Kerala High Court upholds interim order of KAT directing PSC to consider job application of transwoman for female house keeper post

The Kerala High Court recently upheld an interim order of the Kerala Administrative Tribunal that had directed the Kerala Public Service Commission (PSC) to provisionally accept a job application form submitted by a transgender person to the post of House Keeper (Female). [Kerala Public Service Commission v Aneera Kabeer].A division bench of Justices Alexander Thomas and C Jayachandran declined to interfere with the tribunal's order opining that it was intended only to ensure that the subject matter of the case would not become irrelevant by the time it was disposed. "The said ad interim order has been issued only to preserve the subject matter of the lis so as to keep the litigating claims of the petitioner in the above lis alive," the Court said..The respondent one Aneera Kabeer, a transwoman (assigned male at birth but identifies as a woman) had sought employment as a House Keeper (Female) under the department of Homeopathic Medical College. The notification to the post specified that only female candidates can apply for the post but did not include transwomen specifically.Therefore, Kabeer moved the Kerala Administrative Tribunal arguing that "the arbitrary exclusion of transwomen from the ambit of the post notified is unjust, illegal, and arbitrary, and amounts to the violation of the applicants' (Kabeer's) fundamental rights". She also argued the exclusion of transgender persons from the KPSC posts was violative of the Transgender Persons (Protection of Rights) Act, 2019, the Transgender Persons (Protection of Rules), 2020, as well as various apex court judgments including the landmark NALSA Case, and the State Policy for Transgender in Kerala, 2015..In January this year, a bench of Justice PV Asha and administrative member Rajesh Dewan of the tribunal had allowed Kabeer to submit her job applications to the KPSC and directed the Commission to "process the application provisionally and subject to further orders.Kerala Administrative Tribunal orders State Public Service Commission to consider job applications of two transgender persons.The tribunal had also allowed her to submit her application in physical form as there was no option to select transgender woman on the online application page..The PSC moved the High Court challenging the same. .The Court noted that the tribunal's interim order was issued merely to ensure that the subject matter does not become pointless. However, it concurred with the PSC that the tribunal ought to have heard the PSC even at the interim stage. Therefore, the Court decided not to interfere with the tribunal's interim order but directed the tribunal to hear the matter expeditiously and dispose of it within a period of three months. "We fully appreciate the submission made on behalf of the petitioner that, in a matter of this nature, they should have been given opportunity to present their case to defend at the interlocutory stage and the Tribunal could have assessed as to whether a strong prima facie case is made out in the O.A and also as to whether the balance of convenience is also in favour of the applicant and then after assessing the rival contentions, should have passed a reasoned order. However, we need not interfere with the present interim order as we see it essentially fully as an ad interim order," the judgment stated. .Kerala Public Service Commission was represented by advocate PC Sasidharan.Senior Government Pleader B Unnikrishna Kaimal appeared for the State government.Kabeer was represented by advocates Kaleeswaram Raj, Thulasi K Raj, and Aparna Narayan Menon. .[Read Judgment]