The Petitioners, an organization working for the upliftment of sexual minorities, sex workers and people living with HIV along with a member of the transgender community, has filed W.P. No. 8511 /2020 (EDN-RES) (PIL) challenging the inaction of the Karnataka State Police to include ‘transgender’ category within its Notification No. 15/Recruitment-4/2019-2020 calling upon ‘men’ and ‘women’ for filling up 2467 vacancies for the post of Special Reserve Constable force and Bandsmen. The Petitioner seeks enforcement of Fundamental Rights under by making a separate category available for transgender candidates to apply and to frame a scheme for reservation for the transgender community in recruitment.
The Petitioner challenged the notification as being unconstitutional as per Art. 14, 16, 19 & 21 of the Constitution of India and in violation of the judgment of the Supreme Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438 insofar as the Apex Court directed the Centre and the State governments to take steps to treat the ‘third-gender’ as socially and educationally backward classes and to extend reservation in cases of public appointments. The petitioners also relied on the judgment of the Rajasthan High Court in Ganga Kumari v. State of Rajasthan W.P. 14006/2016 wherein the Hon’ble High Court upheld the selection of a transgender person into the police force on account of the constitutional guarantees of the transgender persons.
In accordance with the interim order dated 28.08.2020 of the Karnataka High Court, the State Government, as mentioned in their reply, initiated the necessary procedure to bring a suitable amendment to the relevant Government Notification to provide reservation for transgender persons. The Respondents stated that based on consultation with State government, transgender persons would be included under ‘other backward classes’ for the purpose of recruitment.
Impleadment Application by Jeeva
Applicant is an organization working extensively on the rights of transgender persons and to create a platform for sexual minorities to participate equally in the society. The application was filed seeking horizontal reservations to be provided to transgender persons in public employment and provide assistance in the complex legal issues that arise with regard to reservation for transgender persons.
The Applicant submitted that the transgender persons must be provided horizontal reservation as a separate special category like the reservation provided for women and persons with disabilities, which can then be interlocked with other social categories of vertical reservation of SC/ST/OBC etc. The proposal of the State Government to include transgender persons with OBC category will not benefit those transgender persons from SC/ST category or OBC category and the chances of transgender persons getting any posts would be less as they would have to compete with other members of the OBC category.
The Applicant relied on NALSA to the extent that the Hon’ble Court noted that transgender persons are discriminated on the basis of their gender identity, thereby requiring reservation based on gender identity. The Applicant also relied on various judgments of the Madras High Court wherein the Court directed that instead of including transgender persons within the ‘Most backward Classes’, post based reservation or horizontal reservation in each vertical category be provided instead. Moreover, it was contended that horizontal reservations should be provided which should be compartmentalized as held in Anil Kumar Gupta v. State of Uttar Pradesh (1995) 5 SCC 173, that is, transgender candidates should be selected on the basis of merit lists under the categories of SC, ST, OBC and OC.
In addition to the above contentions, the Applicants contended that reservation for transgender persons should also provide for concessions in age, cut-off marks and physical criteria, as provided to other reserved categories and that the reservation must be extended not only to public employment but also education, allotment of housing and other schemes.
The State has now passed the Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2021. After an obligatory period inviting objections, the Amendment was notified on 06.07.2021. This Amendment provides 1% horizontal reservation for transgender persons under sub-rule (1D) of Rule 9.