Bombay High Court slams Maharashtra on posts for transgenders, says state govt in ‘deep slumber’

The Bombay High Court on Thursday rapped the Maharashtra government for being in “deep slumber” and “lagging behind” on the issue of making provision to create posts for transgenders under the home department.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja warned of halting the entire recruitment process if the government does not relent and at least keep two posts vacant for the two transgenders who had approached the Maharashtra Administrative Tribunal.

The court was hearing a petition filed by the Maharashtra government against the tribunal’s order directing it to create a provision for transgenders in the application form for posts under the home department.

The state government, in its petition, had claimed it was “extremely difficult” to implement the tribunal’s direction as no policy regarding special provisions for the recruitment of transgenders had been formed as yet.

The bench noted the Supreme Court, in 2014, directed all state governments to frame a policy to include transgenders in all public posts. “For seven years, this government is in deep slumber. You (government) don’t perform your functions and aggrieved people have to then come to courts. When courts pass orders then we are accused of overreaching. The MAT has done the right thing,” Chief Justice Datta said.

The bench was informed by advocate Kranti L C that 11 state governments have already made provisions pursuant to the SC order. “Why should Maharashtra lag behind? We want Maharashtra to also do it,” CJ Datta said.

“Think of progressing the society we are in. We feel if someone is lagging behind, why shouldn’t we come to their rescue. God has not been kind to everybody. We need to be kind,” CJ Datta said. The bench then said the government cannot have it both ways.

“You (government) won’t frame the rules and you won’t include them (transgenders). Then halt the entire recruitment process. We will stay the process and then you will be forced to frame rules,” the court said. Advocate General Ashutosh Kumbhakoni told the court the government was not against transgenders but was facing practical and legal difficulties.

The bench directed Kumbhakoni to take instructions from the government on whether it was willing to keep two posts vacant for the transgenders who approached MAT and then frame rules for future recruitments. It then posted the matter for hearing on Friday.

The MAT, on November 14, directed the state government to create a third option for transgenders, after the two options of male and female, in the application form for all recruitments under the home department. The tribunal had also said the government should fix a criteria for physical standards and tests for transgenders.