In an affidavit submitted before the Karnataka High Court by Dr Rajneesh Goel, Additional Chief Secretary, Home Department, the Government has said that it is willing to consider the transgender persons under one of the categories of OBC (Other Backward classes for recruitment), after obtaining the opinion of the Karnataka State Commission for Backward Classes.
The Affidavit stated,
“According to provisions of the Karnataka State Commission for Backward Classes Act the Karnataka State Commission for Backward classes has been constituted. One of the function is to examine request for inclusion of complaints of over inclusion or under inclusion of any backward class in such list and tender such advice to the state government as it deems appropriate.”
Contentions in the Plea
The bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Ashok S. Kinagi was hearing a petition filed by an organization named Sangama, challenging a police constable recruitment notification, since it violated the transgender person’s rights. The said notification said transgender people were not allowed to apply to the said posts.
Advocate Tarjani Desai, appearing for the petitioner Sangama a society working for the upliftment of sexual minorities, sex workers and people living with HIV said “The Commission has already submitted its report on June 9, 2010 which is prior to the Nalsar judgement.” She added that the report was submitted by Dr C S Dwarakanath, who was then the Chairperson of the Commission. The court further asked,
“Now the question will be whether the state government can really do it. Even if the Commission is constituted what role it can play, for inclusion of some category in socially backward class in the light of Article 342 A. of the Constitution of India.”
The plea states the Supreme Court had recognised the legal rights of the third gender persons and held that they were fully entitled to Fundamental Rights under the Constitution and under International law.
But the impugned notification shows that the same is in contravention of rights of Transgender persons and the same affects the Constitutional and Fundamental Rights of the Transgender persons under Article 14, 19 & 21 of the Constitution of India.
The plea prays for directions to the state government to include a separate category for transgender persons for the post of Special Reserve Constable Force as well as Bandsmen, and consider all the applications by the transgender at par with other two gender categories.
The bench adjourned the matter for further hearing on October 16.
Read Affidavit here: