M. Suman v. Karnataka State Services Commission Udyog Soudha
2020-07-08
ARAVIND KUMAR, E.S.INDIRESH
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JUDGMENT Aravind Kumar, J. - Though matters are listed for hearing on interlocutory application, by consent of learned Advocates appearing for parties they are taken up for final disposal. 2. We have heard the arguments of Smt. Jayna Kothari, learned Senior Counsel appearing on behalf of Sri. Rohan Kothari for petitioners, Sri. K.M.Prakash, learned counsel appearing for respondent No.1 and Smt.Shwetha Krishnappa, learned AGA appearing for respondent No.2. Perused the records. 3. Petitioners being aggrieved by the order dated 03.10.2013 passed by Karnataka State Appellate Tribunal at Bangalore (for short 'Tribunal') - Annexure-B in respective petitions whereunder interim order sought for in the applications for staying the impugned notification dated 11.02.2019 has been negatived, have preferred these writ petitions and have prayed for setting aside the impugned order and have also sought for two (2) posts being reserved pending disposal of these petitions. 4. Grievance of the petitioners in sum and substance is they belong to third gender namely, transgender and Hon'ble Apex Court in the matter of NALSA vs. UNION OF INDIA, (2014) 5 SCC 438 had directed the State Governments to take affirmative actions with regard to protecting the rights of transgenders and not to subject them to any disability, liability, restriction or condition in regard to access to public places; transgenders have also not been afforded special provisions envisaged under Section Article 15(4) of the Constitution for advancement of the Socially and Educationally Backward Classes (SEBC) and same is to be extended to them; and also to take some affirmative actions for their advancement including affirmative action to give them due representation in public services as envisaged under Article 16(4) of the Constitution. It is contended by them that first respondent having published a notification on 11.02.2019 (Annexure-A1) inviting applications from eligible candidates to fill-up First Division Assistant (FDA) and Second Division Assistant (SDA) posts of the residual parent cadre in Bangalore City Civil Court and different District and Sessions Courts across the State is violative of direction issued by Apex Court as it does not provide reservations to transgenders and as such said notification is liable to be quashed. Prayer to the said effect has been sought before Tribunal and in aid of said relief interim prayer to stay the operation of impugned notification was sought for which came to be negatived by the Tribunal.
Prayer to the said effect has been sought before Tribunal and in aid of said relief interim prayer to stay the operation of impugned notification was sought for which came to be negatived by the Tribunal. Hence, challenging the rejection of interim prayer petitioners are before this Court seeking interim relief as already noticed hereinabove. 5. It is the contention of Smt. Jayna Kothari, learned Senior Counsel appearing for petitioners that despite six (6) years having lapsed from the date of issuance of direction by the Hon'ble Apex Court, State has not come out with any concrete affirmative action and thereby it has deprived the right of the petitioners to seek appointment for which State ought to have provided reservation under Article 16(4) of the Constitution. She would elaborate her submission by contending that though prayer has been sought before Tribunal for stay of operation of the impugned notification, petitioner would be satisfied if a direction is issued to the respondents to reserve two (2) posts till the disposal of applications before the Tribunal or in other words, out of total posts called for, two (2) posts may be ordered not to be filled up as it would protect the interests of the petitioners. 6. Per contra, Sri. K.M.Prakash, learned counsel appearing for first respondent would submit that no such relief was sought for before the Tribunal; there is no policy formulated by the appropriate Government for being implemented by Karnataka Public Service Commission and even otherwise, if such policy is brought into force by the appropriate Government it can be prospective only and not retrospective and as such it would not be applicable to impugned notification. 7. Smt. Shwetha Krishnappa, learned AGA appearing for second respondent would join in chorus with the argument advanced by Sri. K.M.Prakash and she would submit by contending that writ petition as well as applications before the Tribunal itself is not maintainable, inasmuch as, appropriate authority for formulating reservation would be Department of Public Administrative Reforms (DPAR) and said authority not being a party and no relief having been sought against said respondent, applications as well as prayer sought for in the writ petitions is not maintainable.
She would also submit that pursuant to directions issued by the Hon'ble Apex Court appropriate Government has formed a Committee to examine the feasibility of providing appointment to transgenders in public offices and said Committee having met on several occasions has deliberated upon the said issue and still, a decision has to be taken finally with regard to providing reservation in the public offices and all endeavours would be made in this regard to complete the process at the earliest. She would also contend that a policy decision has been taken in this regard for providing several benefits to transgenders and has drawn our attention to the Karnataka State Policy on Transgenders Policy, 2007 (Annexure-A9). Hence, she prays for dismissal of the petition. 8. Having heard the learned Advocates appearing for parties and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered view that it is not a fit case where a prayer sought for in the writ petition and prayer now sought for by the learned Senior Counsel appearing for petitioners can be granted. We say so, for the reason that Apex Court in the matter of NALSA vs. UNION OF INDIA referred to herein supra had issued following directions to the State Governmnets: "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." 9. In the background of direction issued by Apex Court State Government has formed a Committee to address the issue relating to several problems faced by the transgenders and a policy on transgenders has been evolved as per Annexure-A9. A plain reading of same would indicate that even in the matter of employment steps are being taken to provide appointment in public offices to transgenders. This is an issue which requires to be deliberated upon by the experts taking into consideration several facets and as such this Court cannot sit in the arm chair of the policy framers to examine as to the manner, mode and method in which reservation has to be provided for the third gender namely, transgenders. Until and unless a decision is taken in this regard by the State, attack on the impugned notification would have to necessarily crumble.
Until and unless a decision is taken in this regard by the State, attack on the impugned notification would have to necessarily crumble. However, we are not expressing any opinion with regard to said issue as it is at large before the Tribunal. It is for the parties to urge their respective contentions in this regard in the pending matter before Tribunal. 10. Be that as it may. The fact remains that under impugned notification no provision has been made reserving any posts to the transgenders. It is for the State to take a decision as to what percentage of remuneration is to be provided to transgenders. If policy having been evolved by the State Government and impugned notification being contrary to it, this Court could have exercised writ jurisdiction. However, such situation has not arisen. State Government is yet to formulate a clear cut policy in this regard. Hence, we cannot put the horse before the cart and direct State to reserve the posts for petitioners. As such, we do not find any good ground to entertain these writ petitions. We hope that policy which has been brought about by the State under Annexure-A9 and which is sought to be implemented through the expert Committee, would be taken to its logical end with all earnestness by the State. Subject to these observations, these writ petitions stands dismissed. All pending applications stands consigned to records.