MAT doesnt entertain quota plea, but directs State to give grace marks, age relaxation for more opportunities to Trans genders seeking public jobs
MUMBAI: Observing that the “case of transgendersis worse than the women’’ in their fight for equal opportunity and equal treatment in society , the Maharashtra Administrative Tribunal (MAT) in a judgment pronounced on Wednesday however said it can’t entertain a plea by two police recruitment applicants to direct the State to reserve seats for transgenders in government jobs in view of The Transgenders Act, 2019 but called for a lower benchmark for these candidates.Considering the salutary provisions under the special law,MAT directed necessary grace marks be given to the transgender candidates to reach the cut-off marks.
The State said it has about 5.5 lakh government servants but not a single transgender among them. “This fact itself speaks volumes,’’ said MAT bench of chairperson Justice Mridula Bhatkar and Member Medha Gadgil.
” The women of the world had to struggle for generations to have today’s position and yet to go ahead in respect of getting equal opportunity and equal treatment in the society. The case of transgenders is worse than the case of women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted,” the judgment said adding “ The transgenders are humans, citizens of our great Country are waiting for their inclusion in the mainstream. We have historical, mythological and cultural instances of eunuchs and their participation in political, social or cultural fields’’
“ Only by acknowledging the third gender, the Government has not made adequate opportunity available to the transgenders,” underscored MAT adding, “More steps are required to be taken by the State for effective participation and meaningful inclusion of the transgenders in the mainstream.”
There were three trans persons before MAT seeking orders for such reservation. The common plea in their separate applications was that the State be directed to provide the option of third Gender and to provide reservation to these applicants as transgenders in Government employments
Noting that the Courts do not step into the ‘law making’ realm, the Tribunal however said, “The Courts are for the justice and cannot ignore any problem in the Society when placed before it.’’ The Tribunal thus directed that applicants who got up to 50% of the total marks to be considered for the concerned posts, directed the MAT bench of who pronounced the verdict. It also directed the State to grant age relaxation to the applicant who secured up to 45% marks in the examination to provide them another opportunity.
“ The law is an instrument of social engineering. It creates a mandate regulating the social pattern and human behaviour leading to equality and harmony in the Society,’’ said Justice Bhatkar authoring the judgment.
Arya Pujari, Vinayak Kashid and Yashwant Bhise all from Satara had approached the Tribunal and through advocate Kranti L C sought that an option be included for transgenders in the recruitment process as mandated by the landmark 2014 Supreme Court ruling which upheld rights of transgenders following which Transgender Persons (Protection of Rights) Act, 2019 was framed by the Centre.
Arya Pujari and Vinayak Kashid have applied for the post of Police Constable Bhise has applied for the post of Talathi.
Recognising how it took a long struggle for women to get their rights in employment too, the Tribunal’s judgment said, “The women of the world had to struggle for generations to have today’s position and yet to go ahead in respect of getting equal opportunity and equal treatment in the society. The case of transgenders is worse than the case of women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted,’’
It also observed, “The Transgenders are people in minority. Majority forms the Government, but the majority cannot suppress or ignore the rights of marginalized sections. The calibre and morality of the Democracy is tested on these yardsticks.’’
By an order dated 25.11.2022, MAT had directed the Maharashtra government to open the third option in the recruitment process. The HC had last December in an appeal further directed the Government to frame appropriate rules under the statutory mandate. The State then issued a government resolution on March 3, 2023 identifying the third gender and providing options to transgenders in public employment. The State and Maharashtra Public Service Commission (MPSC) ,both then allowed the transgenders to apply under the third option of transgender, other than male and female.
Having addressed one of their please—for including the third gender as an option in the recruitment process, the MAT dealt with their demand for reservation as a separate class.
Swati Manchekar for the State “vehemently’’ opposed the quota plea and said the State has rejected it citing a lack of provision for reservation under the Act. She said the State relies on the Centre to include or exclude any community for grant of reservation and noted that the Centre too has not given any reservations to trans-persons.
The State has a Vertical reservation of 62% and Horizontal reservation is 72%, said advocate Manchekar. Besides, she said the State had on March 14 also issued another GR to form a Committee which has submitted its report with recommendations for the welfare and protection of the transgender community. The report is pending approval of the State, she added.
The MAT judgment noted that the State as mentioned in its affidavit “does not want to further cross the reservation limit’’.
The law making process moves like a “python’’ said MAT and “it becomes difficult for the Society to resolve issues, which have cropped up in Society specifically…due to technological developments.’’
The Tribunal noted that section 9 of the special Act bans discrimination against any transgender over recruitment, promotion, and other employment issues.
The MAT analysed the Transgender Act and praising it as being “very liberal and laudable’’ and it also praised the State for being “ very progressive in its thought and culture.’’ The Tribunal said, “ Therefore, it is desirable’’ for the State to take necessary measures to enable these transgender applicants to get jobs in the Government sector.
The Tribunal said, “We think it is necessary to give the illustrations of making policy decision with positive discrimination which is expected by the State….For example:- To fix separate lower benchmarks for transgenders as a class in Preliminary and Main Examination; To give grace marks to reach the cut-off marks…”
” We direct the State to implement this order within six weeks from the date of this order,” said MAT.
The Trans gender count:
In Maharashtra by 18.7.2023, total 2181 Certificates were issued to the transgender on gender identity.
3275 trans persons attended health camps
2011 Census pegged the Trans persons population in India at 4,87,803
The LAW
The Transgender Act
Section 9. Non-discrimination in employment – No establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues.”
The Recruitment
14956: The number of posts of Police Constables advertised on 6.11.2022.
145: posts of Police Constables in District Satara
56 : The number of transgenders who applied
1: The transgender who clear the examination physical test yet unable to reach the cut-off
The State said it has about 5.5 lakh government servants but not a single transgender among them. “This fact itself speaks volumes,’’ said MAT bench of chairperson Justice Mridula Bhatkar and Member Medha Gadgil.
” The women of the world had to struggle for generations to have today’s position and yet to go ahead in respect of getting equal opportunity and equal treatment in the society. The case of transgenders is worse than the case of women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted,” the judgment said adding “ The transgenders are humans, citizens of our great Country are waiting for their inclusion in the mainstream. We have historical, mythological and cultural instances of eunuchs and their participation in political, social or cultural fields’’
“ Only by acknowledging the third gender, the Government has not made adequate opportunity available to the transgenders,” underscored MAT adding, “More steps are required to be taken by the State for effective participation and meaningful inclusion of the transgenders in the mainstream.”
There were three trans persons before MAT seeking orders for such reservation. The common plea in their separate applications was that the State be directed to provide the option of third Gender and to provide reservation to these applicants as transgenders in Government employments
Noting that the Courts do not step into the ‘law making’ realm, the Tribunal however said, “The Courts are for the justice and cannot ignore any problem in the Society when placed before it.’’ The Tribunal thus directed that applicants who got up to 50% of the total marks to be considered for the concerned posts, directed the MAT bench of who pronounced the verdict. It also directed the State to grant age relaxation to the applicant who secured up to 45% marks in the examination to provide them another opportunity.
“ The law is an instrument of social engineering. It creates a mandate regulating the social pattern and human behaviour leading to equality and harmony in the Society,’’ said Justice Bhatkar authoring the judgment.
Arya Pujari, Vinayak Kashid and Yashwant Bhise all from Satara had approached the Tribunal and through advocate Kranti L C sought that an option be included for transgenders in the recruitment process as mandated by the landmark 2014 Supreme Court ruling which upheld rights of transgenders following which Transgender Persons (Protection of Rights) Act, 2019 was framed by the Centre.
Arya Pujari and Vinayak Kashid have applied for the post of Police Constable Bhise has applied for the post of Talathi.
Recognising how it took a long struggle for women to get their rights in employment too, the Tribunal’s judgment said, “The women of the world had to struggle for generations to have today’s position and yet to go ahead in respect of getting equal opportunity and equal treatment in the society. The case of transgenders is worse than the case of women. Learned counsel Kranti has demonstrated how transgenders are ridiculed or subjected to misplaced abnormal curiosity, hence social movements of this class are very much restricted,’’
It also observed, “The Transgenders are people in minority. Majority forms the Government, but the majority cannot suppress or ignore the rights of marginalized sections. The calibre and morality of the Democracy is tested on these yardsticks.’’
By an order dated 25.11.2022, MAT had directed the Maharashtra government to open the third option in the recruitment process. The HC had last December in an appeal further directed the Government to frame appropriate rules under the statutory mandate. The State then issued a government resolution on March 3, 2023 identifying the third gender and providing options to transgenders in public employment. The State and Maharashtra Public Service Commission (MPSC) ,both then allowed the transgenders to apply under the third option of transgender, other than male and female.
Having addressed one of their please—for including the third gender as an option in the recruitment process, the MAT dealt with their demand for reservation as a separate class.
Swati Manchekar for the State “vehemently’’ opposed the quota plea and said the State has rejected it citing a lack of provision for reservation under the Act. She said the State relies on the Centre to include or exclude any community for grant of reservation and noted that the Centre too has not given any reservations to trans-persons.
The State has a Vertical reservation of 62% and Horizontal reservation is 72%, said advocate Manchekar. Besides, she said the State had on March 14 also issued another GR to form a Committee which has submitted its report with recommendations for the welfare and protection of the transgender community. The report is pending approval of the State, she added.
The MAT judgment noted that the State as mentioned in its affidavit “does not want to further cross the reservation limit’’.
The law making process moves like a “python’’ said MAT and “it becomes difficult for the Society to resolve issues, which have cropped up in Society specifically…due to technological developments.’’
The Tribunal noted that section 9 of the special Act bans discrimination against any transgender over recruitment, promotion, and other employment issues.
The MAT analysed the Transgender Act and praising it as being “very liberal and laudable’’ and it also praised the State for being “ very progressive in its thought and culture.’’ The Tribunal said, “ Therefore, it is desirable’’ for the State to take necessary measures to enable these transgender applicants to get jobs in the Government sector.
The Tribunal said, “We think it is necessary to give the illustrations of making policy decision with positive discrimination which is expected by the State….For example:- To fix separate lower benchmarks for transgenders as a class in Preliminary and Main Examination; To give grace marks to reach the cut-off marks…”
” We direct the State to implement this order within six weeks from the date of this order,” said MAT.
The Trans gender count:
In Maharashtra by 18.7.2023, total 2181 Certificates were issued to the transgender on gender identity.
3275 trans persons attended health camps
2011 Census pegged the Trans persons population in India at 4,87,803
The LAW
The Transgender Act
Section 9. Non-discrimination in employment – No establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues.”
The Recruitment
14956: The number of posts of Police Constables advertised on 6.11.2022.
145: posts of Police Constables in District Satara
56 : The number of transgenders who applied
1: The transgender who clear the examination physical test yet unable to reach the cut-off
