Undertake study on problems faced by transgender persons, reservation should be vertical: Andhra Pradesh High Court to State

The Andhra Pradesh High Court recently refused to set aside a government notification on the ground that it did not provide reservation for transgender persons in the police department [Matam Gangabhavani v. State of Andhra Pradesh & Ors]..In his order, Justice Satyanarayana Murthy discussed at length the issue of reservation for transgender persons, and called upon the State to conduct a study of the problems faced by the transgender community..Pertinently, Justice Murthy held that as per the directions of the Supreme Court in National Legal Services Authority v. Union of India and others, reservation for transgenders should be vertical and not horizontal. The judgment stated,“Therefore, it is appropriate to issue direction to the State to undertake study on the problems faced by transgenders, while holding that the reservation as directed by the Supreme Court is only vertical and making provision for horizontal reservation based on sex or gender is contrary to the principles laid down by the Apex Court in the judgment of the Apex Court in National Legal Services Authority v. Union of India (referred supra) ex facie. Therefore, I am unable to agree with the principle laid down by the Karnataka High Court and Madras High Courts in the judgments referred supra to provide horizontal reservations to transgenders…”.The Court was hearing a plea to declare a 2018 notification issued by the State Police as being illegal, arbitrary and violative of Articles 14, 15, 19, and 21 of the Constitution of India, inasmuch as it did not make any provision for reservation of transgender persons.The petition was filed by one Matan Gangabhavani, a transgender person who claimed that the notification was in violation of the NALSA judgment, in which the apex court had asked the Central and State governments to take steps to treat transgender persons as socially and educationally backward classes of citizens and to extend to them reservation in educational institutions and for public appointments.The petitioner applied for the post of Stipendiary Cadet Trainee Sub-Inspector of Police. However, since there were only two categories provided for disclosure of gender - “Male” and “Female” - the petitioner was forced to identify as “Female” in the application. The notification was initially challenged before the Andhra Pradesh Administrative Tribunal, which dismissed the same while stating that since the the post in the police department was gender-specific, a transgender person was not entitled to compete for the post along with men and women. Aggrieved by this, the petitioner approached the High Court, which set aside the tribunal’s order and remitted the matter to the tribunal. However, owing to the fact that the tribunal was since abolished, the petitioner filed the present writ petition..Before the High Court, the petitioner argued that the Supreme Court in the NALSA judgment gave directions to provide for reservation to transgenders. However, the State did not provide any column for disclosure of transgender identity and reservation for transgenders in the notification.Counsel for the State argued that the petitioner was male by birth and had converted into a trans female. Therefore, by birth, the petitioner was not entitled to claim the benefit. It was also submitted that the petitioner did not secure the minimum marks prescribed under different categories in the notification, as minimum marks were not prescribed based on gender identity. Therefore, unless the petitioner secured the minimum qualifying mark in the selection process, the petitioner was not entitled to claim selection..The Court rejected the petition for three reasons. First, the Transgender Persons (Protection of Rights) Act, 2019 is silent about providing reservation to transgenders. Second, the Supreme Court’s directions in NALSA, where it directed the government to take steps for providing reservation to transgenders based on their social and educational backwardness, have not been implemented yet. Third, the petitioner did not secure the minimum qualifying marks in the written test for the second round.It also differentiated the present case from K Prithikayashini (transgender) v. Chairman, Tamil Nadu Uniformed Services Recruitment Board by observing that the relaxation was given to the transgender woman in that case as she had qualified in all the tests. However, in the present case, the petitioner did not qualify in the preliminary written test. Therefore, the Court held that it could not direct the State government to appoint her to the post or issue any direction to provide reservation to the petitioner based on sex or social status.While doing so, however, the Court discussed at length the plight of the transgender community in India, both in terms of discrimination they face and in the context of lack of affirmative action. The Court remarked:“The petitioner is a transgender and she is entitled for proportional equality. The State is expected to take affirmative action in favour of disadvantaged section of the society, as the transgenders are cursed by everyone in the society; living in distressed condition and most of them are living by begging or engaging in menial work and they are being put to harassment in different ways, both physically, mentally and sexually by different persons.”It went on to note,“Hence, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.”On the issue for reservation for transgender persons, the Court called upon the government to implement the directions given by the Supreme Court in NALSA in their true spirit. To this end, it directed the State government to undertake a study on the problems being faced by transgenders, as directed by the Supreme Court in the NALSA judgement, and to implement the direction strictly within three months from the date of this order.It was further held that the direction issued in NALSA was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating or reserving a particular percentage of posts for transgenders.Noting that no steps were taken by the State to provide reservation to transgender persons thus far, the Court said,“At best, such failure may attract contempt being filed before the competent court, but this Court cannot declare such Notification as illegal and arbitrary, on the basis of such contention…”The petitioner was represented by Advocate Solomon Raju. Special Government Pleader Vivekananda appeared for the State..[Read judgment]