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2022 DIGILAW 489 (RAJ)

Ganga Kumari D/o Bhika Ram v. State of Rajasthan

2022-02-14

MADAN GOPAL VYAS, MANINDRA MOHAN SHRIVASTAVA

body2022
JUDGMENT : 1. Heard. 2. This petition has been filed by the petitioner seeking issuance of directions in the matter of providing proper and effective reservation to the transgenders in terms of the mandate of the Supreme Court in the case of National Legal Services Authority v. Union of India & Ors. [ (2014) 5 SCC 438 ]. 3. Learned counsel for the petitioner would argue that the Supreme Court in the case of National Legal Services Authority (supra) had examined the rights of the transgenders in the matter of appointment to public services, as also admission to educational institutions. According to him, despite there being detailed directions issued by the Supreme Court, the State, so far, has not implemented those directions. 4. On the other hand, learned counsel for the State would submit that as far as prescription relating to reservation is concerned, it is a matter of prerogative of the State as to the manner and the extent to which reservations have to be provided. According to the respondent-State, the petitioner cannot seek that the reservations in a particular manner or to the extent should be provided to her. 5. Having heard learned counsel for the parties, we are of the view that in view of the aforesaid pronouncement in the case of National Legal Services Authority (supra), the State is left with no option but to implement the directives, which have been issued by the Supreme Court. 6. To remind all the authorities of their obligations to comply with the mandate of the Supreme Court in the aforesaid decision, we reiterate the directives, which have been issued by the Supreme Court, which are as below: "135.1. Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the 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. 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 Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues. 135.5. The Centre and State Governments should seriously address the 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." 7. Amongst various directions, which have been issued by the Supreme Court, in paragraph 135.3, it has been categorically directed to the Central Government as well as State Government to take steps to treat transgenders as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments. 8. Such a direction clearly casts an obligation on the part of the State to work out reservation in such manner and to such extent as it may decide on the basis of relevant data available. Much time has lapsed since the directions were issued by the Supreme Court in the case of National Legal Services Authority (supra) and the State should have come out with proper rules, regulations and legislations to provide special treatment as directed by the Supreme Court. 9. Taking into consideration the nature of exercise required to be undertaken by the State, we hereby direct the State to complete the exercise expeditiously and we grant maximum period of four months to do the needful. 10. 9. Taking into consideration the nature of exercise required to be undertaken by the State, we hereby direct the State to complete the exercise expeditiously and we grant maximum period of four months to do the needful. 10. As far as present selection process is concerned, we would only say that presently the petitioner would be allowed to participate in the process of selection and her candidature shall not be rejected only on the ground that she is third gender. 11. Subject to the directions as stated hereinabove, this petition is finally disposed off granting relief to the petitioner in the manner and to the extent as indicated above. 12. This petition is partly allowed.