Delhi government did not implement reservation policy for transgenders despite SC order: High Court

New Delhi: The Delhi High Court on Monday said that the Delhi Government has failed to implement the reservation policy for transgenders in public employment in accordance with a 2014 Supreme Court judgment and decided to take the matter up as a public interest litigation.

It also directed the Delhi government to take an appropriate decision within 10 days for providing benefits to transgenders in line with its 2021 notification providing relaxation in age and qualification marks to them in public employment.

A bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela passed the order while hearing a petition filed by a transgender seeking reservation for recruitment to the post of a court attendant at the High Court.

The court expanded the scope of the writ petition and turned it into a Public Interest Litigation (PIL).

"The government has to take policy decisions and comply with the Supreme Court's directions and provide reservations. We are enlarging the scope of the writ petition to a PIL.

"Having regard to the nature of issues raised in this petition, which primarily concerns the welfare of transgender persons, we treat this petition as a PIL," the bench said.

The bench said that since the issues may require adjudication under a wider import, "we direct that the following parties be impleaded; (1) Union of India through the Secretary of the Ministry of Social Justice and Empowerment; (2) Delhi Govt through the Principal Dept of Social Welfare. Issue notice."

The bench noted that though the petition concerned an advertisement for recruitment to various posts at the Delhi HC, a concern was expressed that pursuant to the NALSA judgment (passed by the SC), the requisite steps have not been taken by the government.

The Supreme Court, in the judgment, had issued a direction to the government to treat transgender as a socially and educationally backward category for public employment as well, it noted

"However, no such policy decision appears to be in sight till date as far as public employment is concerned," the bench said.

The bench was told that in 2021, a notification was issued by the GNCTD, providing relaxation of five years in age and also relaxation in qualification marks of 5 per cent to transgender persons in public employment.

While issuing the notification, no reservation was provided as directed by the Supreme Court to transgenders and relaxations in accordance with the 2021 notification have also not been provided, the bench was told.

"The judgment NALSA was rendered in 2014, and, till date, it appears that adequate steps that ought to have happened for ensuring reservation in public employment have not happened.

"The Parliament has enacted a law on protection of rights and has also framed rules, however, it appears that the welfare measures which may be made pursuant to statutory obligations have not been made," the bench said.

The bench said, "We are of prima facie opinion that for inclusion and for full and effective participation, the government ought to have taken some policy decision for providing reservation as already mandated in the NALSA judgment."

"There have been many transgender persons who could not apply as the age and marks relaxation was not made available. We direct that the Delhi Government within 10 days, to take appropriate decision in consultation with the High Court for providing the benefit to transgender as per the notification," the bench said.

It said that if such relaxations were made available, the last date for submitting the application shall be extended by a month.

"Such information shall be widely publicised," the bench said.