The Maharashtra government has approached the Bombay High Court challenging orders passed by the Maharashtra Administrative Tribunal (MAT) that directed the government to create an option ‘third gender’ for the transgender community, besides male and female, in online application forms for all the recruitments under the home department.
The tribunal on November 14 also asked the state to fix the criteria in regard to what kind of physical standard was required of transgender people and the tests they should undergo so that their online applications can be accepted.
MAT chairperson Justice Mridula Bhatkar had passed the orders while hearing an application filed by Arya Vijay Pujari, a trans person who aspired to be a police constable.
Pujari, through advocates Kranti LC and Kaustubh Gidh, had told MAT that the state government, through the Satara police superintendent, on November 6 issued an advertisement in the media regarding the recruitment of police constables. When Pujari tried to apply, the form provided only two options for gender and the third gender was not available. Pujari could not fill the column and the application was rejected.
On Monday, additional government pleader Reena Salunkhe for the state mentioned its plea before a division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja and sought it to be heard urgently. The bench posted the same on Wednesday, November 30.
On November 18, the tribunal directed the state home department to make changes in the advertisement by November 23 so that transpersons aspiring for the post of police constable can apply online for the same.
However, the applicant on November 25 told the panel that the state had not complied with the order and as the last date for acceptance of the application form was November 30, the state should at least accept the form. The panel then extended the date of acceptance of forms by trans people to December 8.
S P Manchekar, chief presenting officer (CPO) for the respondent state, had told the panel that it wanted to challenge the MAT’s directions before the high court on the grounds of administrative difficulties faced by it.
Manchekar referred to a 2014 Supreme Court judgment in the National Legal Services Authority vs Union of India case that recognised several rights of the transgender community, including reservation in educational admissions and government jobs for transgender persons. However, the CPO said that it is the central government, and not the state government, which has to take policy decisions as per the 2014 verdict.
However, the applicant’s lawyers submitted that after the 2019 SC verdict in Shanavi Ponnusamy Vs. Ministry of Civil Aviation case, the central government in April 2020 directed all its departments to modify recruitment rules providing for the inclusion of transgender as a separate category of gender. The lawyers added that while the state governments of Bihar and Tamil Nadu had already directed the modification of the rules to include a specific class for transpersons in the recruitment process, the Karnataka government had provided reservations for transpersons in government jobs.
In the plea filed in the high court against the November 14 and 18 orders of the panel, the state government, through its social justice and special assistance department, said since it has not yet framed policy regarding special provisions for the recruitment of transpersons in the police force, it is “extremely difficult” to implement the tribunal’s directions in ongoing “lengthy” police recruitment process and same should not be “hindered” or “delayed”.
“The tribunal has overreached its jurisdiction while giving directions in absence of any policy decision and the same amounts (to) interference in the domain of policymaking,” the plea said.
Therefore, the impugned orders are “ex-facie bad in law”, “illegal” and should be quashed and set aside, the state urged. Pending the hearing of its plea, the government sought the operation of impugned orders of the tribunal be stayed.
The state in its plea also said that “in view of overall nature of duties to be performed by persons holding the police constable posts for which recruitment process is undertaken, demonstrate that it will not at all be practicable to make appointment of transgenders to these posts.”
The plea added, “…Various grassroot level difficulties that need not be spelt out herein ought to be taken into consideration before coming to any conclusion in this regard as to the appointment of transgenders as sought by the petitioner and as intended and directed by the impugned orders.”