While considering an application seeking direction to the Respondents to issue a separate notification for transgender persons to various posts, enabling them to apply under them, the Bombay High Court observed that the Tribunal should have given a proper opportunity to the Public Service Commission to present their case before passing an interlocutory order to measure whether the balance of convenience lies in favour of the original applicant (first Respondent).

Stating that the said ad interim order has been issued by the Kerala Administrative Tribunal only to preserve the subject matter of the lis to keep the litigating claims of the Petitioner alive, The Division Bench of Justice Alexander Thomas and Justice C. Jayachandran, therefore directed the Tribunal to pass all other beneficial orders as claimed by the applicant (1st Respondent) only at the time of the final verdict, “instead of passing piecemeal interim orders."

Advocate P.C. Sasidharan appeared for the Petitioner, whereas Advocate Kaleeswaram Raj appeared for the Respondent.

In this case, a writ petition has been filed by the Kerala Public Service Commission (Petitioner) seeking to set aside interim order passed by the Tribunal under which the first Respondent was allowed to apply through physical mode even though the last date to submit online application had already expired. The first Respondent is a transgender who made an application before the Tribunal that she was barred from applying for the post of House Keeper (Female) at Homeopathic Medical College, through an online mode, because the software accepting the online application allowed only Female claimants to proceed further. The first Respondent contended that she recognizes herself to be a trans-woman and a transgender identity card has been issued to her under the provisions of the Transgender Persons (Protection of Rights) Act, 2019. This was opposed by the Petitioner by contending that the post of House Keeper at Homeopathic Medical College is to take care of the safety and other needs of women students who stay in women's hostel and the first Respondent is originally of a male gender and had then undergone certain surgery and has now become a ‘trans-woman’. Later, the Kerala Administrative Tribunal directed the Petitioner to allow the applicant to submit physical application and in the event of submitting such an application, the Public Service Commission shall process the application provisionally.

After perusing the submission and interim order passed by the Tribunal, the Bench observed that said interim order has been issued only to preserve the subject matter of the lis to keep the litigating claims of the petitioner in the above lis alive.

At the same time, the Bench observed that the Tribunal should have allowed the Petitioner to present their case and defend at the interlocutory stage so that the Tribunal would have been able to measure whether the balance of convenience is in favour of the first Respondent or not, which would have enabled it to pass a reasoned order.

“Annexure-A2 selection notification was issued on 31.12.2022 and the last date for submission of application was on 01.02.2023 since the online application was not accepted on account of the software restrictions, the applicant has approached the Tribunal on 23.01.2023 and the ad interim order as per Ext.P2 has been rendered on 24.01.2023 which appears to be before the prescribed last date for submission of the application, namely 01.02.2023”, added the Bench.

Hence, while declining to interfere with the interlocutory order passed by the Tribunal, the High Court requested the Tribunal to facilitate an early hearing and disposal of the main matter in the original application within 3 months.

The High Court also made clear that further beneficial orders that may be claimed by the applicant, could be considered by Tribunal at the time of the final verdict, instead of passing piecemeal interim orders.

Cause Title: Kerala Public Service Commission v. Aneera Kabeer C and Ors.

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Kerala High CourtJustice Alexander ThomasJustice C. Jayachandran

Pankaj Bajpai