An intervention application came before the Karnataka High Court for the inclusion and horizontal reservation of transgender categories in public employment.
Grounds for the Application
The State issued a notification for the vacancy in Special Reserve Constable Force and Bandsmen which disregarded transgender persons. The notification only addressed the physical specification requirements for men and women. A PIL was filed to which the state of Karnataka responded that they are already trying to eliminate discrimination and have already issued a ‘Karnataka State Policy on Transgender Persons’ which intends to provide reservations for the transgender community. Additionally, the state intends to consider a transgender person under OBC for public recruitment. The Court found out that there were no specifications on how the state of Karnataka will implement ‘Karnataka State Policy on Transgender Persons’
After the State government replied to a previous PIL, a ‘trust’ name ‘Jeeva’ filed an intervention application under Article 226. In the intervention application, the decision in NALSA v UOI was highlighted and used to point out the discrimination faced by transgender communities in various parts of life. A person under Article 21 has the right to self determine the gender identity and no one can decimate on that basis. Additionally, the Trans community has been discriminated against for centuries and the state should treat them socially and educationally backwards. The Supreme Court also directed the Centre and the State governments to extend reservation to them.
Petitioner pointed out that the state of Karnataka had not followed and implemented the directions provided by the top Court. The Petitioner asked for a ‘horizontal reservation’ instead of a vertical reservation with other social categories for the transgender community. They stated that a transgender person from SC/ST community would not be able to reap benefits from those categories. Similarly, a transgender person who was already in the OBC category would not benefit from the vertical reservation and the chances would diminish to get a job in the OBC quota.
Petitioner further contended that horizontal reservation would ensure that people from the only same category can compete with each other for admissions and public posts. Horizontal reservation cuts across vertical reservations and would allow a transgender person from a disadvantageous section to compete with a less disadvantageous group.
The application also emphasized the fact that in Tamil Nadu, the State government had included Transgender persons within the backward class category known as Most Backward Classes (MBC) which was equivalent to the OBC category in Karnataka. The Madras High Court in Swapna v Chief Secretary, Tharika Banu v The Secretary to the government, K. Prithika Yashini v. Chairman declared the vertical reservation provided by the state to the transgender community ineffective. The High Courts have directed the State government to form post based reservation within the MOST BACKWARD COMMUNITY (MBC) in the vertical category for them.
Petitioner apart from this also requested the Court for reservation for transgender persons in the concession in age, cut-off marks, and physical criteria as provided to other reserved categories. Moreover, the reservation should be given for transgender persons in public hiring, public scholarship, distribution of dwelling sites, and projects.
The Karnataka High Court considering the application filed asked the State government to file a response on the same following which the case would be heard further.
Click here to view the Judgement.
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