kerala high court

Kerala High Court: In a petition filed under Article 226 and 227 of Constitution of India primarily seeking to set aside order dated 24-01-2023 passed by Kerala Administrative Tribunal (‘the Tribunal’) which directed the Kerala Public Service Commission (‘Commission’) to allow a trans woman to submit application for the post of House Keeper (Female) in the Homeopathic Medical College, the Division Bench of Alexander Thomas and C. Jayachandran, JJ. refused to interfere with the order passed by the Tribunal and also appreciated Commission’s claim to be heard by the Tribunal before the impugned order was passed.

The applicant in the instant petition was a trans woman who secured transgender identity card issued under Transgender Persons (Protection of Rights) Act, 2019 (‘TGP Act’). The applicant had applied for Housekeeper (Female) in the Homeopathic Medical College. It was alleged that the selection notification as well as rules of recruitment confined the post of Housekeeper exclusively to women candidates, who should stay in a hostel or institution to which they were appointed. It was clarified by the Commission that the main responsibilities of the said post were for the safe upkeep of women students in women’s hostels. It was further stated that the software for online applications only accepts applications of candidates who are women, while the applicant was a trans woman.

When the applicant approached the Tribunal, it directed acceptance of physical application by the Commission through order dated 24-01-2023.

The Commission alleged that someone other than a woman working at the women’s hostel as a Housekeeper would cause serious safety issues. It was stated that the applicant was originally a male who underwent a surgery to become a trans woman, which has not been specified in the certificate issued under the TGP Act which only certified the applicant as a transgender person. The Commission also complained that the Tribunal did not give a reasonable opportunity of being heard to the Commission.

The Court refused to interfere with the ad interim interlocutory order passed by the Tribunal. The Court observed that the said order was passed by the Tribunal a week before the last date of application submission to preserve the subject matter of lis. The Court also appreciated the Commission’s claim that they should have been given the opportunity to defend before the Tribunal passed the impugned order.

The Court required the Tribunal to facilitate early hearing and to dispose of the matter within 3 months. The Court also restricted the Tribunal to consider any further claim at the time of final verdict instead of passing ‘piecemeal interim orders.

[Kerala Public Service Commission v. Aneera Kabeer, 2023 SCC OnLine Ker 4241, Judgment dated 06-06-2023]

Judgment by: Justice Alexander Thomas

Advocates who appeared in this case :

For Petitioner: Advocate P.C. Sasidharan;

For Respondents: Advocate Kaleeswaram Raj, Advocate Thulasi K. Raj, Advocate Aparna Narayan Menon, Senior Government Pleader Unnikrishna Kaimal.

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