Deploring the “inadequate” concessions granted so far to members of the transgender community in public employment, the Madras High Court has made a “strong” recommendation to the State government to provide a specified percentage of special reservation for the transgender candidates in future recruitments apart from extending other privileges and relaxations.
Justice M.S. Ramesh took note that the neighbouring Karnataka had become the first State in the country to provide 1% reservation for the transgender community in 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 transgender of this State also,” he wrote.
The judge made the recommendations while allowing a batch of eight writ petitions filed by transgender candidates who were treated on a par with male candidates and not provided with any kind of special reservation or concession in the recruitments for the post of Grade-II police constables between 2017 and 2020 merely because they had identified themselves as male.
Delving deep into the subject, the judge found that Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) had been clubbing the transgender candidates who identify themselves as female along with other female candidates and considering them together under the 30% quota meant for women candidates. Those who identify themselves as male or third gender were considered under general category.
Further, the relaxation given to women candidates in physical measurement, endurance and physical efficiency tests were extended only to the transgender who either identity themselves as female or as third gender. The relaxations were not applicable to those who identify themselves as male. In so far as reservation was concerned, the transgender had to go by their community certificates.
Those who were not in possession of community certificates were considered under the Most Backward Class (MBC) category. The judge also said there was no rationale behind providing age relaxation only up to 29 years, on a par with Scheduled Caste and Scheduled Tribe candidates, for the transgender community though it was 35 years for destitute widows and 45 years for ex-servicemen.
Expressing deep anguish over such “unfair” treatment meted out to the transgender candidates, the judge held that the act of the TNUSRB was illegal since it infringes not only the transgender community’s fundamental rights to equality and equal opportunities guaranteed under Article 14 and 16(1) of the Constitution but also the directions issued by the Supreme Court in the famous NALSA’s case in 2014.
The judge disapproved of the practice of considering the transgender candidates, who identify themselves as female, within the 30% reserved for women candidates and also the practice of not providing any kind of concession to those who identify themselves as male. He said, the Supreme Court had given the transgender person the right to identify themselves the way they prefer to but TNUSRB did not appear to have understood the object behind the verdict.
“The TNUSRB had neither understood the object of Articles 14, 16(1) and 16(4) of the Constitution nor the intent of the directions in NALSA and therefore their actions in this regard, are illegal,” the judge concluded and agreed with senior counsel Jayna Kothari that all petitioners before the court must be allowed to participate in physical measurement, endurance and physical efficiency tests in accordance with relaxed norms applicable to women.
