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Published – June 02, 2024 12:30 am IST – CHENNAI
In a significant verdict, the Madras High Court has struck down a Government Order (GO) issued on April 6, 2015, for providing vertical reservation to transgender persons in education and public employment by considering them under the Most Backward Classes (MBC) category.
Justice G.K. Ilanthiraiyan held that the order was manifestly arbitrary and violative of Articles 14,15,16,19 and 21 of the Constitution. He directed the State government to provide horizontal reservation to the transgender community, across all caste groups, within a period of 12 weeks. Allowing a writ petition filed by a transgender nurse Rakshika Raj, the judge agreed with her counsel N.S. Tanvi that the Supreme Court in the National Legal Services Authority (NALSA) judgment in 2014 had expected all States to provide horizontal reservation to the transgender.
Karnataka had implemented the apex court’s verdict by providing 1% horizontal reservation to transgender persons across all caste groups. However, the Tamil Nadu government ended up passing the 2015 GO by bringing transgender persons under the MBC category, the counsel said.
When it was argued that transgender persons belonging to the Scheduled Castes and Scheduled Tribes would be at a disadvantage, the government came up with another GO on December 22, 2017, clarifying that those who possessed SC/ST certificates would be considered under the respective caste categories. The 2017 GO said that only those transgender persons who did not possess SC/ST certificates would be considered under the MBC category, and that the transgender persons who prefer to identify themselves as women would also be entitled for consideration under the 30% horizontal reservation for women.
However, Ms. Tanvi argued that the State had created too much of a confusion in providing reservation to the third gender, and the judge agreed with her. He held that the transgender community as a whole ought to have been given a horizontal quota across all caste categories.
Observing that the Supreme Court verdict in NALSA’s case had not been implemented properly in Tamil Nadu, the judge said, the apex court had clearly spelt out that the transgender community as a whole had been discriminated and therefore it deserves a separate horizontal reservation in education and public employment.
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