The Kerala High Court recently upheld the Kerala Administrative Tribunal’s (Tribunal) interim order to the State Public Service Commission (PSC) to consider the job application of a transgender person, one Arjun Geetha [Kerala Public Service Commission v Arjun Geetha & Ors.].
The division bench consisting of Justice Basant Balaji and SV Bhatti while dismissing the appeal, said that the Tribunal while passing the order correctly followed the Transgender Persons (Protection of Rights) Act, 2019.
The Court further said that the Special Rules, 1984 applicable to recruitment, which were relied upon by the Kerala PSC doesn’t restrict the constitutional applicability of the Transgender Act of 2019.
“One need not search for reasons for insisting upon adherence only to Special Rules. But the role of the Tribunal is at a higher pedestal, and in reviewing the decision or inaction of the Government and the Kerala Public Service Commission, the Tribunal, through the kaleidoscopic view, appreciated the guarantees under the Constitution of India, the protection given to the transgender by the ‘Transgender Persons (Protection of Rights) Act, 2019. The order under review before us is the interim order of the Tribunal under challenge. We do not want to restrict the case of the transgender through the prism of Special Rules on which several grounds are raised and argued before us. The view of the Tribunal is within the framework of the Constitution of India and the act of Parliament,” the order said.
On January 24, 2023, the tribunal had granted interim relief to Geetha who is a transman (assigned female at birth but identifies as a man) who is an aspirant for a job with the State police.
The notifications for job were issued by the PSC to the posts of Sub-Inspector of Police (Trainee) in Police (Kerala Civil Police) Department, Women Police Constable (Woman Police Battalion) & post of Armed Police Sub Inspector (Trainee) in Police (Armed Police Battalion) department.
The last date for the applying for the jobs was February 1, 2023.
The applicant attempted to apply for the post of Sub-Inspector of Police (Trainee) and was successful in submitting the application but the notification did not mention physical standards for transgender persons. Hence, it was argued by Geetha that by not providing for relaxed physical requirement for transgender persons, the notification was bad in law.
For the posts of Woman Police Constable and Army Police Sub Inspector (Trainee), he was unable to apply as he was informed that he was ineligible because of his gender identity even though the latter position did not specify any impediment to apply merely because he is a transman.
The tribunal passed an interim order in favour of Geetha prompting the Kerala PSC to move the present appeal before the High Court.
Advocate PC Sasidharan, appearing for the Kerala PSC, contended that the Tribunal exceeded its jurisdiction by directing the consideration of Geetha’s application which does not specify the person coming under the category of the transgender.
The note appended to Armed Police Sub Inspector in the Armed Police Battalion limits the consideration of male candidates alone and hence, the order is completely illegal and liable to be set aside, he argued.
He further contended that Geetha is bound by the General and Special Rules, 1984 applicable to recruitment and the tribunal, by permitting him, has deviated from the binding Rules.
The Court placed reliance on the Supreme Court decision in L Chandrakumar v Union of India in which it was held that the Tribunal has jurisdiction in matters of the appointment to service, retirement etc.
The Court further noted that the Kerala PSC has only looked at the ineligibility of the Geetha who is transgender person, through the prism of either General rules or Special rules.
Thereafter, the Court said that denying Geetha an opportunity would be contrary to the protection given to transgender persons by the Act of Parliament.
Therefore, the Court dismissed the appeal.
The petitioner was represented by advocate PC Sasidharan.
The respondents were represented by advocates Thulasi K Raj and Mary Beena Joseph (Government Pleader).