The Supreme Court has questioned the rationale for notifying teaching vacancies separately for male and female candidates, asking the Delhi Government to explain the legal basis for such gender-based bifurcation and how transgender persons would be accommodated in public employment.

A bench of Justice JB Pardiwala and Justice K Vinod Chandran raised the questions while issuing notice on petitions filed by Jane Kaushik and Praveen Singh, concerning the exclusion of transgender persons from vacancy notifications issued by the Delhi Subordinate Services Selection Board (DSSSB).

The Court asked why the recruitment notification for public appointments continues to be gender-binary, that is, only available for the male and female categories, respectively. It has passed an order asking the NCT of Delhi what the constitutional or statutory basis is for notifying vacancies based on gender.

It may be recalled that the present petition pertains to a transgender woman, Jane Kaushik, who challenged the Delhi Directorate of Education and the Delhi Subordinate Services Selection Board (DSSSB) notifications for teaching posts as they allowed only binary persons to apply. This was her second petition before the Supreme Court.

In her original petition, she alleged denial of teaching opportunity and discrimination based on her gender identity, which was recognised by the Court, and she was awarded compensation. The bench had constituted a committee headed by Justice Asha Menon to undertake policy reforms.

She approached the Delhi High Court on the lack of separate vacancies for transgender persons in teaching jobs and relaxation of minimum requirements of employment by the NCT of Delhi. However, the High Court disposed of her writ petition, directing her to approach the committee.

Against this, she approached the Supreme Court again, which noted that the High Court committed an error and directed that she be allowed to register herself at the DSSSB's online Academic Registration System(OARS) portal as a transgender person. However, subsequently, the issue continued to arise since the recruitment notification remained gender binary.

On October 16, when a bench comprising Justice JB Pardiwala and Justice K Vinod Chandran heard the matter, Solicitor General Tushar Mehta submitted that another petition has been filed where the issue relates to over-age.

Kaushik's counsel reminded the court that along with the transgender-specific recruitment notification, the petitioner had also asked for the minimum qualification, including age relaxation.

Hearing this, the Justice Pardiwala bench has passed an order asking a few questions:

• Which Recruitment Rules govern the vacancy notifications, such as the one annexed as Annexure P-7 in the petition by Jane Kaushik, issued by the DSSSB?
• Whether the said Recruitment Rules are traceable to any constitutional provision, or statutory enactment, or State Service Rules. In other words, where does the DSSSB derive powers to issue the notifications of vacancies in respect of teaching roles for specific subjects?
• Whether the aforesaid Recruitment rules, or statutory enactment, or State Service Rules require that vacancies in respect of teaching roles be notified on the basis of gender?
• If the answer to the above question is in negative, then, what forms the basis for bifurcation of vacancies between male and female candidates in a vacancy notification issued by the DSSSB? In other words, what is the objective behind notifying vacancies separately for males and females?
• If the answer to Q.2 is in affirmative, then, what forms the basis for using gender as a basis for notifying vacancies in public recruitment?
• In both the petitions, do the respondents propose to include third gender in vacancy notifications issued by them through DSSSB? In other words, in what manner transgender persons would be accommodated in public employment?
• In the petition by Praveen Singh, insofar as the question of age relaxation is concerned, why the High Court did not deem it fit to exercise its power under Rule 12 of the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972, to provide age relaxation to transgender persons considering the socio-economic discrimination that they face?

The Court has asked that the response to these questions should be filed through an affidavit within 15 days, and the same shall be shared with the petitioner in order for them to file rejoinder.

Appearances: For Petitioner(s) : Mr. Naman Jain, Adv. Mr. Wajeeh Shafiq- 1957, AOR Ms. Shagufta Ansari, Adv. Mr. Manish Tiwari, Adv.

Ms. Amritananda Chakravorty, Adv. Ms. Shreya Munoth- 3434, AOR Ms. Asawari Sodhi, Adv. Ms. Tavleen Kaur Saluja, Adv. For Respondent(s) : Mr. Tushar Mehta, Solicitor General Ms. Swati Ghildiyal- 3169, AOR Ms. Swati Ghildiyal, AOR Mr. Adarsh Dubey, Adv. Ms. Sonakshi Sinha, Adv.