IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15033 OF 2022
State of Maharashtra & Ors Vs. Arya Vijay Pujari
WITH WRIT PETITION NO. 15037 OF 2022
State of Maharashtra & Ors.Vs. Nikita Narayan Mukhyadal
Facts Of The Case
Arya and Nikita are transgenders. They intended to offer their candidature for appointment on the post of Police Constable in the Maharashtra Police Force pursuant to advertisements dated 6th November, 2022 and 9th November, 2022 While they attempted to submit their applications online, they found that there was no option for transgenders. The format had a clause for indicating whether an aspirant is a male or a female candidate. Arya and Nikita tried their level best to have the format changed. Having failed in such attempt, they approached the Tribunal with their respective original applications.
By the impugned orders, the Tribunal while acknowledging that Arya and Nikita, as transgenders, do have the right to participate in the selection process in the light of the decision of the Supreme Court in National Legal Services Authority vs. Union of India & Ors., reported in (2014) 5 SCC 438, has directed the Home Department to not only allow Arya and Nikita to participate in the selection process for appointment on the post of Police Constable in the Maharashtra Police Force by creating an appropriate option to facilitate identification of such of the aspirants who are transgenders, it has taken a step further to direct that in respect of recruitment to all posts in the Home Department, such option should be created for the transgenders.
Aggrieved thereby, the State is before us taking exception to the orders passed by the Tribunal primarily on the ground that recruitment rules for the post of Police Constable do not provide for transgenders to apply and, therefore, the orders of the Tribunal are contrary to such rules.
Observations Of The Court
It is seen that nearly 14,06,000 applications have been received, it would require at least another three months’ time to scrutinize the applications as well as to conduct the physical examination test for the candidates, who are found eligible to take such test, to qualify and then participate in the written examination.
Those aspirants who qualify in the physical examination test would be required to undertake a written examination of 100 marks and such of those aspirants who secure more than 40% marks in the written examination would ultimately be considered for selection and appointment as police constable.
It would take some time for the State to frame the recruitment rules for the transgenders, the State is agreeable to have the written test for transgender candidates like Arya and Nikita conducted first, whereafter they would be asked to appear for the physical examination test.
Orders of the Court
The Court said that the "Tribunal has travelled beyond the scope of the original applications. In such view of the matter, we set aside the general direction contained in paragraph 9 of the order dated 14th November, 2022 and paragraph 3 (sic, 4) (i) and (ii) of the order dated 18th November, 2022 to the extent the Tribunal has directed creation of third option for transgenders in the application form in respect of all recruitments in the Home Department. We clarify that such direction shall be confined, for the present, only to the selection process that is under way for appointment as police constables. "
It directed the State Government to frame appropriate rules in the light of the statutory mandate contained in rule 11(2) of the 2020 Rules as expeditiously as possible but positively by 28th February, 2023.
The process of scrutiny of applications in excess of 14 lakh as well as conducting the physical examination test for the candidates found eligible would take at least three months, it is directed that so long the rules are not framed and the physical examination tests of Arya and Nikita are conducted in terms of such rules, the State shall not proceed to conduct the written examination for all aspirants.
The Court didn't agree with Arya and Nikita could be directed to undertake the written examination first before the physical examination test. That would obviously result in tinkering with the recruitment rules, which we would be reluctant to direct.
Since the State by a general order has extended the time limit for submission of applications by all genders till 15th December, 2022, we grant liberty to Arya and Nikita to apply for the post of police constable through off-line mode by 15th December, 2022.
Arya and Nikita can also offer their candidature for selection on the post of police constable online, we also encourage the State to make such modification so that online applications can be made by Arya and Nikita, if they so choose, and other transgenders, who have not approached the Tribunal, by 15th December, 2022.
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