Calcutta High Court (Appellete Side)
Pallabi Chakraborty vs The State Of West Bengal & Ors on 12 December, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
02 12.12.2024 In The High Court At Calcutta
NB/PP Ct. 23 Constitutional Writ Jurisdiction
Appellate Side
WPA 23371 of 2024
Pallabi Chakraborty
Vs.
The State of West Bengal & Ors.
Ms. Aiswarjya Gupta.
...for the petitioner.
Mr. Rajarshi Basu,
Mr. K. M. Hossain,
Mr. Jayanta Samanta.
...for the State.
Mr. Debajyoti Deb,
Mr. Narendra Prasad Gupta.
...for the respondent no.8.
The petitioner in this writ petition claims to be a transgender (in short "TG"). The petitioner is serving Kolkata Police as a civic volunteer. The petitioner says that a recruitment process has been initiated by the West Bengal Police Recruitment Board for recruitment to the post of constables and lady constables in Kolkata Police-2024.
The petitioner's main grievance is that despite there being a direction from the Hon'ble Supreme Court contained in the judgment in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India & Ors.) for providing all kinds of reservation in cases of admission in educational institution and for public appointment, no vacancies have been reserved in the said examination to be filled through transgenders.
The petitioner, therefor, has prayed that she should be permitted to participate in the said selection process as a 2 transgender so that she can take the benefit of reservation while applying.
The writ petition is opposed by the State on the following grounds:
(i) This Court does not have the jurisdiction to receive, try and determine the writ petition in view of the provisions of Section 15 read with Section 28 and 3(q) of the Administrative Tribunals Act, 1985 (hereinafter referred to as 1985 Act).
(ii) On merit, the petitioner also does not have any cause to file and maintain this writ petition inasmuch as there is no embargo on the petitioner in participating in the said recruitment process. Moreover, in view of the West Bengal Police (Recruitment of Constables and Lady Constables) Rules, 2017 (hereinafter referred to as 2017 Rules), there is already a reservation for civic volunteers and the petitioner, if entitled to, can avail such reservation.
(iii) The issue of reservation regarding transgenders according to the State, is pending before the Division Bench in MAT No.1507 of 2024 (The State of West Bengal & Anr. vs. Mrinal Barik & Ors.). Referring to the order dated 07 th August, 2024 passed by the Division Bench, it is contended that the Division Bench is prima facie of the view that the Constitutional Bench in National Legal Services Authority (supra) never recognised that 1% of the vacancies so notified should be reserved for transgenders as contended by the writ petitioners/respondents.
The order of the learned Single Judge though pertains to an educational matter directing 1% reservation for tansgender was therefor be stayed by the Division Bench.
3In this background, the State submits that the writ petition should be dismissed.
After hearing the parties and considering the materials on record on the point of jurisdiction raised by the State respondents, the argument advanced that this Court does not have the jurisdiction to receive, try and determine the writ petition is unsustainable on the following grounds:
(i) The Constitutional Bench in National Legal Services Authority (supra) had considered the case of transgenders in the perspective of Article 14, 16, 19 and 21 and thereafter has held that the rights available to them under Part-III of the Constitution and the laws made by the Parliament and the State Legislature should be safeguarded. It has also been held that the Centre and the State Government are directed to take steps to treat the transgenders as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission of educational institutions and for public appointments. The dictum of the Constitutional Bench in National Legal Services Authority (supra), therefor, clearly directs the Centre and the State Government to take steps to extend all kinds of reservation in cases of admission in educational institution and for public appointments for transgenders.
(ii) In view of such findings by the Constitutional Bench, the issue of reservation and treating the tansgenders as socially and educationally backward classes of citizens attracts the provisions of Article 14, 16, 19 and 21 of the Constitution. It, therefor, cannot be contended simplicitor that the service related matter governed only by the provisions of 1985 Act, 4 thereby, mandating the petitioner in the instant case to approach the West Bengal Administrative Tribunal (in short, WBAT) instead of filing and maintaining the writ petition before this Court in view of there being statutory alternative remedy available to a person is unsustainable. The petitioner, therefor, can maintain the petition under Article 226 of the Constitution of India if his/her (hereinafter referred to as Zir) fundamental rights guaranteed under the Constitution are infringed. Even if the ratio laid down in the judgment reported in (2020) 17 SCC 602 (AIIMS vs. Sanjib Chaturvedi & Ors.) is taken into consideration, then also I do not find any embargo in entertaining the writ petition when the specific plea regarding reservation, which is interlinked to the fundamental rights guaranteed under Article 14, 16, 19 and 21 of the Constitution has been declared by the Supreme Court.
(iii) Moreover, at the present, the WBAT is functioning with only one Administrative Member and there is no Judicial Member or the Chairman for the said Tribunal. A serious issue regarding the reservation in terms of the direction made in paragraph 135.3 of the judgment in National Legal Services Authority (supra) cannot be gone into only by an Administrative Member. It will also be imprudent to relegate the petitioner to the Bench of the Administrative Member of the WBAT constituted under the 1985 Act. This is apart from the fact that the Single Bench presided over by the Administrative Member at the National Legal Services Authority (supra) does not have the authority to decide a matter in this nature. The Hon'ble Supreme Court in the case reported in (2020) 6 SCC 1 (Rojer Mathew 5 Vs. South Indian Bank United) has also held that in a case where the Tribunal is either not constituted or is not operational, then the jurisdictional High Court can entertain a writ petition on the selfsame ground. WBAT in thise case on consideration of the issue involved should be treated to be non-optional.
In that view of the matter, the writ petition can also be received, tried and determined by this Court.
So far as the lack of cause of action in favour of the petitioner as urged by the State is concerned, I am also not agreeable with such view. Since the Constitutional Bench in National Legal Services Authority (supra) has directed the Centre and the State Government to extend all kinds of reservation in cases of public appointment as far back as on 15th April, 2014, it cannot be contended by the State that the same has not been finalised even in 2024 when the employment notification was published. Reservation in normal parlance is of two categories - one is the vertical reservation and the other is the horizontal reservation. A vertical reservation is provided by the statutory dictum while horizontal reservation is provided to give protection to certain category of persons. It is, therefor, incumbent upon the Centre and the State to provide either vertical or horizontal reservation for transgender in public appointment depending upon the fact that either by birth or by virtue of the finding in paragraph 135.3 of National Legal Services Authority (supra) which allows that transgender persons with a right to decide their self-identified gender in case of public appointment.
6
Prima facie, it appears that there is no embargo on transgender in partcipating in the subject recruitment process but the reservation as directed in National Legal Services Authority (supra) in case of transgender is not apparent from the Employment Notice. The last date of the submission of form is also over. Even after considering the order of the Division Bench in Mrinal Barik (supra), I find that there may not be a stipulation as to reservation 1% of the total declared vacancy, but the fact that reservation has to be provided is the direction of the Hon'ble Supreme Court in National Legal Services Authority (supra) as contained in paragraph 135.3 thereof.
In the aforesaid facts and circumstances, the writ petition is admitted and shall be decided on affidavits.
Let affidavit-in-opposition be filed by 17th January, 2025. Reply thereto, if any, be filed by 31st January, 2025. Parties will be at liberty to mention for inclusion in the list under the heading "Hearing" on completion of affidavits or on expiry of the time provided for filing of affidavits, if no such affidacvits are filed.
It is made clear that the recruitment process may continue or proceed with, but shall be subject to the result of the writ petition. No selection list or appointment in respect of the subject recruitment process shall be published without obtaining specific leave of this Court, if the writ petition remains pending at that point of time.
The petitioner shall also be permitted to participate in the selection process in accordance with law and zir claim for being 7 considered under the reserve category for transgender shall be decided at the final hearing of the writ petition.
(Arindam Mukherjee, J.)