Karnataka High Court
Mugil Anbu Vasantha vs State Of Karnataka on 16 December, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO.14909 OF 2023 (EDN-RES)
BETWEEN:
MUGIL ANBU VASANTHA
AGED ABOUT 33 YEARS,
R/AT NO.102A, ZED COLLECTIVE,
OFF DODDABALLAPURA MAIN ROAD,
YELAHANKA, BENGALURU - 560 064.
...PETITIONER
[BY MUGIL ANBU VASANTHA, PARTY-IN-PERSON (PH)]
AND
1 . STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
Digitally signed by
ANUSHA V DR. B.R. AMBEDKAR VEEDHI,
Location: High BENGALURU - 560 001.
Court Of Karnataka
2 . STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT,
M.S. BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU-560001.
3 . THE NATIONAL LAW SCHOOL OF
INDIA UNIVERSITY
REP. BY ITS VICE CHANCELLOR,
TEACHERS COLONY,
-2-
GNANABHARATHI ROAD,
BENGALURU - 560 072.
4 . THE NATIONAL LAW SCHOOL OF
INDIA UNIVERSITY
REP. BY ITS ACADEMIC DEAN AND
LLB CHAIRPERSON,
TEACHERS COLONY,
GNANABHARATHI ROAD,
BENGALURU - 560 072.
...RESPONDENTS
[BY SMT. MAMATHA SHETTY, AGA FOR R1 & R2 (PH);
SRI ADITYA NARAYAN, ADVOCATE FOR R3 & R4 ( VK
FILED) A/W GPA COPY FOR R3 (PH)]
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE DECISION
OF THE R-3 NOT OFFERING ADMISSION TO THE PETITIONER,
AS CONTAINED IN THE PETITIONERS SCORE CARD ISSUED BY
R-3 (PLACED AS ANNEXURE-L); DIRECT TO R-3 TO PROVIDE
ADMISSION TO THE PETITIONER IN THE 3-YEAR L.L.B.
COURSE FROM THE 2023-24 ACADEMIC YEAR; DIRECT TO THE
RESPONDENTS TO IMPLEMENT THE KARNATAKA STATE POLICY
ON TRANSGENDERS, 2017 (PLACED AS ANNEXURE-T) AND
PROVIDE RESERVATION TO TRANSGENDER PERSONS,
INCLUDING THE PETITIONER IN THE R-3 UNIVERSITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 28.11.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV ORDER
This writ petition is filed seeking for following reliefs:
1) Issue an appropriate writ, order or direction to
quash the decision of the respondent no.3 not
offering admission to the petitioner, as
contained in the Petitioner's Score Card issued
by respondent no.3 (placed as Annexure-L);
vide application no.LLB-23-3076.
2) Issue an appropriate writ, order or direction to
respondent nos.3 to provide admission to the
petitioner in the 3-year LLB., Course from the
2023-24 academic year;
3) Issue an appropriate writ, order or direction to
the respondents to implement the Karnataka
State Policy on Transgenders, 2017 (placed as
Annexure-T) and provide reservation to
transgender persons, including the Petitioner, in
the Respondent No.3 University;
4) Issue any other order or orders as the Hon'ble
Court may deem fit to grant in the facts and
circumstances of the case including the costs of
this writ petition, to meet the ends of justice.
2. Sri Clifton D. Rozario learned counsel appearing for
Smt.Shilpa Prasad, advocate for petitioner submitted, petitioner
obtained Bachelor of Arts Degree from Mahatma Gandhi
University and Master of Arts in Development Studies from
TATA Institute of Social Sciences. It was submitted, during year
2015, petitioner realized, she was a female to male
transgender person ('TG' for short). Accordingly, an Affidavit of
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Declaration was sworn to on 20.11.2018 as per Annexure-A
and change of name was gazetted in May, 2019 as per
Annexure-B, whereunder, petitioner adopted new name as 'Esvi
Anbu Kothazham'. By a subsequent affidavit sworn to on
06.08.2022 before Notary Public, name was changed to Mugil
Anbu Vasantha due to adoption of change of gender from
'female' to 'transgender'. Said change was also gazetted during
August, 2022 as per Annexure-D. Consequent changes were
also effected in Aadhaar Card, PAN Card etc.
3. It was submitted on 16.01.2023, respondent no.3 -
National Law School of India University ('NLSIU' for short)
issued notification calling for application for admission to LLB
Course. As petitioner intended to study same, application along
with documents on 22.03.2023 as per Annexure-H was filed
and appeared in NLSAT exams. As per Annexure-L, petitioner
secured cumulative score of 96.25 (Part-A + Part-B). Despite
said score, petitioner was denied admission.
4. Therefore, a representation dated 12.06.2023 as
per Annexure-N was submitted for review of decision denying
admission. Petitioner brought to notice of NLSIU about
requirement for providing reservation to TGs as per decision of
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Hon'ble Supreme Court in NALSA v. Union of India reported
in (2014) 5 SCC 438 and observations made by High Court of
Madras in S. Tharika Banu v. Secretary to Government
(W.P.no.26628/2017 and connected cases disposed of on
29.11.2017).
5. Further representations were made on 19.06.2023
as per Annexure-P and Q. Despite receipt, no action was taken.
It was submitted, respondent no.1 - State had adopted
Karnataka State Policy on Transgenders, 2017 - Annexure-T
(hereinafter referred to as 'TG Policy'), which at paragraph
no.1.4, contemplated support measures such as scholarships
etc. Likewise, in paragraph no.9.3 under heading 'Schemes for
Education', education grants following norms for grant of
scholarships to OBC students was contemplated. Even provision
for fee-waiver, free text books, free hostel accommodation and
other facilities at subsidised rates was contemplated. But, no
avail to petitioner. Therefore, petitioner filed this petition.
6. It was submitted this Court by interim order dated
22.08.2023, directed NLSIU to admit petitioner in three year
LL.B Course for academic year 2023-24, if petitioner was
eligible, subject to out come of writ petition. It was submitted,
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W.A.no.1025/2023 filed challenging above interim order was
dismissed on 04.09.2023.
7. It was submitted, though petitioner was granted
admission as directed and petitioner managed to pay
Rs.50,000/- on 29.08.2023, demand was made for balance fee
of Rs.3,25,500/-. Unable to pay remaining amount, petitioner
filed application for financial assistance under NLSIU Financial
Aid Scheme on 30.08.2023. In meanwhile, NLSIU expressed
intention to cancel admission.
8. Therefore, petitioner filed I.A.no.2/2023 for
direction to NLSIU to comply with interim order dated
22.08.2023 and to take decision on request for financial aid.
Application was appended with petitioner's representations
dated 23.08.2023, 24.08.2023 & 25.08.2023 along with replies
dated 28.08.2023, 29.08.2023 & 30.08.2023. Even petitioner's
E-mail to Office of Student Affairs dated 01.09.2023 was also
produced.
9. It was submitted, in its objection to I.A.no.2/2023,
NLSIU had merely stated, application for financial aid was not
supported with adequate documentation. After calling upon for
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production and considering same, Financial Aid Committee
decided to grant partial financial aid. Same was communicated
by E-mail dated 27.09.2023 - Annexure-R4 followed by demand
for balance amount. It was submitted, furnishing of details of
banks and financial institutions, which had tie-up with NLSIU
for educational loan would be of no use herein, as petitioner
was unable to comply with requirements stipulated by Banks.
Said difficulties arose primarily due to fact that petitioner was
TG, who had lost financial and other support from parents and
relatives, etc. It was submitted, petitioner was surviving on
help from few TG community well-wishers, which was not
sufficient to bear exorbitant fees. Entire action of NLSIU was
indicative of intention to frustrate petitioner from taking benefit
of interim order. Despite same, demand for further documents
indicated NLSIU was cold-shouldering request. Therefore,
petitioner filed I.A.no.3/2023 for amendment of writ petition for
additional facts, grounds and prayer.
10. Narrating above petitioner filed affidavit dated
19.01.2024. In above facts and circumstances, petitioner
prayed for allowing writ petition. In support, learned counsel
relied on directions issued in NALSA's case (supra) as follows:
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"135. We, therefore, declare:
135.1. Hijras, eunuchs, apart from binary genders, be treated
as "third gender" for the purpose of safeguarding their
rights under Part III of our Constitution and the laws
made by Parliament and the State Legislature.
135.2. Transgender persons' right to decide their self-
identified gender is also upheld and the Centre and
State Governments are directed to grant legal
recognition of their gender identity such as male,
female or as third gender.
135.3. We direct the Centre and the State Governments to
take steps to treat them 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.
135.4. The Centre and State Governments are directed to
operate separate HIV serosurveillance centres since
hijras/transgenders face several sexual health issues.
135.5. The Centre and State Governments should seriously
address problems being faced by hijras/transgenders
such as fear, shame, gender dysphoria, social
pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring
one's gender is immoral and illegal.
135.6. The Centre and State Governments should take proper
measures to provide medical care to TGs in the
hospitals and also provide them separate public toilets
and other facilities.
135.7. The Centre and State Governments should also take
steps for framing various social welfare schemes for
their betterment.
135.8. The Centre and State Governments should take steps
to create public awareness so that TGs will feel that
they are also part and parcel of the social life and be
not treated as untouchables.
135.9. The Centre and the State Governments should also
take measures to regain their respect and place in the
society which once they enjoyed in our cultural and
social life.
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136. We are informed an expert committee has already
been constituted to make an in-depth study of
problems faced by transgender community and
suggest measures that can be taken by Government to
ameliorate their problems and to submit its report with
recommendations within three months of its
constitution. Let the recommendations be examined
based on the legal declaration made in this judgment
and implemented within six months."
11. It was submitted, under similar circumstances, High
Court of Uttarakhand in case of Rano v. State of
Uttarakhand, reported in 2018 SCC OnLine Utt. 1291, had
issued directions to provide for reservation in favour of TGs as
follows:
"8. The State of Odisha has framed a scheme for Promotion
of Transgender Equality & Justice. The scheme speaks of
medical assistance to the parents of transgenders. Pre
and Post Matric Scholarship, Personality Development,
Skill Upgradation Training, Self Employment, role of
District Administration, role of block/ULB Administration
and Budget Provision & Utilization. Accordingly, the writ
petition is disposed of by issuing following mandatory
directions:--
A. The Senior Superintendent of Police, Dehradun is directed
to provide necessary protection to petitioners in both
petitions.
B. We direct State Government to provide reservation in
admission in educational institutions and for public
appointments to transgenders by framing a scheme
within a period of six months from today.
C. State Government is directed to frame various social
welfare schemes/programmes for betterment of
transgenders within a period of six months from today.
D. State Government is also directed to create public
awareness to enable transgenders to come into the main
stream and also to take measures to regain their respect
and place in the society.
E. State Government is also directed to frame a scheme of
housing for transgenders giving suitable accommodation
to them within six months from today.
F. State Government is also directed to provide financial
assistance to parents of transgenders and to give
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scholarship to transgenders upto post-graduate level in
order to assimilate them in the main stream.
G. State Government is directed to constitute a welfare
board for upliftment of transgenders in State of
Uttarakhand, within a period of six months from today.
Representation shall be given to transgenders in board.
H. State Government is also directed to provide free medical
access to transgenders in all the hospitals.
I. We also direct that transgenders shall have free access to
public institutions, public places, playgrounds, roads
including educational institutions, malls, market places,
hospitals, hotels, restaurants etc.
J. The respondent-State is also directed to provide separate
toilets to transgenders in every public utility buildings
including hospitals, bus stations, railway stations etc.
within a period of six months from today.
K. We direct State Government to ensure that no
transgender is separated from the parents and family and
we also suggest State Government to frame law/scheme
to ensure that no transgender is separated from the
parents/guardians and family within a period of three
months from today.
L. Criminal cases shall be registered against persons who
forcibly remove transgender from their parents/guardians
and family.
M. All transgenders in State of Uttarakhand are ordered to
be registered by District Magistrates to recognize them as
such.
N. There shall not be any discrimination to transgenders qua
employment or occupation. They should not be treated
unfairly. They have absolute right, as enshrined under
Article 21 of the Constitution of India to maintain privacy
and to live with dignity."
12. It was submitted, even if it were contention of
respondents that number of transgender persons in State was
minimal, High Court of Madras in S. Tamilselvi v. State,
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reported in 2022 SCC OnLine Mad. 4879, issued directions as
follows:
"28. Assuming that, the reason cited by the respondents
for not giving the special reservation for transgender,
because, only minimal transgenders are living in the
State and therefore if a particular percentage of seats for
transgender category is reserved, sometimes that may
not be taken by the transgender for want of candidates is
concerned, atleast a provisional note could have been
made that, even though special reservation has not been
made horizontally for transgender candidates if there is
any transgender candidate who makes application and
would be otherwise eligible to be considered on merits
that is the minimum eligibility mark obtained by the
transgender candidate, that candidate would be treated
as a special candidate under the special category of
transgender or third gender and accordingly transgender
candidate would be considered for admission. Atleast this
kind of special note could have been appended to the
notifications or prospectus issued by the respondent,
even that kind of special note was missing in the said
notification/prospectus."
13. He also relied on interim order dated 20.06.2023
passed by Hon'ble High Court of Telangana in
W.P.no.15117/2023 (Dr.Koyyala Ruth John Pail v. Union
of India). Reliance was also placed on decision of High Court
of Calcutta in WPA no.9187/2020 disposed of on
02.02.2021 (Mx.Sumana Pramanik v. Union of India),
wherei, it was held non-grant of reservation, age relaxation and
fee concession in Joint CSIR-UGC NET Examination was
patently violative of Article 14 and 21 of Constitution of India
and directions issued for provision of same for category of
transgenders along with other reserved category. It was
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submitted in view of above, petitioner for granting similar
directions as in above cases by allowing writ petition.
14. On other hand, Sri K.G.Raghavan, learned Senior
Counsel appearing for Sri Aditya Narayan, advocate for NLSIU
sought to oppose writ petition. It was submitted, petitioner was
not entitled either for main or interim reliefs, as Central or
State Governments had not framed any law after decision in
NALSA's case (supra).
15. It was submitted, NLSIU was a premier educational
institution in Law offering various courses with fees stipulated
for each of them commensurate to expenditure involved. It was
submitted, selection of students for admission was based on
cumulative score in NLSAT-LLB test and all candidates applying
for said examination would be well aware of fee structure for
each course at time of filing application. Therefore, being well
aware of fee structure, petitioner had appeared for test. Neither
at time of filing application nor at time of appearing for test,
petitioner had expressed any difficulty in so far as fees.
16. It was submitted, selection of candidates for
admission to LL.B course by NLSIU was by applying common
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yardstick. After results, petitioner was placed at sl.no.62 in
order of merit under general category. Last selected candidate
under said category was at sl.no.40. Therefore, petitioner did
not qualify after cut-off. Petitioner was admitted in pursuance
of interim order granted herein.
17. It was submitted, on selection through NLSAT
exams, candidates were required to file application and pay
fees before being permitted to attend classes. In view of failure
to pay fees, petitioner was not permitted to attend classes. It
was submitted, as per standards fixed under Rule 12 of Bar
Council of India Rules, minimum attendance was mandatory to
be eligible for LL.B Exams. It was submitted as Course had
commenced on 21st August, 2023, and without paying fee could
not be permitted to attend classes, even if petitioner were to
come forward to pay fees or succeed in this writ petition,
petitioner would not be eligible for Exams. Therefore, petition
was rendered academic.
18. It was also submitted, admittedly, petitioner was
employed before admission to University. Therefore,
petitioner's claim for financial assistance would not be tenable.
In any case, University had lent available support to petitioner
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as per existing policies. It had provided Laptop, stipend of
Rs.27,000/- and reimbursement of interest on educational loan
for a period of 3 years.
19. In reply to contention that NLSIU was inimical to
transgender persons, it was submitted, NLSIU had adopted
various measures for transgender persons to create level
playing field. As part of its inclusive measures, it was
maintaining gender neutral toilets, special counseling support
for students who need gender related or gender transition
counseling, implementation of gender-neutral anti-sexual
harassment code, encouraging gender-neutral salutations,
hosting QAMRA (Queer Archive for Memory Reflection and
Activism), besides being in final stages of formulating a new
gender equality code to respond to all forms of discrimination
and provide inclusive and supportive educational environment.
20. It was submitted, provisions of Transgender
Persons (Protection of Rights) Act, 2019, and Transgender
Persons (Protection of Rights) Rules, 2020, did not mandate or
provide reservation for transgender persons and only
contemplated adoption of measures to ensure access,
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inclusiveness and prevent discrimination. It was submitted,
measures adopted were far and above requirements of law.
21. It was submitted, petitioner contends that as per
Section 10 of National Law School of India University Act, 1986,
Executive Council has power to prescribe reservation in
admissions. Therefore, unless decision is taken by Executive
Council, University cannot prescribe reservation for
transgender. To substantiate submission, reliance was placed
on decision in Master Balachandar Krishnan v. State of
Karnataka, reported in ILR 2021 Kar. 1245, wherein it was
held:
"196. In view of the above, we arrive at the following
conclusions:
(1) The role of BCI, BCI Trust and the Society in the
establishment and functioning of the respondent/Law
School is significant and pervasive and the respondent-
State has been only a facilitator in granting the
respondent/Law School deemed University status through
the Act.
(2) The State Legislature has no power or authority under the
Act to direct the respondent/Law School to provide
reservations for students in view of the limited role of the
State under the Act. Hence, the impugned Amendment by
insertion of sub-Section (3) of Section 4 of the Act is
declared illegal.
(3) The impugned Amendment in sub-Section (3) of Section 4
of the Act is contrary to the scheme of the Act and powers
vested in the authorities recognized under the Act which
makes the respondent/Law School an autonomous and
independent body free from State's control. Hence, the
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impugned Amendment which encroaches upon the power
of the authorities under the Act is contrary to the Act.
(4) Clause 2.1 of the Notification dated 04.08.2020 issued by
the respondent/Law School providing horizontal
reservation to an extent of 25% of the total seats by a
revised seat matrix by following the aforesaid amendment
is illegal and hence quashed.
(5) Further, the respondent/Law School has no authority to
award 5% concession of marks on the last cut off score in
the General merit category for the "students of
Karnataka" as defined in the explanation to the Amending
Section and hence, Clause 2.2 of the Notification dated
04.08.2020 is quashed.
(6) Recognising the fact that respondent/Law School in an
autonomous entity, any form of reservation for students
to be admitted to it shall be provided by the Executive
Council of the Law School bearing in mind the fact that it
is an institution of national importance.
(7) The category of students namely "Students of Karnataka"
for whom reservation horizontally to an extent of 25% of
the seats has been made has no nexus to the objects
sought to be achieved and is hence, in violation of Article
14 of the Constitution.
(8) Further, institutional preference being the basis of
reservation and the criteria mentioned in the explanation
to the impugned amendment in sub-Section (3) to
Section 4 of the Act to identify the beneficiary namely,
"students of Karnataka" cannot be operationalised in its
present form.
(9) However, we clarify that the increase in the intake
capacity made by the respondent/Law School by Clause
(1) of Notification dated 04.08.2020 is not interfered
with. But, the revised seat matrix incorporating the
impugned reservation is quashed.
(10) The respondent/Consortium shall publish the results of
the CLAT examination in terms of reservation made prior
to the impugned amendment bearing in mind the
increase in the intake capacity insofar as respondent/Law
School is concerned.
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(11) Consequently, the respondent/Law School shall follow
the seat matrix issued de hors the impugned reservation
for students of Karnataka, bearing in mind the increased
intake capacity and the reservation made for the
Scheduled Castes and Scheduled Tribes and for persons
with disability.
(12) I.A. No. 1 of 2020 in Writ Petition No. 8788 of 2020
is disposed of. Applicant in the said I. A. in Writ Petition
No. 8788 of 2020 is permitted as an intervenor in these
proceedings. But, I. A. No. 2 of 2020 in Writ Petition No.
8788 of 2020, I.A. No. 1 of 2020 in Writ Petition No. 8951
of 2020 and I.A. No. 1 of 2020 in Writ Petition No. 9145
of 2020 by the applicants are dismissed. The above is by
separate order.
(13) Writ Petition No. 8788 of 2020 filed by a student who
had applied pursuant to the notification issued on
01.01.2020 by the respondent/Consortium to appear in
CLAT is allowed and disposed in the aforesaid manner.
(14) Writ Petition No. 8951 of 2020 and 9145 of 2020 are
allowed in the aforesaid terms."
22. To support submission that there cannot be a
prayer for providing reservation, reliance was placed on
decision in case of State of Punjab v. Anshika Goyal,
reported in (2022) 3 SCC 633:
"9. While answering the aforesaid issue, few decisions of this
Court referred to hereinabove are required to be
discussed:
9.1. In Gulshan Prakash v. State of Haryana, (2010) 1 SCC
477, it was observed by this Court that there cannot be
any mandamus by the Court to provide for a reservation
for a particular community. In the case before this Court,
the State of Haryana did not provide any reservation for
SC/ST/backward community at the postgraduate level. A
conscious decision was taken by the State of Haryana not
to provide for reservation at the postgraduate level. The
same was challenged and to that this Court has observed
that there cannot be any mandamus by the Court as
claimed. In the aforesaid decision, it was further observed
and held that Article 15(4) of the Constitution is an
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enabling provision and the State Government is the best
Judge to grant reservation for SC/ST/backward categories
at postgraduate level. Any policy and the decision of the
State not to make any provision for reservation at
postgraduate level suffers from no infirmity. It was
further observed that every State can take its own
decision with regard to reservation depending on various
factors. At this stage, it is to be noted that it was also
submitted before this Court that since the Government
has decided to grant reservation for SC/ST/backward
class communities in admission at MBBS level i.e.
undergraduate level and therefore the State has to
provide for reservation at postgraduate level also. To
that, this Court observed that since the Government had
decided to grant reservation for SC/ST/backward
categories in admission at MBBS level i.e. undergraduate
level, it does not mean that it is bound to grant
reservation at the postgraduate level also.
9.2. In Central Bank of India v. SC/ST Employees Welfare
Assn. [Central Bank of India v. SC/ST Employees Welfare
Assn., (2015) 12 SCC 308] , while considering the issue
of providing reservation in favour of SC/ST category
persons in the promotion and when Articles 15 and 16 of
the Constitution of India were pressed into service, this
Court observed and held that though Articles 15 and 16
empower the State to take an affirmative action in favour
of the SC/ST category persons by making reservations for
them in the employment of the Union or the State, they
are only enabling provisions which permit the State to
make provision for reservation of these category of
persons. It was further observed that insofar as making
of provisions for reservation in matters of promotion to
any class/classes of post is concerned, such a provision
can be made in favour of SC/ST category employees if in
the opinion of the State they are not adequately
represented in services under the State. It is observed
that therefore power lies with the State to make a
provision but, at the same time, courts cannot issue any
mandamus to the State to necessarily make such a
provision. In para 26, it was observed and held as under :
(SCC p. 325)
"26. In the first instance, we make it clear that there
is no dispute about the constitutional position
envisaged in Articles 15 and 16, insofar as these
provisions empower the State to take affirmative
action in favour of SC/ST category persons by making
reservations for them in the employment in the Union
or the State (or for that matter, public
sector/authorities which are treated as State under
Article 12 of the Constitution). The laudable objective
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underlying these provisions is also to be kept in mind
while undertaking any exercise pertaining to the
issues touching upon the reservation of such SC/ST
employees. Further, such a reservation can not only
be made at the entry level but is permissible in the
matters of promotions as well. At the same time, it is
also to be borne in mind that clauses (4) and (4-A) of
Article 16 of the Constitution are only the enabling
provisions which permit the State to make provision
for reservation of these category of persons. Insofar
as making of provisions for reservation in matters of
promotion to any class or classes of post is concerned,
such a provision can be made in favour of SC/ST
category employees if, in the opinion of the State,
they are not adequately represented in services under
the State. Thus, no doubt, power lies with the State to
make a provision, but, at the same time, courts
cannot issue any mandamus to the State to
necessarily make such a provision. It is for the State
to act, in a given situation, and to take such an
affirmative action. Of course, whenever there exists
such a provision for reservation in the matters of
recruitment or the promotion, it would bestow an
enforceable right in favour of persons belonging to
SC/ST category and on failure on the part of any
authority to reserve the posts, while making
selections/promotions, the beneficiaries of these
provisions can approach the Court to get their rights
enforced. What is to be highlighted is that existence of
provision for reservation in the matter of selection or
promotion, as the case may be, is the sine qua non
for seeking mandamus as it is only when such a
provision is made by the State, a right shall accrue in
favour of SC/ST candidates and not otherwise."
9.3. In Suresh Chand Gautam [Suresh Chand Gautam v. State
of U.P., (2016) 11 SCC 113] , writ petitions were
preferred before this Court under Article 32 of the
Constitution of India for issuance of a direction in the
nature of a mandamus commanding the State/States to
enforce appropriately the constitutional mandate as
contained under the provisions of Articles 16(4-A), 16(4-
B) and 335 of the Constitution, or in the alternative,
directing the respondents to constitute a committee or
appoint a commission chaired either by a retired Judge of
the High Court or the Supreme Court in making survey
and collecting necessary qualitative data of the Scheduled
Castes and the Scheduled Tribes in the services of the
State for granting reservation in promotion in the light of
direction given by this Court in M.Nagaraj v. Union of
India [M. Nagaraj v. Union of India, (2006) 8 SCC 212] .
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Refusing to grant such reliefs in exercise of powers under
Article 32 of the Constitution of India and after referring
to the decision of this Court in Census Commr. v. R.
Krishnamurthy [Census Commr. v. R. Krishnamurthy,
(2015) 2 SCC 796] , this Court has observed that no writ
of mandamus of such a nature can be issued. While
refusing to issue a writ of mandamus of such a nature, in
para 49, it was observed and held as under : (Suresh
Chand Gautam case [Suresh Chand Gautam v. State of
U.P., (2016) 11 SCC 113], SCC pp. 145-46):
"49. Recently in Census Commr. v. R.
Krishnamurthy [Census Commr. v. R. Krishnamurthy,
(2015) 2 SCC 796] a three-Judge Bench while dealing
with the correctness of the judgment [R.
Krishnamurthy v. Census Commr., WP No. 10090 of
2010, decided on 12-5-2010 (Mad)] of the High Court
wherein the High Court had directed that the Census
Department of the Government of India shall take
such measures towards conducting the caste-wise
census in the country at the earliest and in a time-
bound manner, so as to achieve the goal of social
justice in its true sense, which is the need of the hour,
the court analysing the context opined thus : (R.
Krishnamurthy case [Census Commr. v. R.
Krishnamurthy, (2015) 2 SCC 796], SCC p. 806, para
25)
"25. Interference with the policy decision and
issue of a mandamus to frame a policy in a
particular manner are absolutely different. The
Act has conferred power on the Central
Government to issue notification regarding the
manner in which the census has to be carried out
and the Central Government has issued
notifications, and the competent authority has
issued directions. It is not within the domain of
the court to legislate. The courts do interpret the
law and in such interpretation certain creative
process is involved. The courts have the
jurisdiction to declare the law as unconstitutional.
That too, where it is called for. The court may
also fill up the gaps in certain spheres applying
the doctrine of constitutional silence or abeyance.
But the courts are not to plunge into policy-
making by adding something to the policy by way
of issuing a writ of mandamus.'
We have referred to the said authority in Census
Commr. case [Census Commr. v. R.
Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC
(L&S) 589] as the Court has clearly held that it
neither legislates nor does it issue a mandamus
- 21 -
to legislate. The relief in the present case, when
appositely appreciated, tantamounts to a prayer
for issue of a mandamus to take a step towards
framing of a rule or a regulation for the purpose
of reservation for the Scheduled Castes and the
Scheduled Tribes in matter of promotions. In our
considered opinion, a writ of mandamus of such a
nature cannot be issued."
9.4. In the recent decision in Mukesh Kumar [Mukesh
Kumar v. State of Uttarakhand, (2020) 3 SCC 1] , again it
is reiterated by this Court that no mandamus can be
issued by the Court directing the State Government to
provide for reservation. It was further observed that even
no writ of mandamus can be issued directing the State to
collect quantifiable data to justify their action not to
provide for reservation. It was observed that even if the
under-representation of Scheduled Castes and Scheduled
Tribes in public services is brought to the notice of the
Court, no mandamus can be issued by the Court to the
State Government to provide for reservation. While
holding so, in para 18, it was observed and held as under
: (SCC pp. 12-13)
"18. The direction that was issued to the State
Government to collect quantifiable data pertaining to
the adequacy or inadequacy of representation of
persons belonging to Scheduled Castes and Scheduled
Tribes in government services is the subject-matter of
challenge in some appeals before us. In view of the
law laid down by this Court, there is no doubt that the
State Government is not bound to make reservations.
There is no fundamental right which inheres in an
individual to claim reservation in promotions. No
mandamus can be issued by the Court directing the
State Government to provide reservations. It is
abundantly clear from the judgments of this Court
in Indra Sawhney [Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217] , Ajit Singh (2) [Ajit Singh
(2) v. State of Punjab, (1999) 7 SCC 209], M.
Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC
212] and Jarnail Singh [Jarnail Singh v. Lachhmi
Narain Gupta, (2018) 10 SCC 396] that Articles 16(4)
and 16(4-A) are enabling provisions and the collection
of quantifiable data showing inadequacy of
representation of Scheduled Castes and Scheduled
Tribes in public service is a sine qua non for providing
reservations in promotions. The data to be collected
by the State Government is only to justify reservation
to be made in the matter of appointment or promotion
to public posts, according to Articles 16(4) and 16(4-
A) of the Constitution. As such, collection of data
- 22 -
regarding the inadequate representation of members
of the Scheduled Castes and Scheduled Tribes, as
noted above, is a prerequisite for providing
reservations, and is not required when the State
Government decided not to provide reservations. Not
being bound to provide reservations in promotions,
the State is not required to justify its decision on the
basis of quantifiable data, showing that there is
adequate representation of members of the Scheduled
Castes and Scheduled Tribes in State services. Even if
the under-representation of Scheduled Castes and
Scheduled Tribes in public services is brought to the
notice of this Court, no mandamus can be issued by
this Court to the State Government to provide
reservation in light of the law laid down by this Court
in C.A. Rajendran [C.A. Rajendran v. Union of India,
AIR 1968 SC 507] and Suresh Chand Gautam [Suresh
Chand Gautam v. State of U.P., (2016) 11 SCC 113].
Therefore, the direction given by the High Court that
the State Government should first collect data
regarding the adequacy or inadequacy of
representation of Scheduled Castes and Scheduled
Tribes in government services on the basis of which
the State Government should take a decision whether
or not to provide reservation in promotion is contrary
to the law laid down by this Court and is accordingly
set aside. Yet another direction given by the High
Court in its judgment dated 15-7-2019 [Vinod
Kumar v. State of Uttarakhand, 2019 SCC OnLine Utt
1536], directing that all future vacancies that are to
be filled up by promotion in the posts of Assistant
Engineer, should only be from the members of
Scheduled Castes and Scheduled Tribes, is wholly
unjustifiable and is hence set aside."
10. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, we are of the
opinion that the High Court has committed a grave error
in issuing a writ of mandamus and directing the State
Government to provide for 3% reservation/quota for
sportspersons, instead of 1% as provided by the State
Government. A conscious policy decision was taken by
the State Government to provide for 1%
reservation/quota for sportspersons. A specific Order
dated 25-7-2019 was also issued by the State
Government. Therefore, the High Court has exceeded its
jurisdiction while issuing a writ of mandamus directing
the State to provide a particular percentage of
reservation for sportspersons, namely, in the present
case, 3% reservation instead of 1% provided by the State
Government, while exercising powers under Article 226 of
- 23 -
the Constitution of India. Therefore, the impugned
common judgment and order [Anshika Goyal v. State of
Punjab, 2019 SCC OnLine P&H 6235] passed by the High
Court insofar as directing the State to provide for 3%
reservation for sportspersons and/or provide for a sports
quota of 3% in the government medical/dental colleges is
unsustainable and the same deserves to be quashed and
set aside."
23. It was further submitted attempt to nullify selection
process for admission in NLSIU by referring to direction issued
in NALSA's case (supra) would not stand legal scrutiny as such
prayer in absence of steps by State have been held untenable
in Matam Gangabhavani v. State of A.P., reported in 2022
SCC OnLine AP 200, as follows:
"54. One of the contentions of the petitioner is that,
when the petitioner is a transgender and the Hon'ble
Supreme Court issued guidelines in National Legal
Services Authority v. Union of India (referred supra) to
take steps to provide reservations to transgenders in
employment directing the Centre and State Governments
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 in educational
institutions and for public appointments. Thus, the
direction is only to take steps to provide all kinds of
reservation in case of admission in educational
institutions and in public appointments, treating them as
Socially and Educationally backward Classes of citizens.
But, social reservations are vertical, whereas,
reservations based on gender are horizontal. If, the
reservations are provided treating this petitioner as
socially and educationally backward, the present
reservations if taken together, it exceeds more than 50%.
In India, the extent of reservation to be made is primarily
a matter for the State to decide, subject, of course, to
judicial review of equality in Article 16(1) or Article 335
meaningless. Thus, the reservation of more than 50 per
cent of the vacancies as they arise in any year or a 'carry
forward' rule which has the same effect, will be outside
the protection of Article 16(4). The normal rule is that the
reservation under Article 16(4) should not exceed 50 per
- 24 -
cent of the appointments or posts to be made in a
particular year. Taking consideration of the fact situation
prevailing in the State on the reservations, it is for the
State to take appropriate action in terms of the directions
issued by the Hon'ble Apex Court in Para 135.3
of National Legal Services Authority v. Union of
India (referred supra).
.........
75. No doubt, no reservation is provided to
transgenders/transmale/transfemale, but direction was
issued by the Hon'ble Apex Court in National Legal
Services Authority v. Union of India (referred supra) to
both Centre and the State Governments to take steps to
treat them 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 direction issued by
the Hon'ble Supreme Court is only to the extent of taking
steps to treat transgenders as socially and educationally
backward classes of citizens, but not for creating
reserving particular percentage of posts to transgenders.
Therefore, as on date, no steps were taken by the State
Government for creating reservation to transgenders on
the basis of their social and educational backwardness
(vertical reservation), but, based on the subsisting rules
of reservation in the State services, the notification
impugned in the writ petition was issued. When the
Notification was issued strictly adhering to the subsisting
rules, the notification cannot be declared as illegal and
arbitrary. Even to construe that the second respondent
violated the direction issued by the Hon'ble Apex Court
in National Legal Services Authority v. Union of
India (referred supra), the direction is only to take steps
for providing reservation to transgenders based on their
social and educational backwardness. Though, it appears
to be in the nature of directions, the State is under the
obligation to implement it, they did not take any steps till
date. After the judgment of Hon'ble Apex Court
in National Legal Services Authority v. Union of
India (referred supra), the Transgender Persons
(Protection of Rights) Act, 2019 was enacted by the
Central Government and Rules were framed thereunder,
but, none of these Acts provided any reservation to
transgenders, except providing access to employment.
Therefore, in the absence of any steps taken by the
State, failure of its instrumentalities to provide
reservation to transgenders does not make the
notification impugned in this writ petition invalid. Hence, I
find no ground to declare the notification impugned in this
writ petition as illegal or arbitrary, in view of the
judgment of the Apex Court in National Legal Services
- 25 -
Authority v. Union of India (referred supra) to take steps
to provide reservation to transgenders, more particularly,
no steps were taken till date. At best, such failure may
attract contempt being filed before the competent court,
but this Court cannot declare such Notification as illegal
and arbitrary, on the basis of such contention. Hence, I
find no ground to grant the above relief, while rejecting
the contention of this petitioner. Accordingly, Point nos.1
& 2 are answered.
24. It was submitted, since petitioner had applied and
appeared in entrance Exams, without invoking claim for
reservation in favour of TGs, petitioner would be estopped from
questioning selection process after participation, by relying on
decision in case of Sweety Nagar v. State of Haryana,
reported in 2022 SCC OnLine P&H 91, wherein it is held:
"7. The petitioner having applied for the post of LDC, it is not
believable that she did not know that her application had
been submitted as a General category candidate and not
under BCB category. The reasoning given by her that she
belongs to rural area, where the application forms are
submitted online by Computer Operators and the
Computer Operator had inadvertently submitted her
application under General Category instead of under BCB
category, is least convincing. The petitioner having
applied as a General category candidate, taken up the
written examination as such besides participating in the
process for scrutiny of documents, it is not believable that
she did so without realizing that she was appearing as a
General category candidate and not a candidate
belonging to BCB category. She could not be so naive and
simpleton so as to act in such a manner. Her
representation for change of category was rightly
rejected. The order dated 13.7.2021 passed in that
regard is quite detailed and well reasoned and no ground
is made out to take a different view in the matter. In the
order, the factual and judicial position on the subject has
been discussed, while concluding that no change of
category can be allowed at this stage. It has been
specifically mentioned that in the advertisement for the
posts, terms and conditions of recruitment process were
clearly mentioned advising the candidates to go through
- 26 -
the same carefully before filling up the online application
form and then to check up the filled up application form
to ensure the correctness of information and uploaded
documents before finally submitting the application. It is
clearly mentioned that no request for change of any
particular of the application form would be entertained by
the HSSC. It was also informed that in case the candidate
feels that he/she has filled up the form erroneously, then
he or she should fill up a fresh online application form
along with fresh requisite fee before the closing date. The
candidates applying under SC/BCA/BCB etc. categories
were required to upload supporting certificate from
competent authority and submit the same when called
upon to do so by HSSC. The petitioner had admittedly not
uploaded BCB certificate what to talk of applying under
that category. It was further mentioned in the
advertisement that during scrutiny of documents only
those documents, which were uploaded by the candidate
would be considered. In this case, the petitioner had not
uploaded her BCB certificate, therefore, the same could
not be taken into consideration. In the order, judgment
passed by this Court with regard to category change in
CWP No. 15110-2016 titled as Shashi v. State of
Haryana decided on 22.5.2018 has been referred to and
operative part thereof has been reproduced, which is as
under:
Perusal of the advertisement (Annexure P-1) clearly
shows that a candidate can apply only once for a
particular category of post advertised. It also makes
it clear that no offline form is to be accepted. Another
condition included in the advertisement is that
incomplete application form would be rejected. Thus,
a candidate is required to be very circumspect while
filling the application. Although the petitioner may
have obtained the EBPG certificate before the
extended date of submitting applications, she cannot
take benefit thereof as she had applied under the
general category. Had she applied for the EBPG
category and had failed to attach the certificate
alongwith the application, the case may have been
different. The Division Bench judgment of this Court
in Usha Dhillon (supra) does not support the case of
the petitioner as in the said case the computer had
committed a mistake and the same was permitted to
be corrected. The judgment of the Supreme Court
in J&K Public Service Commission (supra) makes it
clear that once a candidate has chosen a particular
category, he cannot change the same at a later date.
.........
- 27 -
10. In the order, it has been mentioned that final result has
been declared on 3.4.2021, that means the selection
process is over. If the writ petition is accepted that would
unsettle the entire process. The petitioner herself having
applied under the General category and taken part in the
selection process as a General category candidate,
however, being unsuccessful to get sufficient marks,
wants to change the category to BCB for getting herself
selected. Such type of hopping of category in such a
manner can certainly be not allowed. As regards, the
judgment referred to by learned counsel for the petitioner
i.e. Asif Ali Khan v. State of Rajasthan, S.B. Civil Writ
Petition No. 9455/2019, that had different facts. As per
the facts of that case, the category indicated at the time
of filling up online application form was by mistake and
the petitioner had not taken any advantage of the same
and when the mistake was detected, he was permitted to
change the category so as to take the type test and final
result had not been declared in that case. However, here
the plea taken up by the petitioner that the category
indicated at the time of filling up of online application
form as General was by mistake has not been found to
plausible and convincing. The petitioner had taken up the
test and participated in the election process as a General
category candidate, the final result in the matter has
since been declared, therefore, the petitioner has not
been found entitled to change her category to BCB so as
to take advantage of reservation."
25. For similar proposition, reliance was also placed on
decisions in case of J & K Public Service Commission v.
Israr Ahmad, reported in (2005) 12 SCC 498 and on
Rajasthan v. Neetu Harsh, reported in (2021) 11 SCC 383.
26. In any case, plea for financial assistance was not
supported by pleadings or prayer. Therefore, same cannot be
urged during arguments. It was submitted, in view of above,
writ petition lacked merit and sought for its dismissal.
- 28 -
27. Smt.Mamata Shetty, learned Additional Government
Advocate appearing for respondent no.1 - State submitted
petitioner herein was seeking admission to 3 years LL.B. Course
at NLSIU under transgender quota by seeking for direction for
fixation of quota for Transgenders, after having applied and
failed at securing admission under GM category. Petitioner is
blaming his failure on respondents by alleging failure to fully
implement provisions of Transgender Persons (Protection of
Rights) Act, 2019, and Transgender Persons (Protection of
Rights) Rules of 2020.
28. Though, petitioner was alleging respondents no.1
and 2 had failed to implement TG Policy. But, said policy did
not contemplate any enforceable right. Therefore, allegation
against non-implementation would be untenable.
29. Insofar as prayer for fixation of reservation in
favour of transgenders, for admission in NLSIU, it was
submitted, in view of decision by Division Bench of this Hon'ble
Court, in Master Balachandar Krishnan's case (supra),
wherein it was held, State has a limited role under NLSIU Act,
as NLSIU was an autonomous and independent body free from
control of State Government. It was submitted order of Division
- 29 -
Bench was subject matter of SLP (C) no.14508-14510/2020
and pending consideration before Hon'ble Supreme Court.
Therefore, at this juncture, State could not prescribe any
reservation in favour of transgenders.
30. It was however submitted, State Government was
taking steps to implement Transgender Persons (Protection of
Rights) Act, 2019, as well as Transgender Persons (Protection
of Rights) Rules of 2020 throughout State of Karnataka. It was
submitted, State Government had notified Karnataka Civil
Services (General Recruitment) (Amendment) Rules, 2021 on
06.07.2021 providing horizontal reservation for transgender
persons in public employment under sub-rule (1D) of Rule 9 of
Karnataka Civil Services (General Recruitment) Rules, 1977.
For said reasons, sought dismissal of writ petition.
31. By filing rejoinder statement, petitioner sought to
controvert assertion by respondent University that petitioner
was seeking to introduce different cause by filing application for
amendment. It was submitted, requirement of need for
financial aid was existing due to factors such as homelessness,
disownment by family, extended period of unemployment,
rampant discrimination in employment and in public life
- 30 -
associated with TGs. It was submitted, details of financial aid
policy of NLSIU were not in public domain. Infact only after
receipt of admission letter and deposit of Rs.50,000/- raised
through loans and when petitioner was unable to arrange for
remaining amount of fees, petitioner requested financial
assistance that financial aid policy was made available.
32. Only then, it was noted that policy does not
contemplate circumstances affecting TGs nor was it flexible, but
more in nature of providing information to avail loan. Thus,
admission process of NLSIU was insensitive to specific needs of
TGs, which would be violative of guarantees under Articles 14,
15, 19 and 21 read with Article 38, 39 and 46 of Constitution of
India, 1950. It was submitted, High Court of Allahabad in case
of Atish Kumar v. Union of India in Writ C.no.14955/2019
disposed of on 11.05.2022 had held contention of lack of funds
by Government was not justified to deny grant of scholarships.
It was submitted, principle enunciated by Hon'ble Supreme
Court in DS Nakara & Ors. v. Union of India & Ors.,
reported in 1983 (1) SCC 305; Smt.Poonamal & Ors. v.
Union of India & Ors., reported in 1985 (3) SCC 345;
Murlidhar Dayandeo Kesekar v. Vishwanatha Pandu
- 31 -
Barde & Anr., reported in 1995 Supp. (2) SCC 549 and in
Secy., Haryana SEB v. Suresh, reported in 1999 (3) SCC
601, was that equality is not mere legal equality, its existence
depends not merely on absence of possibilities, but on presence
of abilities. And that those who have been disadvantaged by
existing social conditions should be given more benefits by
altering ways of distribution. Reference was also made to
decision of Hon'ble Supreme Court in Kumari Srilekha
Vidyarthi v. State of UP & Ors. reported in 1991 (1) SCC
212, wherein it was held that all powers possessed by public
authorities, howsoever conferred are possessed solely in order
they may be issued in public good.
33. It was submitted rights of TGs to study law was not
only affected by failure to provide reservation as directed in
NALSA case, but also compounded by stipulating need for filing
affidavit undertaking that admission would be subject to
outcome of decision in W.P.no.1023/2016 pending before
Supreme Court insisted upon by KSLU. On importance of right
to education, especially legal education, petitioner relied on
observation of High Court of Kerala in Pattaka Suresh Babu
- 32 -
v. State of Kerala & Ors. (2023) in Crl.M.A.no.3/2023 in
Crl.Appeal no.740/2018:
"9. Education is the most potent mechanism for the
advancement of an individual. International treaties
specify the aims of education as promoting personal
development and respect for human rights and freedoms,
enabling individuals to participate effectively in a free
society and fostering understanding, friendship and
tolerance. The right to education has been formally
recognized as a human right in the Universal Declaration
of Human Rights in 1948 and has since been affirmed in
global human rights treaties, including the 1960 United
Nations Educational, Scientific and Cultural Organization
(UNESCO) Convention Against Discrimination in Education
and the 1966 International Convenant on Economic,
Social and Cultural Rights, Article 13(1) of which
recognizes 'the right of everyone to education'.
10. ....The prisoners' right to education is a human right
grounded in the right to dignity. A prisoner has as much a
right to pursue study as a person free from the confines
of jail. The aims of imprisonment include reformation and
rehabilitation apart from deterrence. Education can
contribute to a sense among prisoners that they remain a
part of the wider community.
34. Insofar as stand of University that it has taken
affirmative action to remove un-equalities and as its own
reservation policy and financial aid policy, but same cannot be
faulted merely on ground that they do not specifically cater to
petitioner request. In this regard reliance was placed on
decision of S.Tharika Banu case (supra):
"9. ....Instead of living normal stigmatic life as a
transgender (person) and in spite of undergoing various
insults and even assaults, harassments in the hands of
some unruly elements, when they come forward to get
education, the same has to be encouraged and based on
- 33 -
technicalities, the transgender persons coming forward to
join educational institutions should not be driven out.
10. The legal status of Transgender persons emanates
from the judgment of the Hon'ble Supreme Court in
National Legal Services Authority v. Union of India and
others reported in 2014(5) SCC 438. Before the said
judgment, the transgenders did not have any recognition
even as human being as they have been undergoing
insults, assaults, harassments both psychologically and
physiologivally. Their pain, agony and suffering have not
been felt by others and their plight have not been
recognized by any of the parties. It is only the Court
which has taken care of the transgenders and gave
appropriate directions in the year 2014."
35. It was submitted, in W.P.no.6967/2022 disposed
of on 08.04.2024 (Rakshika Raj v. State of Tamil Nadu and
Ors.) and in WP no.27090/2024 disposed of on 11.09.2024
(A. Nivetha v. Secy. to Govt. (Health and Family Welfare
Department), High Court of Madras upheld need for horizontal
reservation for TGs. It was submitted, failure to provide
reservation for TGs as directed in NALSA's case (supra) entitled
petitioner for issuance of positive directions as done by High
Court of Calcutta in WPA no.21508/2023 disposed of on
14.06.2024 (Mrinal Barik v. State of WB and Ors.), where in
exercise of extraordinary jurisdiction conferred under
Article 226 of CoI, Secretary, West Bengal Board of Primary
Education was directed to arrange for interview and counseling
- 34 -
of petitioner therein as a special case and recruit her as an
Assistant Teacher in primary section, by appropriate relaxation.
36. In view of above, since NLSIU had failed to provide
reservation for TGs and absence of measures of providing
financial assistance would render such reservation nugatory,
petitioner prayed for allowing writ petition by issuing
appropriate positive directions.
37. Heard learned counsel and perused writ petition
records.
38. From above, petitioner's grievance in this writ
petition appears to be two fold; firstly, inaction of respondents
to provide reservation for TGs in admission to Courses of study
offered by NLSIU and secondly, inaction to provide financial
assistance to TGs for pursuing studies (in case of petitioner,
since Rs.50,000/- was paid, for waiver sought for remainder of
fees).
39. Claim for reservation in favour of TGs stems from
following directions in NALSA's case (supra):
"135.3. We direct the Centre and the State Governments
to take steps to treat them as Socially and
Educationally Backward Classes of citizens and
extend all kinds of reservation in cases of
- 35 -
admission in educational institutions and for
public appointments.
(emphasis supplied)
40. And in Rano's case (supra):
B. Directing State Government to provide reservation
in admission in educational institutions and public
appointments to TGs by framing scheme within six
months;
(emphasis supplied)
41. And in Mx.Sumana Pramanik's case (supra)
where non grant of reservation, age relaxation and fee
concession in Joint CSIR-UGC NET Examination to TG
candidates was held to be patently violative of Article 14 and
21 of CoI:
Likewise in paragraph no.9.3 under heading
'Schemes for Education', education grants following
norms for grant of scholarships to OBC students
was contemplated. Even provision for fee-waiver,
free text books, free hostel accommodation and
other facilities at subsidised rates was
contemplated.
While insofar as claim for financial assistance,
petitioner seeks to rely on direction issued in
Rano's case (supra):
F. State Government is also directed to provide
financial assistance to parents of transgenders and
to give scholarship to transgenders upto post-
graduate level in order to assimilate them in main
stream;
(emphasis supplied)
42. It is seen first two prayers sought by petitioner
have been rendered infructuous due to interim order granted
- 36 -
on 22.08.2023 and admission granted by NLSIU. However,
after securing admission, petitioner claims to have faced
difficulty for payment of fees and prays for directions for fee
waiver as decisions relied upon. In view of above, it would be
useful to refer to case law on TGs.
Insofar as reservation for admissions for TGs:
43. In case of S. Tharika Banu v. Secretary to Govt.,
reported in 2017 SCC OnLine Mad 10220, petitioner a TG
had passed +2 examination and applied for Bachelor of Siddha
Medicine and Surgery course. But, application was not
considered either under SC category or under TG category.
Therefore, selection list was challenged. Taking note of fact that
there was failure to carryout directions issued by Hon'ble
Supreme Court in NALSA's case, High Court of Madras found fit
to issue positive directions as follows:
"Petitioner's claim for admission to the BSMS course
cannot be denied on eligibility marks of 50%.
Though said fact holds good for only for "males" and
"females". In prospectus, it has not been spoken
about transwoman or transgender. Therefore,
leniency should be shown to the transgender
person, who is longing for an admission into the
Siddha College. Therefore, 50% of minimum marks
applicable to the male and female students cannot
be made applicable to the transgenders. The
respondents are guilty of not implementing the
order of the Hon'ble Supreme Court and this Court,
by providing a separate reservation for them.
- 37 -
Further observed that one seat was already reserved
by an interim order passed by this Court on
11.10.2017. It is not as if many transgender
persons have applied for seats. Only on very rare
occasions, this kind of claims would be made and
that has to be considered with compassion and
benevolence. At the risk of repetition, this Court
declares that the petitioner is entitled to a seat in
BSMS."
44. In S. Tamilselvi's case (supra), petitioner, a TG
had applied for Diploma in Nursing Course for Women as TG
candidate. Though, admission process contemplated
reservations for Most Backward Classes, no separate
reservation was provided for TGs. On being unsuccessful,
petitioner filed W.P.no.24750 of 2020, wherein by order dated
18.09.2018 respondents were directed to keep one seat vacant
in Diploma in Nursing Course for Women for academic year
2018-2019 under special category as Transgender. After
passing said course, petitioner applied for Post Basic B.Sc.
(Nursing). However was considered as female candidate instead
of TG candidate. Challenging same petition was filed. As there
was no provision for reservation in favour of TGs, High Court of
Madras by following NALSA's case issued following directions:
(I) petitioner as third gender/transgender in a special
category i.e. transgender category for purpose of
admission to course concerned for which the present
merit list has been issued by the 3rd respondent
only for female and male candidates.
- 38 -
(II) petitioner, if any other transgender candidate made
application for the very said course, a separate
category of merit list shall be prepared by the 3rd
respondent consisting of only the transgender
candidates and based on the inter se merit among
the transgender candidates, if more than one
candidate is available i.e. more than the petitioner,
based on the inter se merit admission shall be given
to those transgender candidates.
(III) The needful as indicated above shall be immediately
undertaken by the respondents especially the 3rd
respondent and accordingly the selection shall go on
including the name of the petitioner under the
special category i.e. transgender category."
Decisions for Reservations for TGs in Employment
45. W.P.no.31091 of 2013 disposed of on 05.07.2016
(Swapna v. The Chief Secretary), Division Bench of Madras
High Court directed State Government to look into question of
post or percentage based reservation in educational institutions
and public employment for transgender persons in furtherance
of NALSA judgment.
46. In Mrinal Barik's case (supra), petitioner was TG
had earlier approached Court in WPA 415 of 2023 for seeking
reservation in employment, by order dated 19.04.2023,
directed to provide reservation as per judgment of NALSA was
issued. When petitioner was not called for interview even after
passing eligibility test, petition was filed. High Court of
Calcutta, following directions in NALSA's case directed Chief
- 39 -
Secretary of Government of West Bengal to ensure 1%
reservation for TGs, in all public employments under State by
exercising extraordinary jurisdiction. It also issued positive
directions to Government to arrange for interview and
counseling of petitioner as a special case and to recruit her as
an Assistant Teacher in primary section.
47. In Rakshika Raj v. State of T.N., reported in
2024 SCC OnLine Mad 1624, High Court of Madras was faced
with challenge against provision for vertical reservation for TGs,
it was held:
"Once gender identity was given horizontal
reservation, it follows that transgender community,
being a socially and educationally backward
community discriminated on basis of gender
identity, should also be entitled to similar
reservation. It had accordingly directed state to
provide horizontal reservation to petitioner as
separate gender."
48. In K. Prithika Yashini v. Chairman, Tamil Nadu
Uniformed Services Recruitment Board, reported in 2015
SCC OnLine Mad 11830:
"When, petitioner a male to female TG had
participated in selection for post of Sub-Inspector,
petitioner's candidature was considered under male
and was non-selected. Taking note of fact that there
were no other TG candidate appointed, High Court
- 40 -
of Madras, directed recruitment of petitioner with
following observation:
13. There can be various physical changes and
mental effects arising from the situation in which the
petitioner finds herself. The respondent failed to
provide for the third gender in the application Form
and thus, the petitioner had to rush to the Court to
assert her rights. The next stage was to find out as
to what bench mark should apply to the petitioner
and thus, benefit was given to the petitioner
accordingly, in which she was successful. We do not
think that in the physical endurance test, a
difference of 1.11 seconds should come in the way
of the petitioner in being considered for recruitment.
We hasten to add that she will have to meet the
bench mark of the recruitment process, but the case
cannot be knocked out in the middle, as was sought
to be done by the respondent.
14. There is stated to be no other transgender as a
candidate in the selection for recruitment as Sub
Inspector, an aspect conceded by the learned
Additional Advocate General. Thus, even if one
person is recruited under this category, it would be
the petitioner. The counter-affidavit of the
respondent shows that there are two other
transgenders serving as police constables and the
petitioner would be really the third one. The social
impact of such recruitment cannot be lost sight
of, which would give strength to the case of
transgenders. The petitioner must reach the
finishing line and not be stopped and
disqualified in the middle.
15. We are sure that by the time the next
recruitment process is carried out, the respondent
would have taken corrective measures for including
the third gender as a category.
16. We are, thus, of the view that the petitioner is
entitled to be recruited to the post of Sub Inspector
and for declaration of her result with the hope that
she would carry out the duties with dedication and
commitment to advance the cause of other
transgenders."
- 41 -
(emphasis supplied)
49. Similarly in R. Anushri v. T.N. Public Service
Commission, reported in 2024 SCC OnLine Mad 2211,
where a TG candidate had questioned non-inclusion of TG
category in employment notification for Civil Services
Examination, following decision in NALSA's case, it was held:
"9. Though the above said National Legal Service
Authority case came to be decided by the Hon'ble
Supreme Court as early as 15.04.2014, still neither
the State government, nor the Central Government
has come forward to formulate a uniform mode of
employment opportunities to be provided for the
transgenders. In many of the cases, the guidelines
issued by the Hon'ble Supreme Court in the
aforesaid paragraphs in NALSA case has been
misconstrued. The Hon'ble Supreme Court has
directed the Centre and the State Governments to
take steps to treat transgender as socially and
educationally backward class of the citizens and
extend all kinds of reservation in case of admission
in educational institution and for public
appointments. This direction has been misconstrued
at many times by the State governments and the
agencies of State Governments by placing a
transgender under most backward community or to
the caste whichever advantageous to the
transgender. This was not the intention of the
Hon'ble Supreme Court while delivering the
judgment referred supra. The Hon'ble Supreme
Court has only directed to extend the benefits that
are extended to backward class communities to the
transgender, at no point of time, the Hon'ble
Supreme Court has directed the State and the
Central Government to place the transgender under
backward class or most backward class category.
10. Moreover, the Hon'ble Supreme Court has
clearly expressed that the transgenders should be
treated as unique and the transgenders should not
- 42 -
be treated one among the male or female. In fact,
when the State of Punjab had placed all the
transgenders under male category, the Hon'ble
Supreme Court has held such action as illegal and
unsustainable. This is evident in Paragraph No. 76
the aforesaid NALSA Judgment and the same is
extracted as follows:--
"76. Article 14 has used the expression
"person" and the Article 15 has used the
expression "citizen" and "sex" so also
Article 16. Article 19 has also used the
expression "citizen". Article 21 has used
the expression "person". All these
expressions, which are "gender neutral"
evidently refer to human-beings. Hence,
they take within their sweep
Hijras/Transgenders and are not as such
limited to male or female gender. Gender
identity as already indicated forms the core
of one's personal self, based on self
identification, not on surgical or medical
procedure. Gender identity, in our view, is
an integral part of sex and no citizen can
be discriminated on the ground of gender
identity, including those who identify as
third gender."
When that being so, the question of treating the
transgenders either as male, or female is
unsustainable and even more under any one
community is also not sustainable.
11. Coming back to the present case, in Notification
dated 27.04.2017, in the General Information Serial
Number 5 (B), the rule of reservation of
appointment is made applicable separately to each
posts divisions. 20% of all vacancies in direct
recruitment have been given on 10/20 preferential
basis to the persons studied in Tamil medium, the
same way reservations to ex-servicemen is made
applicable, as per Section 27 (C) of Tamil Nadu
Government Servants (Conditions of Service) Act,
2016, and 10% of vacancies out of 30% of
vacancies set apart for women applicants in direct
recruitment are reserved for destitute widows. Apart
- 43 -
from this, 3% of reservation for differently abled
persons.
12. It is clear that the entire notification does not
specify any reservations or treating the transgender
as a separate category as directed by the Hon'ble
Supreme Courts as well as this Court in very many
cases. Thus it is very clear that the respondents
have not recognised the rights of the transgender,
despite there being several judgments directing
them to treat the transgender as a separate
category. In fact, it would be appropriate to extract
the observation made by the Hon'ble Division Bench
of this Court in Writ Appeal No. 330 of 2018 dated
22.02.2018, wherein at Paragraph Nos. 5 and 6, it is
held as follows:--
"5. Even as we pass the above order, we
are inclined to observe as follows:--
From the submission of Ms. Narmadha
Sampath, learned Additional Advocate
General-VIII, we gather that it is following
observation in paragraph 67 of the
judgment of Hon'ble Supreme Court
in National Legal Services
Authority v. Union of India [(2014) 5 SCC
438] which has led Government of the
State to include transgenders in the list of
Most Backward Classes (MBC) in G.O.(Ms).
No. 28, Backward Classes, Most Backward
Classes and Minorities Welfare (BCC)
Department, dated 06.04.2015. We
reproduce paragraph 67 in the aforesaid
judgment:--
"TGs have been systematically denied the
rights under Article 15(2), that is, not to be
subjected to any disability, liability,
restriction or condition in regard to access
to public places. TGs have also not been
afforded special provisions envisaged
under Article 15(4) for the advancement of
the socially and educationally backward
classes (SEBC) of citizens, which they are,
and hence legally entitled and eligible to
get the benefits of SEBC. State is bound to
- 44 -
take some affirmative action for their
advancement so that the injustice done to
them for centuries could be remedied. TGs
are also entitled to enjoy economic, social,
cultural and political rights without
discrimination, because forms of
discrimination on the ground of gender are
violative of fundamental freedoms and
human rights. TGs have also been denied
rights under Article 16(2) and
discriminated against in respect of
employment or office under the State on
the ground of sex. TGs are also entitled to
reservation in the matter of appointment,
as envisaged under Article 16(4) of
the Constitution. State is bound to take
affirmative action to give them due
representation in public services."
Similarly G.O.(Ms). No. 567, Home (Police VI)
Department, dated 02.08.2016 states that a
transgender candidate, who applies as Third Gender,
shall be eligible for appointment in the vacancies
reserved for women candidates as well as vacancies
under the general category. This is presented as a
concession shown to transgenders and has missed
the observation in the order of Hon'ble Supreme
Court in National Legal Services Authority v. Union
of India [(2014) 5 SCC 438] in paragraph 135,
particularly 135(3), which reads thus:--
"13.3. We direct the Centre and the State
Governments to take steps to treat them
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".
6. A wholesome reading of the judgment of
the Apex Court in National Legal Services
Authority v. Union of India [(2014) 5 SCC
438] reveals that after the abject neglect
and gay abandon of the Third sex over the
centuries finally has dawned upon the
world community. Through the judgment,
- 45 -
the Supreme Court has impressed upon
the Nation the need to undo the wrong
silently suffered by the Third Gender of the
human race, which has for far too long
been oppressed, suppressed and left
depressed. If the judgment of the Hon'ble
Supreme Court is seen in such light and if
the intent behind the same is to be carried
forward, then we see absolutely no reason
why reservations in age permissible to
destitute widows and Ex-Servicemen and
the like should not be extended also to
transgenders. This observation would be
applicable in equal measure to each and
every concession, relaxation of conditions
made in any form of public employment. In
other words, the aim of Government
should be upliftment of the Third gender in
every manner possible. We, strongly would
recommend the adoption of such a course
and earnestly hope that this State be the
forerunner in placing those who have too
long been tread upon as the least among
us, as the first among equals."
Though the State Government has passed
several notifications subsequent to the
orders passed by the Hon'ble Supreme
Court as well as this Court, but, till date,
the State Government is still under the
confusion and perpetuating the confusion
by placing the transgender either in the
female or male category along with the
caste they belong.
13. In the present case, the petitioner has been
placed in the scheduled caste woman category and
denied the permission to upload the certificate for
verification, as she had scored lesser than the cut-
off mark prescribed for schedule caste woman. This
approach of the first respondent denying the
petitioner to upload her certificate on the basis that
she has scored lesser mark than the cut of Mark
prescribed for schedule caste woman category is
unsustainable. When the notification issued by the
first respondent has not categorised transgender as
- 46 -
a special category, the question of transgender
being categorised under woman category is
unsustainable and against the order passed by the
Hon'ble Supreme Court and this Court.
14. When a specific question has been posed by this
Court to the learned counsels appearing on the side
of the 2nd and 3rd respondents as to what steps
have been taken by the Government after the
verdict of the Hon'ble Supreme Court and
Judgments render by the Hon'ble Division Bench of
this Court, the learned counsel appearing on the
side of the 2nd and 3rd respondents stated that
most of the directions issued by the Hon'ble
Supreme Court and the Hon'ble Division Bench of
this Court has been complied with by passing
several government orders in favour of the
transgender, however, regarding the transgender
being treated as a separate category is not yet been
formulated by any law by the government. At
present, the third genders are given age relaxation
similarly applicable to scheduled caste shall apply to
the transgender candidates and no special privilege
is granted to the transgender by treating them as
one under the special category.
15. It is to be noted that if there has to be a special
reservation, as directed by the Hon'ble Supreme
Court provided to the transgender certainly, the
petitioner would have found a way to lead a life as
any other citizen of this country legitimately had the
respondents have considered her under special
category. The denial to consider the petitioner under
a special category is against the direction issued by
the Hon'ble Supreme Court and there cannot be any
reason for not doing so. Every denial of opportunity
to a transgender that too when there are very
minimal number of transgenders, who are
educationally qualified, the said denial would pull
back the transgender to live in abnormal life is what
we see in the society. It is for the Government to
improve the quality of their living by providing
sufficient opportunity to the transgender in
education and employment avenues. Only this would
create a balance in the society as far as the
transgenders are concerned.
- 47 -
16. It is also to be noted that the transgenders are
placed in the caste in which they are born and
treated in the said category. This is of no use and
detrimental to their development, the transgenders
are to be treated as a special category only
irrespective of their caste and gender (either
Thirunangaiyar or Thirunambi).
17. Therefore this Court has no hesitation to hold
that the petitioner is entitled to get special
reservation on par with other special category
candidates. In view of situation prevailing as far as
treating the transgender as a special category, this
Court is inclined to issue the following directions to
the 2nd and 3rd respondents.:--
(i) The second respondent is directed to
treat the transgenders under special
category and not to treat them under
female or male category in all education
and employment avenues.
(ii) In every employment and educational
avenues, the Government shall prescribe
separate norms for transgenders which
shall be below the norms prescribed for
male and female candidates.
(iii) Further, the second respondent shall
ensure by directing all the recruiting
agencies to specify transgender as special
category and prescribe separate norms for
their cut-off mark, the age relaxation that
are extended to other special categories
shall also be extended to the transgender
irrespective of their caste in future
employment and educational avenues. The
transgender at no point of time in future
shall be clubbed under male or female
categories.
18. At this juncture, it is brought to the notice of
this Court that the notification, which is impugned in
this Writ Petition is of the year 2017-2018 all the
- 48 -
vacancies are filled and at present, notification
number 3/2022 dated 23/2/2022 has been issued,
wherein applications are invited for the post which
include in the combined civil service examination,
which are for interview and non-interview Post
group-II and Group-11 A services under various
categories for recruiting the post included in
combine civil service examination are underway and
the recruiting process is ongoing.
19. In view of the abovesaid detailed discussions
and considering the fact that since the petitioner has
scored the eligible cut-off mark under the special
category in notification No. 10/2017 dated
27/4/2017, the first respondent shall permit the
petitioner to upload documents for certificate
verification under the notification number 3/2022 in
non interview post forthwith, as the counselling for
the above said notification, viz., 3/2022 is scheduled
on 22.06.2024. It is made clear that for the
notification No. 3/2022, if there are more number of
transgenders, the petitioner having applied for
Notification 2017 should be given first preference
along with other transgenders."
50. In Shanavi Ponnusamy v. Ministry of Civil
Aviation, reported in 2022 SCC OnLine SC 1581, petitioner,
a TG applied for selection as Cabin Crew in Air India under
female category as no separate category for TGs was provided.
On non-consideration of candidature, writ petition was filed,
wherein it was held:
"7. Transgender persons routinely face multiple
forms of oppression, social exclusion and
discrimination, especially in the field of healthcare,
employment and education. Gender diverse persons,
including transgender persons, continue to face
barriers in accessing equal employment
opportunities, especially in the formal sector, due to
- 49 -
the operation of gender stereotypes. Gender
stereotypes in the workplace disproportionately
impact transgender persons for not subscribing to
societal norms about appropriate 'feminine' and
'masculine' appearances and mannerisms.
8. Bearing the provisions of the 2019 Act
and NALSA judgment (supra) in mind, it is
necessary for the Central Government, in
consultation with the National Council, to devise a
policy framework in terms of which reasonable
accommodation can be provided for transgender
persons in seeking recourse to avenues of
employment in establishments covered by the
provisions of the 2019 Act. The enactment by
Parliament embarks a watershed in the evolution of
the rights of transgender persons. The provisions of
the 2019 Act need to be implemented in letter and
spirit by formulating appropriate policies. The Union
Government must take the lead in this behalf and
provide clear guidance and enforceable standards to
all other entities, including, those of the Union
Government, State Governments and
establishments governed by the 2019 Act."
Measures taken by Governments for providing financial
aid to TGs:
51. It was reported in Press Media that Government of
Maharashtra has offered free education to TGs upto PG levels, a
direction accepted even by aided and affiliated Universities1.
Similarly, Karnataka State Open University, Mysuru2 and
Dr.Babasaheb Ambedkar Open University3, (established by
1
http://timesofindia.indiatimes.com/articleshow/105774121.cms?utm_source=conte
ntofinterest&utm_medium=text&utm_campaign=cppst
2
https://kswdc.karnataka.gov.in/uploads/media_to_upload1655970330.pdf.
3
https://baou.edu.in//
- 50 -
Government of Gujarat) have also announced to provide fee
exempted education to TG in all courses offered by them.
52. Even Department of Social Justice of Union
Government has announced payment of scholarship amount of
Rs.13,500/- for eligible TG candidates as post-matric/prematric
scholarship4.
53. Under E.G.O(Rt) No 145/2018 (S.J.D) dated
20.03.2018, Government of Kerala has made budgetary
allocation of Rs.35,00,000/- for providing scholarship to
transgenders in 4th Std, 7th Std, 10th Std., Higher Secondary,
for providing shelter homes during educational period, training
for employment etc5. Even National Human Rights Commission
has issued several directions to Central Government6 including:
"Transgender students should not be discriminated
against in higher studies, and suitable provision for
providing financial assistance to them for pursuing
degree/ diploma/ PG courses may be ensured.
Provision of scholarship and free education for
Transgender students also be formulated"
4
https://socialjustice.gov.in/writereaddata/UploadFile/39621727941984.pdf
5
https://sjd.kerala.gov.in/scheme-info.php?scheme_id=NzI
6
https://nhrc.nic.in/media/press-release/nhrc-issues-advisory-ensure-welfare-
transgender-persons
- 51 -
54. In view of above, what would emerge is that taking
note of default/lack of steps taken by State/Centre and their
Authorities to give effect to directions issued by Hon'ble
Supreme Court in NALSA's case (supra) even after lapse of
several years, directions as brought out above are liberally
issued to favour assimilation of TGs into mainstream of society
by providing reservation in admissions into educational
institutions as well as in employment as measures of ensuring
gender equality.
55. In instant case, petitioner is seeking admission in
NLSIU on ground that admission process did not provide
reservation for TGs. Though, by interim order, direction was
issued to admit petitioner and same was complied albeit after
unsuccessfully challenging interim order, petitioner now pleads
that without financial assistance reservation for TGs itself would
be futile. It is contended that TGs normally suffer
homelessness, disownment by family, unemployment and/or
discrimination in employment resulting in lack of representation
in education, employment as well as in public life. These
disabilities have received recognition in NALSA's case (supra)
- 52 -
resulting in issuance of necessary directions and measures for
addressing same.
56. It is seen petitioner has paid sum of Rs.50,000/-
towards part of academic fee on admission to 3 years LL.B
Course. But, fees prescribed by NLSIU for 1st year of said
Course is Rs.3,75,500/-, which petitioner claims to be unable to
pay due to factors affecting TGs. Though, it was contended by
petitioner that fee structure or terms of financial aid policy were
not disclosed or available in public domain when petitioner had
sought admission, it is not in dispute that petitioner has sought
financial assistance from NLSIU. In response, NLSIU has stated
that it offered financial assistance to extent and as per existing
financial aid policy. Thus, NLSIU has not denied need for
financial assistance by petitioner. On other hand, it has stated,
if existing financial aid policy does not suit petitioner's needs, it
cannot be helped.
57. It is however seen NLSIU taking pride in various
measures for transgender persons to create level playing field
'to respond to all forms of discrimination and provide inclusive
and supportive educational environment', in NLSIU, taking note
of NALSA's case (supra). Strangely, it has not disclosed
- 53 -
whether any steps are in progress or were taken for providing
reservation and suitable financial aid policy specifically tailored
for TGs. It is also not known whether existing admission
process accommodates TGs securing admission or undergoing
studies in NLSIU.
58. Therefore, failure of constitutional guarantees of
equality of opportunity due to lack of measures/adequate
measures for positive discrimination in securing sufficient
representation to TGs in educational avenues in NLSIU is
evident. This Court in Sangama and Anr. v. State of
Karnataka and Ors. (W.P.no.8511/2020 disposed of on
02.03.2022), had left it to State Government to provide
reservation for TGs in education. Learned AGA has placed on
record proposals stated to be under consideration before State
Cabinet.
59. Hence, consideration herein is confined to need for
issuing directions to NLSIU for providing reservation and
financial assistance to TGs for admission to III year LL.B.
Course in NLSIU, keeping in mind that petitioner's admission in
NLSIU for III year LLB Course during academic year 2023-2024
- 54 -
is spent due to non-payment of fees. But, as petitioner
continues to aspire pursuit of said Course and is not shown to
be barred, cause of action survives. Therefore, having
concluded that present admission and financial aid policy of
NLSIU is discriminatory against TGs and thereby deprived them
of pursuing LL.B. Courses in NLSIU, objections of NLSIU being
technical require to be ignored/waived, in facts and
circumstances of present case.
60. In Mx.Sumana Pramanik's case (supra), failure to
provide reservation and fee concession to TGs noted for issuing
directions to provide same by treating TGs as separate
categories along with other reserved categories. In Rakshika
Raj and A. Nivetha's cases (supra), need for issuing directions
for providing horizontal reservation for TGs after noticing failure
to implement directions issued in NALSAs case was examined.
Likewise, in Rano's case (supra) directions were issued to
State taking note of Scheme for 'Promotion of Transgender
Equality & Justice', evolved by State. In K. Prithika Yashini's
case (supra) representation even by single TG candidate
though symbolic would go a long way in providing inclusive and
supportive environment [highlighted in K. Prithika Yashini's
- 55 -
case (supra)]. Under such circumstances, positive directions
were issued for admission of petitioner - TG candidate by
holding that academic eligibility prescribed for male and female
candidates cannot be applied to TGs, until sufficient number of
TG candidates available in S. Tharika Banu's case (supra);
direction for preparation of separate merit list for TGs and to
admit petitioner unless any other TG candidate with higher
merit than petitioner were available in S. Tamilselvi's case
(supra) and general direction issued to Government to look into
question of post or percentage based reservation in educational
institutions and public employment for transgender persons in
furtherance of NALSA judgment in Swapna's cases (supra).
61. Though determining specific percentage of
reservation for TGs in educational avenues and manner of
providing financial assistance would be beyond scope of petition
under Art.226 of Constitution of India and same may also
require appointing a Commission, this Court deems it
appropriate to prescribe interim measures, until NLSIU itself
formulates reservation and financial aid for TGs in admission to
Courses offered by it including considering complete fee waiver
- 56 -
to promote/secure sufficient number of TG candidates to fill
seats reserved for TGs. Hence, following:
ORDER
i. Writ petition is allowed in part;
ii. NLSIU is directed to implement directions issued by Hon'ble Supreme Court in NALSA's case by formulating reservation along with measures for providing financial aid to TGs in education before commencement of admission process for next academic year;
iii. Until then to provide reservation of 0.5% (half the percentage of reservation provided for TGs in employment under State) as interim reservation with fee waiver and for which NLSIU may apply to State/Central Government for appropriate grant.
iv. To admit petitioner under interim reservation for TGs, if there is no other TG candidate who seeks or is admitted to III year LL.B. Course for current academic year.
v. In view of fact that interim reservation is necessitated due to failure to carry out directions issued by Hon'ble Supreme Court in NALSA's case, admission of TG candidates to III year LL.B. Course in NLSIU in pursuance of this order shall not be treated
- 57 -
as excess, even if they are in addition to admissions under current admission process, as same will be in force only for current academic year.
vi. It would also be appropriate to direct State to take note of claims for reservation for TGs in education also and formulate reservation and fee reimbursement policy as contained in para-135.3 in NALSA's case (supra).
Appreciation for assistance rendered by Mr. S.R.Naveen Kumar - Research Assistant, is placed on record.
Sd/-
(RAVI V HOSMANI) JUDGE Grd/-