Point of Law: Reservation to transgenders - In the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders does not make the notification impugned in this writ petition invalid.

ORDER:

1. One Matam Gangabhavani, claiming to be transgender filed this writ petition under Article 226 of the Constitution of India, to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01.11.2018, as it did not make any provision for reservation of appointment of transgender persons as illegal, arbitrary, violative of Articles 14, 15, 19, 21 of the Constitution of India, contrary to the law declared by the Hon’ble Apex Court in Hon'ble Supreme Court of India in National Legal Services Authority v. Union of India and others, 2014 (5) SCC 438 and consequently issue a direction to the respondents to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner in Post Code No.11 - Stipendiary Cadet Trainee Sub-Inspector of Police in the Police Department in the vacant post, kept apart for the petitioner in terms of the order of the Court in W.P.No.1575 of 2019 dated 13.02.2018.

2. The petitioner was male by birth, underwent Sexual Reassignment Surgery in the year 2003. After the judgment of the Apex Court in National Legal Services Authority v. Union of India and others (referred supra), the petitioner changed gender identity from male to transgender in Aadhar, PAN, Voter ID, Passport in the year 2017. The petitioner also received official certificate as transgender from the Government of Andhra Pradesh. The petitioner came across Notification bearing Rc.No.216/R&T/Rect.1/2018 dated 01.11.2018 for recruitment to the post of Post Code No.11 - Stipendiary Cadet Trainee Sub Inspector of Police in Police Department. Though the petitioner was keen on appearing for the said examination through official portal, she realized that there are only two categories provided for the disclosure of gender namely “Male” and “Female”. This act of non-inclusion of the transgender is violative of the direction of the Hon’ble Supreme Court in National Legal Services Authority v. Union of India and others (referred supra). Further, due to non-availability of an option to register as transgender, the petitioner was forced to mention identity as female while registering for the examination as per the said notification and the same was accepted and provided with Registration No.1012386. The petitioner appeared for the first round of recruitment process i.e. Preliminary Written Test held on 16.12.2018 and scored 28% in Paper-I and 21% in Paper-II, thereby, the petitioner was declared “not qualified” for the next round of recruitment process. The petitioner is a member of BC community, the qualifying score for both papers is 35% respectively.

3. It is contended that the notification issued by the second respondent suffers from inherent flaw and it is contrary to the judgment of the Apex Court in National Legal Services Authority v. Union of India and others (referred supra), where certain directions were issued for providing reservations to transgenders. Contrary to the law, the second respondent did not provide any column for disclosure of transgender identity and reservation for transgenders in the notification. The specific column regarding gender identity is only for identification of male or female, but there is no column for transgenders. Though, there is reservation for various categories of castes, no reservation is provided for transgenders category. Despite it, transgenders are most disadvantaged class and cannot compete with male or female genders.

4. The petitioner contended that, she was born 25 years ago, when acceptance levels of transgenders in the society was not as it is today and transgenders could not attend even educational institutions where male/female gender children attend. The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the Notification dated 01.11.2019. O.A.No.23 of 2019 was dismissed by the Tribunal on the following grounds:

a) That the recruitment as per the notification is being proceeded with respect to men and women vacanci