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The decision that the State Government should consider the case of a young woman identified as a ‘male’, years after spending her life as a female, through Karyotyping test is upheld by the High Court of Bombay through the learned bench led by HONOURABLE JUSTICE MADHAV J. JAMDAR AND HONOURABLE JUSTICE REVATI MOHITE DERE in the case of ABC Versus The State of Maharashtra And The Superintendent of Police, Nasik Rural, Nasik (WRIT PETITION NO. 8000 OF 2021)

(The petitioner’s name is masked as ‘ABC’.)

Brief facts of the case are that the petitioner, while she was 19 years old had applied under the Scheduled Caste reserved category for the Nashik Rural Police Recruitment, 2018. The petitioner submitted her application online after seeing the advertisement for the position in 2018. The petitioner took both the written and physical exams and secured 171 marks out of 200. The petitioner was next asked to undergo a medical examination, which was conducted at Mumbai’s Sir J.J. Group of Hospitals. The petitioner was advised by the Anatomy Department of the Sir J.J. Group of Hospitals in Mumbai that the medical test of Karyotyping was not performed there and that the petitioner was sent to the National Institute of Immunohaematology for a Karyotyping test. According to the National Institute of Immunohaematology’s Karyotyping test report, the petitioner’s blood contained “XY” chromosomes. Following receipt of the report, the Sir J.J. Hospital in Mumbai wrote to the Superintendent of Police in Nashik Rural, Nashik, advising him that the petitioner was identified as a ‘Male’. Despite having qualified for the post of Police in the Nashik Rural Police Recruitment, 2018, the petitioner did not receive any response and hence, decided to file an RTI to inquire the status of her application, where she was informed that the Merit List for Male in the SC Category had closed at 182 marks and for the Female SC Category had closed at 168 marks. The petitioner had applied in the Female SC Category and had obtained 171 marks, being a male. The petitioner wrote to the Special Inspector General of Police (‘IGP’), Nashik Region, Nashik, stating that she had received 171 marks and had filed an application under the Female SC category; that she had been living as a female since birth, and that all of her educational certificates and personal documents, such as ID proof, Birth Certificate, and so on, were registered in her name as a female. In the same letter, the petitioner also asserted that she was unaware of the Karyotyping Test Result. The petitioner further indicated that she was the eldest in her family, with two sisters and one brother, and that her family’s financial situation was poor, with her parents earning a living by sugarcane cutting.

The counsel for petitioner, Mr. Vijaykumar R. Garad contended that the petitioner had acquired the required marks and excelled in the examinations in the category for which she had applied, and she could not be denied employment solely due to the Karyotyping Result. The petitioner has no objections to being assigned to a non-constabulary position, according to learned counsel as her sole aim of obtaining a Government job is to support her family. The Advocate General was also asked to sympathetically take up the case, keeping its peculiarity in mind, after which he interacted with the petitioner who stated her problem and also wished that she be given all of the service benefits and that she be treated equally to other employees who are regularly hired.

It was held by the two judge bench that it appeared from the very beginning that the petitioner was unaware of her different identity and was living her life till date as a female. The petitioner had commendable academic reports and had with full authenticity, cleared the Nashik Rural Police Recruitment Examination, securing 171 marks out of 200. The Court said that the petitioner was unaware of her status as a male and only came to know the same when she received the report of Sir J. J. Hospital which stated that her ovaries and uterus were absent and a prostate like structure was found below her bladder. The petitioner heavily disputed this report. The court said that The petitioner has no faults because she has always followed her career as a woman. In reality, the petitioner claims that she possesses all female characteristics. However, given the State Government’s compassionate stance and suggested course of action, the petitioner’s medical condition does not need to detain us. The Advocate General stated that the Special Inspector General, Nashik Region, Nashik, will submit an additional recommendation to the Additional Chief Secretary, Home Department, Government of Maharashtra, recommending that the petitioner be accommodated in the Police Department on a non-constabulary post, based on her educational qualifications, i.e. a Graduate. The Advocate General guaranteed that the proposed employment terms and benefits, as well as the availability of service benefits, will be extended to the petitioner in the same way that they would to any other normally recruited employee, i.e. the petitioner will be treated equally to other normally recruited employees. Because of the long delay in the petitioner’s appointment, the Court ordered the State Government to make an appropriate decision as soon as feasible, keeping in mind the unique facts of this instance, and in any case, within four weeks after receiving the aforementioned additional recommendation. The court also directed that the petitioner should be informed of all the developments that take place.

JUDGEMENT REVIEWED BY- ATIVA GOSWAMI

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