Tribunal Should Have Given Reasonable Opportunity To The Kerala PSC To Defend Their Case At The Interlocutory Stage: Kerala High Court

Tribunal Should Have Given Reasonable Opportunity To The Kerala PSC To Defend Their Case At The Interlocutory Stage: Kerala High Court

Recently, Hon’ble Kerala High Court at Ernakulum refused to interfere with the Hon’ble Public Service Tribunal order wherein the Tribunal has directed the Public Service Commission to consider the candidature of petitioner/R7 who is a trans-woman for the post of House-Keeper in Homeopathic Medical College and disposed of the Original Petition filed by the State authorities against that interim order.

BRIEF FACTS OF THE CASE

The respondent no. 7, who was the petitioner before the Tribunal has changed her Sex and become Trans-Women and obtained the certificate according to Transgender Persons (Protection of Rights) Act, 2019. She tried to apply in PSC notification pertaining to post of House-Keeper in the Homeopathic Medical College but online system did not had any column for the trans-woman. The respondent find this as violative of Section 3 of the above said Act deals with the prohibition against discrimination and that, clause (b) thereof inter alia stipulates that, there shall not be any unfair treatment in or in relation
to, employment or occupation etc and since the application is not accepted, she approached the Hon’ble Tribunal for the appropriate direction to consider her candidature. Hon’ble Tribunal was pleased to pass an interim order directing the PSC to consider her candidature in physical form. Now PSC has filed the instant writ petition challenging that interim order against the rules and regulations of PSC.

CONTENTION OF THE PETITIONER

One of the main contentions urged by Sri.P.C.Sasidharan, learned Standing Counsel for the PSC is that the contention of the applicant as if the stipulation in Annexure-A2 selection notification that the post is exclusively reserved for women candidates, would be a discrimination, solely on the basis of sex, is completely untenable that the provisions contained in the Special Rules, have not been challenged by the applicant.. It is further pointed out that, even going by the case set up by the original applicant, it is stated that the applicant was originally having a male gender and had then undergone certain surgery and has now become a trans-woman but, Annexure-A1 certificate said to have been issued under the TGP Act does not classify or certify the applicant to be trans- woman and it is only stated therein that the applicant is a transgender person. Further, it is also argued strongly on behalf of the petitioner that, in a case of this nature, the Tribunal should have given reasonable opportunity to the PSC to file their written
response and then, both sides should have been heard.

HON’BLE COURT’S OBSERVATIONS

Hon’ble Division Bench comprising Hon’ble Mr. Justice Alexander Thomas and Hon’ble Mr. Justice C. Jayachandran at the very outset observed that “we are of the view that, as at present, we are not justified in interfering with the discretion exercised by the Tribunal in rendering the above said Ext.P2 interim order, which we would essentially see as an ad interim interlocutory order only to preserve the subject matter of the lis.” Further, the Hon’ble Court gave positive remarks to the contentions made by Kerala
Public Service Commission and held that “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.”

Thereafter, after giving certain directions to Tribunal to decide the case at the earliest, the petition was disposed of.

Case Title:- Kerala PSC Vs. Aneera Kabeer & ors
Case no. :- OP(KAT) NO. 228 OF 2023
Order date :- 06.06.2023