In a petition filed by a Transgender woman before the Andhra Pradesh High Court to declare the action of the respondents for not selecting the petitioner for the post of School Assistant despite securing 678th rank in the district as illegal, irregular, irrational, and arbitrary, a Single Judge Bench of Justice Nyapathy Vijay noted the discrimination that transgender persons face in the society and directed the State to provide reservation to transgender persons in public employment within six months.
The petitioner, a Transgender woman, having the requisite qualifications, applied for the post of School Assistant (Language) Hindi and also TGT (Language) Hindi. The petitioner had secured 678th rank in the DSC-2025 examination of Eluru District, but she was not considered because no vacancies had been notified. Thus, the present petition was filed questioning the failure to notify vacancies for transgender individuals, which is contrary to the mandate of the Supreme Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438.
The petitioner submitted that out of the 16000 proposed posts under the DSC-2025 Notification, not a single transgender person was being accommodated. The respondents contended that providing special reservations to transgender persons was a policy decision, and in the absence of the same, the recruitment could not be held faulty.
The Court stated that one of the most underprivileged communities in the country is the transgender community, and referred to a direction given to the States by the Supreme Court in the National Legal Services Authority (supra) to take affirmative action regarding employment of transgender persons under Article 16 of the Constitution.
Acknowledging said judgment, the Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, to address issues of discrimination and the rights of the transgender community. However, the Court noted that no quota in employment or educational institutions was provided to the transgender communities by the State.
The Court noted the situation across different states by referring to various judgments and stated that there is a dire need to mainstream transgender persons in the socio-economic and cultural-political spheres and to adopt an inclusive approach in all spheres of life, including public employment.
Further, the Court said that the purpose of carving out an exception to the right of equal opportunity in employment by the introduction of Article 16(4) and 16(4A) of the Constitution was only to ensure that socially and economically backward communities are also allowed to come to the forefront and to ensure intergenerational equality. It was said that the State has a moral obligation under the Constitution to take affirmative action on behalf of the transgender community.
Thus, while disposing of the petition, the Court directed the State Government to provide reservations to transgenders in public employment within six months and to consider the petitioner for appointment to the post of School Assistant.
Appearances:
For Petitioner – M. Solomon Raju
For Respondent – GP for Services II
