Keywords: – Kerala High Court, Transgender rights, Kerala Administrative Tribunal, Public Service Commission, Interim order.
The Kerala High Court has recently confirmed the interim order of the Kerala Administrative Tribunal, which instructed the Kerala Public Service Commission (PSC) to temporarily accept the job application of a transgender individual who applied for the position of House Keeper (Female). [Kerala Public Service Commission v Aneera Kabeer].
The division bench consisting of Justices Alexander Thomas and C Jayachandran chose not to intervene in the tribunal’s order, stating that its purpose was to prevent the subject matter of the case from becoming irrelevant before its final resolution.
“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 Court said.
Aneera Kabeer, the first respondent in the case, is a transwoman who applied for the position of House Keeper (Female) in the department of Homeopathic Medical College. The job notification indicated that only female candidates were eligible to apply, but it did not explicitly mention transwomen.
Therefore, Kabeer moved the Kerala Administrative Tribunal arguing 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”.
Furthermore, Aneera Kabeer contended that the exclusion of transgender individuals from posts within the Kerala Public Service Commission (KPSC) was in violation of the Transgender Persons (Protection of Rights) Act, 2019, the Transgender Persons (Protection of Rules), 2020, as well as significant judgments by the apex court, such as the groundbreaking NALSA Case, and the State Policy for Transgender in Kerala, 2015.
In January of this year, a bench comprising Justice PV Asha and administrative member Rajesh Dewan of the tribunal granted permission to Kabeer to submit her job applications to the Kerala Public Service Commission (KPSC). The tribunal also directed the Commission to process her application on a provisional basis, pending further orders in the matter.
The tribunal had also granted permission for Aneera Kabeer to submit her application in physical form since there was no option to select “transgender woman” on the online application page. However, the Kerala Public Service Commission (PSC) challenged this decision in the High Court.
The Court acknowledged that the tribunal’s interim order was intended to prevent the subject matter from becoming irrelevant. However, it agreed with the PSC’s argument that the tribunal should have given the PSC an opportunity to present its case even at the interim stage.
As a result, the Court chose not to interfere with the tribunal’s interim order but instructed the tribunal to expedite the proceedings and dispose of the matter within three months.
“We fully appreciate the submission made on behalf of the petitioner that, in a matter of this nature, they should have been given opportunity to present their case to defend at the interlocutory stage and the Tribunal could have assessed as to whether a strong prima facie case is made out in the O.A and also as to whether the balance of convenience is also in favour of the applicant and then after assessing the rival contentions, should have passed a reasoned order. However, we need not interfere with the present interim order as we see it essentially fully as an ad interim order,” the judgment stated.
Kerala Public Service Commission was represented by advocate PC Sasidharan.
Senior Government Pleader B Unnikrishna Kaimal appeared for the State government.
Kabeer was represented by advocates Kaleeswaram Raj, Thulasi K Raj, and Aparna Narayan Menon.
Written by- Mubashara Fatima, College name- Unity PG and Law College Semester- 6th, intern under Legal Vidhiya
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