The court found that challenges to the constitutionality of service regulations regarding transgender individuals raise significant jurisdictional questions between the High Court and the Armed Forces Tribunal.

category, production of service record, direction to frame policy for recruitment, enrolment & conditions of service of transgender, compensation etc. has also been sought in the present petition.

2. However, the first relief sought by the petitioner is in the nature of a challenge to the constitutional validity of Section 9 of the Navy Act, 19571 and Regulations 261, 268, 269, 278, and 279 of Navy Regulation (Part III) and similar other regulations of like nature. These reliefs have been sought to declare them as void and unconstitutional to the extent they do not recognise the identity of transgender persons. The maintainability of this first relief before this Court, as sought by the petitioner in the present writ petition, is the focal point of this judgment.

1 “Navy Act”, hereinafter

2 “SSR”, hereinafter

3“SNLR”, hereinafter

3. Succinctly, the facts of the present case would reveal that the petitioner was enrolled as a sailor in the Indian Navy at Senior Secondary Recruit2 (SSR) whose services have been administratively terminated as ‘Services No Longer Required’3 under Regulation 279 of Regulations Navy Part-III (statutory) On 06.10.2017.

4. Apparently, during his employment with the Indian Navy, the petitioner contends that he slowly started identifying as female and wanted to appear and express himself in his female gender identity. The petitioner informed the Naval authorities in February 2015, that he was suffering from gender dysphoria, and needed medical intervention, however, it is alleged that the respondent failed to pay any heed to his concern and

subjected him to psychiatric counselling. Left with no option, the petitioner underwent Sex Re-Assignment Surgery in a private hospital in Delhi in October 2016.

5. It has been further stated that the Respondent Nos. 3, 4 and 5 found out about the surgery and as such they confined the petitioner to a psychiatric ward for five months without any basis, whatsoever, and subjected him to innumerable medical assessments. Subsequently, when the petitioner re-joined work in April 2017, he was served with a show cause notice for SNLR under Regulation 279(b), Navy Regulations-Part III on 19.03.2017, to which he duly replied. However, on 06.10.2017, the Respondent Nos. 1 and 2 communicated the order of discharge against the petitioner from the Indian Navy for SNLR, on the basis that “the existing service rules and regulations do not permit the sailor's continued employment owing to his altered gender status, medical condition and resultant employability restrictions.”

6. Per contra, the learned Counsel for respondent(s) states that petitioner was mainly discharged from service for “misconduct” i.e., being absent without leave 8 times from enrolment. Details of the petitioner’s misconduct has been distinctively mentioned in their counter-affidavit, which is being extracted herein below:

Ser

Period of Absence

Unit

Incident and Remarks

a)

11-18 March 2011

INS Airavat

Absent without leave during SSR Training.

b)

31 March-11 April 2011

c)

17-18 May 2011

INS Shivaji

Absent without leave during DME training.

d)

16 September-25 November 2012

INS Ganga

Marked ‘R’ on 16 September 2012 for being without leave.

e)

05-08 August 2013

INS Trata

Absent without leave.

f)

11 December 2013-01 January 2014

Marked ‘R’ on 11 December 2013 for being absent without leave and awarded Detention Quarters (DQ) for 60 days.

g)

07-17 June 2014

INS Eksila

The petitioner was absent without leave from 07 to 17 June 2014 and awarded punishment No. 6 (Mulcts of pay and allowances for 10 days) and No. 12 (Stoppage of leave for 30 days). The petitioner was given SNLR warning iaw Article 279 (b) of Regs Navy Part III (Statutory) on 06 August 2014.

h)

03-09 November 2014

The petitioner was awarded punishment No. 6 for 50 days and No. 12 for 50 days for the offence of absence

without leave. The petitioner was also issued SNLR warning once again on 18 March 2015.

j)

29 December 2014-27 January 2015

It is the case of the respondent(s) that despite repeated couns