Rajasthan High Court – Jodhpur
Ganga Kumari vs State Of Rajasthan on 30 March, 2026
Author: Yogendra Kumar Purohit
Bench: Yogendra Kumar Purohit
[2026:RJ-JD:14683-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 1358/2025
Ganga Kumari D/o Bhika Ram, Aged About 29 Years, Resident Of
Jakhari, Tehsil Raniwada, District Jalore (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Chief Secretary, Government
Of Rajasthan, Jaipur.
2. Secretary, Department Of Social Justice And
Empowerment, Government Of Rajasthan, Jaipur.
3. Secretary, Department Of Personnel, Government Of
Rajasthan, Jaipur.
4. Secretary, Rajasthan Public Service Commission, Ajmer.
5. The Director General Of Police, Police Head Quarter,
Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Vivek Mathur
Mr. Prakash Kumar Balout
Mr. Dhirendra Singh Sodha
For Respondent(s) : Mr. Deepak Chandak for
Mr. B.L. Bhati, AAG
Mr. Piyush Bhandari for
Mr. Praveen Khandelwal, AAG
Mr. Mahesh Thanvi
Ms. Pragya Thanvi
HON'BLE MR. JUSTICE ARUN MONGA
HON’BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Order
Reportable
Judgment Reserved on :-24/02/2026
Pronounced on :- 30/03/2026
By the Court (Per: Arun Monga, J):-
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1. Thus spoke their Lordships of Supreme Court of India –
“Seldom, our society realizes or cares to realize the trauma,
agony and pain which the members of the transgender
community undergo, nor appreciates the innate feelings of the
members of the transgender community, especially of those
whose mind and body disown their biological sex. Our society
often ridicules and abuses the transgender community and in
public places like railway stations, bus stands, schools,
workplaces, malls, theatres, hospitals, they are sidelined and
treated as untouchables, forgetting the fact that the moral
failure lies in society’s unwillingness to contain or embrace
different gender identities and expressions, a mindset which we
have to change 1.”
x-x-x-x-x
“By recognising TGs as third gender, this Court is not only
upholding the rule of law but also advancing justice to the
class, so far deprived of their legitimate natural and
constitutional rights. It is, therefore, the only just solution
which ensures justice not only to TGs but also justice to the
society as well. Social justice does not mean equality before
law in papers but to translate the spirit of the Constitution,
enshrined in the Preamble, the Fundamental Rights and the
Directive Principles of State Policy into action, whose arms are
long enough to bring within its reach and embrace this right of
recognition to TGs which legitimately belongs to them.
x-x-x-x -x
Once it is accepted that TGs are also part of vulnerable groups
and marginalised section of the society, we are only bringing
them within the fold of the aforesaid rights recognised in
respect of other classes falling in the marginalised group. This
is the minimum riposte in an attempt to assuage the insult and
injury suffered by them so far as to pave way for fast-tracking
the realisation of their human rights.”2
2. In the aforesaid backdrop, Ganga, a transgender/third
gender (TG), has approached this court seeking not charity, not
sympathy, but the enforcement of her rights that already stand
affirmed by constitutional jurisprudence. The Supreme Court in its
judgment rendered in NALSA v. Union of India3, (quoted above)
unequivocally recognised transgender persons as a “third gender”;
declared that their identity, dignity and autonomy are integral to
the guarantees of equality, liberty and life under the Constitution
and directed “the Centre and the State Governments to take steps
1. K.S.Panicker Radhakrishnan, J. NALSA v UOI (2014) 5 SCC 438, opening para 1.
2. Dr. A.K. Sikri, J. Concurring view in NALSA V UOI (2014) 5 SCC 438, para no. 132 and 133.
3. (2014) 5 SCC 438.
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to treat them as Socially and Educationally Backward Classes of
citizens and extend all kinds of reservation in cases of admission
in educational institutions and for public appointments”.
3. India is just not a country alone, it is a civilisation. A
civilisation steeped in religiosity, one where divinity is invoked in
every sphere of life and sacred traditions are revered with
profound devotion. Religious scriptures in India hold transgenders
in immense importance, but in reality, quite often they are denied
even the basic humane treatment by our society. Our mythology
features several figures associated with transgender or third-
gender identities, often depicted through gender transformations
or androgyny. These include deities and characters like Mohini4, Ila
(or Sudyumna)5, Arjuna (as Brihannala)6, and Ardhanarishvara7. Certain
deities are actively worshipped, especially by transgender
communities. Bahuchara Mata8 has devotees (including those who
self-castrate) seeking her blessings at temples like in Gujarat
through festivals, vows, and rituals. Other figures like Angalamma9
and Yellamma10 also receive devotion, especially from transgender
groups, viewing them as protective and auspicious.
4. Reality, in striking contradiction, is that those who do not
conform to conventional gender binaries are often denied even the
most basic dignity. Transgender persons continue to live on the
4. Mohini: Vishnu’s female avatar who enchanted demons during the churning of the ocean to secure the nectar of
immortality for the gods; considered the first transgender figure in texts like the Mahabharata.
5. Ila/Sudyumna: A king cursed to alternate between male and female forms monthly, marrying Buddha while female and
losing memory of the other gender.
6. Brihannala (Arjuna): Arjuna lived as a eunuch dancer in King Virata’s court during exile, embodying a third-gender
role akin to hijras.
7. Ardhanarishvara: Shiva and Parvati’s half-male, half-female form, symbolizing gender unity; sometimes linked to
transgender themes in modern interpretations.
8. A form of Shakti, is the patron goddess of hijra community.
9. A fierce guardian deity and a powerful manifestation of Goddess Parvati, holds central significance for the
Thirunangai (Tamil Transgender/transfeminine) community. (Enrouteindianhistory.com)
10. Revered Hindu mother goddess (Shakti), revered as a patron deity by the Jogappa community, a traditional
transgender group in Karnataka and Maharashtra. (Enrouteindianhistory.com)
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margins of society, facing stigma, burdened by exclusion and
systemic entrenched deprivation. Their exclusion from mainstream
stands in stark dissonance with civilisational and spiritual heritage/
mythology and scriptures which do not merely acknowledge
gender diversity; rather embrace and revere it and embody it as
a conception of identity that transcends rigid gender binaries.
They reflect an ancient acknowledgment of gender fluidity and
plurality within the Indian civilisational ethos.
5. Despite this rich cultural acknowledgment, the lived current
social reality of transgender persons in contemporary India
continues to remain one of profound disadvantage, as they still
are among the most vulnerable sections of society. Their social
exclusion, economic vulnerability, and institutional discrimination
continue to define their daily existence.
6. The above debate, therefore, raises a fundamental question
i.e. can a society that venerates gender diversity in its spiritual
imagination continue to deny even the basic human right of
dignity, equality and constitutional protection to those (TGs) who
embody that very diversity in real life?
7. The issue before us is not whether such rights exist. For,
those rights have already been accorded the highest recognition
and declared by the Apex court of the country. The real question is
whether those rights will remain lofty pronouncements in judicial
text or whether they will be translated into lived realities for those
whom the Constitution seeks to protect?
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8. With this prelude, let us now deal with the case in hand, by
examining what is impugned herein vis-a-vis the position in law.
8.1. Issuance of writ in the nature of certiorari is sought herein to
quash a notification dated January 12, 2023, issued by the
Government of Rajasthan, Department of Social Justice and
Empowerment whereby TGs have been declared as OBC without
providing any reservation as a separate category.
8.2. The petitioner further seeks directions and/or an order in the
nature of mandamus, directing the respondent to provide
horizontal reservations in the public services of the State
Government for the transgender community as per the mandate
of NALSA judgment, ibid, wherein, by way of order of the court,
the Supreme Court of India has made certain declarations and
issued directions as under:-
ORDER OF THE COURT11
135. We, therefore, declare:
135.1. Hijras, eunuchs, apart from binary genders, be treated as “third
gender” for the purpose of safeguarding their rights under Part III of
our Constitution and the laws made by Parliament and the State
Legislature.
135.2. Transgender persons’ right to decide their self-identified gender
is also upheld and the Centre and State Governments are directed to
grant legal recognition of their gender identity such as male, female or
as third gender.
135.3. We direct the Centre and the State Governments to take steps to
treat them as Socially and Educationally Backward Classes of citizens
and extend all kinds of reservation in cases of admission in educational
institutions and for public appointments.
135.4. The Centre and State Governments are directed to operate
separate HIV surveillance centres since hijras/transgenders face several
sexual health issues.
135.5. The Centre and State Governments should seriously address the
problems being faced by hijras/transgenders such as fear, shame, gender
dysphoria, social pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring one’s gender is
immoral and illegal.
135.6. The Centre and State Governments should take proper measures
to provide medical care to TGs in the hospitals and also provide them
separate public toilets and other facilities.
11. Jointly in NALSA V UOI (2014) 5 SCC 438.
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135.7. The Centre and State Governments should also take steps for
framing various social welfare schemes for their betterment.
135.8. The Centre and State Governments should take steps to create
public awareness so that TGs will feel that they are also part and parcel
of the social life and be not treated as untouchables.
135.9. The Centre and the State Governments should also take measures
to regain their respect and place in the society which once they enjoyed
in our cultural and social life.”
The petitioner thus seeks indulgence of this court in light of the
aforesaid directions given by the Supreme Court.
BRIEF FACTUAL NARRATIVE/PLEADINGS
9. Let us first briefly take note of the facts and circumstances
that have collectively led to assailing of the State Government’s
notification dated 14.02.2022 through the instant writ petition.
9.1. The petitioner, a transgender individual, is seeking a class
action in this Court to benefit her entire community. She asserts
that not only she, but the entire transgender community faces
extreme discrimination and harassment in various aspects of life,
resulting particularly from the denial of employment opportunities.
She submits that the lack of reservation for transgender
individuals in educational institutions and public employment
further marginalises them. The absence of affirmative action
perpetuates the cycle of poverty, discrimination and deprivation
faced by transgender persons.
9.2. Petitioner also highlights that many transgender individuals
out of sheer extreme poverty are forced into begging or sex work
due to the lack of employment opportunities. This violates their
fundamental rights under the Constitution, including the right to
equality and equal opportunity.
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9.3. It may be noteworthy that this petition is one of the multiple
foray of petitioner before this court seeking indulgence to address
the alleged marginalisation of the transgender community in
society.
9.4. The petitioner had previously filed a D.B. Civil Writ Petition
bearing No. 10672/2021, wherein the following prayers were
made:
A. By an appropriate writ order or direction, the Rule 7 of the
Rajasthan Police Subordinate Service Rules, 1989, be amended to
provide 1 percent horizontal reservation for persons belonging to
the transgender community.
B. To provide 1% horizontal reservation for transgender
individuals, an appropriate writ, order, or direction should be
issued to add a new entry under the form of 7(e) to the Rajasthan
Police Subordinate Service Rules, 1989.
C. Alternatively, Rule 7 of the Rajasthan Police Subordinate
Service Rules, 1989 should be quashed and subsequently
amended to include 1% horizontal reservation for transgender
individuals.
9.5. Vide a Division Bench order dated 14 February 2022 passed
by this Court above Writ Petition was disposed of. The operative
part of the said order reads as under:
“Amongst various directions, which have been issued by the
Supreme Court, in paragraph 135.3, it has been categorically
directed to the Central Government as well as State
Government to take steps to treat transgenders as socially and
educationally backward classes of citizens and extend all kinds
of reservations in cases of admission in educational institutions
and for public appointments.
Such a direction clearly casts an obligation on the part of the
State to work out reservation in such manner and to such extent
as it may decide on the basis of relevant data available. Much
time has lapsed since the directions were issued by the Supreme
Court in the case of National Legal Services Authority (supra)
and the State should have come out with proper rules,
regulations and legislations to provide special treatment as
directed by the Supreme Court.
Taking into consideration the nature of exercise required to be
undertaken by the State, we hereby direct the State to complete
the exercise expeditiously and we grant maximum period of four
months to do the needful.
As far as present selection process is concerned, we would only
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rejected only on the ground that she is third gender. Subject to
the directions as stated hereinabove, this petition is finally
disposed off granting relief to the petitioner in the manner and
to the extent as indicated above. This petition is partly allowed.”
9.6. The petitioner was later compelled to file a contempt petition
(1211/2022) before this court to enforce the aforesaid DB order
dated February 14, 2022.
9.7. During pendency of the contempt proceedings, State of
Rajasthan issued a notification dated January 12, 2023 (assailed
in this petition), English translation of which reads as under:-
“In continuation of the previous notifications issued by the State
Government, the State of Rajasthan has added the names of
various castes and classes to the list of Other Backward
Classes. This addition complies with the order of Hon’ble High
Court of Jodhpur in D.B. Civil Writ Petition No. 10675/2021,
Ganga Kumari vs. State of Rajasthan & Others. The
Transgender (Third Gender) community is now included at
serial number 92 in the authorised list of Other Backward
Classes.”
9.8. To be noted here that vide impugned notification dated
12.01.2023 (Annexure-2), the State Government ordered
inclusion of the transgenders in the category of Other Backward
Classes (OBC) at serial No. 92, stated to be in compliance with
the direction of this Court in DB Civil writ petition No. 10675/2021
Ganga Kumari v. State of Rajasthan.
9.9. Subsequently, the Division Bench of this Court (of which one
of us i.e. Yogendra Kumar Purohit, J, was a member), vide an
order dated 18 August 2023, observing that in light of issuance of
impugned notification, there is no contempt made out and thus
disposed of/dismissed the contempt petition.
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9.10. In the circumstances, petitioner filed yet another writ titled
being Ganga Kumari vs State of Rajasthan and Ors. (D.B. Civil
Writ Petition No. 8242/2024)impugning the notification dated
12.01.2023. However the same was dismissed as withdrawn with
liberty to file a fresh one by providing better particulars viz. data
regarding population of TGs and the extent of reservation provided
to the OBCs in the State of Rajasthan.
9.11. It is now stated that the office of the Registrar (General)
under the Census Commissioner conducts the census in India. The
census is conducted every ten years in India. The last census was
conducted in the year 2011; however, owing to the outbreak of
the novel COVID-19 pandemic, the 2021 census could not be
conducted. As per the 2011 census, the total population of the
State of Rajasthan is 6,85,48,437. While conducting the 2011
census, the Government of India did not enumerate the caste-wise
population, other than those of the Scheduled Castes and
Scheduled Tribes.
9.12. It is stated that the population of O.B.Cs. in the State of
Rajasthan is estimated to be 35.6 million (as per online sources).
The O.B.C. community is estimated to constitute around 52% of
the total population. The reservation provided to the Other
Backward Classes (O.B.Cs.) is 21%.
9.13. It is stated that by petitioner that as per the 2011 census,
the population of transgenders in the State of Rajasthan was
16,517. However, the current estimated population of
transgenders (now declared OBCs) is approximately 23,000.
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REPLY/ADDITIONAL AFFIDAVIT OF THE RESPONDENTS
10. Stand of the respondents is that the petitioner has failed to
present any compelling evidence or statistical data demonstrating
that separate horizontal reservations for transgender individuals
would actually benefit them in terms of proportional
representation under the existing roster system. Mere assertion
without empirical justification cannot justify judicial intervention in
policy matters.
10.1. Matters related to the structure of reservations, whether
vertical or horizontal, are exclusively within the legislative and
executive domains. Judicial intervention is limited to evaluating
policies against constitutional principles. The relief sought involves
a policy decision about reservation structuring, which is beyond
judicial review under Article 226 of the Constitution. Judicial
review can only assess the legality and constitutionality of State
actions, not re-frame or redesign policies, let alone create a new
reservation class.
10.2. Transgender individuals have already been classified under
the OBC/SEBC category, as per the Supreme Court’s declaration in
NALSA that they should be treated as “socially and educationally
backward classes.” Consequently, they are entitled to all benefits
associated with this classification, including vertical reservations in
employment and education.
10.3. Keeping in view the marginalization suffered by the
transgender community, the State has taken proactive measures,
including issuing the Transgender UtthanKosh Guidelines, 2021, to
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extend benefits such as scholarships, vocational training, medical
aid, and self-employment support. The allegation that transgender
persons are denied employment opportunities is incorrect. The
State Government has already extended multiple welfare schemes
and skill development programmes.
10.4. It is incorrect to allege that there is no reservation for
transgender persons. The State has already recognized
transgender persons as a backward class and included them in the
OBC list vide notification dated 12.01.2023, thereby entitling them
reservation in education and public employment.
10.5. For the transgender community the State Government has
already extended multiple welfare schemes and skill development
programmes. Vocational training has been imparted to 44
transgender persons through the Rajasthan Skill and Livelihood
Development Corporation, and 22 transgender persons have been
provided employment after such skill development programmes.
ADDITIONAL AFFIDAVIT OF THE RESPONDENTS
11. Another additional affidavit dated 12.11.2025 has been filed
by respondent wherein, inter alia, challenge of the notification
herein is objected stating that a civil writ petition no. 461/2025
Kiran A.R. &Ors. Vs. Union of India &Ors. came to be filed before
the Supreme Court challenging the NEET-PG 2025 admission
notice dated 16.04.2025 and information bulletin issued by the
National Board of Examination in Medical Sciences (NBEMS).
Ground taken therein, inter alia, is that the National Board of
Education in Medical Sciences (NBEMS) failed to provide horizontal
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reservation to transgenders persons in postgraduate medical
admissions and further seeking direction to provide 1% horizontal
reservation for transgender candidates across all vertical
categories in NEET-PG admission.
11.1. Hon’ble Supreme Court in the aforesaid matter vide order
dated 06.10.2025 has directed the State Governments to file their
respective affidavits indicating the time within which, the
judgment of this court in National Legal Service Authority Vs.
Union of India (supra), is translated into action by framing
necessary rules for admission to educational institutions.
11.2. Thus, the issue raised in the present writ petition for
granting relief of horizontal reservation is identical with issue
pending before the Hon’ble Supreme Court in the afore-mentioned
case. Instant writ petition is accordingly liable to be dismissed.
ARGUMENTS ON BEHALF OF PETITIONER
12. Mr. Vivek Mathur, learned counsel for the petitioner would
urge that the impugned circular is discriminatory and violative of
the petitioner’s fundamental rights guaranteed under the
Constitution because it simply places transgender persons within
the OBC category instead of granting them horizontal reservation,
thereby effectively denying them meaningful reservation benefits.
It is argued that such classification ignores situations where a
transgender person is born in a Scheduled caste/Scheduled Tribe/
Socially & Educationally Backward class (for short SC/ST/SEBC)
family. The impugned notification creates a dichotomy as-
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(i) A transgender person who belongs to the SC/ST/SEBC category
family, must choose between claiming the SC/ST/SEBC quota or
the transgender quota.
(ii) If opting for the SC/ST/SEBC quota, such transgender person
would forfeit the claim for transgender quota and must compete
within the SC/ST/SEBC category. Conversely if choosing for
transgender quota, such person would lose the pre-existing claim
under the SC/ST/SEBC quota. This is disadvantageous to the
transgenders.
(iii) Additionally, if the individual is already from the SC/ST/SEBC
category, such person would not receive any further affirmative
benefit for being a transgender.
12.1. Pursuant to the Court’s order dated 20.11.2025, an
additional affidavit has been filed on behalf of the respondents. It
shows that since the issuance of the impugned circular/notification
dated 12.01.2023, any transgender has not been benefitted by it.
It is submitted that the impugned circular is thus nothing but a
meaningless illusion for the transgender.
12.2. It is further argued by Mr. Mathur that the transgender
community cannot be treated as a caste-based group such as
SEBC and that the impugned circular/decision runs contrary to the
directions of the Supreme Court in National Legal Services
Authority v. Union of India, which recognized transgender persons
as a distinct class entitled to reservations in education and public
employment.
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12.3. Impugned circular/notification disregards the fact that
transgender individuals require exclusive reservation as separate
class.
12.4. By failing to provide horizontal reservation and instead
subsuming transgender persons within the OBC category, the
State has curtailed an important right recognized in the NALSA
judgment. The circular is legally untenable because it only creates
a sub-category within the OBC category. It is urged that
transgender persons require a distinct and exclusive form of
reservation rather than being absorbed into an already reserved
category.
12.5. Impugned circular creates administrative confusion
regarding whether transgender candidates should be considered
under a transgender category or the OBC category, thereby
frustrating the objective of reservation for transgender recognized
by the Supreme Court. It is also contended that the State failed to
recognize that transgender identity is a legitimate aspect of
human diversity and that members of the transgender community
face severe social and economic discrimination and that denial of
horizontal reservation to them perpetuates the historic
disadvantages suffered by the community.
12.6. State is required to act reasonably, rationally and fairly in
public interest. The impugned circular is arbitrary and inconsistent
with these constitutional standards. This Court must exercise its
jurisdiction as the impugned circular is against the requirement of
doctrine of affirmative action for uplifting the weak and
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downtrodden community and violates the petitioner’s fundamental
rights. The State is obligated to take affirmative action to ensure
due representation of the TG community in public services.
Despite a direct finding that TG reservation should be based on
gender identity, the Government disregarded this and instead
passed the impugned circular in circumvention and violation of the
mandate of the SC.
12.7. It is also pointed out that the State of Karnataka and Tamil
nadu have taken positive steps by granting horizontal reservation
to transgenders in public employment and educational institutions.
On that analogy, it is urged that directions be issued to the
respondents to grant similar benefits to the transgenders in the
State of Rajasthan.
ARGUMENTS ON BEHALF OF RESPONDENTS
13. Mr. Praveen Khandelwal learned AAG, appearing on behalf
of the respondents has contested the aforesai1d submissions
advanced on behalf of the petitioner. Arguments have been
addressed on the lines of the defense taken in their reply and
additional affidavit, as already referred here in above and it is
urged that the writ petition merits dismissal in light thereof.
13.1. He would also argue that due to the dismissal of the
contempt petition by this court vide order dated 18.08.2023, no
further indulgence is warranted. The court has already addressed
the matter, and there’s no evidence of any violation of the court’s
order or judgment rendered in NALSA (supra).
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13.2. The learned counsel for the respondent would also argue
that a since a writ petition under Article 32 of the Constitution of
India has been filed in the Supreme Court, seeking same/similar
relief, which is currently pending, this petition should be dismissed
on that ground as well.
DISCUSSION AND ANALYSIS
14. We have heard the opposing arguments and perused the
case file. We shall now proceed to address the issue under
adjudication herein.
15. First and foremost, adverting to the objection of respondents
to dismiss the petition in light of DB contempt order dated
18.08.2023. Having seen the said order, we find that while
dismissing the contempt petition, this Court though observed that
the impugned notification is pursuant to its earlier directions
issued vide order dated 14 February 2022, but there’s no
discussion or finding regarding it being in true compliance of the
Supreme Court judgement in NALSA (supra). In any case,
adjudication of the impugned notification ibid was neither the
prayer nor otherwise was it undertaken by this Court. Petitioner’s
case herein is that entitlement of reservation to the transgenders
as envisaged in the judgement rendered by Supreme Court in
NALSA (supra) has not been incorporated in the notification, which
was within the scope of the contempt jurisdiction.
16. Qua the objection of pendency of Writ Petition Civil No.
461/2025 Kiran A.R. & Ors. Vs. Union of India & Ors. pending
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before the Hon’ble Supreme Court, it would be apposite to have a
look at the prayer clause therein, which reads as below:
“(a) Issue an appropriate writ, order, or direction declaring the
impugned admission notice dated 16.04.2025 and the information
bulletin issued thereunder unconstitutional and in contravention
of directions of this Hon’ble Court in National Legal Services
Authority v. Union of India, (2014) 5 SCC 438.
(b) Issue an appropriate writ, order, or direction in the nature of
mandamus quashing the admission notice dated 16.04.2025 and
the information bulletin issued thereunder. Direct the
Respondents to issue a fresh admission notice that provides
compartmentalised horizontal reservation to the Petitioners (or
for transgender persons) by reserving 1% of seats for
transgender persons in each vertical category.
(c) For costs of this Petition.
(d) Pass such other order(s)/direction(s), as deemed fit and
proper by this Hon’ble Court in the facts and circumstances of
this case to ensure justice.”
17. In light of the aforementioned prayer, we believe that in the
case, ibid, the Hon’ble Supreme Court is currently addressing the
legality of admissions in medical colleges as per the notice dated
16.04.2025. Part of the relief sought in this regard concerns
whether transgender individuals should be granted 1% horizontal
reservation in each vertical category for admission in the medical
colleges.
18. Our primary concern here is the impugned State
Government notification dated 12.01.2023, which raises the
question of its alignment with the Supreme Court judgement
rendered in National Legal Services Authority (supra) and its
consequences, which, we are of the view, with due respect, was
neither under challenge in the contempt jurisdiction of this court
nor is it the subject matter of the proceedings pending before
Hon’ble the Supreme Court in the lis, ibid.
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19. We shall, therefore, now proceed to advert to merits and the
legality of the impugned notification.
20. Before we do so, it is pertinent to note that in course of the
pendency of the instant petition, this Court had directed the State
vide an order dated 20.11.2025 to provide the number of
transgender individuals who have benefited from the impugned
circular/notification ever since it has been issued. Respondents’
candid stand deposed in their additional affidavit, supra, is that
the circular under challenge has not benefited any transgender
individual till date.
20. Following the Supreme Court’s judgement in NALSA(supra),
the Government of India enacted the Transgender Persons
(Protection of Rights) Act, 2019. This Act legally mandates State
governments to take appropriate steps for the welfare of
transgender individuals. Enacted by the Parliament of India, the
2019 Act provides for the legal recognition and rights of
transgender individuals in the country and safeguards. It also
directs the appropriate government to implement dedicated
welfare measures to address the systematic discrimination faced
by transgender people in India. Chapter IV, Section 8 of the Act
clearly outlines this obligation, which is reproduced below for
ready reference:-
CHAPTER IV: WELFARE MEASURES BY GOVERNMENT
“8. Obligation of Appropriate Government:
(1) The appropriate government must ensure the full and
effective participation of transgender individuals in society and
their inclusion.
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(2) The government must implement welfare measures as
prescribed to safeguard the rights and interests of transgender
individuals and facilitate their access to government-established
welfare schemes.
(3) The government must develop welfare schemes and
programs that are transgender-sensitive, non-stigmatizing, and
non-discriminatory.
(4) The government must take steps to rescue, protect, and
rehabilitate transgender individuals to address their needs.
(5) The government must take appropriate measures to promote
and protect the right of transgender individuals to participate in
cultural and recreational activities.”
20.1. Section 8 of the 2019 Act thus mandates the government
to ensure effective societal participation and inclusion of
transgenders. Section 9 of the Act, ibid, prohibits discrimination.
21. In the aforesaid statutory backdrop, adverting back to case
in hand, in the context of Article 14 of the Constitution, the
Supreme Court’s judgement in the case of NALSA vs Union of
India(supra) has already established that transgender and gender-
diverse individuals are a distinct class of human beings, separate
from the male and female categories. Supreme Court has
mandated that steps be taken to ensure that transgender
individuals are not discriminated against or prejudiced. The
argument for horizontal reservation stems from the NALSA
Judgement (supra), which recognised transgender persons as a
distinct socio-religious and cultural group. This community must
be acknowledged as a ‘third gender’, separate from male and
female categories. Gender identity is fundamental to an
individual’s dignity, autonomy, and self-determination. The
NALSA12 Judgement inter alia held as below:
12. NALSA V UOI (2014) 5 SCC 438, para 76.
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“76. Self-identified gender can be male, female, or a third gender.
Hijras, who identify as persons of the third gender, are neither
male nor female. As mentioned earlier, gender identity refers to a
person’s internal sense of being male, female, or transgender. For
instance, Hijras don’t identify as female because they lack female
genitalia or reproductive capability. This distinction sets them
apart from both male and female genders, and they consider
themselves neither man nor woman but a “third gender.”
Consequently, Hijras belong to a distinct socio-religious and
cultural group and should be recognised as a “third gender”
separate from male and female. The State of Punjab has
incorrectly treated all transgender individuals as male, which is
not legally sustainable. In contrast, the State of Tamil Nadu has
implemented several welfare measures to protect the rights of
transgender individuals, which we must acknowledge. A few
states like Kerala, Tripura, and Bihar refer to transgender
individuals as “third gender” or “sex.” Certain states recognise
them as third category.”
22. NALSA judgment(supra) thus acknowledges the fundamental
rights of transgender persons under the Constitution, including the
right to self-determination of gender identity. The Supreme Court
judgement also recognised that transgender persons are
vulnerable and marginalized section of the society facing systemic
discrimination. Consequently, the Court issued directions to
safeguard and enforce their rights under the Constitution of India.
Supreme Court in no uncertain terms directed the Centre and
State Governments to take steps to treat TGs as socially and
educationally backward classes of citizens and extend all kinds of
reservation. Thus, there are two parts of the directions, i.e.,
A. Treat TGs as an educationally and socially
backward class;
B. Extend all kinds of reservations.
23. We are concerned here with the second part of the direction.
The basis of NALSA judgement(supra) is that the concept of
gender is not binary and that transgender persons have a right to
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self-determination. Recognition of gender identity is a
fundamental right. As noted, the respondents have issued the
impugned notification dated 12.01.2023 thereby adding the
transgenders at serial No. 92 in the authorised list of Other
Backward Classes.
24. There are no recent statistics available on the number of
transgender individuals in State of Rajasthan. The last survey
conducted on transgender people was during the 2011 Census
conducted by the Government of India. As per the website
maintained by Ministry of social justice and empowerment, the
figures placed before us from the 2011 Census are as below (all
figures are approximately):-
Total population13: 6,85,48,437
OBC population14: 3,24,23,410
Transgender population15: 16,517
The above survey predates the judgement of the Hon’ble Supreme
Court of India in NALSA (supra). The figures above are though of
year 2011, but unmistakably they demonstrate that the
transgender population constitutes an exceedingly small, indeed,
minuscule fraction of the total population i.e., 0.024 % and even
that of the OBC segment i.e., 0.046%. There is no reasonable
basis to assume that a fresh census would materially alter this
proportion.
13. Census of India (2011).
14. Handbook on Social Welfare Statistics by Ministry of Social Justice and Empowerment.
15. Ministry of Social Justice and Empowerment as per Census 2011.
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25. Transgenders are from various vertical categories, such as
unreserved/general merit or reserved categories like Economically
Weaker Sections, Other Backward Classes, Scheduled Castes and
Scheduled Tribes. We are of the opinion that, in a regime of
reservations, particularly horizontal reservations, proportionality is
not merely desirable but foundational. Any such reservation must
bear a rational nexus to the population share of the beneficiary
class. Tested on this touchstone, the proportion of the transgender
population has to be borne in mind for creation of a separate
horizontal reservation category.
25.1. However, if such a reservation were to be carved out, given
the extremely low proportion, its operational impact would be
virtually illusory, reserved roster points for transgender candidates
would arise only at long and irregular intervals. The consequence
would be systemic frustration as the eligible candidates would be
compelled to wait for inordinate periods before a single
opportunity arises. Far from advancing their cause, such a
framework would operate to their detriment, rendering the
promise of separate reservation largely symbolic and practically
ineffective.
25.2. Additionally, the implementation of such a horizontal
reservation would entail significant administrative and logistical
complications. The long-term maintenance of accurate records and
the precise calibration of roster points across multiple vertical and
horizontal categories under the rota-quota system would pose
serious challenges, increasing the risk of inconsistency and error.
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26. That said, there can be no manner of doubt that transgender
persons constitute a vulnerable and marginalized segment of
society, warranting affirmative measures. The situation is even
more acute for those born into SC/ST/SEBC families, who suffer
compounded and intersecting disadvantages. They (the
transgenders) are the victims of societal discrimination and
marginalization.
27. Having perused the impugned notification, it seems to us
that TGs belonging to SC/ST/SEBC do not get any real benefit by
being declared as OBC. In fact, a serious anomaly arises from the
impugned notification/circular dated 12.01.2023. Let us see how.
28. Prior to issuance, a transgender person born into an
SC/ST/SEBC family was entitled to reservation benefits by virtue
of birth in that category, which in many cases, may be more
advantageous than placement within the OBC category. However,
by bringing all transgender persons within Entry No. 92 of the OBC
category, the notification effectively subsumes and extinguishes
their pre-existing reservation entitlements, without even affording
them an option to choose. This results in a manifestly anomalous
and adverse consequence, whereby individuals lose more
beneficial protections previously available to them belonging to SC
or ST or SEBC category, as the case may be.
29. Arguendo, let us assume that transgender persons are given
an option to choose between (i) their pre-existing, birth-based SC/
ST/SEBC reservation benefits and (ii) the post-notification
classification under the OBC category. Even in such a scenario, the
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impugned notification confers no tangible additional benefit upon
them. It merely compels a choice between two regimes without
enhancing their substantive entitlements. The circular, therefore,
creates a clear dichotomy and results in an anomalous situation.
30. We are constrained to observe and hold that the impugned
circular is a mere facade and an eyewash. As it seems to be an
exercise in form without substance. It confers no real reservation
whatsoever; it simply parrots what already stands declared by the
Supreme Court in NALSA, namely, the recognition of transgender
persons within the fold of socially and educationally backward
classes. Such reiteration, devoid of any concrete affirmative
action, is merely illusory and falls short of the reservation
mandated by the Supreme Court.
31. The State of Rajasthan was under a clear constitutional
obligation to translate the mandate of the Supreme Court into
tangible policy by carving out a distinct and effective reservation
framework for transgender persons. That obligation has been
conspicuously abdicated. The impugned circular, far from
advancing rights, reduces a binding constitutional directive to an
empty ritual.
32. At the same time, we find considerable merit in the objection
raised by the respondents that the relief sought qua creation of
horizontal reservation for transgender persons, squarely falls
within the domain of policy formulation concerning reservation
structuring. Such matters lie beyond the permissible scope of
judicial intervention under Article 226 of the Constitution.
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32. In these peculiar circumstances, a calibrated and evidence-
based approach is imperative. Particularly, in light of the
admission by the State in its affidavit that the impugned circular
has effectively resulted in no tangible benefits to the TGs. We are
of the considered view that the State Government ought to:
(a) undertake a comprehensive and in-depth study
through a Committee comprising senior functionaries
preferably headed by the Principal Secretary, Department
of Social Welfare and Empowerment, along with eminent
social activists and representatives of the transgender
community, to assess the extent of compounded
marginalization suffered by transgender persons belonging
to SC/ST/SEBC/OBC/Open categories vis-a-vis others;
and
(b) formulate and recommend appropriate measures or
a workable framework to ameliorate this aggravated
disadvantage, with a view to enabling such individuals to
achieve substantive equality in access to public employment
and educational opportunities.
31. Upon submission of the Committee’s recommendations, the
State Government shall take an informed and appropriate policy
decision for providing reservation as per the statutory mandate
contained under Section 8 of the Act read with NALSA judgment
(supra).
32. Pending such decision, and to address the immediate
inequity, we are of the view that it is necessary to issue an interim
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direction. We feel that transgender persons belonging to
SC/ST/SEBC/OBC/open categories ought to be granted an
additional weightage of marks in matters of selection and
appointment to posts under the State Government, its
instrumentalities, public sector undertakings, and State-funded or
aided institutions, as well as in admissions to educational
institutions.
CONCLUSION
33. Accordingly, the petition is disposed of with the following
directions:
(a) The State Government shall constitute a
Committee, as indicated above, to conduct a detailed
inquiry and recommend measures to address the
aggravated marginalization of transgender persons from all
backgrounds, be it any category. The Government shall
thereafter take an appropriate policy decision based on
such recommendations.
(b) Until such policy decision is taken, transgender persons
belonging shall henceforth be granted 3% additional
weightage in the maximum prescribed marks for purposes
of selection and appointment on the posts and admission to
educational institutions under the State Government, its
instrumentalities, public sector undertakings, and State-
funded or aided institutions.
34. Before we part, we may like to mention that we are
conscious that matters related to the structure of reservations,
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whether vertical or horizontal, are exclusively within the legislative
and executive domains. Judicial intervention is limited to merely
recommending the same and not frame or redesign such policies,
let alone create a new reservation class.
34.1. Having said so, in this context, we have also gone through
the Karnataka Civil Services (General Recruitment Amendment
Rules, 2021), formulated by the Government of Karnataka to
achieve the goal as soon as possible under the Transgender Act of
2019. For ready reference, relevant part thereof is reproduced
below:
“3. Amendment of Rule 9:
In sub-rule (1) of Rule 9 of the “said rules,” after clause (1C), the
following shall be inserted:
(1D) While recruitment rules for specific services or posts may
vary, all direct recruitment must reserve one percentage of
vacancies for that method in each category of General Merit,
Scheduled Castes, Scheduled Tribes, and Other Backward Classes.
These vacancies should be filled from among transgender
candidates. This provision is subject to any general instructions
issued by the Government regarding the appointment process.
To facilitate the recruitment of transgender individuals, every
Appointing Authority must include a separate column for “Others”
in the application for Group-A, B, C, or D posts. This column
should also specify male and female genders. Additionally, the
Recruitment Authority or Appointing Authority must ensure that
transgender individuals are not discriminated against during the
selection process for any category of post.
If there are insufficient eligible transgender candidates (to the
extent of one percent), unfilled vacancies should be filled by male
or female candidates from the same category.”
We are of the view that the similar legislative exercise is what
is/was envisaged in NALSA judgment(supra) for the law makers in
the other States to replicate, mutatis-mutandis, as already done in
Karnataka. We are also informed that even Tamil Nadu has taken
positive steps towards granting horizontal reservations to
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transgenders in public employment and educational institutions.
State of Rajasthan has merely enacted the Transgender
UtthanKosh Guidelines, 2021 which are directory in nature and;
brought all transgender persons within entry no.92 (OBC
category), which neither serve any meaningful purpose nor meet
the NALSA judgment mandate.
34.2. It is thus for the law makers i.e. legislature in Rajasthan to
take note of all this and use Karnataka law as a model
statute/Rules to take appropriate steps in that direction to frame
their own law/policy, as mandated in NALSA and the Transgender
Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019).
35. With these observations/directions, the petition stands
disposed of. Any pending application, also stands disposed of.
(YOGENDRA KUMAR PUROHIT),J (ARUN MONGA),J EPILOGUE (Per: Arun Monga, J)
1. While the judgment, as above, was being finalized, but just
before its release, Parliament passed the Transgender Persons
(Protection of Rights) Amendment Bill, 2026, (yet to become An
Act as it is pending assent of the President and to be notified). It
is proposed therein that sub section (2), i.e. right to self-
perceived gender identity, in section 4 of the Principal Act shall
be omitted. Thus, the proposed Bill seeks to amend the 2019 Act
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by taking away the right to self-determination or self-
proclamation of being a third gender.
2. At the time of authoring the judgment, ibid, this Court
proceeded on the foundational premise articulated in NALSA viz.
that the right to self-identify one’s gender is an intrinsic facet of
dignity, autonomy, and personal liberty under Articles 14, 15, 16
and 21 of the Constitution. Bottomline being, selfhood is not a
matter of concession, it is a matter of right.
3. The subsequent amendment to the Transgender Persons
(Protection of Rights) Act, 2019, however, marks a departure from
that said constitutional baseline. It is now proposed that legal
recognition of gender identity shall be conditioned upon
certification, scrutiny, or other forms of administrative
endorsement. What was recognized by the Supreme Court as an
inviolable aspect of personhood now risks being reduced to a
contingent, State-mediated entitlement.
4. In this backdrop, the epilogue, therefore, is more of a caveat
that it remains open, and indeed, still incumbent upon the State of
Rajasthan to ensure that any policy framework evolved pursuant
to the directions, in the judgment above, preserves, to the fullest
extent possible, the principle of self-identification, within the
contours of the amended law, of course. The State must be
mindful that statutory developments cannot be implemented in a
manner that dilutes constitutional guarantees. The comparative
models, including those adopted by other States, may yet be
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structured in a manner that advances inclusion without subjecting
identity to impermissible constraints.
5. In the altered legal landscape, any policy framework devised
by the State must be careful and it must strive to preserve, to the
fullest extent possible, the constitutional guarantee by extending
affirmative measures of reservation. Any framework, be it
legislative or executive, the Rule of Law demands that such
measures must withstand scrutiny not merely of legality, but of
constitutional conscience. The State, as a constitutional actor, is
expected to adopt an approach that harmonizes statutory
compliance with constitutional congruity, ensuring that the rights
of transgender persons are not rendered illusory by procedural
constraints. The true measure lies in the tangible dismantling of
systemic marginalization that transgender persons continue to
endure.
(YOGENDRA KUMAR PUROHIT),J (ARUN MONGA),J
26-Devanshi/-
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