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According to the Rigveda, in Hindu mythology, three types of genders have been considered and the third gender that is the ‘Tritiya Prakriti’ : HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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Case Title: Chinder Pal Singh versus The Chief Secretary, Govt. Of Rajasthan, Govt. Secretariat, Jaipur & Anr.
Case No:  S.B. Civil Writ Petition No. 14044/2021
Decided on: 25/05/2023
Coram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Facts of the case: The petitioner took birth as a female gender and she completed her studies as a female student and after completion of her studies she got appointment on the post of Physical Training Instructor, Grade Three (for short ‘PTI Gr.-III) under General Female Category vide order dated 12.07.2013 and in the service record her status has been mentioned as ‘Female’.

Though the petitioner took birth as female child and she was assigned female gender at the time of her birth, but she was suffering from Gender Identity Disorder, hence at the age of 32 years she consulted a Psychiatrist who conducted her psychological evaluation and on the basis of detailed clinical examination it was opined that the petitioner has no indication of any psychiatric disorder and she was suffering only with Gender Identity Disorder and she was found fit for ‘Sex Reassignment Surgery” vide Annexure-4.

Thereafter the petitioner underwent Gender Reassignment Surgery (Female to Male) with Phalloplasty – Penis Prosthesis in the year 2014-2017 at Kokilaben Dhirubhai Ambani Hospital at Andheri (West) Mumbai and after undergoing the surgery, the petitioner became male from female.

After this surgery, the petitioner recovered completely and became a Male with functional shaft and was on hormone therapy. The consultant Urologist Doctor issued a Certificate vide Annexure-5 in this regard on 09.08.2018. After getting the status of male gender, the petitioner changed his name in the Official Gazette of India on 08.09.2018 and his name was changed from Chinder Pal Kaur to Chinder Pal Singh. Thereafter the name of petitioner was changed as Chinder Pal Singh even in his Aadhar Card No.

The petitioner submitted an application on 22.09.2018 in the office of Principal of the School for change of his name and gender in his service record. The Principal referred the matter to the Joint Director, Secondary Education, for necessary action on 01.10.2018. But even after passing of more than three years the name and gender of the petitioner has not been changed in his service record.

According to the Rigveda, in Hindu mythology, three types of genders have been considered  the Male, that is the ‘Purush’, the Female that is the ‘Prakriti’ and the third gender that is the ‘Tritiya Prakriti’. In the recent times the modern Indian society have considered them as the third gender otherwise there was no such identity given to them legally. Still, all is not well, and the third gender people are struggling to constitute a part of the civil society.

Judgement:

According to the provisions contained under Section 7 of the Act of 2019, the petitioner is directed to submit an application before the District Magistrate having jurisdiction. The District Magistrate shall follow the procedure contained under the Act of 2019 and the Rules of 2020 made thereunder to get the fact of the gender reassignment verified and on being satisfied, issue the required certificate to the petitioner. Such procedure shall be completed by the District Magistrate within a period of sixty days from the date petitioner applies before him along with the certified copy of this order. On the basis of the certificate issued by the District Magistrate, petitioner shall be at liberty to approach the authorities concerned i.e. the respondents, who shall take immediate steps to change the name and gender of petitioner in his service record. Such exercise shall be completed within a period of one month from the date the petitioner approaches the respondents along with the certified copy of this order and the certificate issued to him by the District Magistrate.

 

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Written by: Mahima Saini

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‘Equality Cannot Be Claimed In Illegality, Cannot Be Enforced By A Citizen Or Court In A Negative Manner’: Rajasthan High Court

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Case Title: Shivam Sharma v. Rajasthan Rajya Vidyut Prasaran Nigam Ltd. & 3 Ors
Case No: S.B. Civil Writ Petition No. 2346/2015  
Decided on: 17/05/2023
Coram: HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Facts of the case:

The petitioner submitted an application for participation in the selection process for appointment on the post of Junior Engineer–I (Electrical) in pursuance to advertised posts. However, he was not appointed on the post on the ground that he did not provide Special TSP Certificate as per circular dated September 9, 2013 issued by Rajasthan Government.

The counsel appearing for the petitioner submitted that the respondents were not having any authority to withhold the appointment of the petitioner on the technical reason that the Special TSP Certificate was not produced by him at the time of submitting the Application Form as no such condition was mentioned in Clause 10 of the Advertisement that the candidate must possess Special TSP Certificate at the time of submission of the Application Form.

It was further submitted that there were several candidates – names of two were specifically mentioned, who were also not having the requisite Certificate and even then their candidature was considered and they were given appointment.

On the other hand, the counsel appearing for the respondents submitted that as per the Circular dated September 09, 2013, the petitioner was supposed to furnish Special TSP Certificate at the time of furnishing the Application Form. It was further contended that the other two candidates have not been impleaded as party respondents.

The court noted that the circular dated September 09, 2013 indicates that the candidates seeking appointment in TSP Area are required to possess Special Bonafide Resident Certificate of TSP Area and a format of such Special Bonafide has been attached to the Circular.

It further observed that as per Clause 10(vi) and (xii) of the said advertisement, the candidates must possess the Certificate of TSP, if he/she belongs to TSP Area and such TSP Certificate must be issued by the Competent Authority if such candidates are bonafide residents of any one of the notified TSP Areas of Rajasthan.

The Court relied upon the judgments of the Supreme Court in R. Muthukumar & Ors v. The Chairman And Managing Director TANGEDCO & Ors 2022 SCC Online SCC Online SC 151; Basawaraj and Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81 and The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 in which it was held that no negative equality can be claimed as a matter of right under Article 14 of the Constitution of India.

Judgement:

Thus, the court held that the petitioner cannot claim negative parity with the other two candidates. It also said that the petitioner is trying to take benefit of the example of similarly situated persons without impleading them as party to the writ petition.

“The petitioner has failed to produce the requisite Special TSP Certificate at the time of verification of documents. In the absence of this Certificate, it cannot be said that the action of respondents in denying appointment to the petitioner is in any manner vitiated,” said the court.

Justice Anoop Kumar Dhand said it is well settled proposition of law that no negative equality can be claimed as a matter of right under Article 14 of Constitution of India.

 

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Written by: Mahima Saini

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