Maharashtra Administrative Tribunal says it cannot order State to grant reservation to transgender persons

The Maharashtra Administrative Tribunal (MAT) on Wednesday ruled that it could not entertain a prayer for reservation for transgender persons in public employment and education in State institutions [Arya Pujari v. State of Maharashtra & Ors. and connected matters].A coram of chairperson Justice Mridula Bhatkar and administrative member Medha Gadgil acknowledged the argument of the Maharashtra government that it cannot provide reservation to transgender persons, as vertical reservation within the State had reached 62%, over and above the 50% cap on reservation mandated by the Supreme Court's Indra Sawhney judgment..The Tribunal, however, emphasized that the State was obligated to come up with welfare schemes and different modes to provide opportunities to transgender persons for public employment. "Mere acknowledgement of their separate identity is not enough to provide them opportunity in public employment. The Transgender Persons Act offers progressive dynamics so also equally sensitive approach by the government and the executives of the State. The State of Maharashtra has been proved to be very progressive in its thought and culture. Therefore, it is desirable on the part of the Government to take necessary measures to enable these transgender applicants to get jobs in the Government sector.".Thus, it directed the State government to grant necessary grace marks to transgender applicants to reach the cut-off marks or to consider applicants for the post if they reached upto 50% of the total marks."To get in public employment is a handicapped race for the transgenders. Though they are not physically disabled and are able-bodied persons, their activities, actions, growth is paralyzed due to the negative approach of the society, family in all the schools, colleges in all places at all the levels," the order reasoned..Advocate Kranti LC and Kaustubh Gidh, appearing for the applicant, highlighted the directions issued by the Supreme Court in the NALSA case to extend reservation to transgender persons in educational institutions and in public employment.The State, on the other hand, pointed out that no reservation is provided under the Transgenders Act, 2019, and therefore, it cannot provide reservation for transgenders..MAT also expressed its disappointment at the fact that out of the approximately 5.5 lakh government servants in the State, there was not a single transgender person employed who had come out of the closet."As on today in State of Maharashtra approximately 5.5 lakh Government servants are working on various posts in various Departments. But not a single transgender who has come out of closet has got a job in the Government sector. This fact itself speaks in volume", the Tribunal's order highlighted..MAT had directed the State government on November 14 last year to create a third option for transgender persons in application forms for all recruitments to the State Home Department..In December 2022, the Bombay High Court directed the State government to frame rules to enable transgender persons to secure employment in government posts, in compliance with the 2020 guidelines issued by the Central government.The State issued a government resolution (GR) on March 3, 2023, for the recruitment of transgender persons in employment and education.The GR also mentioned that a committee had been set up under the Social Justice Department, consisting primarily of secretaries of various State departments and psychologists.It, however, informed the High Court that it was presently difficult to provide additional reservations (horizontal and/or vertical) for transgender persons in education and employment..[Read order]