Taking notice of the absence of a column for transgender applicants in an advertisement for the post of ‘Constable’ issued by the Central Selection Board, the Patna High Court has urged the Bihar State government to adopt a sensitive approach and take remedial measures to allow transgender persons to apply for the post.
Pointing out that the application form only allowed ‘males’ and ‘females’ to apply, the Bench of Chief Justice Sanjay Karol and Justice S Kumar queried,
“Does it imply that the persons hailing from the Transgender Community are precluded from applying at all, or should not the authorities clarify that it shall also be open for such persons to apply?”
The Court additionally drew attention to the fact that there was no reference to transgender persons in the application form.
Responding to this, the Government Advocate averred that there was no separate reservation for members of the transgender community. However, they could be considered as the persons belonging to OBC community, he added.
The Bench wondered how transgenders could take the benefit of reservation when they were precluded from applying in the first place. As recorded in the order,
“Well, at this point, we need not go into the aspect of reservation, but prima facie what we find is that the persons belonging to the Transgender Community are totally precluded from the process of applying for a post of a constable, much less, agitate their right of reservation.”
The Court added, “We need not remind the State of the mandate of the Constitution as also the law laid down by Hon’ble the Apex Court, mandating the State to adopt a pro-active approach in pursuing the causes of persons with disabilities; and more so in the light of the Act. (Transgender Persons (Protection of Rights) Act, 2019).”
Instructing the State to give wide publicity of measures taken to reach out to the members of the transgender community, the Court directed the State to enable transgender persons to apply for the post in question.
“We are hopeful that the State would adopt a sensitive approach and immediately take remedial measures and the last date to invite applications, for the members of the Transgender Community, shall be extended for such time and period, the State determines it to be feasible and appropriate”, the Court said.
In the meanwhile, the Court has ordered a halt on the process of finalizing the list of candidates shortlisted for the examination. The Court has, however, allowed the preparation process to continue.
While taking on record that the State had schemes in place to allow reservations for transgender persons as a class, the Court observed that it was unclear as to how persons could apply for posts without a category being listed.
“It appears that either the officers are working at cross-purposes; without co-ordination; or not adequately sensitized, both of law as also the welfare measures undertaken by the State”, the Court observed.
Directing the State to place on record the remedial steps taken, the Court posted the matter for further hearing on December 22.
A similar case is presently pending before the Karnataka High Court, where the absence of a transgender column in constable application forms has been challenged.
The Kerala High Court is also considering a petition filed by a transwoman assailing the exclusion of transpersons from enrolment as cadets in the National Cadet Corps.