The Bombay High Court has directed the State Government to sympathetically and expeditiously consider the case of a young woman for appointment to a non-constabulary post in the police department, three years after a medical test declared her a "male."
The woman had qualified with flying colours in 2018 from the Nashik Rural Police Recruitment drive from the Scheduled Caste category but based on her medical test, her marks didn't make the cut off for the men's category.
"It is an extremely unfortunate case. The petitioner comes from a poor economic strata of the Society; her parents are doing sugarcane cutting work; the petitioner is the eldest in the family… It appears that right from the beginning, the petitioner was not aware that she was any different…No fault can be found in the petitioner, as, throughout, she has pursued her career as a female. Infact, according to the petitioner, she has all female attributes," the court said in the order.
A division bench of Justice Revati Mohite Dere and Justice Madhav Jamdar passed the order after the Advocate General's assurance that the case would be considered on priority and all benefits of a normally appointed employee would be made available to her.
Observing that the "wait has already been too long" the court asked the State to decide within 4 weeks of receiving the assured recommendation from the police department for her appointment.
The woman was 19 when she applied to the police department. She scored 171 out of 200 marks in her written and physical tests and. However, when she was sent for a mandatory medical examination to JJ Hospital, a sonography revealed "her uterus and ovaries were absent and a prostate-like structure was seen at the base of her bladder".
Another karyotyping test at the National Institute of Immuno-haematology (KEM Hospital) showed she has both "XY" (male and female) chromosomes. They opined she was a male.
Anyhow, with the SC category cut off for men being 181 of 200, she was ineligible. She was informed about this thought an RTI.
She then approached the Bombay High Court through advocate Vijay Kumar Garad. He argued that his client was qualified for the job and couldn't be denied a job merely because of a karyotyping test, especially when the results were not made available to her.
The Advocate General Ashutosh Kumbhakoni took up the matter with the State Government to consider the petitioner's as a special case. He said that the Special Inspector General will make a recommendation to the Home Department for her appointment to a non-constabulary post.
The petitioner would be treated at par with other normally recruited employees and would be entitled for all the benefits, including promotions, etc.
"We appreciate the sensitivity and alacrity shown by the learned Advocate General and the State Authorities," the bench said while disposing of the petition.
Case Title: ABC Versus The State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 189