Madras High Court: In a writ petition filed for calling 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, and further to direct the respondent to admit the petitioner in the said Course under special category as transgender, R. Suresh Kumar, J. has directed the respondent to treat the petitioner as the third gender/transgender and accordingly, place her in a special category for the purpose of admission to the said course for which the merit list has been issued.
The Court referred to the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Court has given a set of directions to both Centre and State Governments that, what action shall be taken to treat the third gender viz., transgender as a special category for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. Further, direction was given that, the Centre and State Governments must take steps to treat transgenders as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Therefore, the Parliament has enacted a law called ‘the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’).
The Court noted that Section 4 of the 2019 Act recognises that a transgender person shall have a right to be recognised as such, in accordance with the provisions of the Act, and the obligations of the Government have been mentioned under Section 8 of the Act and the obligation of educational institutions to provide inclusive education to transgender persons has been mentioned under Section 13. It was observed that though the said Act came into effect from 10.01.2020, however, orders have been passed by the Supreme Court, where direction has been given that reservation shall be given in cases of admission in educational institutions and for public appointments, but the prospectus in the present case, issued by the State Government, has no such reservation for third gender candidates.
The Court viewed that even though there were minimal transgender living in the State, at least a provisional note could have been provided, stating that, even though special reservation has not been made horizontally for transgender candidates, if there is any eligible transgender candidate who makes application, will be considered on merits and that candidate would be treated as a special candidate under the special category of transgender, and would be considered for admission, but such special note was missing in the said notification/prospectus.
Further, it was observed that, followed by the judgment of the Supreme Court, in the very case of the petitioner itself for 2018-19 admission, some directions have 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 completed the course, thus, the non-inclusion of the petitioner in the special category meant for transgender for admission to the course of B.Sc. (Nursing), for which the present notification was issued, is not a mere omission and it is against the judgments given by the Supreme Court as well as this Court and against the provisions of the 2019 Act.
[S. Tamilselvi v. Secretary to Government, 2022 SCC OnLine Mad 4879, decided on 11.10.2022]
Advocates who appeared in this case:
For Petitioner: Advocate Reshmi Christy
For Respondents: Government Pleader U.M. Ravichandran
Advocate M. Sneha