Transgender persons' employment: Bombay High Court directs Maharashtra to frame rules by February 28

The Bombay High Court on Friday directed the Maharashtra government to ensure they frame rules in compliance with the Central Transgender Persons (Protection of Rights) Rules of 2020 before February 28, 2023 to enable transgender persons to secure employment in government posts.[State of Maharashtra v. Arya Pujari & Ors.].The Central Rules of 2020 were issued in order to implement the Transgender Persons (Protection of Rights) Act of 2019. The Rules provide for a procedure that could be followed for a transgender person to be identified for purposes of employment. The rules also included a directive to the States to come up with their policies to enable implementation of the Act within 2 years.As the State of Maharashtra had not yet come up with the requisite Rules, a division bench Chief Justice Dipankar Datta and Justice Abhay Ahuja directed the State to come up with the Rules by February 28, 2023. .The directions came in a plea filed by the Maharashtra government challenging orders passed by the Maharashtra Administrative Tribunal (MAT) directing the State to make provisions for transgender persons to apply for posts under the State's Home Department.The MAT order was passed on a plea by the two transgender persons who wanted to apply for the job of police constable but were unable to, since there was no option to choose a third gender on the application form.The plea before the High Court filed by the State sought a stay on the MAT order in light of the administrative difficulties faced by the State to come up with a policy..The Court was informed by Advocate General Ashutosh Kumbhakoni that about 14 lakh candidates have applied for the various posts of police constables and the same should not be hindered on any account, considering there is urgency in filling up the vacancies in the police department. He contended that while the State is framing rules, they would begin conducting physical examinations of the other candidates, apart from the two applicants; meanwhile the two applicants could give the written examination. The Court, however, did not agree with this submission. “We do not agree with the submission of the AG that the applicants could be directed to take written exam first before physical tests as it would be tinkering with the rules of the State which this Court would be too bold to direct”, the Court said. The Court was informed that the process of scrutiny of the applications in excess of 14 lakhs would take at least 3 months.In light of this, the Court directed that once the rules are framed, the two applicants have to be subjected to the scrutiny process as per new rules. “So long as the Rules are not framed and physical examination test is not conducted in terms of such Rules, the State shall not proceed to conduct written examination (of any of the applicants),” the Court ordered..Maharashtra in deep slumber, no reservation for transgender persons 8 years after Supreme Court's NALSA verdict: Bombay High Court.Kumbhakoni submitted today that the two transgender persons could apply for the post of a police constable (unarmed constables or driver) posts through online mode by December 15 as a third gender, after the State makes the necessary modification to its online application form till December 13. The Court also encouraged the State to enable other transgenders to apply for police (unarmed) constable posts before December 15 who would be put through the same manner of scrutiny as the other applicants..Kumbhakoni also argued that the MAT order travelled beyond the scope of the jurisdiction of the tribunal.Agreeing with this contention, the Bench modified the order to the extent that it applies only to the two persons who approached the Court with respect to recruitment as police constable. It would, therefore, not be necessary for the time being to create a third option for transgender persons in the applications with respect to all recruitments to the home department.