The Madras High Court has ordered the state Health and Family Welfare Department and the Directorate of Medical Education to provide third gender/transgender people special reservations in admissions to Post Basic (Nursing) Courses. The order was issued after a transgender woman petitioned the court for a revocation of the Prospectus for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, claiming that she was only treated as a woman in the merit list prepared by the Selection Committee.
According to Justice R Suresh Kumar, the petitioner’s exclusion from the special category was more than an oversight; it was a violation of the Supreme Court’s and the Transgender Persons (Protection of Rights) Act, 2019. If, as per the directions of Supreme court, reservation would be given to the third genders then the petitioner would be in the top position and would have certainly got admission in the concerned course.
The petitioner, a nursing student, filed for a Diploma in Nursing Course for Women in 2018-19. Though communal reservation was provided for the aforementioned courses, no separate reservation was provided for the third gender, namely transgender. When she went to court for protection, the high court ordered that one seat be kept open in the Diploma in Nursing Course for Women for the academic year 2018-19 under the specific category of transgender. During the pendency of that case, she was offered a place for the course, which she finished successfully in 2021. This year, the petitioner applied for the Post Basic B.Sc. (Nursing) and Diploma in Psychiatry Nursing Course. However, she was treated as a female candidate rather than a transgender candidate and secured a rank of 280. The petitioner then again approached the court.
The petitioner’s counsel contended that in the case of National Legal Services Authority vs. Union of India and others, the court directed the centre and state governments to treat transgenders as Socially and Educationally Backward Classes of Citizens and to extend all types of reservation in admission to educational institutions and for public appointments. A division bench of the Madras High Court reiterated this in K. Prithika Yashini vs. The Chairman, Tamil Nadu Uniformed Services Recruitment Board. It was also argued that, despite the court’s precise directives and the implementation of the Transgender Persons (Protection of Rights) Act, the prospectus was released without such a reservation.
On the State’s contention that specific reservations were not made since the number of transgender people was very small and there was a risk that such reserved seats would go unfilled because there would be no takers, the court stated:
“… atleast a provisional note could have been made that, even though special reservation has not been made horizontally for transgender candidates if there is any transgender candidate who makes application and would be otherwise eligible to be considered on merits that is the minimum eligibility mark obtained by the transgender candidate, that candidate would be treated as a special candidate under the special category of transgender or third gender and accordingly transgender candidate would be considered for admission. Atleast this kind of special note could have been appended to the notifications or prospectus issued by the respondent, even that kind of special note was missing in the said notification/prospectus.”
The court stated that no such reservation was offered for third gender applicants in the prospectus, despite the Supreme Court’s ruling in the National Legal Services Authority case and provisions of The Transgender Persons (Protection of Rights) Act, 2019. The court further stated that directives were made earlier in the petitioner’s appeal for 2018-19 admission under the transgender category.
“When that being so, the non-inclusion of the petitioner in the special category meant for transgender for the purpose of calculating the merit for admission to the course of B.Sc. (Nursing) etc., for which the present notification was issued, is not a mere omission, it is against the judgments given by the Hon’ble Supreme Court as well as this Court and also against the provisions of the 2019 Act,” it said.
As a result, the court made it absolutely clear that the petitioner was entitled to special reservation for the third gender/transgender category. It further directed the authorities that if any other transgender candidate applied for the course, a separate merit list of only transgender candidates be established and admission be granted based on inter se merit among them.
“The respondents, particularly the third respondent [Selection Committee], shall immediately undertake the necessary as described above, and accordingly the selection shall proceed, including the name of the petitioner under the special category, namely the transgender category,” it said.