The main legal point established in the judgment is that the Court cannot direct the State to reserve posts for transgenders when a clear-cut policy had not been formulated by the State Government, and that the issue of reservation for transgenders should be addressed before the Tribunal.

JUDGMENT

Aravind Kumar, J. - Though matters are listed for hearing on interlocutory application, by consent of learned Advocates appearing for parties they are taken up for final disposal.

2. We have heard the arguments of Smt. Jayna Kothari, learned Senior Counsel appearing on behalf of Sri. Rohan Kothari for petitioners, Sri. K.M.Prakash, learned counsel appearing for respondent No.1 and Smt.Shwetha Krishnappa, learned AGA appearing for respondent No.2. Perused the records.

3. Petitioners being aggrieved by the order dated 03.10.2013 passed by Karnataka State Appellate Tribunal at Bangalore (for short 'Tribunal') - Annexure-B in respective petitions whereunder interim order sought for in the applications for staying the impugned notification dated 11.02.2019 has been negatived, have preferred these writ petitions and have prayed for setting aside the impugned order and have also sought for two (2) posts being reserved pending disposal of these petitions.

4. Grievance of the petitioners in sum and substance is they belong to third gender namely, transgender and Hon'ble Apex Court in the matter of NALSA vs. UNION OF INDIA, (2014) 5 SCC 438 had directed the State Governments to take affirmative actions with regard to protecting the rights of transgenders and not to subject them to any disability, liability, restriction or condition in regard to access to public places; transgenders have also not been afforded special provisions envisaged under Section Article 15(4) of the Constitution for advancement of the Socially and Educationally Backward Classes (SEBC) and same is to be extended to them; and also to take some affirmative actions for their advancement including affirmative action to give them due representation in public services as envisaged under Article 16(4) of the Constitution. It is contended by them that first respondent having published a notification on 11.02.2019 (Annexure-A1) inviting applications from eligible candidates to fill-up First Division Assistant (FDA) and Second Division Assistant (SDA) posts of the residual parent cadre in Bangalore City Civil Court and different District and Sessions Courts across the State is violative of direction issued by Apex Court as it does not provide reservations to transgenders and as such said notification is liable to be quashed. Prayer to the said effect has been sought before Tribunal and in aid of said relief interim prayer to stay the operation of impugned notification was sought for which came to be negatived by the Tribunal. Hence, challenging the rejection of interim prayer petitioners are before this Court seeking interim relief as already noticed hereinabove.

5. It is the contention of Smt. Jayna Kothari, learned Senior Counsel appearing for petitioners that despite six (6) years having lapsed from the date of issuance of direction by the Hon'ble Apex Court, State has not come out with any concrete affirmative action and thereby it has deprived the right of the petitioners to seek appointment for which State ought to have provided reservation under Article 16(4) of the Constitution. She would elaborate her submission by contending that though prayer has been sought before Tribunal for stay of operation of the impugned notification, petitioner would be satisfied if a direction is issued to the respondents to reserve two (2) posts till the disposal of applications before the Tribunal or in other words, out of total posts called for, two (2) posts may be ordered not to be filled up as it would protect the interests of the petitioners.

6. Per contra, Sri. K.M.Prakash, learned counsel appearing for first respondent would submit that no such relief was sought for before the Tribunal; there is no policy formulated by the appropriate Government for being implemented by Karnataka Public Service Commission and even otherwise, if such policy is brought into force by the appropriate Government it can be prospective only and not retrospective and as such it would not be appli