A Supreme Court Bench of Justices J.B. Pardiwala and K. Vinod Chandran sought the Delhi Government's response on why the Delhi Subordinate Services Selection Board notifies teaching vacancies separately for male and female candidates without a category for the third gender

The Supreme Court has recently asked the Delhi Government to explain the legal source of the power under which the Delhi Subordinate Services Selection Board (DSSSB) notifies vacancies for teachers separately for men and women, and to state how it proposes to accommodate transgender persons in public employment. The Court was hearing a petition by Jane Kaushik against the exclusion of the third gender from vacancy notifications issued by the State.

The bench of Justices J.B. Pardiwala and K. Vinod Chandran, by an order passed on October 16, 2026, recorded that "the issue before us pertains to the non-inclusion of third gender in the notifications for vacancies issued by the respondent State", and framed six questions which the respondents must answer on affidavit within 15 days.

Kaushik's special leave petition arises from a judgment of the Delhi High Court dated December 18, 2025. The Lieutenant Governor of the National Capital Territory of Delhi is the first respondent. Solicitor General Tushar Mehta appeared for the respondents, along with Advocate-on-Record (AoR) Swati Ghildiyal.

The first set of questions goes to the foundation of the recruitment process. The Bench asked which Recruitment Rules govern vacancy notifications "such as the one annexed as Annexure P-7 in the petition by Jane Kaushik, issued by the Delhi Subordinate Services Selection Board, Government of NCT of Delhi".

The Court further asked whether those Rules are "traceable to any constitutional provision, or statutory enactment, or State Service Rules", and put the point plainly: "In other words, where does the DSSSB derive powers to issue the notifications of vacancies in respect of teaching roles for specific subjects?"

The Bench then turned to whether the gender-wise division of posts has any footing in law. Its second question asks whether the Recruitment Rules, statutory enactment or State Service Rules "require that vacancies in respect of teaching roles be notified on the basis of gender?"

The order frames the next two questions as alternatives that depend on the answer to the second. If the Rules do not require it, the State must explain "what forms the basis for bifurcation of vacancies between male and female candidates in a vacancy notification issued by the DSSSB? In other words, what is the objective behind notifying vacancies separately for males and females?" If the Rules do require it, the State must explain "what forms the basis for using gender as a basis for notifying vacancies in public recruitment?"

Either way, therefore, the respondents will have to justify the use of gender as a criterion in public recruitment, whether that classification flows from the Rules themselves or from the manner in which the DSSSB has chosen to notify posts.

The fifth question addresses the remedy. The Court asked whether, "in both the petitions, do the respondents propose to include third gender in vacancy notifications issued by them through DSSSB? In other words, in what manner transgender persons would be accommodated in public employment?"

The question places the burden squarely on the State to set out, on affidavit, whether it intends to open its vacancy notifications to the third gender and what mechanism it proposes for the inclusion of transgender persons in public employment.

The matter was heard together with a petition filed by Praveen Singh, which raises the question of age relaxation for transgender candidates. On this, the Bench asked "why the High Court did not deem it fit to exercise its power under Rule 12 of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972, to provide age relaxation to transgender persons considering the socio-economic discrimination that they face?"

The question is significant in its framing. By linking the power of relaxation under Rule 12 to "the socio-economic discrimination" that transgender persons face, the Court said that the disadvantage suffered by the community is a relevant consideration in deciding whether the relaxation ought to have been extended.

In the connected matter, the Court condoned the delay in filing and issued notice returnable on November 19, 2026. Ghildiyal, who was on caveat, accepted and waived formal notice on behalf of Respondent Nos. 2 and 3, and formal notice to them was dispensed with. The Court directed that notice be issued to the remaining respondents, permitted dasti service in addition, and granted liberty to serve the Standing Counsel for the Union of India.

The Bench directed the respondents to "file their response by way of an affidavit within a period of 15 days from the date of this order", to be shared with the petitioners so that they may file their response before the next date. The Court also made clear that it intends to take up the legal issues on that date, recording that "insofar as the legal arguments are concerned, the parties are expected to be prepared on the next date".

Both matters will now be listed on November 19, 2026.

In April, the Court had noted that many of the broader issues raised in the petition had already been comprehensively addressed in its earlier judgment in Jane Kaushik v. Union of India, where binding directions were issued for implementation of transgender rights under the 2019 Act and Rules.

In that judgment, the Court had also constituted an advisory committee chaired by Justice (Retd.) Asha Menon to examine systemic issues such as equal opportunity policies, grievance redressal mechanisms, and inclusive healthcare for transgender persons.

However, the Court had clarified that the advisory committee, which is still in the process of formulating recommendations, does not possess adjudicatory powers. “Prima facie, we are of the view that the High Court committed an error in disposing of the writ petition by directing the petitioner to approach the Advisory Committee,” the Court observed.

Case Title: Jane Kaushik v. Lieutenant Governor, NCT of Delhi & Ors.

Bench: Justices JB Pardiwala and K. Vinod Chandran

Order Date: October 16, 2026

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