Respondent instructed to treat the petitioner as belonging to a third gender by placing her in a special category by the Madras High Court in the case of S. Tamilselvi v. Secretary to Government (Writ Petition No. 26506 of 2022) through Justice R. Suresh Kumar.
FACTS OF THE CASE
In the instant case, a writ petition was filed in order to call the records of the prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, and to quash the same as illegal for not categorising transgenders under special category.
The petitioner also sought the Court to direct the respondent to admit the petitioner in the said Course under special category as transgender.
The court cited the ruling in National Legal Services Authority v. Union of India, 2014, in which the court instructed the federal government and state governments on how to treat transgender people as a special category in order to protect their rights under Part III of our Constitution and the laws passed by Congress and state legislatures. The Centre and State Governments were also instructed to take action to treat transgender people as members of the socially and educationally disadvantaged classes of citizens and to extend all forms of reservation to them when applying for admission to educational institutions and jobs in the public sector. Consequently, the Transgender Persons Protection of Rights) Act, 2019 was passed by the Parliament.
It was noted by the Court that according to the provisions of the 2019 Act, Section 4 recognises a transgender person’s right to be recognised as such. Section 8 of the Act lists the responsibilities of the government, and Section 13 of the Act lists the responsibilities of educational institutions to provide inclusive education to transgender people. Although the aforementioned Act took effect on January 10, 2020, it was noted that despite Supreme Court orders directing that reservations be made for third gender candidates when applying for public positions and admission to educational institutions, these provisions are absent from the prospectus in the current case, which was published by the State Government.
The Court believed that even though there were only a few transgender people living in the State, at least a provisional note could have been made stating that, even though there is no horizontal special reservation made for transgender candidates, any eligible transgender candidates who apply will be evaluated on their qualifications and will be treated as special candidates under the special category of transgender, and will be considered for a reservation.
Additionally, it was noted that after the Supreme Court’s ruling, in the petitioner’s case specifically for admission to the course of B.Sc. (Nursing), some directions had been given by this Court to reserve one seat in the transgender category as a special reservation, and in that seat, the petitioner had been admitted and she had successfully completed the course. As a result, the petitioner was not included in the special category intended for transgender for admission to the course.
Accordingly, when it comes to admission to the course for which the merit list has been released, the Court instructed the respondent to treat the petitioner as belonging to a third gender by placing her in a special category.
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JUDGEMENT REVIEWED BY NISHTHA GARHWAL