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Synopsis

The Madras High Court has directed Government of Tamil Nadu, Home Department to treat transgenders under a special category in all education and employment avenues.

In every employment and educational avenue, the government shall prescribe separate norms for transgenders which shall be below the norms prescribed for male and female candidates, court ordered.

The bench of Justice V Bhavani Subbaroyan further ordered that the government shall ensure by directing all the recruiting agencies to specify transgender as a special category and prescribe separate norms for their cut-off mark.

The age relaxation that is extended to other special categories shall also be extended to the transgender irrespective of their caste in future employment and educational avenues, court added.

"The transgender at no point of time in the future shall be clubbed under male or female categories," court underscored.

The order was passed in a writ petition filed by R. Anushri, who sought to annul the results of the Combined Civil Service Examination-II (Non-Interview Post) (Group-II-A Services) for the years 2017-2018. Anushri also direction to provisionally admit her for certificate verification.

Anushri graduated with a degree in Computer Science Engineering in 2012. She took the Combined Civil Service Examination in 2018. In her application, she stated that she belongs to the SC category and applied as a transgender. She scored above the minimum qualifying cut-off mark. However, the Tamil Nadu Public Service Commission did not consider her under the special category whereas various other persons who had scored lesser marks in a special category were called to upload their certificates for the recruitment.

The Commission's explanation was that since Anushri had claimed herself as a Schedule Caste woman in her online application, she was considered under the Schedule Caste (Women) category and the cut-off marks for that category were almost twice higher than the marks Anushri acquired. 

The Commission contended that they are only a recruiting agency and they are proceeding by what the government has prescribed. They argued that it is the government that frames the Rules and necessary guidelines to be adopted by the recruiting agency and in the absence of any notification or instruction from the government to treat the transgender as a special category, they could not treat her as a special category candidate. 

The high court referred to the Apex Court's ruling in National Legal Service Authority versus Union of India and others reported in (2014) where the top court set out certain directions to both the Central Government and the State Government to treat transgender persons as “third gender” to safeguard their rights, among other provisions.

The high court noted that though the NALSA case came to be decided as early as 2014, still neither the State government, nor the Central Government has come forward to formulate a uniform mode of employment opportunities to be provided for the transgenders.

In many of the cases,the guidelines issued by the Hon'ble Supreme Court in the aforesaid paragraphs in the NALSA case have been misconstrued, it pointed out. 

Regarding the present case, in view of the top court's directions in the NALSA case, the high court held that when the notification issued by the Commission did not categorised transgender as a special category, the question of transgender being categorised under woman category was unsustainable and against the order passed by the top court. 

"Every denial of opportunity to a transgender that too when there are very minimal number of transgenders, who are educationally qualified, the said denial would pull back the transgender to live in abnormal life is what we see in the society," court underscored. 

Court stated that it is the government's responsibility to enhance the quality of life for transgender individuals by providing adequate opportunities in education and employment. This, the court emphasized, is essential for achieving societal balance concerning transgender persons.

Therefore, court issued the abovementioned directions to the government. 

Furthermore, regarding Anushri's case, court ordered that since she had scored the eligible cut-off mark under the special category, the Commission had to permit her to upload documents for certificate verification.

Case Title: R.Anushri v. The Secretary Tamilnadu Public Service Commission