The Karnataka Government has said that it is willing to consider the transgender persons under one of the categories of Other Backward classes for recruitment, after obtaining the opinion of the Karnataka State Commission for Backward Classes.
In an affidavit submitted before the Karnataka High Court by Dr Rajneesh Goel, Additional Chief Secretary, Home Department, it is stated that "According to provisions of the Karnataka State Commission for Backward Classes Act the Karnataka State Commission for Backward classes has been constituted. One of the function is to examine request for inclusion of complaints of over inclusion or under inclusion of any backward class in such list and tender such advice to the state government as it deems appropriate."
Further, since the term of office of Chairman and members of the Commission has concluded on September 21, 2019 and new office bearers have been appointed. Though section 11 of the said Act has provisions for periodic revision of the list by the state government it mandates for consultation with the Commission. Hence, only after obtaining the opinion of the Commission, the state government can take a decision in this regard".
Advocate Tarjani Desai, appearing for the petitioner Sangama a society working for the upliftment of sexual minorities, sex workers and people living with HIV said "The Commission has already submitted its report on June 9, 2010 which is prior to the Nalsar judgement." She added that the report was submitted by Dr C S Dwarakanath, who was then the Chairperson of the Commission.
A division bench of Chief Justice Abhay Oka and Justice Ashok S Kinagi said now the issue will have to be considered in the light of Article 342 A of Constitution of India which was introduced by 102th Amendment, with effect from August 11, 2018.
The Amendment Reads:
[342A. Socially and educationally backward classes.—
(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.]
The court said "Now the question will be whether the state government can really do it. Even if the Commission is constituted what role it can play, for inclusion of some category in socially backward class in the light of Article 342 A. of the Constitution of India."
The bench has directed the state government and counsel for the petitioner to apply their mind to the issue raised and make their submissions on the next date of hearing, October 19.
The court by order dated August 28, by way of interim relief directed the State Government to take immediate steps for implementation of the directions contained in paragraph 135.3 of the Supreme Court judgement in the case of NALSA vs Union of India, (2014) SSC 438. Also take steps to implement and enforce the relevant provisions of the Transgender Persons (Protection of Rights) Act, 2019.
The plea states that the state in its appointment notification for recruitment to the post of Special Reserve Constable Force and Bandsmen, calls for filling up of the vacancies, specifies only 'Men' and 'Women' as the genders which can apply for the vacancies. Throughout the impugned notification the age, weight, and other specifications are given pertaining separately only to 'Men' and 'Women', in total disregard of the 'Third Gender'.
The plea states the Supreme Court had recognised the legal rights of the third gender persons and held that they were fully entitled to Fundamental Rights under the Constitution and under International law. However, the impugned notification shows that the same is in contravention of rights of Transgender persons and the same affects the Constitutional and Fundamental Rights of the Transgender persons under Article 14, 19 & 21 of the Constitution of India.
The plea prays for directions to the state government to include a separate category for transgender persons for the post of Special Reserve Constable Force as well as Bandsmen, and consider all the applications by the transgender at par with other two gender categories.
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