Transgender persons should be given separate reservation, not clubbed with women's reservation: Madras High Court

The Madras High Court on Wednesday strongly recommended the State government to provide a specific percentage of separate reservation for the Third Gender (TG) or transgender persons in matters of future public employments [Saratha v The Member Secretary]..Justice MS Ramesh held that State's decision to combine Transgender persons who identified as females, with the 30% vacancies reserved for women candidates, without extending a special reservation for the TGs, is violative of Articles 14 and 16(1) of the Constitution and the direction contained in Supreme Court's NALSA judgment."The decision of Tamil Nadu Uniform Services Recruitment Board (TNUSRB) to combine the TGs, who had opted for female category, along with the vacancies reserved for Women deprives equality to them which is violative of Articles 14 and 16(1) of the Constitution of India," the Court said.Further, the Court also ruled that failure to provide any reservation for transgender persons who identified themselves was 'male' was also violative of NALSA judgment.The Court, therefore, quashed the disqualification of the petitioners from the recruitment process for the post of Grade-II Police Constables conducted by the Tamil Nadu Uniform Services Recruitment Board TNUSRB for the years 2017-18, 2019 & 2020.“The manner in which the respondents had violated the equality of opportunity to the TGs in the impugned notification, is unconstitutional, arbitrary and unfair,” the Court found..- Petitioners challenged notifications by State of TN in relation to recruitment for public employment claiming they amounted to hostile discrimination;- Justice Ramesh agreed with the petitioners stand, and passed directions in this regard while allowing the plea;- It was held that relaxations in the upper age limit for transgenders was not “reservation”;- Clubbing transgenders’ reservation along with women was violative of Article 14 and 16 (1);- Depriving transgender persons who recognised as “male” from physical relaxations provided to female candidates was unconstitutional;- Failure to provide reservation to transgenders in the “male” category was illegal for being violative of the NALSA judgment..The petitioners were challenging concessions and relaxations extended to them through these notifications for being inadequate and inconsistent with the ruling of the Supreme Court and the Madras High Court stating that they amounted to hostile discrimination.The petitioners, thus, sought reservations, relaxations and concessions for the purpose of considering their candidature in the recruitment process..The notification of 2017-18 had no reservations for transgender persons, whereas in the notifications for the years 2019 and 2020, reservation for transgender persons was clubbed along with reservation for women and no separate reservation was extended..The Court began by discussing the directions in the cases of National Legal Services Authority v Union of India and observed that the Government Order had totally lost sight of the findings and directions in in NALSA’s case which asked for “all kinds of reservations to the TGs for public appointments” .Further, while examining the judgment in Chairman, Tamil Nadu Uniformed Services Recruitment Board v Aradhana, the Court held that the relaxation of the upper age limit for the purpose of applying to the posts could not be termed as a reservation.“So also, clubbing of the Transgender persons along with the 30% reservation for Women, without an exclusive reservation for the TGs, is also not a reservation, as intended and directed in NALSA and Aradhana cases,” the Single Judge observed..It was also stated that depriving transgender persons who recognised as “male” for relaxations in physical tests was opposed to the object behind the NALSA judgment in upholding their right to decide their self-identified gender, and was violative of Articles 14 and 16(1)..Moreover, Justice Ramesh held that clubbing of reservations of the Women and trans people was opposed to Article 16(1) as it denies the right of opportunity to trans people in matters of public employment.It was stated that above all, trans people who opted for “men” category, were totally denied of any reservation.“..clubbing all the reservations for the TGs-Women and Women candidates and denying any reservation for the TGs, who are in the Men category, is an unrestrained use of authority by the respondents, which is not based on any reason, but rather a random decision, which could be termed as “arbitrary” or “unfair”,” the Court said..Thus, noting that the notifications were unconstitutional, arbitrary and unfair, they were held to be open to judicial review despite being policy decisions.“It is needless to point out that, had the TNUSRB complied with the directions in NALSA to its true intent, all the petitioners herein would have been qualified for appointments, subject to the physical tests to be conducted,” said the High Court and directed the State to treat all the petitioners as having qualified the initial selection..On a submission made by the petitioners’ counsel, the single-judge was informed of a notification of the Karnataka government extending 1% reservation for transgender persons in the matters of public employment. “If that be so, I do not find any impediment for the Government of Tamil Nadu to adopt a specified percentage of reservation for the TGs of this State also,” the Court said.For transgender persons who identify as males or as third gender, the Court recommended the State government to provide relaxations in the physical measurement tests, endurance tests and physical efficiency tests on par with the concessions extended to women candidates and other socially and economically backward classes..With these, amongst other, directions relating to recruitment of trans people in public employment, the Court allowed the petition..Senior Advocate Jayna Kothari with Advocate C Prabhu appeared for the petitioners while the respondents were represented by Additional Advocate General P Kumaresan and Advocate C Selvaraj..[Read Judgment]