Case Note & Summary
These two writ petitions were filed by Ms. M. Suman and Ms. Amulya C, transgender persons, challenging the order dated 03.10.2019 passed by the Karnataka Administrative Tribunal, Bengaluru, which had rejected their interim applications seeking stay of a recruitment notification dated 11.02.2019 issued by the Karnataka Public Service Commission for the posts of First Division Assistant (FDA) and Second Division Assistant (SDA) in various courts across the State. The notification did not provide any reservation for transgender persons. The petitioners contended that the failure to reserve posts violated the directions of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, which mandated that transgenders be treated as socially and educationally backward classes and be extended reservation in educational institutions and public appointments under Articles 15(4) and 16(4) of the Constitution. The respondents, the Karnataka Public Service Commission and the State Government, opposed the petitions on the grounds that no reservation policy for transgenders had been formulated by the State, that such a policy could only be prospective, and that the appropriate authority for framing reservation policy was the Department of Public Administrative Reforms, which was not a party. The State also submitted that a committee had been constituted to examine the issue and a draft policy was under consideration. The High Court, after hearing arguments, observed that though six years had passed since the NALSA judgment, the State had not yet finalized a concrete policy on reservation for transgenders. However, the Court declined to grant the interim relief sought, holding that in the absence of a clear policy, the impugned notification could not be found illegal. The Court emphasized that it was not for the judiciary to prescribe the manner or percentage of reservation; that task belonged to the executive. It expressed the hope that the State would expedite the policy formulation. Consequently, both writ petitions were dismissed, and the interim orders sought were refused.
Headnote
A) Constitutional Law - Reservation in Public Employment - Affirmative Action for Transgenders - Constitution of India, 1950, Articles 15(4), 16(4) - Petitioners, belonging to the third gender, challenged a recruitment notification for FDA and SDA posts that did not reserve any seats for transgenders, relying on the Supreme Court's direction in NALSA v. Union of India to treat transgenders as socially and educationally backward and extend reservation. The State had not yet formulated a clear policy on reservation for transgenders in public services. The Court held that in the absence of a specific policy, the recruitment notification cannot be said to be illegal or unconstitutional. The Court declined to grant an interim order directing the State to reserve posts, observing that it is for the executive to decide the manner and extent of reservation. Held that until the State formulates a policy, the notification cannot be stayed. (Paras 8-11) B) Service Law - Recruitment - Interim Relief in Writ Jurisdiction - Constitution of India, 1950, Articles 226, 227 - The Karnataka Administrative Tribunal had dismissed the petitioners' applications for stay of the recruitment notification, leading to the present writ petitions. The High Court reiterated that interim relief can be granted only if a prima facie case is made out. In the present case, the impugned notification did not violate any existing law or policy on transgender reservation, as none had been framed. The Court found no ground to interfere with the Tribunal's order. Held that the writ petitions were without merit and dismissed them, with the hope that the State would finalize the policy expeditiously. (Paras 3, 10-11)
Issue of Consideration
Whether the Karnataka Administrative Tribunal was justified in rejecting the interim prayer to stay the recruitment notification dated 11.02.2019, which did not provide reservation for transgenders, pending formulation of a reservation policy by the State Government
Final Decision
Both writ petitions are dismissed. The High Court refrained from granting any interim relief, holding that in the absence of a clear policy on reservation for transgenders, the recruitment notification cannot be stayed. The Court expressed the expectation that the State would finalize the policy expeditiously.
Law Points
- Legal points not extracted
- Affirmative action for transgenders under Article 16(4) requires formulation of a specific policy by the State
- in absence of policy
- courts cannot direct reservation
- directions in NALSA v. Union of India are binding but implementation through policy is an executive function
