|Application Nos. 5690/2019 and 5691/2019
|Date of Filing
|Ms. M. Suman Ms. Amulya C.
|Secretary, Karnataka Public Services Commission State of Karnataka, represented by the Principal Secretary, Department of Women and Child Development
The Petitioners are both transgender persons. The Petition was filed challenging the Notification No. E(2) 7271/2018-19/PSC dated 11.02.2019 (hereinafter the Impugned Notification) calling for applications from eligible candidates to fill up posts of First Division Assistant (FDA) and posts of Second Division Assistant (SDA) of the Bangalore City Civil Court and the different District and Sessions Courts across the State, issued by the Respondent No. 1.
The Impugned Notification provided reservations for different categories such as Scheduled Castes, Scheduled Tribes, Physically Handicapped, Rural Candidates, and Kannada Medium. However, no reservations were provided for the category of ‘Transgender Persons’ despite the guidelines issued in the decision of the Hon’ble Supreme Court in NALSA v. Union of India [(2014) 5 SCC 438] (hereinafter NALSA).
In NALSA, the Hon’ble Supreme Court directed the State and Central Governments to provide reservations to transgender persons in admission in educational institutions and in public employment and to take steps to treat them as socially and educationally backward classes. In accordance with NALSA, the State of Karnataka introduced a State Policy for Transgender Persons in 2017 (hereinafter the State Policy) for the benefit of the transgender community which inter alia provides that reservations should be provided to transgender persons in all levels of education and in public employment. However, the State of Karnataka has not taken any steps so far to provide reservations in any form to transgender persons in public employment.
Petitioner No. 1 belongs to a Scheduled Caste and Petitioner No. 2 belongs to Other Backward Classes. Thus, they had applied for reservations under these categories at the time of making applications for the post of FDA and SDA respectively.
Both the Petitioners possess the relevant educational eligibility criteria for the posts. They have also appeared for the written exam pertaining to appointment to the FDA and SDA posts. Pending the results, they had both made representations to Respondents No. 1 and 2 requesting them to provide horizontal reservations in public employment generally and in posts of FDA and SDA particularly for transgender persons as per the decision of the Hon’ble Supreme Court in the case of NALSA and the State Policy. However, no response or acknowledgment was received from the Respondents No. 1 and 2.
Aggrieved by the inaction of the Respondents No. 1 and 2, the Petitioners filed the present Applications before the Hon’ble Tribunal. The Petition prays for the Impugned Notification to be quashed insofar as it failed to provide for reservations for transgender persons for the posts of FDA/SDA respectively and for a fresh Notification to be issued providing for such reservation. As an interim relief, the Petitioners also prayed for the operation of the Impugned Notification to be stayed pending hearing and disposal of the Application.
The Petitioners contended before the Hon’ble Tribunal that as recognized in NALSA, transgender persons are a socially and educationally backward class and therefore, should be provided reservations in accordance with Articles 15(4) and 16(4) of the Constitution of India. The Petitioners claimed that the refusal to grant interim relief is likely to cause them irreparable harm. This is because if Respondent No. 1 proceeds to make appointments as per the Impugned Notification and if the Hon’ble Tribunal finds at a later date that posts have to be reserved for transgender persons as per NALSA, the Petitioners will have no choice but to wait for the next round of recruitment.
At the preliminary hearing, the Hon’ble Tribunal passed an Order dated 03.10.2019 (hereinafter the Impugned Order) wherein it admitted the case but refused to grant the interim relief staying the operation of the impugned notification as in its opinion it was a policy decision for the State Government to take.