Jahanvi Agarwal
The Kerala Administrative Tribunal (KAT) ordered the Kerela Public Service Commission (PSC) to provisionally allow the job application of a transwoman to the post of a female Housekeeper. The said direction was upheld by the Kerala High Court wherein the bench consisted of Justice Alexander Thomas and Justice C Jaya Chandran stated that:
“The said ad interim order has been issued only to preserve the subject matter of the lis so as to keep the litigating claims of the petitioner in the above lis alive,”
The facts of the present case are that Aneera Kabeer (respondent) is a transgender who at birth was assigned as a male but identifies as a woman. She wanted a job as a housekeeper in the department of Homeopathic Medical College. However, the post was only for females and did not include transgender specifically.
Due to the said circumstances, Aneera Kabeer approached the Kerala Administrative Tribunal (KAT) and contended that:
“the arbitrary exclusion of transwomen from the ambit of the post notified is unjust, illegal, and arbitrary, and amounts to the violation of the applicants’ (Kabeer’s) fundamental rights”.
The respondent also contended that there has been a violation of not just the Transgender Persons (Protection of Rights) Act, 2019 but also various apex court landmark judgments including the NALSA case[1] and the State Policy for Transgender in Kerela, 2015.
The bench of Kerala Administrative Tribunal (KAT) which consisted of Justice PV Asha and administrative member Rajesh Dewan allowed the job application to be submitted in physical form as there was no option for transgender women and directed the PSC to “process the application provisionally and subject to further orders”.
This was followed by PSC challenging the order by approaching the Kerela High Court. The Court was of the opinion that the tribunal’s interim order was only to prevent the subject matter from becoming meaningless. The court agreed with the PSC that the tribunal should have heard from them at the interim stage.
As a result, the Court made the decision not to interfere with the interim order of the tribunal, but it did require the tribunal to hear the case quickly and rule on it within three months.
The Court held that:
“Hence, the contention of the learned counsel for the petitioner (Scaria) that materials are insufficient to constitute the offence alleged against him prima-facie as he never intended to insult the de facto complainant with the knowledge that he belongs to Schedule Caste can only be rejected. On the basis of the above discussion, I hold that the allegation is prima facie sufficient to attract the offence under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and hence the bar under section 18 is squarely applicable in this case,”
Case Name: Kerala Public Service Commission v Aneera Kabeer
Diary Number: 228/2023
Bench: Justice Alexander Thomas and Justice C Jaya Chandran
[1] AIR 2014 SC 1863
State Policy For Transgenders In Kerela, 2015.
Click here to Access the Order.