Bom HC provides succor to a girl who was declared “male” in medical test, Directs State to consider her for post in Police department

Bombay High Court

Bombay High Court: The Division Bench of Revati Mohite Dere and Madhav J. Jamdar, JJ., directs the State Government of Maharashtra, to consider a woman who was declared as “male” in her medical test for the non-constabulary post in the police department.

By this petition, the petitioner sought to quash and setting aside the impugned letters passed by the respondent 2 – Superintendent of Nashik and a direction to the respondent to issue a joining letter to the petitioner in connection with Nashik Rural Police Recruitment, 2018.

Factual Background

Petitioner aged 19 years had filed an application for the Nashik Rural Police Recruitment, 2018 under the Scheduled Caste reserved category. The advertisement for the said recruitment was published in 2018 and the petitioner had filed her application online. During the medical test, it appeared that the blood of the petitioner was found having “XY” Chromosomes. Later, when the report arrives, Hospital issued the letter informing the Superintendent of police that they were of the opinion that the petitioner was a “Male”.

Analysis and Decision

Calling it an extremely unfortunate case, Bench noted that the petitioner came from poor economic strata of the Society and her parents were doing sugarcane cutting work, the petitioner was not aware that she was any different and was living her social life as a girl/female.

Though the petitioner’s academic records were commendable.

Due to the petitioner’s socio-economic condition, she was not even aware that she was not a female.

The Bench stated that, no fault could be found in the petitioner, as throughout, she had pursued her career as a female and as per her she had all the female attributes.

Hence, the medical condition of the petitioner cannot detain the Court, having regard to the sympathetic stand and the course of action proposed by the State Government.

“State Government has decided to accommodate the petitioner in the Police Department, albeit, on a non-constabulary post and which the petitioner also accepts.”

Advocate General informed the Court that once the petitioner is appointed in the non-constabulary post based on her educational qualifications, she would be entitled to all the benefits, including promotions, etc. at par with other normally recruited employees.

Within a period of 2 months, the State Government will take an appropriate decision in the right earnest, sympathetically, having regard to the special facts and circumstances of the case.

Lastly, the Court held that, needless to state, the Police Department would take appropriate steps in implementing the said decision taken by the State Government as expeditiously as possible.

The Court directed that the petitioner be informed of all the developments that take place from time to time.

Matter to be listed for compliance on 25th July, 2022. [ABC v. State of Maharashtra, 2022 SCC OnLine Bom 1035, decided on 6-5-2022]


Advocates before the Court:

Mr. Vijaykumar R. Garad for the Petitioner

Mr. A. A. Kumbhakoni, Advocate General a/w Mr. P. P. Kakade, Govt. Pleader, Mr. Akshay Shinde, `B’ Panel Counsel and Mr. R. P. Kadam, A.G.P for the Respondent Nos. 1 & 2–State

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