The Bombay High Court on Monday issued notices to the state government and the Maharashtra Public Service Commission (MPSC) and sought replies within three weeks on a petition seeking inclusion of the third gender category” in government jobs. A division bench of Justice Amjad Sayed issued the notice while hearing a petition by two transgenders and two non-profit organisations SANGRAM and Muskan Sanstha, urging the court to direct the state government to include the option of the third gender category in all recruitment and employment provided or controlled by the state. The court also directed the petitioners to add the Maharashtra Transgender Welfare Board as a respondent in the matter.
The petitioners’ advocate, Vijay Hiremath, argued that although the two transgender persons possessed the requisite educational qualifications and training to secure employment with the state transport department and the police department, they have not been able to do so because the application process for the same catered only to the binary categories of male and female. It did not provide for the option for an applicant to choose the third gender category, the petition said.
The petition has also sought that the government should include the third gender category wherever gender was defined in its statutes, and in the special backward category. In 2014, the Supreme Court ruled in a case of NALSA versus The Union of India that the word 'person' defined under Article 14 of the Constitution that guarantees a citizen the right to equality, did not include only male and female, but also included “hijras and, or, transgender persons that did not identify either as male or female”, Hiremath said.
By not providing option for the third gender in state-backed or controlled jobs, the Maharashtra government was committing a breach of the transgender community's fundamental rights to life, equality, and freedom of expression, the petition said.
“The NALSA judgment mandated that the community was entitled to legal protection and implementation of its fundamental rights in all state activities, including employment, education, healthcare, and citizenship,” the plea said. The SC judgment mandated, among other things, that the fundamental rights granted under the Constitution of India will be equally applicable to transgender persons.
Further, the two transgender people made several representations to the government authorities. They were informed verbally that unless the MPSC made changes to its existing rules, little could be done to provide an option for the third gender category, the petition said.
